Harty v. W. Point Realty, Inc.

• Citation: 28 F.4th 435
• Decision Date: 18 March 2022
• Docket Number: No. 20-2672-cv,August Term 2021,20-2672-cv
• Parties: Owen HARTY, Plaintiff-Appellant, v. WEST POINT REALTY, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

28 F.4th 435

Owen HARTY, Plaintiff-Appellant,

v.WEST POINT REALTY, INC., Defendant-Appellee.^*

No. 20-2672-cv

August Term 2021

United States Court of Appeals, Second Circuit.

Submitted: October 18, 2021

Decided: March 18, 2022

Peter E. Sverd, Law Offices of Peter Sverd, PLLC, New York, NY, Thomas B. Bacon, Thomas B. Bacon, P.A., Mount Dora, FL, for Plaintiff-Appellant.

Jason Mizrahi, Joshua D. Levin-Epstein, Levin-Epstein & Associates, P.C., New York, NY, for Defendant-Appellee.

Before: Calabresi, Parker, and Sullivan, Circuit Judges.

Richard J. Sullivan, Circuit Judge:

Plaintiff Owen Harty appeals a judgment of the district court (Briccetti, J. ) dismissing his complaint for lack of subject matter jurisdiction. According to the complaint, Harty, who uses a wheelchair and is disabled, visits booking websites used by hotels to advertise their rooms so that he can determine whether the websites comply with regulations promulgated pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the "ADA"). Specifically, Harty alleges that Defendant West Point Realty, Inc.’s website does not comply with 28 C.F.R. § 36.302(e)(1)(ii), which, among other things, requires places of public accommodation that own or operate a place of lodging to "[i]dentify and describe accessible features in the hotels and guest rooms offered through [their] reservations service[s] in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs." In this case, Harty does not allege that he viewed West Point Realty's website with the intention of visiting the Holiday Inn run by West Point Realty; he merely contends that the website itself was not in compliance with the ADA when he viewed it. West Point Realty filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss the complaint, arguing that Harty had not alleged a concrete injury in fact and therefore lacked standing. The district court, considering only the allegations in Harty's complaint, and not an affidavit Harty filed in support of his opposition to West Point Realty's motion, granted dismissal.

On appeal, we are tasked with deciding whether (i) the district court erred by limiting its review to the facts alleged in Harty's complaint; (ii) Harty has properly alleged a concrete injury in fact based on the website's alleged noncompliance with the ADA; and (iii) the district court dismissed Harty's complaint with prejudice, which would have been improper pursuant to the long-established rule that dismissals for lack of jurisdiction must be without prejudice. We conclude that the district court did not abuse its discretion in considering only the facts of Harty's complaint when deciding the Rule 12(b)(1) motion, that Harty lacks standing because he has not alleged a concrete injury in fact, and that the district court did not dismiss Harty's complaint with prejudice. As a result, we AFFIRM the judgment of the district court.

I. BACKGROUND ¹

West Point Realty runs the Holiday Inn Express West Point and maintains a website with an online reservation system that the public can use to reserve guest accommodations and review information pertaining to the goods, services, and features of the hotel. Plaintiff Owen Harty, who lives in Florida and is wheelchair bound, is a self-proclaimed "advocate [for] the rights of similarly situated disabled persons" and a "tester" who monitors whether places of public accommodation and their websites comply with the ADA. App'x at 5–6. Harty visited West Point Realty's website so that he could review the accessible features at the Holiday Inn Express West Point and ascertain whether those features meet the requirements of the ADA and Harty's accessibility needs. Harty alleges that he was unable to make this assessment because West Point Realty failed to comply with the requirements set forth in 28 C.F.R. § 36.302(e) and that as a result, he was deprived of the same goods, services, and features of the Holiday Inn Express West Point available to the general public. Harty also alleges that his encounter with West Point Realty's website deprived him of information that the hotel was required to provide under § 36.302(e). Harty alleges that in the near future he intends to revisit West Point Realty's website to test it for compliance with § 36.302(e) and possibly to use the website to reserve a guest room at the Holiday Inn Express West Point.

