i please the court my name is brian coup and i represent the plaintiff appellant john nanny in this matter this matter stems from a title three americans with disabilities act my client who suffers from post polio syndrome requires a wheelchair mobility he had visited defendant's property defendant a pelleas property three separate occasions during those occasions he encountered several different types of architectural barriers prohibited by the americans with disabilities act this sidewalk route and also routes that contain excessive slopes throughout the property after he encountered these issues he filed a complaint and in this complaint he alleged that he encountered these things that he expected to return to the property in december that year and after that approximately two to three times a year after that he lives in delaware honor he has several relatives and friends that live in the baltimore area he is also a member of several nonprofit organizations related to his disability that requires him to be in the baltimore area and as you stated he is also a huge and in the first of many here to go the bathroom that's correct it provides a perfect place for him to use the restroom but also in the complaint he alleged that he intends to return to utilize all the goods and services at the property not just the rest om i think that's an important distinction the records show what the goods and services are it does not it does not record somewhere it is a shopping center and entering the property once our client went into the parking lot and encountered these barriers he has suffered injury in fact right at that moment especially since as opposed to the two hundred you know the re  restrooms in this place you don't have a good record very we don't have it in the record but we have it in the record that he stops there we don't know what's in the marketplace but we have it on the record that he uses a restroom at the marketplace so that so you so you're said there was arrested area right down the road within three or four miles of this marketplace that's correct your honor and a debt was sufficient or downwards on whether he said it was sufficient or not but he used the fact that there's a rest area close by on the interstate that wouldn't work would require him to get all thing go into the mall that's correct or what they're saying is the mall that's correct you're on your honor so why don't  your honor as a disabled person he does not need to explain his motivation for wanting to use the shopping center versus another rest area it could be because the turn to get in the shopping center is easier to do than the rest area it could be that  he knows this property better than the rest area he doesn't feel safe at the rest area there's a myriad of possibilities not relevant that's not relevant in this inquiry that goes to the credibility of the some other areas around the defendant property the case was decided twelve b one facially and because it was done  allegations should have been accepted as true in fact earlier in the opinion the district court states that and states that the intent was to return is clear and at this point i have no reason to doubt the veracity of that statement no less than one page later he goes into several reasons why he thinks that that's not true including the fact that my client had filed twelve previous cases and based on twelve previous filings filings that have never been found to be frivolous or abusive or any of that sort he decided that it's more likely that he trying to preserve attorney's fees for his attorney and he really doesn't want to go back to the property that type of analysis is completely inappropriate at this stage of the proceeding credibility analysis absolutely absolutely and in fact a couple of the cases that the district court cited they even have some analysis about that in one of the that goes to pains credibility and hence relates to the veracity rather than the sufficiency of the allegations in the complaint but as to may attack pains credibility by introducing evidence that she has fostered complaints or abuse the right to sue but that argument must be supported by appropriate evidence and it's our position that this is not the appropriate juncture for that type of argument and the court on its own made the leap of logic that since there were that's correct your honor and i think if there is a reason to it should but it was noted by this court that the right to sue and defend in the courts is one of the highest and most essential privileges of citizenship and is granted and protected by the federal when looking at some of the lower courts opinions that the four circuits analysis is still persuasive even though it is not precedential in this matter exactly it's instructive in this matter and there is a of case law in the fourth circuit concerning title three americans with disabilities act cases and so that was a good case to kind of lead us down the path of the analysis six the other point that the district court found was that there weren't enough specific facts to demonstrate immediate harm and the court compared the allegations in plaintiff's nannies complaint to the complaints and pathetic and a couple other cases however let's take a look at the allegations in this case plaintiff encountered inaccessible parking designated for disabled use throughout the property due to excessive slopes pavement in disrepair and lack of proper access files and this is the part that's different comma which caused him difficulty exiting and entering his vehicle because of the extra care needed to avoid a fall that addition makes this allegation completely distinguishable from the other two cases that the