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Norkunas v. Sandeep Partners, LLC

United States District Court, D. Massachusetts

June 5, 2018

WILLIAM NORKUNAS, Plaintiff,
v.
SANDEEP PARTNERS, LLC, et. al., Defendants.

          MEMORANDUM AND ORDER

          Hon. Patti B. Saris, Chief U.S. District Judge

         INTRODUCTION

         Plaintiff William Norkunas brings this action alleging that the Comfort Inn in Randolph, Massachusetts, violates Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq., (“ADA”). Defendants Sandeep Partners, LLC, Jiten Hotel Management, Inc., and Jiten Holdings, Inc., which own and operate the hotel, have moved to dismiss for lack of subject-matter jurisdiction and for failure to state a claim for which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).

         After hearing, the Court DENIES Defendants' Motion to Dismiss (Dkt. No. 10).

         FACTUAL BACKGROUND

         The complaint alleges the following facts.

         Plaintiff, who had polio as a child, ambulates with the assistance of a full-length left leg brace, as well as a cane, scooter, or wheelchair. Compl. ¶ 1. Although he currently lives out of state, Plaintiff grew up in Massachusetts and returns often to visit relatives and his late wife's grave. See Compl. ¶ 2. He also comes to Massachusetts regularly in his capacity as a disability-rights advocate and ADA compliance “tester.” See Compl. ¶¶ 2, 17.

         On an unspecified date, Plaintiff visited the Comfort Inn, where he “personally observed or encountered” at least twelve ADA violations, “which were confirmed by Plaintiff's ADA expert.” Compl. ¶¶ 20-21.[1] Plaintiff alleges he personally suffered “frustration and humiliation, ” as well as an infringement of his “right to travel free of discrimination, ” as a result. Compl. ¶ 19. Because of the alleged violations, he has no reservations or concrete plans to patronize the Hotel, but has stated his intent to return once the facility is brought into compliance with the ADA. Compl. ¶¶ 13, 16.

         In addition to these facts alleged in the complaint, Plaintiff asserts in an affidavit that: (1) he stayed overnight at the Hotel on at least three occasions, most recently on June 30, 2017; (2) he comes to Massachusetts to visit family members, who live in nearby Brockton and Lowell; (3) he “personally encountered” the architectural barriers listed in the complaint; and (4) he plans to visit the hotel once those barriers are removed. Norkunas Aff. ¶¶ 3-5.

         DISCUSSION

         I. Rule 12(b)(1): Standing

         Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1), asserting that Plaintiff does not have standing to bring a Title III claim under the ADA.

         Rule 12(b)(1) motions ask a court to dismiss a case for “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Standing is among the requirements of subject-matter jurisdiction, and lack of standing may lead to dismissal under Rule 12(b)(1). See Van Wagner Boston, LLC v. Davey, 770 F.3d 33, 36 (1st Cir. 2014). The party asserting jurisdiction bears the burden of pleading sufficient factual matter to plausibly demonstrate that he has standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The “irreducible constitutional minimum of standing” has three elements: (1) injury in fact; (2) causation; and (3) redressability. Id. at 560-61. An injury in fact must be both “concrete and particularized” and “actual or imminent.” Id. at 560 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).

         A plaintiff bringing a claim under Title III of the ADA “must ‘show a real and immediate threat that a particular (illegal) barrier will cause future harm.'” Disabled Ams. for Equal Access, Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005) (quoting Dudley v. Hannaford Bros. Co., 333 F.3d 299, 305 (1st Cir. 2003)). Accordingly, a person with a disability “who is currently deterred from patronizing a public accommodation due to a defendant's failure to comply with the ADA” and is also “threatened with harm in the future because of existing or imminently threatened noncompliance with the ADA” has established an injury in fact. Id. (quoting Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1138 (9th Cir. 2002)). Showing a risk of future harm is essential because, in general, injunctive relief requires “continuing, present adverse effects” and cannot be shown by mere “[p]ast exposure to illegal conduct.” O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974). Even so, a plaintiff with a disability need not engage in a “futile gesture” to access noncompliant facilities just to establish standing. D ...


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