Harty sued West Point Realty for (1) injunctive relief pursuant to Title III of the ADA; (2) a declaratory judgment that West Point Realty is in violation of Title III of the ADA; (3) damages pursuant to New York State Executive Law § 296 ; and (4) attorneys’ fees, costs, and litigation expenses. West Point Realty filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that Harty lacked standing, and pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Harty had failed to state a claim. When Harty filed his opposition brief, he argued that his pleadings were sufficient. But to support his opposition brief, Harty also submitted an affidavit that included various averments intended to bolster his case for standing.

The district court issued an opinion and order concluding that Harty lacked standing and granting West Point Realty's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). In deciding the motion, the district court did not consider the affidavit Harty submitted in support of his opposition brief because West Point Realty had made a facial challenge to the district court's subject matter jurisdiction. The district court entered its judgment on August 10, 2020. Harty filed a timely notice of appeal the following day.

II. DISCUSSION

A. The District Court Did Not Abuse Its Discretion When It Ruled on West Point Realty's Motion Without Considering the Affidavit Harty Filed with His Opposition Brief

We have recognized that "[a] Rule 12(b)(1) motion challenging subject matter jurisdiction may be either facial," i.e., based solely on the allegations of the complaint and exhibits attached to it, "or fact-based," i.e., based on evidence beyond the pleadings. Carter v. HealthPort Techs., LLC , 822 F.3d 47, 56 (2d Cir. 2016). But while a district court "may refer to evidence outside the pleadings" when resolving a 12(b)(1) motion, Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) ; Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L. , 790 F.3d 411, 417 (2d Cir. 2015), it is not invariably required to consider such evidence, see Carter , 822 F.3d at 56–58. It is only where "jurisdictional facts are placed in dispute" that the court has the "obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits." Tandon v. Captain's Cove Marina of Bridgeport, Inc. , 752 F.3d 239, 243 (2d Cir. 2014) (internal quotation marks omitted); LeBlanc v. Cleveland , 198 F.3d 353, 356 (2d Cir. 1999). When the extrinsic evidence submitted by the parties does not controvert the material allegations of the complaint, it is not error for the district court to base its ruling solely on the allegations of the complaint, and we will review the district court's dismissal as if it were based on a facial challenge. See Carter , 822 F.3d at 57.

While we have not previously articulated the standard of review for a district court's decision to disregard extrinsic evidence when deciding a Rule 12(b)(1) motion, Supreme Court caselaw makes clear that district courts have broad discretion when determining how to consider challenges to subject matter jurisdiction. See Gibbs v. Buck , 307 U.S. 66, 71–72, 59 S.Ct. 725, 83 L.Ed. 1111 (1939) ("As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court."); see also Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 774 (11th Cir. 2010) (W. Pryor, J., concurring) ("The precedents of the Supreme Court ... have for several decades granted district courts wide discretion in determining how to resolve questions of jurisdiction." (citing U.S. Catholic Conference v. Abortion Rights Mobilization, Inc. , 487 U.S. 72, 79, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988) ; Oppenheimer Fund, Inc. v. Sanders , 437 U.S. 340, 351 n.13, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978) ; Gibbs , 307 U.S. at 71–72, 59 S.Ct. 725 )). We, too, have recognized that a district court has "considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction."

APWU v. Potter , 343 F.3d 619, 627 (2d Cir. 2003) (emphasis added) (internal quotation marks omitted). The leading treatises on federal civil procedure agree. See, e.g., 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (3d ed. 2021) ("District courts have broad discretion to consider relevant and competent evidence on a motion to dismiss for lack of subject matter jurisdiction that raises factual issues."); 2 James Wm. Moore et al., Moore's Federal Practice § 12.30 (3d ed. 2021) ("The district court also has broad discretion whether to allow discovery as to facts bearing on jurisdiction.").

There is, however, a limit to that discretion. Where a party offers extrinsic evidence that contradicts the material allegations of the complaint, we have suggested that it would be error for the district court to disregard that extrinsic evidence. See Carter , 822 F.3d at 57 ; Tandon , 752 F.3d at 243. This limit tracks our abuse of discretion standard, which states that a district court abuses its discretion when "its conclusions are based ... on a clearly erroneous assessment of the evidence." Crescent Publ'g Grp., Inc. v. Playboy Enters., Inc. , 246 F.3d 142, 146 (2d Cir. 2001) (internal quotation marks omitted). Accordingly, we conclude that abuse of discretion is the proper standard of review for a...