Betancourt v. Federated Dept. Stores

• Decision Date: 10 August 2010
• Docket Number: Civil Action No. SA-09-CA-856-XR
• Citation: 732 F.Supp.2d 693
• Parties: Guadalupe BETANCOURT, Plaintiff, v. FEDERATED DEPARTMENT STORES, Defendant.
• Court: U.S. District Court — Western District of Texas

732 F.Supp.2d 693

Guadalupe BETANCOURT, Plaintiff,

v.FEDERATED DEPARTMENT STORES, Defendant.

Civil Action No. SA-09-CA-856-XR.

United States District Court,

W.D. Texas,

San Antonio Division.

Aug. 10, 2010.

Pete Marlin Monismith, Thomas B. Bacon, P.A., Apollo, PA, for Plaintiff.

Paul E. Hash, Rachel D. Ziolkowski, Jackson Lewis LLP, Dallas, TX, for Defendant.

ORDER

XAVIER RODRIGUEZ, District Judge.

On this date, the Court considered Defendant Macy's West Stores, Inc.'s ¹ Motion to Dismiss (docket no. 8), and the Response thereto.

I. Background

Plaintiff Guadalupe Betancourt, a Kansas resident, filed her original complaint against Defendant Federated Department Stores on October 20, 2009, seeking declaratory and injunctive relief, attorney's fees, litigation expenses, and costs under Title III of the Americans with Disabilities Act ("ADA"). Plaintiff is mobility impaired and uses a wheelchair. She alleges that she visited the Macy's store ("the property"), located in Ingram Park Mall in San Antonio, Bexar County, Texas, and plans to return there in the future. Plaintiff alleges that, when visiting the property, she encountered architectural barriers that discriminate against her on the basis of her disability and have endangered her safety. Plaintiff contends that she has suffered and will continue to suffer injury until Defendant is compelled to make its property ADA compliant.

After Plaintiff filed her Complaint, Defendant filed a motion to dismiss, arguing that the Complaint should be dismissed under Rule 12(b)(1) for lack of jurisdiction or, in the alternative, under Rule 12(b)(6) for failure to state a claim. Specifically, Defendant asserts that Plaintiff lacks standing because she cannot demonstrate an injury in fact given that Plaintiff has failed to establish "that there is a realistic likelihood she will return to the subject property." Defendant also asserts that Plaintiff's Complaint is mere boilerplate language that lacks sufficient factual detail to state a claim. Defendant complains that paragraph 10 of the Complaint, which identified the alleged ADA violations, is composed of legal conclusions. For example, though it asserts that certain parkingspaces violate the Americans with Disabilities Act Accessibility Guidelines ("ADAAG"), it fails to identify the location of these spaces. Defendant moves the Court to either dismiss the Complaint or require Plaintiff to file an Amended Complaint to address the alleged deficiencies.

In response to Defendant's motion, Plaintiff both filed a response (docket no. 11) and an Amended Complaint (docket no. 12).² In the Amended Complaint, Plaintiff, individually and on behalf of all other individuals similarly situated, again seeks declaratory and injunctive relief, attorney's fees, and costs pursuant to Title III of the ADA. She alleges that she is mobility impaired and uses a wheelchair. ¶ 1. Plaintiff alleges that "Defendant has floor, display, and counter plans, policies and specifications common to all stores nationally which cause each store to violate the requirements of the ADA by narrowing spaces between displays to prevent wheelchair passage and by providing counters with excessive height." ¶ 3g. In paragraph 6, Plaintiff alleges:

Plaintiff has visited the property which forms the basis of this lawsuit and plans to return to the property to avail herself of the goods and services offered to the public at the property, and to determine whether the property has been made ADA compliant. The Plaintiff has encountered architectural barriers at the subject property which discriminate against her on the basis of her disability and have endangered her safety. These barriers also prevent Plaintiff from returning to the property to enjoy the goods and services available to the public. Plaintiff is also a tester for the purpose of asserting her civil rights and monitoring, ensuring, and determining whether places of public accommodation are in compliance with the ADA.