district court relied on in those two cases one did not even allege that the plaintiff encountered any of these things and merely listed them as a laundry list as deficiencies at the property the other case painting but the listed the plaintiff was a female yet they listed a male ural as a future harm that she would face that's not the case here in this case plaintiff personally encounter all the barriers to access at the property and they caused him to use greater caution so as not to tip over that is injury right there and as the supreme court said in lyons evidence of past injury presumes that the future injury will be there and however the court stated that without more facts it can only speculate as to the harm that plaintiff nanny would face if it return to the property however if the parking the the routes are all inaccessible it necessarily presumes that he's going to face the same issues when he goes back so on that issue the court heard and did not really read the allegations and instead compared them to allegations that are completely lacking in personal encounter and the type of injury that that person suffered and so it's our position that the allegation that i just read to you is sufficient to a stand a motion to dismiss on official twelve b one attack and also the allegations that he was going to go back to the property or that year and two to three times a year after that are sufficient to establish an intent to return and in fact it's our position that if those allegations were lu vs wildlife that case would get decided differently because in that case when they took deposition testimony of the plaintiffs the plaintiff said we would like to go back some day you know hopefully next year you know i would like to see the lion maybe next year that is distinguishable from the allegations we have here where we had a specific date december that he would return and specifically stated that he would return to to three times a year after that  again john nannie it's forty miles from the property you know while we're not trying to say that it matters too much of distance the case is that the fisher court sided to all concerned florida plaintiffs filing in north carolina or maryland and in luge and you had you know plaintiffs filing in america overseas in this case it's a forty mile distance we allege that he was specifically going back in a certain month and two to three times after that so it's our position that the intent to return was established at this stage of the proceedings and it was inappropriate for the judge to look at anything else and consider things outside the  good morning my name is bill sinclair silverman thompson's like in the white behalf of the early every marketplace i want to begin by addressing a few of the points that mr coo made first he focused on the specific date of return the december twenty fifth date but that date was mooted and there's a good case law to say that if in fact the date passes and the case is not been decided you cannot use it that's in the c m g bethesda case the judge issued so a couple other cases that we focused on the issue of credibility and i agree that this is a twelve b one well we filed both a trial he wanted a twenty six motion certainly judge nickerson only decided on the twelve b one and it was only official attack so this is not a factual position would be yes federal rule that evidence to a want to lousy to take judicial notice i'm not aware of any limitations on when that judicial notice can take for example that has to be a trial as opposed to a summary judgment as opposed to on the  in fact in this case yeah yeah i'm not sure that it does i think that really what the issue is because i've had i've been thinking about this and i think there's some overlap we're talking about credibility  implausibility ok we're when we're talking about whatever happened in the past whatever he may have done in the past ok we need to presume those is true if he went there three four times between june thirteen and twenty fifteen we filed it we have to take that  true because he said he has done so we cannot but maybe i can depose him later and see if he really did that and he didn't create some problems but you need to take that and judge nickerson have to take that as true it becomes i think a little bit of a different analysis we start talking about the future because that's what this is  course not possibly now of course that and i don't think that's i don't think we raise that if we did we surveyed immune to and given up judge nickerson than you're giving up the district judge he said it was partly that there was a rest area now rather i don't know that he said you know you may have read there were more recently that i did i don't know that he said it was pertinent i think that it certainly was something that he considered but i think it goes to the point i was trying to get to which is when you're talking about future harm and you're talking about applause ability versus mere possibility standard and i think that's what we have to be talking of there and i'm it's a page five sixty four where justice scalia says and the affiance profession of an intent to return the places they had visited before accept or accept or is simply not enough such someday intentions without any description of concrete plans or indeed even any specification of when the some day will be do not support a finding of the actual or imminent injury that our cases require and so judge nickerson built off of that to announce this two part test of a concrete and specific plan an actual or imminent injury and he analyzed both of those he analyzed the concrete specific plan found that it was there but then he looked to the actual