UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1191

GILROY J. DANIELS, SR.,

Plaintiff – Appellant,

and

JEFFREY JOEL JUDY

Plaintiff,

v.

ARCADE, L.P.,

Defendant – Appellee,

-------------------

NATIONAL FEDERATION OF THE BLIND

Amicus Supporting Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Richard D. Bennett, District Judge. 

(1:10-cv-00607-RDB)

Argued: March 20, 2012 Decided: April 24, 2012

Before KEENAN and FLOYD, Circuit Judges, and Norman K. MOON, 

Senior United States District Judge for the Western District of 

Virginia, sitting by designation.

Vacated and remanded by unpublished opinion. Judge Keenan wrote 

the opinion, in which Judge Floyd and Judge Moon joined. 
2

ARGUED: Jessica Paulie Weber, BROWN, GOLDSTEIN & LEVY, LLP, 

Baltimore, Maryland, for Appellant. Suzanne Sangree, BALTIMORE 

CITY DEPARTMENT OF LAW, Baltimore, Maryland, for Appellee. ON 

BRIEF: Brien Penn, THE LAW OFFICE OF BRIEN PENN, LLC, Glenwood, 

Maryland, for Appellant. Eve L. Hill, Gregory P. Care, BROWN, 

GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Amicus 

Supporting Appellant.

Unpublished opinions are not binding precedent in this circuit.
3

BARBARA MILANO KEENAN, Circuit Judge:

Gilroy J. Daniels, Sr. appeals from the district court’s 

order dismissing his lawsuit against Arcade, L.P. In the first 

amended complaint, Daniels and Jeffrey Joel Judy, a co-plaintiff 

who is not a party to this appeal, alleged that Arcade violated 

Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 

12181, et seq. (the ADA), by failing to provide adequate access 

for persons who require the use of wheelchairs to certain 

property purportedly owned or operated by Arcade. The district 

court held that Daniels and Judy each lacked standing because 

they failed to state plausible allegations that they suffered a 

“concrete, particularized injury,” or that such injury, if it 

had occurred, was “traceable” to Arcade’s actions. Upon our 

review of the parties’ arguments, we hold that Daniels’ 

allegations concerning injury and traceability were sufficient 

to withstand Arcade’s motion to dismiss, and we vacate the 

district court’s decision and remand for further proceedings.

I.

This case began in March 2010 when Judy, a resident of 

Florida who requires a wheelchair as his primary means of 

mobility, filed a complaint (the original complaint) against 

Arcade seeking injunctive and declaratory relief for Arcade’s 

alleged violations of the ADA with respect to the Lexington 
4

Market (the Market), in Baltimore, Maryland. The Market, which 

has been in operation for many years and includes the separate 

businesses of individual vendors, allegedly is owned or operated 

by Arcade. Daniels was not a party to the original complaint.

After Arcade filed a motion to dismiss the original 

complaint, Judy filed an amended complaint in which Daniels was 

added as a co-plaintiff. Daniels is a resident of Pasadena, 

Maryland, which is located about 20 miles from the Market. Like 

Judy, Daniels also requires a wheelchair as his primary means of 

mobility.

The amended complaint alleged that the Market, a place of 

public accommodation subject to the ADA, was in violation of the 

ADA because the property had inaccessible entry routes, 

inaccessible ramps throughout the facility, inaccessible 

restrooms, inaccessible counters, and other amenities that are 

inaccessible for persons who require the use of a wheelchair. 

The amended complaint also alleged that Arcade is the “owner, 

lessee, and/or operator” of the Market, “whose main entrance is 

located at 400 West Lexington Street, . . . but whose property 

is located between N. Eutaw St., Marion St., W. Lexington St., 

N. Greene St., and W. Saratoga St.”

With respect to Daniels, the amended complaint alleged that 

he “resides in close proximity to” the Market, and that he 

“regularly visits” the Market. The amended complaint further 
5

alleged that Daniels “intends to continue to visit the [Market] 

in the future for his shopping needs,” but that he will 

“continue to experience serious difficulty due to the barriers” 

described in the complaint. Arcade filed a motion under Rule 

12(b)(6) of the Federal Rules of Civil Procedure seeking to 

dismiss the amended complaint on the basis that Daniels and Judy 

lacked standing.1

The district court granted Arcade’s motion to dismiss, 

holding that Daniels and Judy failed to allege a “concrete and 

particularized injury,” and that they failed to allege facts 

that plausibly would suggest that any such injury was 

“traceable” to Arcade’s actions. With respect to the “concrete 

and particularized” injury requirement, the district court 

adopted a four-factor test from an unpublished decision rendered 

by an Ohio federal district court.2 See Judy v. Pingue, No. 08-

 

