Defendant’s Motion to Dismiss 

Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)

And Motion for More Definite Statement

(Kelso v. Reid’s Appliance)

Page | 1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

ALLEN KELSO §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. 2:22-CV-00026-Z

§

REID’S APPLIANCE SERVICE, INC. §

And THE JIM AND SHARYN REID §

IRREVOCABLE TRUST §

§

Defendants. §

DEFENDANT REID’S APPLIANCE SERVICE, INC.’S MOTION TO DISMISS 

PURSUANT TO FED. R. CIV. P. 12(B)(1) AND 12(B)(6), AND MOTION FOR MORE 

DEFINITE STATEMENT

COMES NOW Defendant Reid’s Appliance Service, Inc. (“Defendant” or “Reid’s”) and 

files this Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(B)(1) and 12(B)(6) and Motion for 

More Definite Statement and would show the Honorable Court as follows: 

INTRODUCTION

1. Plaintiff, Allen Kelso, (“Plaintiff or Kelso”) filed his First Amended Complaint on

or about April 26, 2022, alleging violations of Title III of the Americans with Disabilities Act of 

1990, 42 U.S.C. § 12101, et seq. (“ADA”) and its implementing regulations. Plaintiff’s Complaint 

seeks injunctive relief, declaratory relief, and attorney’s fees. Defendant was served with a copy 

of the Summons and First Amended Complaint on or about May 2022.

2. Defendant seeks dismissal of the claims asserted against it by Kelso for two 

reasons. First, Kelso lacks standing to bring this case as he has failed to establish that he suffered 

an injury in fact. Second, even if Kelso had standing, Kelso’s claims are moot as the remedy he 

Case 2:22-cv-00026-Z Document 8 Filed 05/05/22 Page 1 of 9 PageID 39
Defendant’s Motion to Dismiss 

Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)

And Motion for More Definite Statement

(Kelso v. Reid’s Appliance)

Page | 2

seeks in the Complaint has been completed or is in the process of being completed and further 

Defendant is not the owner or lessee of the subject property, having been evicted from the property.

3. If the Court declines to dismiss Kelso’s claims, in the alternative, Defendant 

requests that Kelso be ordered to amend his Complaint to address vague and confusing allegations 

in his Complaint so that Defendant may prepare a proper response.

BACKGROUND

4. Kelso is a serial litigant who has filed approximately fifteen (15) nearly identical 

lawsuits in the United States District Court for the Northern District of Texas. In each suit, Kelso 

alleges that various businesses do not have sufficient and/or appropriate handicapped parking 

spaces and/or signage.1 Kelso also alleges that he is disabled, that he traveled to a defendant’s 

business, encountered non-compliant accessible parking spaces, access ramps and/or signs, 

primarily to van-accessible spaces, that he experienced “depression and discomfort” and that he 

intends to return to the defendant’s business. Kelso claims that as a result, he is entitled to 

injunctive relief, declaratory relief, and attorney’s fees from each of the alleged wrongdoers.

5. Kelso’s Complaint is devoid of any details regarding Kelso’s actual injury-in-fact, 

his place of residence, the time of day that he allegedly visited REID’S APPLIANCE SERVICE, 

INC., or a specific intent for his visit to REID’S APPLIANCE SERVICE, INC. Instead, the 

alleged ADA violations Kelso complains of are unclear, non-specific, and appear to be 

1 See Kelso v. Morgan, 2:21-cv-00173 (N.D. Tex. 09.01.21); Kelso v. Yummy Enterprises, LLC, 2:21-cv-00186 (N.D. 

Tex. 09.01.21); Two Properties, Ltd., 2:21-cv-00184 (N.D. Tex. 09.01.21); Kelso v. RSBZ, LLC, 2:21-cv00183 (N.D.

Tex. 09.01.21); Kelso v. WH AMA 2300 S Georgia, LP, 2:21-cv-00185 (N.D. Tex. 09.01.21); Kelso v. Peerless Tyre 

Co., 2:21-cv-00182 (N.D. Tex. 09.01.21); Kelso v. Vi, 2:21-cv-00181 (N.D. Tex. 09.01.21); Kelso v. JPL Properties, 

LLC, 2:21-cv-00177 (N.D. Tex. 09.01.21); Kelso v. KPMV, LLC, 2:21-cv-00178 (N.D. Tex. 09.01.21); Kelso v. 

MBSB NV-TX Holdings, LLC, 2:21-cv-00179 (N.D. Tex. 09.01.21); Kelso v. Wilson, 2:21-cv00176 (N.D. Tex. 

