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Marradi v. Karoska Landing, Inc.

United States District Court, D. Massachusetts

August 27, 2018




         This case involves a claim of disability discrimination brought by plaintiff Raoul Marradi against defendants Karoska Landing, Inc., and 27 Bridge Street, LLC. Pending before the court is defendant 27 Bridge Street, LLC's motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. Given the instant motion's striking similarity to several analogs that recently foundered before other courts in this district, I have difficulty discerning its good faith basis. See Marradi v. K&W Realty Investment LLC, No. 16-cv-10038-LTS, 2016 WL 5024198 (D. Mass. Sept. 15, 2016); Marradi v. K&W Realty Investment LLC, 212 F.Supp.3d 239 (D. Mass. 2016); Melo v. South Broadway Law Realty Trust, No. 15-cv-13475-FDS, 2016 WL 393258 (D. Mass. Feb. 1, 2016). For the reasons that follow, the motion will be denied.

         I. Background

         The facts are recited as alleged in plaintiff's complaint (Docket # 1). See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 5 (1st Cir. 2011).

         Plaintiff is a Massachusetts resident who is disabled as defined by the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq. He uses a wheelchair for mobility, and is substantially limited in performing one or more major life activities, including walking, standing, grabbing, grasping and pinching. Defendant Karoska Landing, Inc., operates a franchised 7-Eleven convenience store located at 29 Bridge Street in Dedham, Massachusetts (“Facility”). Defendant 27 Bridge Street, LLC owns the building that leases space to the Facility.

         Plaintiff was unable to patronize the Facility because physical barriers prevented him from obtaining access in his wheelchair. Visiting both for personal reasons and as a “tester” for the purpose of discovering and documenting noncompliance with the ADA, plaintiff identified at least ten violations. Although he “intends to visit the Facility again in the near future, ” Compl. ¶ 15, he expects such efforts will be frustrated unless and until defendants remove the alleged physical barriers and dangerous conditions.

         In October 2017, plaintiff filed a complaint alleging violations of Title III of the ADA. In January 2018, defendant 27 Bridge Street, LLC filed a motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim.

         II. Discussion

         A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

         Defendant contends that plaintiff's claim is not justiciable because he has not established the “injury in fact” necessary to establish standing. A plaintiff invoking federal jurisdiction bears the burden of establishing standing by showing an injury in fact, causation, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The same pleading standard necessary to state a claim for relief is required to establish standing. Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st Cir. 2016). Accordingly, a complaint must contain “sufficient factual matter [accepted as true] to plausibly demonstrate . . . standing to bring the action.” Id.

         Specifically, standing in a Title III case such as this one requires that plaintiff 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). “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 omitted). See Norkunas v. HPT Cambridge, LLC, 969 F.Supp.2d 184, 191 (D. Mass. 2013) (“A risk of future harm exists where a plaintiff who has suffered an injury has a firm intention to return or where the plaintiff is being deterred from patronizing the business by the defendant's misconduct.”).

         Here, the complaint states that plaintiff “intends to visit the Facility again in the near future in order to utilize all of the goods” and services offered there. Compl. ¶ 3. “Independent of other subsequent visits for personal reasons, ” the complaint also alleges plaintiff's intent “to revisit the premises to verify its compliance.” Id. ¶ 3.

         In challenging the sufficiency of these allegations, defendant relies on factors not required for standing in this jurisdiction. Docket # 17, at 5 (citing Marradi v. Galway House, Inc., No. 13-cv-10813-RGS, 2014 WL 1454266, at *4 (D. Mass. Apr. 15, 2014), for the proposition that courts assess likelihood of plaintiff's future harm by examining “the proximity of the place of public accommodation to the plaintiff's residence; the plaintiff's past patronage of the business; the specificity of the plaintiff's plans to return; and the frequency with which the plaintiff travels near the place of public accommodation”); but see Marradi, 212 F.Supp.3d at 243 (acknowledging the factors considered in the Galway House case but noting that no court in this jurisdiction has deemed them a pleading requirement). Moreover, the ADA explicitly “negates any requirement that a disabled person engage in a futile gesture to establish the existence of a discriminatory policy or practice for purposes of bringing suit under Title III.” Disabled Americans, 405 F.3d at 65 n.7; see 42 U.S.C. § 12188(a)(1).

         Equally unavailing is defendant's argument that plaintiff's status as ADA “tester” and serial litigant renders implausible his intent to return. See Norkunas, 969 F.Supp.2d at 194 (“A plaintiff may be motivated by a desire to return to ensure compliance with the ADA; nonetheless, such a desire does not eviscerate the plaintiff's intention to return, but may very well support it.”); see also Marradi, 2016 WL 5024198, at *3 ...

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