1 Arcade’s motion to dismiss was premised on both Rule 

12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, 

although the district court analyzed the parties’ arguments 

solely under Rule 12(b)(6). Neither party assigns error to the 

district court’s omission of a Rule 12(b)(1) analysis. 

Accordingly, we address only whether the district court erred in 

dismissing the amended complaint under Rule 12(b)(6).

2 In Pingue, the Southern District of Ohio also relied on 

unpublished district court decisions in setting forth this fourfactor test. See 2009 WL 4261389, at *2 (citing D’lil v. 

Stardust Vacation Club, No. 2:00-CV-01496, 2001 WL 1825832, at 

*3 (E.D. Cal. Dec. 21, 2001); Vaughn v. Rent-a-Center, No. 2:06-

CV-1207, 2009 WL 723166 (S.D. Ohio March 16, 2009)). We are not 

(Continued)
6

859, 2009 WL 4261389 (S.D. Ohio Nov. 25, 2009). Accordingly, 

the district court analyzed “(1) the proximity of defendant’s 

business to plaintiff’s residence, (2) the plaintiff's past 

patronage of defendant’s business, (3) the definitiveness of 

plaintiff’s plans to return, and (4) the plaintiff’s frequency 

of travel near defendant.” Id. at *2. In addition to these 

four factors, the district court added a fifth factor, the 

number of lawsuits previously filed by the plaintiffs.

With regard to Daniels, the district court held that the 

“proximity” factor weighed in his favor because he lived about 

20 miles from the Market. However, the district court held that 

the remaining factors weighed against a finding that Daniels 

suffered a concrete and particularized injury. The district 

court noted Daniels’ allegation that he “regularly visits” the 

Market, but held that Daniels’ failure to provide specific dates 

on which he previously visited the Market rendered his 

allegations vague, “cast[ed] doubt” on whether he would continue 

to patronize the Market in the future, and did not suffice to 

establish his “frequency of travel near defendant.”

The district court also noted Daniels’ statement that he 

“intends to continue to visit [the Market] in the future for his 

 

aware of any published federal appellate decisions that have 

adopted Pingue’s four-factor test.
7

shopping needs,” but held that this assertion failed to 

demonstrate the “requisite concrete and specific intent to 

return” necessary to establish standing. Finally, the district 

court held that Daniels’ “litigation history” of joining two 

other ADA complaints filed by Judy “undermine[d]” his “vague 

statements” regarding his intention to return to the Market. 

Accordingly, the district court held that Daniels lacked 

standing because he failed to allege facts suggesting that he 

was likely to return to the Market, and therefore did not 

adequately allege a “real threat of future harm.”

As an independent basis for dismissal, the district court 

also held that the amended complaint failed to allege facts 

suggesting that any injury was traceable to Arcade. In reaching

this conclusion, the district held that although the amended 

complaint alleged that Arcade was the “owner, lessee, and/or 

operator” of the Market, this allegation was insufficient in 

light of an affidavit submitted by John M. Prugh, Arcade’s 

general partner. In this affidavit, Prugh stated that Arcade 

owns the buildings located at 403, 421, and 423 West Lexington 

Street, but that Arcade does not own or lease 400 West Lexington 

Street nor does Arcade “operate” the Market. Relying on this 

affidavit, the district court concluded that Arcade could not be 

held responsible for the architectural barriers identified in 

the amended complaint. After the district court entered its 
8

order granting Arcade’s motion to dismiss, Daniels, but not 

Judy, timely filed a notice of appeal.

II.