09.01.21); Kelso v. Family Dollar Stores, Inc., 2:21-cv-00174 (N.D. Tex. 09.01.21); Kelso v. Foot Spa, 2:21-cv-00175 

(N.D. Tex. 09.01.21); Kelso v. John R. Archer Investments, Inc., 2:21-cv-00172 (N.D. Tex. 09.01.21); Kelso v. 

Amarillo Paint & Supply, LLC, 2:21-cv-00171 (N.D. Tex. 09.01.21).

Case 2:22-cv-00026-Z Document 8 Filed 05/05/22 Page 2 of 9 PageID 40
Defendant’s Motion to Dismiss 

Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)

And Motion for More Definite Statement

(Kelso v. Reid’s Appliance)

Page | 3

reproductions of the other lawsuits he has filed which rely on photographs taken at some unknown 

time after Kelso allegedly went to REID’S APPLIANCE SERVICE, INC. Upon information and 

belief, Kelso’s Complaint is nothing more than a cookie cutter form that he and/or his attorney 

have used in at least the fifteen (15) other lawsuits.

6. Additionally, neither Plaintiff nor his attorney ever contacted Defendant to raise 

concerns regarding the alleged ADA defects in order to provide a good faith effort to address 

Plaintiff’s concerns regarding the alleged ADA defects or to provide a good faith effort to address 

Plaintiff’s concerns. Instead of giving Defendant an opportunity to correct alleged deficiencies, 

Plaintiff filed the Original Complaint seeking attorney’s fees in addition to other non-monetary 

relief.

ARGUMENT AND AUTHORITIES

I. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(1).

7. Kelso lacks subject matter jurisdiction, and Defendant seeks relief under both 

Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).

8. Federal courts are courts of limited jurisdiction, possessing only the power 

authorized by the Constitution and federal statutes. Gunn v. Minton, 568 U.S. 251, 256 (2013). 

Under Rule 12(b)(1), a case is “properly dismissed for lack of subject matter jurisdiction when the 

court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass’n Inc. 

of Miss. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). Standing and ripeness are 

essential components of federal subject matter jurisdiction. Sample v. Morrison, 406 F.3d 310, 312 

(5th Cir. 2005). 

9. A court may consider the following to determine subject matter jurisdiction: “(1) 

the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; 

Case 2:22-cv-00026-Z Document 8 Filed 05/05/22 Page 3 of 9 PageID 41
Defendant’s Motion to Dismiss 

Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)

And Motion for More Definite Statement

(Kelso v. Reid’s Appliance)

Page | 4

or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed 

facts.” Williamson, 645 F.2d at 413. 

10. To have Article III standing, a “plaintiff must have (1) suffered an injury in fact, 

(2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be 

redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). 

“The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these 

elements.” Id. “Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly...allege 

facts demonstrating each element.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). 

11. Title III of the ADA limits a plaintiff “to injunctive relief, and a restraining or other 

similar order.” Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308, 312 (5th Cir. 1997) (citing 42 

U.S.C. § 12188). A plaintiff seeking equitable relief must show that there is a real and immediate 

threat of repeated injury. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). Even if a plaintiff 

suffered past injures, he must show a real or immediate threat that he will be wronged again. Id. at 

111. Under this standard, Kelso’s assertion of a vague intent to return to Defendant’s property is 

not enough. “Such ‘some day’ intentions—without any description of concrete plans, or even any 

specification of when the some day will be—do not support a finding of the ‘actual or imminent’ 

injury.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992) (internal quotations omitted). 

The law is clear—Kelso does not have standing here.

12. Kelso has not offered sufficiently clear facts to establish that he has suffered a past 

injury in-fact when he allegedly visited Defendant’s property. No time stamp was furnished on 

Kelso’s photographs, and it is unclear by Kelso’s pleadings when he visited the property formerly 

occupied by Defendant. Kelso has also failed to provide any controverting evidence that REID’S 

APPLIANCE SERVICE, INC. was open when he allegedly visited. Thus, there is no way for 

Case 2:22-cv-00026-Z Document 8 Filed 05/05/22 Page 4 of 9 PageID 42
Defendant’s Motion to Dismiss 

Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)

And Motion for More Definite Statement

(Kelso v. Reid’s Appliance)

Page | 5

Defendant to verify if Kelso attempted his visit during the business’ regular business hours. In 

addition, simply alleging that Defendant was open is not enough. When determining a factual 

attack under Rule 12(b)(1), no presumptive truthfulness attaches to Kelso’s allegations, and 

disputed material facts should not prevent a court from determining the merits of a jurisdictional 

claim. Williamson, 645 F.2d at 413. Kelso must submit evidence to sustain his burden of proof. 

Superior, 778 F.3d at 504. Since Kelso has failed to provide evidence that REID’S APPLIANCE 

SERVICE, INC. was open, he has not demonstrated that he suffered a past injury.