¶ 6. Plaintiff also alleges that she "has suffered and will continue to suffer direct and indirect injury as a result of the Defendant's discrimination until the Defendant is compelled to comply with the requirements of the ADA." ¶ 7. Further,

Plaintiff has a realistic, credible, existing and continuing threat of discrimination from the Defendant's non-compliance with the ADA with respect to this property as described but not necessarily limited to the allegations in paragraph 10 of this Complaint. Plaintiff has reasonable grounds to believe that she will continue to be subjected to discrimination in violation of the ADA by the Defendant. Plaintiff desires to visit Macy's at Ingram Park Mall not only to avail herself of the goods and services available at the property but to assure herself that this property is in compliance with the ADA so that she and others similarly situated will have full and equal enjoyment of the property without fear of discrimination.

¶ 9. In paragraph 10, Plaintiff alleges that a preliminary inspection has revealed violations with regard to parking, entrance access and path of travel, access to good and services (specifically, dressing rooms, counter height, and lack of signage), and restrooms. ¶ 10. Plaintiff alleges that she "and all other individuals similarly situated, have been denied access to, and havebeen denied the benefits of services, programs and activities of the Defendant's buildings and its facilities, and have otherwise been discriminated against and damaged by the Defendant because of the Defendant's ADA violations." ¶ 11. In paragraph 12, Plaintiff alleges that Macy's has discriminated by failing to correct architectural barriers, failing to reasonably modify policies and procedures, and failing to provide auxiliary aids and services. ¶ 12.

The Amended Complaint did not provide more factual detail than the original Complaint. Rather, it primarily added allegations intended to address Macy's assertion that Plaintiff lacks standing, including that Macy's has a policy or practice of discriminating against disabled persons who must travel long distances to visit a Macy's store. ¶ 3. Plaintiff alleges that "Macy's discriminates against and deprives disabled patrons of their civil rights accorded under the ADA unless such patrons have made a long term plan many months in advance to attend a particular Macy's store on a specified day" and that Macy's requires disabled patrons to visit a Macy's store multiple times "before their rights vest." ¶ 3.

Though the Amended Complaint did not provide additional factual details, Plaintiff's Response to the Motion to Dismiss, accompanied by Plaintiff's Affidavit, does. The Affidavit states that Plaintiff has cerebral palsy, cannot walk, and must use a wheelchair, thus establishing that she has a disability for purposes of the ADA. Plaintiff attests that she visited the Macy's property on March 29, 2009, and encountered a number of architectural barriers, which are listed and accompanied by photographs. She states, "I plan to re-visit the Austin and San Antonio area in the summer of 2011 when I intend go back to see my family. I also intend to visit the area to further survey places of public accommodations, monitor ADA compliance and assert my civil rights." Last, she states,

I am aware that it would be a futile gesture to visit Defendant's facility unless and until it is brought into compliance with the Americans Disability Act [ sic ]. I intend to return to Defendant's property next summer for a planned family visit, but I have no desire to suffer further discrimination. Presently, I am aware that I am being denied the opportunity to visit Defendant's property and enjoy the same goods, advantages, benefits and services available to the non-disabled public. I am aware that I presently lack the civil right to visit Defendant's property free of discrimination. I do not know when the Defendant will fix its ADA violations, and therefore am prevented by Defendant from making plans to visit its premises and shop again at its facility. As soon as I learn that Defendant is compliant with the ADA, and that I have the opportunity to visit the premises free of discrimination, I will visit the property.

Defendant has filed an Answer to the Amended Complaint (docket no. 13). Therein, Macy's admits that it operates the store in Ingram Park Mall but otherwise denies Plaintiff's allegations. In its first affirmative defense, Macy's continues to assert that Plaintiff lacks standing to bring these claims.

II. Standard of Review

Defendant moves to dismiss pursuant to Rule 12(b)(1) based on Plaintiff's asserted lack of standing. The Court must dismiss a cause for lack of subject matter jurisdiction "when the court lacks the statutory or constitutional power to adjudicate the case." See Home Builders Ass'n of Mississippi, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998). In deciding a motion to dismiss pursuant toRule 12(b)(1), the Court may consider: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts, plus the Court's resolution of disputed facts. Freeman v. United States, 556 F.3d 326, 334 (5th Cir.2009). When a motion to dismiss is based on the lack of jurisdiction on the face of the complaint, the plaintiff is left with safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised-the court will consider the allegations in the plaintiff's complaint as true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981).

"[T]he irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). These elements are "(1) an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; and (3) the likelihood...