We review de novo the district court’s decision granting 

Arcade’s motion to dismiss and, in conducting our review, we 

assume as true all well-pleaded facts and draw all reasonable 

inferences in favor of Daniels, the plaintiff. Nemet Chevrolet, 

Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 

2009). However, we will not accept as true any unwarranted 

inferences or unreasonable conclusions. Id. Instead, the 

allegations must establish a plausible claim to relief. See

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (to survive 

a motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to “state a claim to relief that is 

plausible on its face”). 

In reviewing the district court’s dismissal of the amended 

complaint on the basis that Daniels lacked standing, we observe 

that the requirement of standing is a threshold requirement 

implicating the jurisdiction of the federal courts, and is 

“perhaps the most important” condition for a justiciable claim. 

Allen v. Wright, 468 U.S. 737, 750 (1984). The standing inquiry 

ensures that a plaintiff has a sufficient personal stake in a 
9

dispute to render its judicial resolution appropriate. See id.

at 750-51.

To meet the minimum constitutional requirements for 

standing, a plaintiff must establish three elements: (1) that 

the plaintiff has sustained an injury in fact; (2) that the 

injury is traceable to the defendants’ actions; and (3) that the 

injury likely can be redressed by a favorable judicial decision. 

Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 

F.3d 387, 396 (4th Cir. 2011) (citing Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560-61 (1992)). At the pleading stage, 

general factual allegations concerning the plaintiff’s injury 

are sufficient because, in evaluating a motion to dismiss, 

courts “presum[e] that general allegations embrace those 

specific facts that are necessary to support the claim.” Lujan, 

504 U.S. at 561 (citation omitted).

To demonstrate an injury in fact, a plaintiff must suffer 

an invasion of a legally-protected interest that is concrete and 

particularized, as well as actual or imminent. Friends of the 

Earth, 629 F.3d at 396 (citing Lujan, 504 U.S. at 560). To 

satisfy the “traceability” requirement, “there must be a causal 

connection between the injury and the conduct complained of,” 

rather than the injury occurring as a result of “the independent 

action of some third party not before the court.” Lujan, 504 

U.S. at 560 (citation omitted).
10

A.

We first address Daniels’ argument that the district court 

erred in holding that he failed to allege facts demonstrating 

that he suffered an “injury in fact.” We decline at this time 

to endorse the four-factor test that the district court adopted 

from the Southern District of Ohio in Pingue. Although this 

Court often has formulated or adopted factor-based tests to 

guide our analyses, the use of this type of analysis in some 

cases, such as in the present one, overly and unnecessarily 

complicates the issue at hand. 

In this case, we simply are required to determine whether 

the amended complaint sufficiently alleges that Daniels suffered 

an injury that is concrete and particularized, as well as actual 

or imminent. With regard to the “concrete and particularized” 

prong of the “injury in fact” requirement, we conclude that 

Daniels’ allegations were sufficient to withstand Arcade’s 

motion to dismiss. Assuming that his allegations are true and 

construing all inferences in Daniels’ favor, as we are required 

to do in this context, we observe that Daniels lives near the 

Market, had visited the Market before the filing of the amended 

complaint, and in fact “regularly visits” the Market. During 

these visits, Daniels alleges, he was subject to discrimination 

within the meaning of the ADA by the following purported 

structural deficiencies of the Market: inaccessible entry 
11

routes, inaccessible ramps, inaccessible restrooms, and other 

inaccessible amenities. These alleged structural deficiencies 

excluded Daniels from, or denied him the benefits of, the goods 

and services offered by the Market’s vendors.

Because he visited the Market and encountered these 

difficulties himself, Daniels’ injury is “actual” and 

“concrete,” rather than theoretical. Moreover, the injury is 

“particularized” because the injury affected Daniels “in a 

personal and individual way.” Lujan, 504 U.S. 561 n.1.

Rather than monetary damages, the amended complaint seeks 

only declarative and injunctive relief, in addition to 

attorneys’ fees and court costs. In seeking such “prospective 

equitable relief instead of damages for a concrete past harm,” 

Daniels also must allege and prove that there is a “real and 

immediate threat” that he will be wronged again. Bryant v. 