you know the future injury which is which comes from the lions case the city of los angeles versus lyons case that there had to be future injury and that's what he found lacking and that's the point that i think we need to consider most closely is when we're talking about future harm and we're talking about plausibility that you have future harm because that's all we need to do at this point right right the motion to dismiss stage if you have possibly pled a future harm how what does that mean ok right if i say i'm going to do something in the future ok well you can say sure i believe sinclair that he says that but how do we had the requirement that you show the likelihood of future harm these going back i don't think you satisfied the requirement that it should a concrete specific plan and i don't think satisfy their karma that it should a future harm and i'm happy to address but i think that  little hand you need to show a concrete and specific plan i think that's what judge mots announce in the c m g bethesda case i think that's what this daniels that we're all in agreement that daniel's not published but that there is some instructive miss to judge jackson  to daniel's and that's what that's what daniel's that's how doing is approached it and i think that you know daniel's made and we put this in our braves a sensible distinction you know i live a mile from eddie's north charleston baltimore i'm going to go there all the time it's you don't you know the closer in proximity the less there is the easier it will be to play a generalized intent to return it becomes less plausible the further away you are the less likely you are to return just the mere fact that he's going to go to baltimore here i don't think we're there yet by the mere fact of allegations that he's been there in the past but for you all decide yes or own this motion you don't speculate whether he's going back and not you're required to accept this truth you statement that he's going back three to back per year he says he's going back you have to accept that is true i think that's right he's comfortable this way and we have to accept the fact he's in a wheelchair yes and he's he's apparently conflict this is a place to stop it's halfway if he's going to go to the camden yards baseball park it's half way from home right away this area is half way from home and the judge not only pointed out took judicial notice he said i directly across the street from this place and put the name of it in beers marketplace beard's he'll marketplace and numerous other rest stops located in a ro about in that context i think that you need to win if you're if you're adopting this test and you're looking at the idea that you have to show actuary and jury which is certainly a lot of case law at their support that then you and you and you and then the question becomes ok so how do i judge that at the motion to dismiss stage and i think you do that through applause ability analysis and that's the point i've not yet been able to articulate well so i hope i do so now but the idea i think with future harm is you know it's it's a hot anything's possible right theoretical physics anything's possible in the future but the question is does it go from possibility to possibility and there's a number of factors that could be considered in that close distance specific specificity i say i'm going back there december twenty third twenty seventeen that's a pretty specific allegation that you would probably need that you need to take as true and it certainly puts you more toward the possibility side of things the question that you need to decide is whether or not given the allegations in this complaint we have gone from  possibility to possibility considering these other factors that judge nickerson did it goes to i understand that it borders on credibility but i think that there's a fine line between credibility implausibility and i think that he was looking at those issues within the context of plausibility is it plausible that this gentleman who lives in dollar where who goes to baltimore maybe two or three times a year not to aberdeen remember you know the he doesn't go to averaging two or three times a year he goes to all to more two or three times a year that he's filed all these other suits for presumably the same issues all these other places along the way that he's going to stop or he could stop or he has stopped or he will stop is it plausible that in that world where he's alleged all of these were others always are the lawsuits he's going to this place honor he does not identify goods and services whatsoever it's no it doesn't but the judge took judicial notice that there was another marketplace and there's a it and the rest areas down the road you look to me like there's a lot of stuff in your outside the record that to plead that it is in fact that bathroom that i'm going to use and then you need to plead that between where i park and getting to that bathroom i encountered the slopes and the sidewalks and the inaccessibility that i have put in this complaint and that's not that hard to please i mean this is you know this is not we're not creating some herculean standard here by which we're going to throw out every title three eighty eight plaintiffs case all we're saying is a question of whether they could have done better there's a question whether this was sufficient  i understand and i would humbly security blunt well i can you know i can say i'm going to go to the valley in tonight in baltimore but you know what i don't know what's going on between now and five o'clock you know this is this is this is the point i'm trying to raise is that it's when you're talking about future conduct as opposed to past