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Marradi v. K&W Realty Investment LLC

United States District Court, D. Massachusetts

September 15, 2016

Raoul Marradi, Plaintiff,
v.
K&W Realty Investment LLC, Defendant.

          ORDER ON MOTION TO DISMISS (DOC. 7)

          Leo T. Sorokin United States District Judge.

         For the reasons that follow, Defendant K&W Realty Investment LLC's Motion to Dismiss Plaintiff Raoul Marradi's Complaint is DENIED.

         I. BACKGROUND

         On January 11, 2016, Plaintiff filed a Complaint against Defendant. Doc. 1. Plaintiff, who is disabled and refers to himself as a “tester, ” claims that Defendant has discriminated against him by owning property that is inaccessible to him, in violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq.[1] Doc. 1. Plaintiff seeks injunctive relief. Id. at 1. Defendant's property is located at 684 Washington Street (“the Premises”), and presently houses a business called My Thai Vegan Café/Bubble Tea Bistro (“My Thai Café”). Id. at 2-3.

         On March 22, 2016, Defendant filed a Motion to Dismiss. Doc. 7. Defendant argues the Complaint should be dismissed for three reasons: (1) Plaintiff lacks standing to sue; (2) the Complaint fails to state a claim; and (3) Plaintiff has failed to name My Thai Café, an “indispensable party, ” as a defendant. Doc. 8.

         On March 30, 2016, Plaintiff filed a Response to the Motion to Dismiss. Doc. 9. On July 27, 2016, Plaintiff also filed a Notice of Supplemental Authorities, alerting the Court that another Judge in this District had recently denied Defendant's motion to dismiss a different case of Plaintiff's, alleging ADA violations at 682 Washington Street. Doc. 10 (discussing Marradi v. K&W Realty Inv. LLC, ___ F.3d ___, 2016 WL 3976580 (D. Mass. July 22, 2016) (Gorton, J.)).

         II. DISCUSSION

         A. Motion to Dismiss for Lack of Standing Defendant argues that Plaintiff lacks standing to sue. Doc. 8 at 4. To invoke federal jurisdiction, a plaintiff bears the “burden of establishing standing, ” by showing “(1) an injury-in-fact; (2) causation; and (3) redressability.” Steir, 383 F.3d at 15 (citations omitted). Recently, the First Circuit held that the same pleading standard necessary to state a claim to relief, following the Supreme Court's ruling in Ashcroft v. Iqbal, 556 U.S. 662 (2009), is also required to establish standing. Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st Cir. 2016). Consequently, just as a complaint must, after Iqbal, contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” 556 U.S. at 678, it must contain “sufficient factual matter to plausibly demonstrate . . . standing to bring the action.” Hochendoner, 823 F.3d at 731. “Neither conclusory assertions nor unfounded speculation can supply the necessary heft.” Id. (citations omitted).

         More specifically, to establish standing in a Title III case, “a plaintiff generally must show a real and immediate threat that a particular (illegal) barrier will cause future harm.” Disabled Americans for Equal Access, Inc. v. Ferries del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005) (citation and internal quotation marks omitted). A “disabled individual who is currently deterred from patronizing a public accommodation due to a defendant's failure to comply with the ADA and who is threatened with harm in the future because of existing or imminently threatened noncompliance with the ADA suffers actual or imminent harm sufficient to confer standing.” Id. (citation and internal quotation marks omitted). A person with a disability need not “engage in a futile gesture if such person has actual notice that [an entity] covered by [Title III] does not intend to comply with its provisions.” Id. at 65 n.7 (citation and internal quotation marks omitted).