Cheney, 924 F.2d 525, 529 (4th Cir. 1991) (citing City of Los 

Angeles v. Lyons, 461 U.S. 95, 101-03 (1983)); see also Lyons, 

461 U.S. at 111 (equitable remedy unavailable absent showing of 

irreparable injury, which requires sufficient likelihood that 

plaintiff will again be wronged in a similar way). It is this 

requirement that the district court held was lacking from 

Daniels’ allegations in the amended complaint.

Although we agree with the district court that Daniels was 

required to state a plausible allegation that there is a 
12

likelihood that he will suffer future harm, we disagree with the 

district court’s conclusion that Daniels’ allegations are 

insufficient. Daniels alleged that he “intends to continue to 

visit the [Market] in the future for his shopping needs.” We 

must accept this allegation as true for purposes of the motion 

to dismiss, and we deem the allegation plausible because Daniels 

resides in relatively close proximity to the Market. 

The district court found Daniels’ statement that he intends 

to return to the market implausible for two reasons. First, the 

district court held that Daniels’ failure to provide exact dates 

that he visited the Market in the past, and a more specific time 

at which he intends to visit the Market in the future, 

demonstrated the absence of a reasonable likelihood that he 

would return. However, we are aware of no precedent in this 

Circuit that requires this degree of specificity to survive a 

motion to dismiss, and we decline to impose such a requirement 

here.

Second, the district court held that Daniels’ litigation 

history “undermine[d]” his statements concerning his intention 

to return to the Market. However, we are not faced with the 

issue here whether a party’s extensive litigation history may be 

used to determine the plausibility of his alleged future 

intentions, because Daniels’ litigation history is scant and, 

thus, cannot have served to undermine his allegations. As the 
13

district court observed, Daniels was a party to two lawsuits 

raising claims of ADA violations in Maryland. There is no 

indication in the record that either of these two lawsuits was 

held to have been frivolous. 

“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 Constitution.” 

Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148 (1907). 

Absent a determination that Daniels has abused those privileges, 

we will not hold his past participation in the judicial process 

against him. Accordingly, we conclude that Daniels’ litigation 

history is not relevant to this case.

For these reasons, we hold that the district court erred in 

determining that Daniels failed to satisfy the “injury in fact” 

component of the standing requirement. Our conclusion is not 

altered by Arcade’s additional argument, not addressed by the 

district court, that Daniels failed to allege that he visited 

the Market before Judy filed the original complaint, to which 

Daniels was not a party. Although it is unclear whether 

Daniels’ “regular[]” visits to the Market began before the date 

of the original complaint, March 3, 2010, or instead began 

merely before the date of the amended complaint, August 9, 2010, 

we conclude that the resolution of this question is not 

necessary to the result we reach. It is undisputed that Daniels 
14

visited the Market before he became a party to this lawsuit when 

the amended complaint was filed. Under this Court’s precedent, 

“an amended pleading ordinarily supersedes the original and 

renders it of no legal effect.” Young v. City of Mount Ranier, 

238 F.3d 567, 572 (4th Cir. 2001). 

We acknowledge the cases from other courts cited by Arcade 

for the principle that a court’s jurisdiction is determined by 

the pleadings at the time the lawsuit was initiated.3 However, 

none of these cases cited by Arcade addresses the situation 

presented here, in which the sole plaintiff remaining in the 

case was not a party to the original complaint.4 Moreover, all 

 

3 See Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000); 

Coalition for ICANN Transparency Inc. v. VeriSign, Inc., 771 F. 

Supp. 2d 1195 (N.D. Cal. 2011); Doran v. Del Taco, Inc., No. 04-

046, 2006 WL 2037942 (C.D. Cal. July 5, 2006); Brother v. CPL 

Investments, Inc., 317 F. Supp. 2d 1358 (S.D. Fla. 2004); 

Brother v. Rossmore Tampa L.P., No. 03-1253, 2004 WL 3609350 

(M.D. Fla. Aug. 19, 2004); Clark v. McDonald's Corp., 213 F.R.D. 

198 (D.N.J. 2003); Ass’n for Disabled Americans, Inc., v. 

