UNITED STATES DISTRICT COURT 

 SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

 

Walter Mitchell, 

Plaintiff, 

v. Case No.: 3:18-cv-60-TMR 

 Judge Thomas M. Rose 

DayMet Credit Union, 

 

Defendant.

______________________________________________________________________________ 

ENTRY AND ORDER GRANTING DEFENDANT DAYMET CREDIT 

UNION’S MOTION TO DISMISS, ECF 3. 

______________________________________________________________________________

 Pending before the Court is Motion of DayMet Credit Union (“DayMet”) to dismiss 

Plaintiff Walter Mitchell’s (“Mitchell”) claims pursuant to Fed. R. Civ. P. 12(b)(1) and (6). ECF 

No. 3. Mitchell filed the complaint on March 2, 2018. ECF No. 1. DayMet filed the present 

motion and memorandum in support of the motion on June 4, 2018. ECF Nos. 3, 4. Mitchell filed 

his response to the motion on June 25, 2018. ECF No. 6. DayMet filed its reply to the response 

motion on July 5, 2018. ECF No. 8. DayMet has filed three notices of supplemental authority in 

the action, to which Mitchell has responded twice. ECF Nos. 11-12, 14, 16-17. Mitchell has also 

filed two notices of supplemental authority. ECF Nos. 9, 10. Because Mitchell’s complaint 

requests injunctive relief but alleges no future harm, DayMet’s Motion to Dismiss for Lack of 

Standing is hereby granted. 
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I. Background 

Plaintiff Walter Mitchell is a blind resident of Ohio. ECF No. 1 ¶ 5. Mitchell uses screen 

reading technology to access websites. He alleges that he attempted to access Defendant 

DayMet’s website, but he was unable to navigate the website because it was incompatible with 

screen reading technology. ECF No. 1 ¶ 14-17. Mitchell has sued DayMet under Title III of the 

Americans with Disabilities Act (ADA), alleging that DayMet is denying blind and visually 

impaired individuals equal access to DayMet’s website. ECF No. 1 at Count I. 

DayMet is a Credit Union that limits its membership to those who “live, work, attend 

school, or worship in Montgomery, Miami, Greene, or Clark Counties in Ohio.” ECF No. 4 at 5. 

Mitchell is not a member of DayMet, and DayMet alleges that he cannot become a member of 

DayMet. Id. Mitchell, however, alleges that he is eligible for membership in DayMet because he 

publishes a newsletter, the National Foundation for the Blind Newsletter, in three of those 

counties, and interacts with and visits subscribers of the newsletter in those counties, such that he 

works in those counties. ECF No. 1 ¶ 4. 

Mitchell alleges that he visited DayMet’s website several times. Id. ¶ 17. He alleges 

DayMet’s website deficiencies as follows: “(1) Linked image missing alternative text . . . 

result[ing] in an empty link . . . ; (2) [e]mpty or missing form labels . . . ; and (3) [r]edundant 

[l]inks where adjacent links go to the same URL address . . . .” Id. ¶ 15. Mitchell alleges that 

these deficiencies “denied [him] full and equal access, and deterred [him] on a regular basis from 

accessing [DayMet]’s website.” Id. ¶ 17. Mitchell also alleges he was deterred from visiting 

DayMet’s physical locations because of the deficiencies on DayMet’s website. Id. ¶ 17. Mitchell 

has requested injunctive relief requiring DayMet to make its website equally accessible for blind 
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and visually impaired individuals, for attorney fees and expenses, litigation costs, and for any 

other relief this Court might find appropriate. Id. at Relief Requested, PageID 11. 

DayMet has moved to dismiss Mitchell’s suit under Federal Rule of Civil Procedure 

12(b)(1) for lack of subject matter jurisdiction and under Federal Rule of Civil Procedure 

12(b)(6) for failure to state a claim. The standard of review will be applied below, followed by 

an analysis of the arguments. 

II. Standard of Review 

Before the Court may determine whether a plaintiff has failed to state a claim upon which 

relief may be granted, under a Rule 12(b)(6) motion, the Court must first resolve whether it may 

exercise jurisdiction over the subject matter. City of Heath, Ohio v. Ashland Oil, Inc., 834 F. 

Supp. 971, 975 (S.D. Ohio 1993). “Federal courts may exercise jurisdiction only where an actual 

‘case or controversy’ exists.” Parsons v. U.S. Dep’t of Justice, 801 F. 3d 701, 709-10 (6th Cir. 

2015) (citing U.S. Const. art. III, § 2). The case or controversy requirement has been interpreted 

as requiring “a litigant have standing to invoke the jurisdiction of the federal courts.” Parsons, 

801 F. 3d at 710 (internal citation and quotation marks omitted). In other words, this Court must 

first determine the 12(b)(1) motion before it may determine the 12(b)(6) motion before it. 