         According to the Complaint, Plaintiff visited the Premises “for personal reasons[] and also as a ‘tester, '” and encountered “illegal barriers to access[ing]” the Premises. Doc. 1 at 2. Plaintiff states he “intends to visit the [Premises] again in the near future in order to utilize all of the goods” and services offered there, but that he “will be unable to do so” due to the barriers. Id. at 4-5. Defendant argues that these pleadings are insufficient, and Plaintiff has not “demonstrate[d] a real intent to return” to the Premises. Doc. 8 at 8. More specifically, Defendant argues that Plaintiff's allegations of intent to return are “generalized and formulaic, ” and are undermined by Plaintiff's status as a “tester” as well as by the fact that “Plaintiff has filed eighteen (18) substantially identical ADA Complaints in the past year.”[2] Id. at 6, 8. If Defendant is correct that Plaintiff has not demonstrated an actual intent to return to the Premises, then Plaintiff has not shown “a real and immediate threat that” Defendant's non-compliance with the ADA “will cause future harm” to him, and thus has not shown standing to sue under Title III. Disabled Americans, 405 F.3d at 64.

         The Court finds Plaintiff has sufficiently pleaded that he intends to return to the Premises and, thus, that he has standing. In deciding the instant Motion, the Court must accept the Complaint's “factual allegations as true and draw all reasonable inferences from those facts in favor of” Plaintiff. Saldivar v. Racine, 818 F.3d 14, 16 (1st Cir. 2016) (citation omitted). In Disabled Americans, the First Circuit found allegations by an ADA plaintiff that were nearly identical to the allegations in this case sufficient to show an intent to return to the defendant's place of business. Compare 405 F.3d at 64-65 (finding sufficient plaintiff's statement that he “intends to return to the [cruise company] Defendant's place of public accommodation and cruise vessel to avail himself of the goods and services offered therein”) with Doc. 1 at 4-5 (stating that Plaintiff “intends to visit the [Premises] again in the near future in order to utilize all of the goods” and services offered there, but that he “will be unable to do so” due to access barriers). Thus, under Disabled Americans, the pleadings in the instant Complaint are sufficient to confer standing.[3]

         Defendant suggests that Plaintiff should have to specify when in the “near future” he intends to visit the Premises again. Doc. 8 at 6. Defendant notes, according to the Supreme Court, a plaintiff's mere profession of an intent to return “some day” to a place that will allegedly be damaged, without “any specification of when the some day will be, ” does not “support a finding of the ‘actual or imminent' injury” necessary to confer standing under the Constitution. Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 565 (1992) (internal quotation marks omitted)). However, the Supreme Court has distinguished that statement in Lujan, finding that a “conditional statement[]” that a plaintiff “would visit a place but for ongoing violations . . . cannot be equated with the speculative ‘some day' intentions that were insufficient” to show standing in Lujan. Scherr v. Marriott Intern., Inc., 703 F.3d 1069, 1074 (7th Cir. 2013) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 184 (2000)) (emphases added; internal quotation marks omitted). Here, Plaintiff effectively offers such a conditional statement: he would visit the Premises but for ongoing ADA violations that bar him from access. Thus, Plaintiff's failure to specify the date he intends to return to the Premises is not fatal to standing. Indeed, specifying the date would constitute a “futile gesture, ” which Plaintiff need not “engage in, ” if Plaintiff has no reason to think that the allegedly illegal barriers to access will be removed by then. Disabled Americans, 405 F.3d at 65 n.7.

         The Court also rejects Defendant's argument that Plaintiff's status as a tester and his other recent ADA lawsuits militate against a finding that he intends to return to the Premises. As Judge Gorton recently stated, “[a] plaintiff's self-identified status as a ‘tester' may even make him more likely to return to a place of public accommodation, if only to ensure compliance with the ADA.” Marradi, 2016 WL 3976580, at *4 (citing Norkunas v. HPT Cambridge, LLC, 969 F.Supp.2d 184, 193 (D. Mass. 2013) (Young, J.)). In addition, Plaintiff has recently filed about 18 ADA complaints, which is not “such an unreasonably large number of lawsuits that it is implausible that he intends in the future to return to the establishment at issue in this case.” Id. In the alternative, even assuming Plaintiff's status as a “tester” undermines the allegation that he intends to return to the Premises, Plaintiff asserts that he visited the Premises “for personal reasons” as well, and that he intends to visit again. Doc. 1 at 2. Those assertions, which the Court must accept as true, are sufficient to show Plaintiff intends to return to the Premises and, thus, has standing to sue.

         B. Motion to Dismiss for ...


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