UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ACCESS 4 ALL, INC., a Florida not for

profit corporation, and FELIX

ESPOSITO, Individually,

Plaintiffs,

VS.

WINTERGREEN COMMERCIAL

PARTNERSHIP, LTD., a Texas Limited

Partnership,

Defendant.

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) CIVIL ACTION NO.

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) 3:05-CV-1307-G

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MEMORANDUM OPINION AND ORDER

Before the court is the motion of the defendant Wintergreen Commercial

Partnership, Limited (“Wintergreen”) to dismiss the plaintiffs’ claims against it for

lack of standing. For the reasons stated below, the motion is granted.

I. BACKGROUND

The plaintiff Felix Esposito (“Esposito”) is a Florida resident and a member of

the plaintiff Access 4 All, Inc. (“Access 4 All”), a non profit corporation formed under

 

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1 Under Title III, only injunctive relief is permitted. 42 U.S.C.

§ 12188(a); 28 C.F.R. § 36.501.

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the laws of Florida. Plaintiff’s [sic] Original Complaint (“Complaint”) ¶¶ 1, 2; Felix

Esposito’s Affidavit (“Esposito Affidavit”) ¶ 6, attached to Response to Defendant’s

Motion to Dismiss and Brief in Support Thereof (“Response”) as Exhibit 1. Because

Esposito suffers from a neuro-psychological disorder, he requires the use of a

wheelchair for ambulation. Esposito Affidavit ¶ 1. As an organization whose

members include “individuals with disabilities as defined by the [Americans with

Disabilities Act],” Access 4 All’s stated purpose is “to represent the interest of its

members by assuring places of public accommodation are accessible to and usable by

the disabled and that its members are not discriminated against because of their

disabilities.” Complaint ¶ 11.

In April 2005, Esposito traveled to the Dallas area and stayed at Wintergreen’s

property, the Holiday Inn at 1515 North Beckley Drive in De Soto, Texas. Esposito

Affidavit ¶¶ 3, 4; Complaint ¶ 3. There Esposito encountered architectural barriers

that allegedly endangered his safety. Esposito Affidavit ¶ 4; Complaint ¶ 13. Shortly

thereafter, Esposito and Access 4 All filed this suit seeking injunctive relief under

Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (“ADA”).1

Complaint ¶ 28. Wintergreen then filed the instant motion to dismiss for lack of

standing. Docket Sheet; Defendant’s Motion to Dismiss and Brief in Support

(“Motion to Dismiss”).

 

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II. ANALYSIS

A. Standard for Rule 12(b)(1) Motion to Dismiss

Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes the dismissal

of a case for lack of jurisdiction over the subject matter. See FED. R. CIV. P. 12(b)(1).

A motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction

must be considered by the court before any other challenge because “the court must

find jurisdiction before determining the validity of a claim.” Moran v. Kingdom of

Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994) (internal citation omitted); see also

Ruhrgas AG v. Marathon Oil Company, 526 U.S. 574, 577 (1999) (“The requirement

that jurisdiction be established as a threshold matter . . . is inflexible and without

exception”) (citation and internal quotation marks omitted). On a Rule 12(b)(1)

motion, which “concerns the court’s ‘very power to hear the case . . . [,] the trial court

is free to weigh the evidence and satisfy itself as to the existence of its power to hear

the case.’” MDPhysicians & Associates, Inc. v. State Board of Insurance, 957 F.2d 178,

181 (5th Cir.) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied,

454 U.S. 897 (1981)), cert. denied, 506 U.S. 861 (1992). In ruling on a motion to

dismiss under Rule 12(b)(1), the court may rely on: “1) the complaint alone; 2) the

complaint supplemented by undisputed facts; or 3) the complaint supplemented by

undisputed facts and the court’s resolution of disputed facts.” MCG, Inc. v. Great

 

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Western Energy Corporation, 896 F.2d 170, 176 (5th Cir. 1990) (citing Williamson, 645

F.2d at 413). 

The standard for reviewing a motion under Rule 12(b)(1), however, depends

on whether the defendant makes a facial or factual attack on the plaintiffs’ complaint. 

Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). The defendant makes a

facial attack by the mere filing of a Rule 12(b)(1) motion. Id. In that case, the trial

court must look at the sufficiency of the allegations in the complaint, which are

presumed to be true. Id. The defendant makes a factual attack, on the other hand,

by providing affidavits, testimony, or other evidentiary materials challenging the

jurisdiction of the court. Id. In a factual attack, the plaintiffs are also required to

submit facts in support of jurisdiction and have the burden of proving, by a

preponderance of the evidence, that the trial court has subject matter jurisdiction over

the claims. Middle South Energy, Inc. v. City of New Orleans, 800 F.2d 488, 490 (5th

Cir. 1986).

Importantly, lack of Article III standing is a defect in subject matter

jurisdiction. See Bender v. Williamsport Area School District, 475 U.S. 534, 541-42

(1986); O’Shea v. Littleton, 414 U.S. 488, 493-95 (1974). Therefore, when a plaintiff

lacks standing to sue in federal court, it is appropriate for the court to dismiss the

action, pursuant to Rule 12(b)(1), for want of subject matter jurisdiction. See Chair

 

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King, Inc. v. Houston Cellular Corporation, 131 F.3d 507, 509 (5th Cir. 1997); Bender,

475 U.S. at 541.

In the instant motion, Wintergreen has presented the court with a facial attack

on the standing of each plaintiff, asserting (without evidentiary support) that

Esposito lacks standing because “he has not suffered an injury in fact,” Motion to

Dismiss at 3, and Access 4 All cannot establish either organizational or associational

standing. Id. at 6. For the reasons discussed below, the court finds that neither

Esposito nor Access 4 All have met the requirements for Article III standing, and

therefore Wintergreen’s motion to dismiss must be granted.

B. Plaintiff Esposito’s Standing

Article III of the United States Constitution limits federal courts’ jurisdiction

to “cases” and “controversies.” U.S. CONST. art. III § 2. Standing -- i.e., the need to

show that the plaintiffs have a direct, personal stake in the outcome of the suit -- is an

“essential and unchanging part” of this case-or-controversy requirement. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992). “The federal courts are under an

independent obligation to examine their own jurisdiction, and standing is perhaps the

most important of [the jurisdictional] doctrines.” United States v. Hays, 515 U.S. 737,

742 (1995) (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31 (1990)) (internal

quotation marks omitted). As the Supreme Court explained in Lujan, the “irreducible

constitutional minimum of standing” has three elements: 

 

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First, the plaintiff[s] must have suffered an “injury in fact”

-- an invasion of a legally protected interest 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 -- the injury has to be “fairly

. . . trace[able] to the challenged action of the defendant[s],

and not . . . th[e] result [of] the independent action of

some third party not before the court.” Third, it must be

“likely,” as opposed to merely “speculative,” that the injury

will be “redressed by a favorable decision.”

504 U.S. at 560-61 (internal citations and footnote omitted); see also Vermont Agency

of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000); Public

Citizen, Inc. v. Bomer, 274 F.3d 212, 217-18 (5th Cir. 2001). All three elements must

exist to establish Article III standing. Vermont Agency, 529 U.S. at 771. Because these

elements “are not mere pleading requirements but rather an indispensable part of the

plaintiff[s’] case, each element must be supported in the same way as any other

matter on which the plaintiff[s] bear[] the burden of proof, i.e., with the manner and

degree of evidence required at the successive stages of litigation.” Lujan, 504 U.S. at

561. 

In addition, standing must exist at the time an action is commenced. See

Lujan, 504 U.S. at 569-70 n.4 (“The existence of federal jurisdiction ordinarily

depends on the facts as they exist when the complaint is filed.”). Thus, “[b]elated

efforts to bolster standing are futile.” Equal Access for All, Inc. v. Hughes Resort, Inc.,

No. 5:04-CV-178-MCR, 2005 WL 2001740, at *5 (N.D. Fla. Aug. 10, 2005)

 

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(quoting Moyer v. Walt Disney World Company, 146 F. Supp. 2d 1249, 1253 (M.D.

Fla. 2000)).

