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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-22917-CV-WILLIAMS

 

JAMES WATSON,

 

Plaintiff,

 

v. 

 

LEMONGRASS RPP LLC, 

 

Defendant.

__________________________________________/

 

ORDER

THIS MATTER is before the Court on Magistrate Judge Lisette M. Reid’s Report 

and Recommendation (DE 40) (“Report”) on Defendant Lemongrass Rpp LLC’s

(“Defendant”) Motion to Dismiss (DE 20) (“Motion”).1 In the Report, Magistrate Judge 

Reid recommends that the Court deny Defendant’s Motion. (DE 40 at 1.) Defendant filed 

Objections to the Report. (DE 43.)

I. BACKGROUND

Plaintiff James Watson (“Plaintiff”) brings this case against Defendant under Title 

III of the Americans with Disabilities Act of 1990 (“ADA”), alleging that Defendant’s mobile 

website fails to comply with the ADA. (DE 12.) Defendant moves to dismiss the Amended 

Complaint for lack of subject matter jurisdiction and for failure to state a claim. (DE 20.)

Defendant argues, in relevant part, that Plaintiff has no standing to bring suit under the 

ADA because he has not established an injury-in-fact and that Plaintiff cannot establish 

1 On January 9, 2023, the Court referred Defendant’s Motion to Dismiss to Judge Reid 

for a report and recommendation. (DE 22.)

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a prima facie case under the ADA because he was not denied “full and equal use.” (Id.) 

Also, Defendant asserts that “the website is now fully compliant with Title III of the ADA.” 

(Id. at 14–15.) In the Report, Judge Reid recommends that the Court deny the Motion to 

Dismiss because Plaintiff sufficiently established standing to seek injunctive relief and 

adequately stated a claim of an ADA Title III violation. (DE 40.) 

II. DISCUSSION

Defendant’s main objections are that, in the Report, Judge Reid failed to consider 

Defendant’s factual challenge to subject matter jurisdiction and the finding that there is 

facial standing is erroneous; and that Judge Reid failed to consider that “there is no 

testimony from the Plaintiff that the Plaintiff has ever tried to access the website since the 

one time Plaintiff did so well before suit was filed.” (DE 43.) Additionally, Defendant argues 

that Judge Reid erroneously relied on the Amended Complaint when the initial Complaint 

controls for a standing analysis. (Id.) Even to the extent that Defendant’s objections may

have some merit, the Court’s conclusion is the same as Judge Reid’s: Defendant’s Motion 

to Dismiss should be denied.

“A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack of 

subject matter jurisdiction by either facial or factual attack.” Stalley ex rel. U.S. v. Orlando 

Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (citation omitted). “A 

facial attack on the complaint requires the court merely to look and see if the plaintiff has 

sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his 

complaint are taken as true for the purposes of the motion.” Id. at 1232–33 (citation 

omitted). “By contrast, a factual attack on a complaint challenges the existence of subject 

matter jurisdiction using material extrinsic from the pleadings, such as affidavits or 

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testimony.” Id. at 1233 (citation omitted). “In the face of a factual challenge to subject 

matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists” by a 

preponderance of the evidence. OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 

2002); Eldridge v. Pet Supermarket Inc., 446 F. Supp. 3d 1063, 1067 (S.D. Fla. 2020). 

When subject matter jurisdiction is predicated on factual attack, “the trial court is free to 

weigh the evidence and satisfy itself as to the existence of its power to hear the case.”

Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (quoting Williamson v. Tucker, 

645 F.2d 404, 412–13 (5th Cir. 1981)).

Judge Reid was correct in her conclusion that “Plaintiff has sufficiently established 

standing to seek injunctive relief.” (DE 40 at 6.) As explained in the Report, Plaintiff alleges 

“(1) an ‘injury in fact’ that is both ‘concrete and particularized’ and ‘actual or imminent,’

2

(2) a ‘casual connection between the injury and the conduct complained of,’ and (3) an 

injury that is ‘likely’ to be “redressed by a favorable decision.” (DE 40 at 4–5 (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citation omitted)).) Additionally, 

Plaintiff sufficiently satisfies the factors for standing set forth in Houston v. Marod 

Supermarkets. (DE 40 at 5–10.)