A. Subject-Matter Jurisdiction Standard of Review 

When subject-matter jurisdiction is challenged, the party claiming the jurisdiction bears 

the burden of proving it. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Rule 12(b)(1) 

provides that the defendant may file a motion to dismiss based on a “lack of jurisdiction over the 

subject matter.” The standard of review of a 12(b)(1) motion to dismiss for lack of subject matter 

jurisdiction depends on whether the defendant makes a facial or factual challenge to subject 

matter jurisdiction. Wayside Church v. Van Buren County, 847 F. 3d 812, 816-17 (6th Cir. 2017) 
4

(citing Carrier Corp. v. Outokumpu Oyj, 673 F. 3d 430, 440 (6th Cir. 2012). A facial attack—

which DayMet uses here—"questions merely the sufficiency of the pleading.” Id. (citing Gentek 

Bldg Prods., Inc. v. Sherwin-Williams Co., 491 F. 3d 320, 330 (6th Cir. 2007)). This requires the 

Court to “take[] the allegations in the complaint as true.” Id. A factual attack of the subjectmatter jurisdiction, however, would raise a factual controversy, and would require the district 

court to weigh evidence to determine whether subject-matter jurisdiction does in fact exist. Id.

Because the attack DayMet makes in this case is facial, the Court will only review the complaint 

to determine the sufficiency of jurisdiction. 

B. Failure to state a claim motion standard. 

 “The purpose of a Rule 12(b)(6) motion to dismiss is to allow a defendant to test whether, 

as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the 

complaint is true.” Bihn v. Fifth Third Mortg. Co., 980 F. Supp. 2d 892, 897 (S.D. Ohio 2013) 

(citing Mayer v. Mylod, 988 F. 2d 635, 638 (6th Cir. 1993)). Moreover, the purpose of the motion 

is to test the formal sufficiency of the statement of the claim for relief. Id. “[F]or the purposes of 

a motion to dismiss, the complaint must be construed in the light most favorable to the plaintiff 

and its allegations taken as true.” Id. (citing Scheuer v. Rhodes, 416 U.S. 232 (1974)). 

 To survive a 12(b)(6) motion to dismiss, a plaintiff must provide more than labels and 

conclusions; a formulaic recitation of the elements of a cause of action is not enough. Bell 

Atlantic v. Twombly, 550 U.S. 544 (2007). Further, the factual allegations must be enough to 

raise a right to relief above the speculative level and must also do something more than merely 

create a suspicion of a legally cognizable right. Id. However, the Court is not bound to accept as 

true a legal conclusion couched as factual allegation or unwarranted factual inferences. Id. at 

555; Morgan v. Church’s Fried Chicken, 829 F. 2d 10, 12 (6th Cir. 1987); See also Ashcroft v. 
5

Iqbal, 556 U.S. 662 (2009). Moreover, only well-pleaded facts are construed liberally in favor of 

the party opposing the motion to dismiss. Lillard v. Shelby County Bd. Of Educ., 76 F. 3d 716, 

726 (6th Cir. 1996). 

III. Analysis 

DayMet challenges the sufficiency of Mitchell’s complaint in two respects. First, DayMet 

alleges that Mitchell has not suffered an injury in fact or alleged a future harm to establish 

standing. ECF No. 4 at 5. Specifically, DayMet alleges that Mitchell suffered no harm because 

he is not eligible for membership in the credit union and therefore cannot enjoy its benefits. Id.

DayMet further alleges that because Mitchell is seeking injunctive relief he is required to allege a 

future harm, but fails to do so. Id. at 9. In these respects DayMet challenges Mitchell’s standing 

to bring the suit in federal court. 

 The second way DayMet challenges Mitchell’s complaint is by asserting that he fails to 

state a claim upon which relief can be granted. Id at 10. DayMet alleges that (1) a website is not 

a place of public accommodation, and is therefore not covered by the ADA; and (2) because 

Mitchell was provided an auxilliary aid that was adequate under the ADA guidelines. Id. at 11, 

17. 

 DayMet offers two alternative theories for dismissal. First, DayMet challenges the relief 

sought in the complaint as a violation of its due process right under the Fifth Amendment, 

theorizing that the standard set forth in Title III of the ADA is too vague. Id. at 19. The final 

request DayMet makes asks this Court to dismiss the action based on the doctrine of primary 

jurisdiction. Id. DayMet does so by claiming the Department of Justice (“DOJ”) has primary 

jurisdiction over this matter, and the Court should, as a practical matter, decline to exercise 

jurisdiction until the DOJ has promulgated rules for websites under Title III. Id. 
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 The Court will end its inquiry at the 12(b)(1) motion, in which the standing of Mitchell is 

challenged because the Court fails to find jurisdiction over this matter. 