13. In addition, Kelso has also failed to satisfy the future-injury standing requirement 

articulated in Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011). In Frame, plaintiffs who 

depended on motorized wheelchairs sued the City of Arlington, alleging that the city had built and 

altered sidewalks that were not accessible to them, in violation of the ADA. Id. at 221. The Fifth 

Circuit held that the plaintiffs did not need to actually use the sidewalks to have standing. Id. at 

235-36. Instead, the plaintiffs could show an actual or imminent injury if they showed that the 

ADA violation would actually affect them in a concrete way. Id. The plaintiffs in Frame

established standing because the “alleged in detail how specific inaccessible sidewalks negatively 

affect their day-to-day lives by forcing them to take longer and more dangerous routes to their 

destination. Id. at 236. 

14. In this case, Kelso has failed to offer evidence on this issue. Thus, the issue must 

be determined on the basis of the allegations alone. Lujan, 504 U.S. at 561. Kelso’s allegations are 

not nearly as specific as those in Frame. Kelso’s only allegations regarding future injury are that 

“Plaintiff intends to return to REID’S APPLIANCE SERVICE, INC.” and, specifically, that “[n]ot

being able to patronize local shops and stores negatively impacts Plaintiff in his day-to-day life.” 

(Compl. ¶ 28). Notably, Kelso provides no description of concrete plans to return to REID’S 

Case 2:22-cv-00026-Z Document 8 Filed 05/05/22 Page 5 of 9 PageID 43
Defendant’s Motion to Dismiss 

Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)

And Motion for More Definite Statement

(Kelso v. Reid’s Appliance)

Page | 6

APPLIANCE SERVICE, INC. nor of what services he is/was seeking from REID’S APPLIANCE 

SERVICE, INC., which as its name suggests is a business is an appliance repair store. The Fifth 

Circuit has held that having “some day” intentions, “without any description of concrete plans,” 

does not support standing. Frame, 657 F.3d at 235. Additionally, REID’S APPLIANCE 

SERVICE, INC. no longer occupies the property at issue in Plaintiff’s suit but instead had 

relocated its business to the Shops at Wolflin Square which has none of the issues alleged in 

Plaintiff’s suit and thus Plaintiff will have no difficulties in visiting Defendant’s business should 

he really so desire. 

15. There are no specific words that distinguish “some day” intentions from concrete 

plans. Order Granting Motion to Dismiss, Martinez v. McDonald’s Corp., 2:21-cv-00173 (N.D. 

Tex. Amarillo Div.). However, courts look to context to determine the issue. Id. In Lujan, the 

Supreme Court rejected claims based on enjoyment of endangered species where that enjoyment 

required travel halfway around the globe and the plaintiffs had no imminent plans to go. 504 U.S. 

at 564. On the other hand, testimony that the plaintiff lived in proximity to the place to be visited 

(a polluted river), along with frequent desires to make specific use of the place (fishing, camping) 

did support standing in an environmental case. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. 

(TOC), Inc., 528 U.S. 167, 181-82 (2000). Similarly, in the context of the ADA, frequent visits to 

a grandparent and wanting to use the nearby grocery store supported standing to complain of 

architectural barriers. Pickern v. Holiday Quality Foods Inc., 293 F.3d 113, 1137-38 (9th Cir. 

2002). 

16. Here, although Kelso has alleged that he resides in Amarillo but has not alleged 

specific plans to visit REID’S APPLIANCE SERVICE, INC. in the future, or even what reason 

he has for visiting REID’S APPLIANCE SERVICE, INC. An allegation of intent to revisit REID’S 

Case 2:22-cv-00026-Z Document 8 Filed 05/05/22 Page 6 of 9 PageID 44
Defendant’s Motion to Dismiss 

Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)

And Motion for More Definite Statement

(Kelso v. Reid’s Appliance)

Page | 7

APPLIANCE SERVICE, INC. without specific, concrete plans to do so is nothing more than a 

“someday” allegation, which is insufficient on its face to support standing. Having offered no 

allegations or evidence with greater specificity, the Complaint is insufficient to support standing 

for this action. 

17. Because there is no evidence that the alleged ADA violations affect Kelso’s 

projected activities pertaining to REID’S APPLIANCE SERVICE, INC. in a concrete way, Kelso 

has failed to show any likelihood of future injury. Consequently, the Court lacks subject matter 

jurisdiction.

II. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6).

