Nanni v. Aberdeen Marketplace, Inc., 122117 FED4, 16-1638

Docket Nº:16-1638
Opinion Judge:KING, CIRCUIT JUDGE.
Party Name:JOHN NANNI, Plaintiff-Appellant, v. ABERDEEN MARKETPLACE, INC., Defendant-Appellee.
Attorney:Brian T. Ku, KU & MUSSMAN, P.A., Pembroke Pines, Florida, for Appellant. William Nelson Sinclair, SILVERMAN, THOMPSON, SLUTKIN & WHITE, LLC, Baltimore, Maryland, for Appellee. Robert W. King, Hyattsville, Maryland, for Appellant.
Judge Panel:Before TRAXLER and KING, Circuit Judges, and Raymond A. JACKSON, United States District Judge for the Eastern District of Virginia, sitting by designation.
Case Date:December 21, 2017
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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JOHN NANNI, Plaintiff-Appellant,

v.

ABERDEEN MARKETPLACE, INC., Defendant-Appellee.

No. 16-1638

United States Court of Appeals, Fourth Circuit

December 21, 2017

          Argued: September 12, 2017

         Appeal from the United States District Court for the District of Maryland, at Baltimore. William M. Nickerson, Senior District Judge. (1:15-cv-02570-WMN)

         ARGUED:

          Brian T. Ku, KU & MUSSMAN, P.A., Pembroke Pines, Florida, for Appellant.

          William Nelson Sinclair, SILVERMAN, THOMPSON, SLUTKIN & WHITE, LLC, Baltimore, Maryland, for Appellee.

         ON BRIEF:

          Robert W. King, Hyattsville, Maryland, for Appellant.

          Before TRAXLER and KING, Circuit Judges, and Raymond A. JACKSON, United States District Judge for the Eastern District of Virginia, sitting by designation.

          KING, CIRCUIT JUDGE.

         Plaintiff John Nanni - a Delaware resident who suffers from post-polio syndrome and generally uses a wheelchair - appeals from the dismissal of his civil action against Aberdeen Marketplace, Inc. According to the operative amended complaint that Nanni filed in the District of Maryland in 2015, he has encountered and will continue to encounter unlawful barriers to access at Aberdeen's Marketplace Shopping Center (the "Marketplace"), which is located in northeast Maryland. See Nanni v. Aberdeen Marketplace, Inc., No. 1:15-cv-02570 (D. Md. Nov. 5, 2015), ECF No. 5 (the "Complaint"). Those barriers - the Complaint alleges - hinder access to the Marketplace and discriminate against Nanni, in violation of the Americans with Disabilities Act (the "ADA"). Aberdeen sought dismissal of the Complaint by contending, inter alia, that Nanni's lack of standing to sue deprives the district court of subject matter jurisdiction. In May 2016, the court agreed with Aberdeen and dismissed the Complaint. See Nanni v. Aberdeen Marketplace, Inc., No. 1:15-cv-02570 (D. Md. May 4, 2016), ECF No. 12 (the "Opinion"). Nanni has appealed the standing decision, asserting that the judgment of dismissal was erroneously awarded. As explained below, we are satisfied that Nanni has sufficiently alleged standing to sue and is entitled to pursue his ADA claim. We therefore vacate the judgment in favor of Aberdeen and remand for further proceedings.

         I.

         A.

         In August 2015, Nanni initiated this civil action in the district court at Baltimore, alleging disability discrimination in contravention of the ADA and seeking declaratory and injunctive relief against Aberdeen. The Complaint identifies the essential relief that Nanni seeks as the district court's declaration that the Marketplace is in violation of the ADA, plus an injunction requiring Aberdeen to alter the Marketplace to "make it accessible to and usable by individuals with disabilities." See Compl. 5.

         Nanni's ADA claim is premised on allegations that, several times each year, he travels southwest on I-95 from his home in Delaware to Baltimore and Washington, D.C., where he attends sporting events, visits with relatives, and participates in events for the disabled. See Compl. ¶ 10.[1] The Marketplace, which is located near exit 85 on I-95 in Maryland, constitutes a place of public accommodation and provides "a perfect place" to "stop to rest on drives and to take bathroom breaks." Id. ¶¶ 9-10.2 Between 2013 and June 2015, Nanni visited the Marketplace at least three or four times, and he intends to make additional visits on his journeys to and from Baltimore and Washington. Id. ¶¶ 10, 13. Independent of Nanni's intention to return to the Marketplace as a customer, he plans to return as what the Complaint calls an "ADA tester." Id. ¶ 19.