Claypool Holdings LLC, No. 00-0344, 2001 WL 1112109 (S.D. Ind. 

Aug. 6, 2001); Moyer v. Walt Disney World Co., 146 F. Supp. 2d 

1249 (M.D. Fla. 2000).

4 Arcade appropriately acknowledges in its brief a case from 

the District of Maryland, which involved a procedural history 

analogous to the present case and supports Daniels’ argument. 

See Equal Rights Ctr. v. Abercrombie & Fitch Co., 767 F. Supp. 

2d 510 (D. Md. 2010). The district court held in Abercrombie

that a plaintiff who was not a party to the original complaint, 

but who joined the case upon the filing of an amended complaint 

in which she asserted injuries that occurred between the filing 

of the original and amended complaints, had standing to pursue 

her claims. See id. at 515. The court relied on our decision 

in Young, as discussed above. See id.
15

but one of these cases was decided before the Supreme Court 

issued its opinion in Rockwell International Corp. v. United 

States, in which the Court stated that “when a plaintiff files a 

complaint in federal court and then voluntarily amends the 

complaint, courts look to the amended complaint to determine 

jurisdiction.” 549 U.S. 457, 473-74 (2007). Accordingly, even 

if Daniels had not visited the Market until the period between 

the filing of the original complaint and when he became a party 

to this case by way of the amended complaint, Daniels had 

standing to pursue, and the district court had jurisdiction to 

adjudicate, the claims alleged in the amended complaint. 

B.

We next address Daniels’ argument that the district court 

erred in holding that Daniels’ alleged injuries were not fairly 

traceable to Arcade. In reaching this conclusion, the district 

court stated that Prugh’s affidavit attested that “Arcade does 

not, in fact, own, lease or operate” the Market. Upon our 

examination of the affidavit, however, we conclude that the 

district court’s construction of the affidavit’s content is 

unwarranted.

In the affidavit, Prugh stated that “Arcade owns the 

building located at 403, 421 and 423 West Lexington Street” in 

Baltimore. Prugh further attested that “Arcade does not own or 
16

lease 400 West Lexington Street[,] [n]or does it operate the 

property commonly known as Lexington Market.” We agree with 

Daniels’ contention that these statements are “artfully worded,” 

and do not serve to disclaim Arcade’s potential ownership 

interest in the Market, or Arcade’s potential operating interest 

in the buildings that comprise the Market but which do not have 

a street address of 400 West Lexington Street.

Additionally, Prugh’s affidavit establishes that Arcade 

does in fact own the “building” located at 403, 421, and 423 

West Lexington Street. Although the mailing address and main 

entrance of Lexington Market is listed as “400 West Lexington 

Street,” there remains a dispute concerning whether the 403, 

421, and 423 West Lexington Street addresses comprise a portion 

of the Market.5 Daniels’ injury could be traceable to Arcade, 

potentially rendering it liable under the ADA, if Arcade has any 

ownership or business interest in at least a part of the Market. 

See 42 U.S.C. § 12182(a) (prohibiting discrimination on the 

basis of disability by anyone who “owns, leases (or leases to), 

or operates a place of public accommodation”). 

For these reasons, Prugh’s affidavit does not resolve the 

dispute concerning Arcade’s legal relationship to the Market. 

 

5 The amended complaint alleged that the Market was located 

“between N. Eutaw St., Marion St., W. Lexington St., N. Greene 

St., and W. Saratoga St.”
17

Accordingly, the district court erred in holding that Daniels 

lacked standing on the basis of his purported failure to allege 

adequately in the amended complaint that his injury was fairly 

traceable to Arcade’s actions.

III.

In conclusion, we hold that the district court erred in 

determining that Daniels lacked standing to pursue his claims 

against Arcade. Upon evaluating the amended complaint for 

purposes of Arcade’s motion to dismiss, we conclude that Daniels 

sufficiently alleged an “injury in fact” that was “fairly 

traceable” to Arcade’s actions. Accordingly, we vacate the 

district court’s decision granting Arcade’s motion to dismiss, 

and we remand this matter for further proceedings consistent 

with this opinion.

VACATED AND REMANDED