Kennedy v. Floridian Hotel, Inc.
| Decision Date | 27 May 2021 |
| Docket Number | No. 20-10648,20-10648 |
| Citation | 998 F.3d 1221 |
| Parties | Patricia KENNEDY, Plaintiff-Appellant, v. FLORIDIAN HOTEL, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Thomas B. Bacon, Thomas B. Bacon, PA, Mount Dora, FL, Philip Michael Cullen, III, Philip Michael Cullen, III, Chartered, Fort Lauderdale, FL, for Plaintiff-Appellant.
Kenneth Louis Minerley, Jennifer Marie Murillo-Hurtado, Minerley Fein, PA, Boca Raton, FL, for Defendant-Appellee.
Before LAGOA, HULL and MARCUS, Circuit Judges.
Patricia Kennedy ("Kennedy") appeals the district court's dismissal of her complaint against Floridian Hotel, Inc. ("Floridian"), a hotel owner and operator. Kennedy, who has a disability, alleged Floridian violated Title III of the Americans with Disabilities Act ("ADA") based on barriers to access she encountered at the hotel property (Count I) and deficiencies in its online reservation system (Count II). This is Kennedy's second ADA lawsuit against Floridian as to its online reservation system.
Early in this second lawsuit, the district court dismissed Count II for improper claim splitting, given that Kennedy had made a claim in her first lawsuit about Floridian's online reservation system. Later, after some discovery, the district court dismissed Count I with prejudice for lack of subject matter jurisdiction, concluding Kennedy did not have standing to seek injunctive relief. After careful review and with the benefit of oral argument, we affirm both dismissals by the district court, but remand for the sole purpose of the district court's revising the dismissal of Count I to be without prejudice.
In March 2018, Kennedy filed her first ADA action against Floridian (hereinafter Floridian I ).1 In her amended complaint in Floridian I, Kennedy alleged that Floridian's online reservation system, operated through the floridianhotel.com website, was not in compliance with the ADA and guidelines covering hotel reservation systems in 28 C.F.R. § 36.302(e)(1), because it failed to indicate whether hotel guest rooms, common areas, and amenities were accessible to individuals with disabilities.2 Kennedy sought declaratory and injunctive relief as well as attorney's fees and costs.
In December 2018, the district court dismissed Floridian I for lack of jurisdiction. The district court concluded Kennedy lacked standing to pursue injunctive relief under the ADA because she had failed to demonstrate a real and immediate threat of future injury. Kennedy appealed the Floridian I dismissal order, but she later voluntarily dismissed her appeal.
While the first lawsuit was pending, Kennedy filed the instant lawsuit in October 2018. The record in the instant lawsuit includes Kennedy's 2018 deposition testimony from her prior action in Floridian I and her 2019 deposition testimony and her three declarations filed in this action.
Kennedy is an individual with a disability within the meaning of the ADA. As the result of a spinal injury, she cannot walk more than a few steps or stand without assistance. She must use a wheelchair, cane, or other support. Kennedy is an ADA advocate and a "tester" who visits places of public accommodation to monitor their compliance with the ADA. The district court took judicial notice of her filing more than 250 ADA cases in the Southern District of Florida since this lawsuit was filed in October 2018.
Floridian owns and operates the Floridian Hotel (the "Hotel") in Homestead, Florida, which is a place of public accommodation under the ADA. Through its website, floridianhotel.com, and third-party websites, Floridian operates an online reservation system ("ORS") that allows individuals to book rooms and obtain information about the Hotel. Kennedy resides in Tamarac, Florida, which is about 50 to 60 miles from the Hotel.
Prior to filing Floridian I, Kennedy visited Floridian's website because she "needed to go down to Miami" to visit a friend "in the Keys" and was searching for a place to stay. At her deposition in Floridian I, she could not recall the friend's name or when she was planning to visit, and she could not provide his exact location. Kennedy cancelled the trip and did not make firm plans to reschedule it.
On October 8–9, 2018—just before filing this lawsuit—Kennedy visited the Hotel in person for the first time. Kennedy spent approximately two to three hours at the Hotel. Kennedy testified that she visited the Hotel because it was in Homestead, and that she had been trying to go to the Redlands Blues and Barbecue Festival (the "blues festival") in Homestead—which is held in April—for several years. When asked why she visited the Hotel in October if the blues festival was in April, Kennedy testified she did not recall.