A. Standing 

 To establish Article III standing three elements must be met, and “[t]he party invoking 

federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 560-61. 

The standing elements are: 

First, the plaintiff must have suffered an injury in fact . . . which is 

(a) concrete and particularized, and (b) actual or imminent, not 

conjectural or hypothetical. Second, there must be a causal 

connection between the injury and the conduct complained of . . . . 

Third it must be likely, as opposed to merely speculative, that the 

injury will be redressed by a favorable decision. Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal 

citations and quotations omitted). 

For an injury to be particularized, it must affect the plaintiff in a personal and individual 

way. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1543 (2016) at 1548. An injury must also be 

concrete, but need not be a tangible harm. Id. at 1549. For intangible harms, Congress may 

define injuries and articulate chains of causation that will give rise to a case or controversy. Id.

However, a mere statutory violation without injury is not sufficiently concrete to satisfy the 

injury in fact requirement of Article III. Id. at 1549 (citing Summers v. Earth Island Inst., 555 

U.S. 488, 496 (2009)). 

DayMet alleges that Mitchell has suffered no actual injury because he is not eligible to 

become a member of the credit union and is not a current member. See Griffin v. Dep’t of Labor 

Fed. Credit Union, 293 F. Supp. 3d 576 (E.D. Va. 2018) (“without membership or even the 

ability to become a member, there is not harm to plaintiff”). However, “eligibility for 

membership in the credit union is not a prerequisite for standing.” Brintley v. Aeroquip Credit 

Union, 321 F. Supp. 785, 790 (E.D. Mich. 2018); See PGA Tour, Inc. v. Martin, 532 U.S. 661, 
7

679 (2001) (noting there is no general requirement of client or customer status in Title III of the 

ADA). Moreover, the Fourth Circuit precedent on which DayMet relies, increases the pleading 

standard for an injury in fact past the constitutional minimum. Brintley v. Aeroquip Credit 

Union, 321 F. Supp. 3d 785, 790 (E.D. Mich. 2018) (barriers on defendant’s website constituted 

a concrete and particularized injury despite not being eligible for membership at the credit 

union); See Houston v. Marod Supermarkets, Inc., 733 F. 3d at 1334 (11th Cir. 2013) (holding 

that a bona fide patron requirement is not required for standing to be proved under Title III). 

In the context of the Americans with Disabilities Act (ADA) Congress has articulated 

dignitary harms occur when individuals with disabilities encounter discrimination. See 42 U.S.C. 

§ 12101(a)(2), (a)(7); Shaver v. Indep. Stave Co., 350 F.3d 716, 724 (8th Cir. 2003). For Title III 

of the ADA, Congress has allowed only injunctive relief when the rights are enforced through 

private action. 42 U.S.C. §§ 12188(a)(1), (b)(2)(B) (allowing the court to award damages when 

they are requested by the Attorney General but allowing private parties to seek injunctive relief 

and costs associated with court). 

Based on Mitchell’s allegations, he has suffered a dignitary harm, by accessing DayMet’s 

website on multiple occasions, during which he was unable to navigate the website, denying him 

equal access to the services and amenities of DayMet. ECF No. 1 ¶¶ 15-17. This dignitary harm 

Mitchell suffered is cognizable, as articulated by Congress, however, he may not seek redress for 

damages based on the past harms he has suffered under Title III of the ADA. See Spokeo, 136 S. 

Ct. at 1549; 42 U.S.C. § 12188.

Mitchell is requesting injunctive relief through Title III of the ADA. Although Congress 

has recognized discrimination by places of public accommodation as an injury, it requires private 

parties seeking relief to articulate future harm when pursuing a Title III claim. See 42 U.S.C. § 
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12188(a)(1); Shaver, 350 F. 3d at 724. Title III does not require that a person with a disability 

engage in a futile gesture, if that person has actual notice that an organization does not intend to 

comply with its provisions. 42 U.S.C. § 12188(a)(1); Shaver, 350 F. 3d at 724. 

To have standing to seek an injunction in federal court, a plaintiff must show a nonspeculative threat that he will again experience injury as a result of the alleged wrongdoing. City 

of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). For plaintiffs to show standing for injunctive 

relief in ADA cases, they must show a plausible intention or desire to return to the place but for 

the barriers at the place of public accommodation. Kramer v. Midamco, 656 F. Supp. 2d 740, 747 

(N.D. Ohio 2009). The intention to return must be specified, “[i]ntent to return to the place of 

injury some day is insufficient.” Id. (citing Lujan, 504 U.S. at 564). This is where Mitchell’s 

claim fails. 