2 Yesterday, the Eleventh Circuit vacated its opinion in Laufer v. Arpan LLC, 29 F.4th 

1268 (11th Cir. 2022) due to an issue of mootness unrelated to the instant matter. Laufer 

v. Arpan LLC, No. 20-14846, 2023 WL 5209551 (11th Cir. Aug. 15, 2023). Nevertheless, 

the Court does not believe this development divests Plaintiff of standing or invalidates the 

Report. In the Report, Judge Reid specifically states that “Laufer is . . . distinguishable” 

and that “while Laufer provides some guidance, this Court must consider other factors in 

determining whether Plaintiff has shown future injury.” (DE 40 at 7.) Moreover, Sierra v. 

City of Hallandale Beach, 996 F.3d 1110 (11th Cir. 2021), Houston v. Marod 

Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013), Gomez v. Miami Int’l Univ. of Art & 

Design, Inc., 2022 WL 1773883, at *1 (S.D. Fla. June 1, 2022), and other decisions cited 

in the Report remain good law within this Circuit.

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Defendant’s objections to these findings are unpersuasive. First, Defendant

seemingly ignores binding and persuasive case law within this Circuit, and instead relies 

on case law from other jurisdictions. (DE 43 at 6.) Additionally, Defendant erroneously 

contends that Judge Reid “misapplied” the Houston factors. (Id. at 7.) Rather, it is 

Defendant who misapplied the factors. As conceded in the Report, “the Houston factors . 

. . do not fit comfortably with cases involving inaccessible websites . . . and courts must 

consider the totality of the circumstances.” (DE 40 at 9 (citing Gomez, 2022 WL 1773883, 

at *3.) Consequently, Judge Reid considered multiple factors, including Plaintiff’s 

allegations that he will return to the website monthly, Plaintiff’s stated purpose for 

accessing the website, the effect on Plaintiff considering his inability to access the 

website, and the distance from Plaintiff’s home to the Defendant restaurant. (Id. at 8–10.) 

Thus, viewing the totality of the circumstances, Judge Reid concluded that Plaintiff 

adequately alleged standing at this stage of the proceeding.3 (Id. at 10.)

Next, Defendant argues that Judge Reid improperly conducted a facial analysis of 

standing where a factual analysis of standing was appropriate. (DE 43 at 4.) Defendant 

contends that had Judge Reid considered Defendant’s factual attack on standing she 

would have concluded that the “suit is moot, because there are no current sections of the 

website that are noncompliant.” (Id.) The Court disagrees. Defendant’s assertion that its 

website is compliant conflicts with Defendant’s previous statements regarding compliance 

and Plaintiff’s evidence in opposition. A review of the “material extrinsic from the 

3 Defendant argues that Plaintiff has not alleged standing because there is no testimony 

from Plaintiff that he has tried to access the website since the one time he did so before 

this lawsuit was filed. (DE 43 at 4, 6.) However, Defendant cites no law in support of this 

argument. Additionally, this issue is not a factor under Houston or other binding 

precedent.

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pleadings” demonstrates that Defendant alternates between the claim that its website 

was compliant at the time the suit was filed and that the website was fixed after the suit 

was filed. (Compare DE 20-1 at 2 (“www.lemonsgrassasianbistro.com [sic] passed the 

audit and is in full compliance with Title III of the ADA.”), and DE 20-2 at 1–2 (“When I 

learned of the suit, I decided to perform an audit of the website . . . and the AccessiBe 

audit showed that https://lemongrassasianbistrobocaraton.com passed the audit and is, 

therefore, according to AccessiBe, in full compliance with Title III of the ADA.”), with DE 

20 at 14 (“the website is now fully compliant with Title III of the ADA.”) (emphasis added), 

and DE 26 at 3 (“the website was fixed.”), and DE 43 at 3 (“there are no current sections 

of website noncompliant with the ADA”) (emphasis added).) 

Defendant’s two versions of events conflict with Plaintiff’s assertion that, at the time 

the suit was filed, the website was noncompliant with the ADA and continues to be 

noncompliant with the ADA. (DE 124 (alleging noncompliance with the ADA); DE 36-1 

(“On August 15, 2022, I completed the initial audit and provided a report to Mr.