On October 11, 2018, Kennedy attempted to make an online reservation at the Hotel for April 6–7, 2019. She was unable to do so and called the Hotel, which advised her that she could not book a room online that far in advance. Kennedy acknowledges that this October reservation attempt was not connected to her decision to attend the blues festival.
Kennedy never purchased tickets for the 2019 blues festival and could not remember when she first heard of it or exactly where it was held. Kennedy did not attend the 2019 blues festival due to illness. Kennedy testified that she intended to go back to the Hotel "[f]or that Blues and Barbecue thing for sure" and wanted to go in 2020, but it would depend on how she was feeling.
As of September 2018, Kennedy had not stayed at any hotel in Homestead within the past year and was unsure if she had ever stayed before at a hotel in Homestead. In her 2019 deposition, Kennedy testified that: (1) she did not visit Homestead often because it was "a ways" from her home; (2) she had not returned to the Hotel or the Homestead area since October 2018; and (3) since filing Floridian I, she had never visited her friend in the Keys, whose name she could still not remember.
In a declaration, however, Kennedy stated that she "frequently travel[s] throughout Florida including Miami-Dade County and Homestead," and that she has "been to Homestead approximately 100 times." She also stated that when she travels any distance she will "normally spend the night in local hotels."
At her deposition in this lawsuit, Kennedy testified that she keeps a list on her computer of all lawsuits in the Southern District of Florida that she has been involved in, and that the list includes an approximation of when she returned to each subject property or website. She knows to go back and check websites based on settlement agreements stored on her computer, but she has no calendar system in place reminding her to revisit. She will revisit a property when she "need[s] to."
In her declarations, Kennedy stated that as an ADA tester, she will "subsequently revisit each property or website to ascertain whether the ADA violations have been fixed." In her third declaration, Kennedy further explained that in 2019, she implemented an improved system for tracking her cases, which included the case name and number, the "name and address of the property, [the] date the suit was commenced and closed," and the fact of her return. Under this system, Kennedy stated, she was confident of her ability to ensure she returns "to absolutely every property" she sues. Also in her third declaration, Kennedy stated that although visiting the Hotel would be a futile gesture unless she was willing to suffer discrimination again, she nevertheless was planning to do so. "I will be revisiting the hotel in the near future because I said I would and because I have a system in place that ensures I will," she stated.
On October 17, 2018, Kennedy filed the current two-count complaint, seeking declaratory and injunctive relief. In Count I, she alleged Floridian violated the ADA, 42 U.S.C. §§ 12182 and 12183, based on barriers to access she encountered at the Hotel. She alleged Floridian failed to make the Hotel property accessible to individuals with disabilities by, inter alia, failing to provide sufficient accessible parking spaces, an accessible route from disabled parking spaces to the Hotel, sufficient accessible guest rooms, and a pool lift. Kennedy alleged that she planned to return to the Hotel within eight months.
In Count II, Kennedy again challenged Floridian's ORS under the ADA and 28 C.F.R. § 36.302(e)(1). She alleged that Floridian's ORS through floridianhotel.com failed to identify accessible guest rooms or provide information about accessible features at the Hotel, and additionally, did not allow for the booking of accessible rooms. Kennedy further alleged that Floridian's ORS, operated through third-party websites such as expedia.com and kayak.com, also did not comply with the ADA. Some of these third-party websites failed to identify accessible guest rooms or allow for their booking. While other websites claimed certain guest rooms were accessible, they omitted information about non-compliant features of the rooms, other barriers to access at the Hotel—such as a step blocking pool access—and the accessibility of amenities at the Hotel.
In subsequent declarations, Kennedy stated that Floridian "revised" its own website sometime after Floridian I was filed and "made various claims of accessibility" that were false and misleading. Kennedy reviewed the ORS several times but does not state when she did so. She attempted to reserve a room only on October 11, 2018, but does not state what website she used. Her complaint and declarations do not indicate when she first encountered the allegedly deficient information on floridianhotel.com or the third-party websites. Kennedy alleged that she planned to revisit Floridian's websites in the "near future" to test them for ADA compliance or reserve a guest room, but again does...
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