Although Mitchell has claimed past injury caused by barriers within DayMet’s website, 

he fails to allege an intent to return. Mitchell’s specific language was that “[he] would have 

independently and privately investigated [DayMet]’s service, privileges, accommodations and 

amenities, and found the location to visit via [DayMet]’s website . . . .” ECF No. 1 ¶ 16. Mitchell 

contends he has sufficiently pleaded future harm. ECF No. 6 at 7. However, these allegations fail 

to meet the constitutional requirements that an alleged future harm will plausibly occur. Id. 

(“[p]laintiff intends to use defendant’s website if it became accessible” citing to paragraph 

sixteen of the complaint). 

Paragraph 16 of the complaint alleges nothing more than speculative future harm. The 

words used in that paragraph, nor in any other paragraph in Mitchell’s complaint, indicate a 

future intent to return to the website. See ECF No. 1. Granting all possible favorable inferences 

to Mitchell, as the Court must do, there is some indication Mitchell would visit the website again 
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if it became accessible because he encountered barriers on the website multiple times in “recent 

months.” Id. ¶ 17. The inferences drawn from the past discrimination, however, still fail to 

particularize whether a future injury is imminent. See, e.g. Aeroquip, 321 F. Supp. 3d at 790. 

 Mitchell relies on Houston v. Marod Supermarkets, Inc., Eleventh Circuit precedent, for 

his contention that he has pleaded a future injury. 733 F.3d 1323 (11th Cir. 2013). In Houston, 

the defendant challenged standing because the plaintiff’s intent to return was speculative. 

Houston v. Marod Supermarkets, Inc., 733 F.3d at 1340. There, the Court found that the 

plaintiff’s intention to visit the store when traveling to his lawyer’s office as sufficiently 

concrete. Id. Where, as here, Mitchell does not articulate any reason to revisit the website, and 

does not state an intention to visit the website if its alleged barriers are remedied. See Aeroquip, 

321 F. Supp. 3d at 790 (holding the complaint does not satisfy the real or immediate threat 

requirement because “it is devoid of allegations of plaintiff’s plans or intent to use defendant’s 

services in the future”). Thus, the complaint, as written, fails to meet the constitutional standards 

of particularized, non-speculative, imminent harm. 

Mitchell, in his response to the motion to dismiss, requested this Court’s leave to amend 

his complaint to “cure any curable pleading deficiency regarding constitutional standing to sue.”

ECF No. 6 at n. 13. Courts in the Sixth Circuit have granted leave in similar situations. For 

instance, in the Brintley cases, the plaintiffs were granted leave to amend the complaint because 

there was still a pending cause of action before the court. Aeroquip, 321 F. Supp. 3d at 790; Belle 

River, No. 17-13915, 2018 U.S. Dist. LEXIS 121198, at *7. On the other hand, the BMI court 

held that absent an additional claim, and where the plaintiff amended complaint once as a matter 

of course, that it declined to grant leave to amend. Mitchell v. BMI Fed. Credit Union, No. 2:18-

CV-137, 2019 U.S. Dist. LEXIS 43339, at *10-11 (S.D. Ohio Mar. 18, 2019). Here, Mitchell has 
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no other counts pleaded in his complaint, but has not amended his complaint at all. The Court 

does not consider the request made by Mitchell a formal motion. See Coriale v. Xerox Corp., 775 

F. Supp. 2d 583, 600-01 (W.D.N.Y. 2011) aff’d Coriale v. Xerox Corp., 2012 U.S. Appx. 387 

(2nd Cir. 2012). Because Mitchell’s request was not a formal motion, the Court is unable to 

distinguish between BMI and the present case. BMI, No. 2:18-CV-137, 2019 U.S. Dist. LEXIS 

43339, at *10-11. Thus, the Court hereby GRANTS DayMet’s motion to dismiss without 

prejudice. 

The Court declines to evaluate any further arguments on their merits at this time. 

IV Conclusion 

In sum, this Court GRANTS DayMet’s motion to dismiss for lack of standing because 

Mitchell has failed to allege future harm. The case will be dismissed without prejudice. ECF No. 

3. 

DONE and ORDERED this Friday, August 02, 2019.1 

s/Thomas M. Rose 

___________________________________ 

THOMAS M. ROSE 

UNITED STATES DISTRICT JUDGE 

1 The Court acknowledges the valuable contribution and assistance of judicial intern Anthony D. Maiorano in  

drafting this opinion.