         During his visits to the Marketplace, Nanni has "experienced serious difficulty accessing the goods and utilizing the services therein, " due to defendant Aberdeen's failure to comply with the ADA. See Compl. ¶ 11. Nanni has encountered major obstacles at the Marketplace, that is, barriers to access that pose serious difficulties for disabled individuals who rely on wheelchairs for mobility, including the following: • Parking designated for use by persons with disabilities is inaccessible "due to excessive slopes, pavement in disrepair and lack of proper access aisles";

• Curb ramps for use by persons with disabilities are inaccessible "due to excessive slopes, steep side flares, failure to provide smooth transitions, and pavement in disrepair";

• One of the sidewalk ramps causes problems for the disabled because it has "excessive running slopes"; and

• Various routes of travel about the Marketplace are inaccessible to disabled persons "due to excessive slopes and pavement in disrepair."

Id. ¶ 14.

         Each of those major obstacles and barriers to access have caused serious difficulties for Nanni. For example, the noncompliant parking spaces caused problems with entering and exiting Nanni's vehicle and required him to use extra care to avoid falling. See Compl. ¶ 14. The noncompliant curb ramps, sidewalk ramp, and routes of travel caused him serious difficulties in safely navigating and accessing the Marketplace. Id. Aberdeen's failure to comply with the accessibility requirements of the ADA have thus deprived Nanni of his right to full and equal enjoyment of the Marketplace and his right to be free from discrimination on the basis of disability. Id. ¶ 15. As the Complaint specifies, those noncompliant barriers to access remain in place. Id. ¶ 16. As a result, Aberdeen continues to discriminate against [Nanni] by failing to make reasonable modifications in policies, practices or procedures, when such modifications are necessary to provide [him] an equal opportunity to participate in, or benefit from, the goods, services, facilities, privileges, advantages, and accommodations which [the Marketplace] offers to the general public.

Id. ¶ 15.

         Notably, each of the specified barriers to access is readily removable, and removal would not impose an undue burden on Aberdeen. See Compl. ¶ 17. As the Complaint explains, a court ruling in Nanni's favor - i.e., a declaration of unlawfulness plus an injunction requiring Aberdeen to remove or modify the unlawful barriers to access and comply with the ADA - would resolve the equal access problems that have caused and otherwise will continue to cause Nanni's injuries. Id. ¶¶ 16-18.

         B.

         In response to the Complaint, Aberdeen sought its dismissal on two grounds. Aberdeen argued under Rule 12(b)(6) of the Federal Rules of Civil Procedure that the Complaint fails to state a claim upon which relief can be granted. Of relevance, Aberdeen also asserted under Rule 12(b)(1) that the district court is without subject matter jurisdiction because Nanni lacks standing to sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (explaining that, to possess Article III constitutional standing to sue, three elements must be satisfied, that is, (1) the plaintiff "must have suffered an injury in fact"; (2) "there must be a causal connection between the injury and the [defendant's] conduct"; and (3) the injury will likely "be redressed by a favorable decision"). Aberdeen specifically challenged the sufficiency of the Complaint with respect to Lujan's injury-in-fact element.

         By its Opinion of May 4, 2016, the district court dismissed Nanni's Complaint for lack of standing to sue. The Opinion recognized that, to satisfy the constitutional standing mandate, the Complaint must sufficiently allege the essential elements of standing. See Op. 4. Explaining the injury-in-fact element, the Opinion related that the Complaint must demonstrate "a concrete and particularized, actual or imminent invasion of a legally protected interest." Id. Additionally, because Nanni is seeking declaratory and injunctive relief, the Opinion recognized that the Complaint must establish "a real and immediate threat that [Nanni] will be wronged again." Id. (internal quotation marks omitted). Relying on a recent decision of the same district court, the Opinion specified that, in order to show a "real and immediate threat" of future injury, the Complaint had to allege and describe Nanni's "concrete, specific plans to return to the locus of the injury" and "indicate that [he] is likely to suffer the same injuries upon return." Id. at 5 (internal quotation marks omitted).3

         Although the Opinion recognized that the Complaint "clearly state[s] [Nanni's] intent to return" to the Marketplace, the district court dismissed on the premise that the Complaint fails to establish Nanni's likelihood of suffering future harm...

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