18. “There are three requirements under the justiciability doctrine – standing, ripeness, 

and mootness that go to the heart of the Article III case or controversy requirement.” Zinni v. ER 

Solutions, Inc. 692 F.3d 1162, 1166 (11th Cir. 2012) (quoting Christian Coal. of Fla., Inc. v. United 

States, 662 F.3d 1182, 1189 (11th Cir. 2011)). The Supreme Court “has explained ‘a federal court 

has no authority to give opinions upon moot questions...’” Id. (quoting Church of Scientology of 

Cal. V. United States, 506 U.S. 9, 12 (1992)). The Supreme Court has “defined mootness as the 

doctrine of standing set in a time frame: [t]he requisite personal interest that must exist at the 

commencement of the litigation (standing) must continue through its existence (mootness).” U.S. 

Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (internal quotations omitted).

19. “A case becomes moot – and therefore no longer a ‘Case’ or ‘Controversy’ for 

purposes of Article III – ‘when the issues presented are no longer ‘live’ or the parties lack a legally 

cognizable interest in the outcome.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013) (“Article 

III of the Constitution grants the Judicial Branch authority to adjudicate ‘Cases’ and 

‘Controversies.’”). In cases involving alleged ADA violations, courts have found that a 

Case 2:22-cv-00026-Z Document 8 Filed 05/05/22 Page 7 of 9 PageID 45
Defendant’s Motion to Dismiss 

Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)

And Motion for More Definite Statement

(Kelso v. Reid’s Appliance)

Page | 8

defendant’s voluntary remedial effort will render moot the relief sought in the litigation under 

certain circumstances, including voluntary cessation of alleged offensive conduct. See Grove v. 

De La Cruz, 407 F. Supp. 2d 1126, 1130-31 (C.D. Cal. 2005). “[T]he only remedy available for a 

violation of the ADA under a private right of action is injunctive relief; if no ADA violations exist 

at the time the court is asked to provide injunctive relief, the ADA claim is moot.” Heatherly v. 

Malika, No. C-11-04-125 DMR, 2013 WL 5754106, at *1 (N.D. Cal. Oct. 23, 2013). “A federal 

court must order dismissal for mootness if the controversy ends prior to a decision even if a 

justiciable controversy existed when the suit began.” Citizen Ctr. v. Gessler, 770 F.3d 900, 906 

(10th Cir. 2014) (emphasis added).

20. Kelso’s Complaint vaguely alleges that the Subject Property has “no ADA 

compliant Van-accessible spaces on the shortest access route to the business”. (Compl. ¶ 14). The 

Complaint also alleges that there are “several disabled parking signs are missing.” Id. In support 

of his allegations, Kelso included within his Complaint two (2) pictures of the Subject Property

which is no longer occupied or used by Defendant.

21. Defendant was unaware of any complaints or compliance issues with the parking 

at the Subject Property until it was served with the Complaint.

III. Motion to Dismiss Under the Federal Rule of Civil Procedure 12(b)(1)

22. Alternatively, to the extent that the Court does not dismiss Kelso’s claims at this 

time, Defendant respectfully requests that the Court order Kelso to re-plead in accordance with 

Federal Rule of Civil Procedure 12(e) in order to address the deficient information complained of.

23. Kelso’s Complaint is too vague for Defendant to fully and completely respond. 

Kelso has failed to clearly plead sufficient facts to support each element of his cause of action. 

Further, Kelso has failed to offer evidence of the reason for his alleged visit to REID’S 

Case 2:22-cv-00026-Z Document 8 Filed 05/05/22 Page 8 of 9 PageID 46
Defendant’s Motion to Dismiss 

Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)

And Motion for More Definite Statement

(Kelso v. Reid’s Appliance)

Page | 9

APPLIANCE SERVICE, INC., the time and date that he allegedly went to REID’S APPLIANCE 

SERVICE, INC., and specific, concrete facts regarding his intent to return to REID’S 

APPLIANCE SERVICE, INC.

PRAYER

24. WHEREFORE, PREMISES CONSIDERED WEST TEXAS INSURANCE 

AGENCY respectfully requests that this Court GRANT its Motion to Dismiss for Lack of Subject 

Matter Jurisdiction, dismiss Plaintiff’s claims, and award Defendant its costs and attorney’s fees 

as provided by law. Alternatively, Defendant respectfully requests that this Court GRANT its 

Motion for More Definite Statement, and for such other and further relief to which Defendant has 

shown itself justly entitled to receive.

Respectfully submitted,

UNDERWOOD LAW FIRM, P.C.

W. Wade Arnold

State Bar No. 00783561

wade.arnold@uwlaw.com

P.O. Box 9158

Amarillo, Texas 79105

(806) 376-5613

Fax: (806) 379-0316

By: /s/ W. Wade Arnold

W. Wade Arnold

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that on the 5th day of May, 2022, a true and correct copy of the above document 

was served via the Court’s ECF system on all counsel of record.

/s/ W. Wade Arnold

W. Wade Arnold

Case 2:22-cv-00026-Z Document 8 Filed 05/05/22 Page 9 of 9 PageID 47