4 Defendant argues that the Report errs by evaluating the Amended Complaint for 

standing when the original Complaint controls. (DE 43 at 10.) Defendant’s argument is 

incorrect. See Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991) (assessing 

standing requirements based on allegations made at the time the second amended 

complaint was filed); Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1239 (11th Cir. 

2000) (stating that plaintiff’s amended complaint “cured the defect about standing in the 

original complaint”); Desue v. 20/20 Eye Care Network, Inc., 2022 WL 796367, at *3 (S.D. 

Fla. Mar. 15, 2022) (“[U]pon examination of the First Amended Complaint, Plaintiffs have 

satisfied the requirements for Article III standing.”). Likewise, parties are able to cure 

standing deficiencies through an amended complaint. See Sierra Club v. Morton, 405 

U.S. 727, 735 n.8 (1972) (inviting the party to amend its complaint to better plead 

standing); see also Miccosukee Tribe Of Indians Of Fla v. United States, 574 F. Supp. 2d 

1360, 1367 (S.D. Fla. 2008). Thus, to the extent that Defendant is arguing that standing 

cannot be assessed based on the Amended Complaint, the Court disagrees.

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Cunningham, describing barriers that exist at the Defendant’s website that prevent access 

to Defendant’s public accommodation. On November 10, 2022, I did a review of 

Defendant’s website to check whether, the issues found on the initial audit that prevent 

access to Defendant’s public accommodation, have been fixed, and found that all five 

issues from the first audit were still present.”).) Because of the discrepancy between 

Defendant’s own allegations and Plaintiff’s and Defendant’s positions, the Court agrees 

with Judge Reid’s ultimate conclusion that the Amended Complaint should not be 

dismissed. Cf. Kennedy v. T Old Town, LLC, 2018 WL 11222904, at *3 (M.D. Fla. June 

1, 2018) (weighing, in mootness analysis, the fact that plaintiff’s “response does not

allege that the Website is currently noncompliant”) (emphasis added). Finally, even if 

Defendant has fixed the noncompliant sections on its website, Plaintiff is seeking an 

injunction remedying past and future noncompliance. (See DE 12 (“Plaintiff . . . requests 

the following injunctive and declaratory relief: . . . The Court enter an Order directing 

Defendant to continually update and maintain the mobile website to ensure that it remains 

fully accessible to and usable by visually impaired individuals.”).) Because “amending the 

website to fix ADA violations does not moot the injunction to the extent it seeks to require 

a party to maintain its website in compliance with the ADA,” there still exists a live 

controversy. Kennedy v. Floridian Hotel, Inc., 2018 WL 10601977, at *3 n. 3 (S.D. Fla. 

Dec. 7, 2018) (citation omitted); Haynes v. Hooters of Am., LLC, 893 F.3d 781, 784 (11th 

Cir. 2018) (“[E]ven if Hooters’ website becomes ADA compliant, Haynes seeks injunctive 

relief requiring Hooters to maintain the website in a compliant condition. Thus, 

notwithstanding the fact . . . that the Gomez Settlement Agreement supplies Haynes with 

much of the relief he requested, there is still a live controversy about whether Haynes can 

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receive an injunction to force Hooters to make its website ADA compliant or to maintain 

it as such. Therefore, this case is not moot.”). This conclusion is not disturbed by the fact 

that Defendant allegedly entered into a contract with a third party to keep its website 

compliant. (See DE 43 at 3); Haynes, 893 F.3d at 784 (“Hooters’ assurance to an 

unrelated third party to remediate its website does not alone moot Haynes’ claims for 

relief.”).

III. CONCLUSION

Accordingly, upon an independent review of the Report, the record, and applicable 

law, it is ORDERED AND ADJUDGED that:

1. The Report (DE 40) is AFFIRMED AND ADOPTED.

2. Defendant’s Motion (DE 20) is DENIED. 

3. Defendant shall file its answer to the Amended Complaint within fourteen (14) 

days of the date of this Order. See Fed. R. Civ. P. 12. 

DONE AND ORDERED in Chambers in Miami, Florida, this 16th day of August, 

2023. 

 

 

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