conduct i think it takes more to get you out of mere possibility and the possibility that does if i said that last night i stayed at the marriott hotel i did i say that i know i did it twenty four hours ago my car still there if i talk about wanting to do tonight it's a different thing it's possible i'm going to go you know but there may be a car wreck on the way home or maybe some then i have to do in washington d c on the way back it's possible i'm going to do this but that's not sufficient  diapers milk whatever the kids need that there's a difference between that and the giant supermarket bethany beach where we go every year ok we go there every year on vacation in august and so when you're talking about someplace that's two and a half hours away from where i live i think that it becomes more important to plead a specific date and this is i think the generalized exception that the daniels court reached the said we don't need this for factor for prong test out of a sudden discovery heigho in this case because this guy lives in close proximity it's not  generalized intent to return is more appropriate the daniels panel found when you live closer to the spot than if you live further away becomes less plausible and i'm going to go to that giant in bethany beach unless i've got other factors supported like the fact that we go there every summer the fact that it's the only supermarket in bethany beach the fact that it's got everything i need for the kids and everything else then those are the kind of facts that's go to support implausibility your daughter didn't the pulling of the reason for him to be going  direction but the question is is he going there specifically and once he's there what exactly is he doing in one of the one of his contentious one of his allegations is that he uses it to rest you know there could be some facts that support that part of rest means  wheelchair move around a little bit get the blood going you know this is this is again this is not hercules standard we're talking about to get to this pleading that's necessary but just to say i need to rest and say that and then and then make the leap that rest includes getting his wheelchair out of his car access in these inaccessible ramps i think goes a little too far daniels is not president we're going to use it there are other courts in the fourth circuit that have said we're not going to use this we're going to use this concrete specific actual eminent test i think there would be benefit to make a determination as to some different different factors in determining where they want to come out on some of these that some of the top of the four part test some of adopted this idea of concrete specific an actual evidence there's the ninth circuit in august came out with the deterrent effect test which we don't have time to get into but there are some other tests floating around there having that test i think will be a benefit and if you agree that it's the concrete specific action or imminent test i don't think the allegations in this complaint meet that test and i'm done thank you mr sinclair i'll be brief i just wanted to address a couple points that mr sinclair may just take clarification not only did plaintiff nanny allege that he was going to stop at the after de but specifically it says due to his condition plaintiff often requires places to stop to rest on tribesmen to take bathroom breaks and aberdeen provides a perfect place for them for him if that's taken as true leaving his car and he's going to face the same harm that he faced on his previous visits that he alleged clearly in the first of many complaint also mr sinclair talked about daniels and their decision in daniels the lower core granted the defendant's motion to dismiss on two reasons and one of them is because there was no concrete specific  listed in the complaint the complaint only stated that he intends to go back to arcade for his shopping needs in the future now this core decision stated that we are aware of no precedent in this circuit that requires this degree of specificity to survive motion to dismiss and we decline to impose a requirement here basically the court is saying look you don't have to say i'm going in december two thousand and fifteen or two thousand and sixty that complicates the analysis especially on a facial attack if the client or the plane of states that he is going back or if he intends to go back you have to assume that he's going back and the fact that he doesn't alleges specific time or date should not be fatal to his complaint at this stage of the proceedings now mr sinclair talked about a lot of things like we need to know is he going to a pinera is he using the bathroom is he doing this is he doing that maybe it is just waiting in his car all those are better suited for further along in the discovery process where he'll be able to send out in iraq the tories will be able to have john manning in front of him and you'll be able to ask him these questions and at that point he will know his motivations  will know the ferocity of the allegations he said yeah i'm going to the store tomorrow i put it in my complaint but you don't know if i'm going you're right i don't know what you're going but at this stage we need to assume that that's true and yeah there might be an accident and you might not go but that's something to be discovered later on in the in the process of the litigation not now especially under twelve b one facial attack when all the allegations are to be accepted as true and if  allegations are accepted to be true all the elements have been hit in this is a complaint he's been there he's faced architectural barriers he's faced the discrimination the harm he intends to go back