Standing is also required to obtain injunctive relief. Johnson v. Moore, 958 F.2d

92, 94 (5th Cir. 1992). The plaintiff must show that he “ ‘has sustained or is

immediately in danger of sustaining some direct injury as the result of the challenged

. . . conduct and the injury or threat of injury must be both real and immediate, not

conjectural or hypothetical.’ ” Id. (quoting City of Los Angeles v. Lyons, 461 U.S. 95,

102 (1983)). In the context of ADA claims, courts evaluate whether future injury is

probable by determining whether the plaintiff is likely to return to the defendant’s

business. See, e.g., Cortez v. National Basketball Association, 960 F. Supp. 113, 117-18

(W.D. Tex. 1997) (finding that the plaintiff lacked standing to seek injunctive relief

because she did not allege that she intended to return to the defendant’s events in the

future). When analyzing this likelihood of return, courts have examined such factors

as: (1) the proximity of the defendant’s business to the plaintiff’s residence, (2) the

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

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

defendant. D’lil v. Stardust Vacation Club, No. 2:00-CV-01496, 2001 WL 1825832,

at *3 (E.D. Cal. Dec. 21, 2001); see also Molski v. Mandarin Touch Restaurant, 385

F. Supp. 2d 1042, 1045 (C.D. Cal. 2005) (citing Molski v. Arby’s Huntington Beach,

359 F. Supp. 2d 938, 947 n.10 (C.D. Cal. 2005)). Otherwise, “[s]uch ‘someday

 

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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.” Lujan, 504 U.S. at 564 (emphasis in

original).

In the case sub judice, Esposito has not shown that he satisfies the requirements

for standing in a suit for injunctive relief. Regarding the first factor -- proximity --

Esposito is a resident of Florida and defendant’s business is in Texas. Although some

courts have found that proximity bears heavily on the standing analysis, see Parr v.

L&L Drive-Inn Restaurant, 96 F. Supp. 2d 1065, 1079-80 (D. Haw. 2000) (court

found future return visits sufficient to confer standing where the plaintiff lived near

fast food restaurant, the plaintiff patronized other franchised locations, and the

impulse nature of visiting such establishments did not necessitate reservations), Delil

v. El Torito Restaurants, Inc., No. C 94-3900-CAL, 1997 WL 714866, at *4 (N.D. Cal.

June 24, 1997) (court found the plaintiff lacked standing because she lived over 100

miles from restaurant and had not, in the four years since the incident of

discrimination, attempted to visit the restaurant), in the instant context involving a

hotel, this factor is not similarly applicable. Therefore, this factor neither bolsters nor

undermines Esposito in his effort to establish standing. As for Esposito’s past

patronage of Wintergreen’s De Soto business, “[p]ast exposure to illegal conduct does

not in itself show a present case or controversy regarding injunctive relief . . . if

 

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unaccompanied by continuing, present adverse effect.” Lyons, 461 U.S. at 102

(citation omitted). Therefore, Esposito’s alleged past injury -- suffered during a single

visit to a De Soto Holiday Inn in April 2005 -- alone is not sufficient. See Equal

Access, 2005 WL 2001740, at *6. Nor does the third factor, the definitiveness of

plaintiff’s intent to return, weigh in Esposito’s favor. The complaint merely alleges

that Esposito “plans to return to the property to avail himself of the goods and

services offered to the public at the property.” Complaint ¶ 12. Esposito indeed has

a confirmed reservation to return to the De Soto hotel on December 23, 2005. See

Esposito Affidavit ¶ 5. However, this reservation was not made until August 19,

2005, after both the complaint and this motion to dismiss were filed. See

Defendant’s Reply to Plaintiffs’ Response to Defendant’s Motion to Dismiss at 3 n.2. 

As standing is determined at the time the complaint is filed, the court will not

construe this “[b]elated effort[] to bolster standing” as beneficial to Esposito. See

Moyer, 146 F. Supp. at 1253 (the plaintiff’s visit to the defendant’s business after the

complaint was filed did not confer standing); Brother v. Tiger Partner, LLC, 331

F. Supp. 2d 1368, 1373 (M.D. Fla. 2004) (the fact that the plaintiff made a

reservation at the defendant’s hotel after the complaint was filed was immaterial

because standing is determined as of the date the suit is filed). The final factor looks

to the plaintiff’s frequency of travel near the defendant. Esposito has not presented

any evidence that he travels often to the De Soto area. He merely asserts that, as a

 

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retiree, he “frequently travel[s].” Esposito Affidavit ¶ 2. Without additional evidence

or allegations that Esposito travels frequently to this area and would have need to

stay at this particular hotel, this factor does not favor Esposito, either. See, e.g.,

Disabled in Action of Metropolitan New York v. Trump International Hotel & Tower, No. 01

Civ. 5518 (MBM), 2003 WL 1751785, at *8 (S.D.N.Y. Apr. 2, 2003) (court found

standing where the plaintiffs live in New York and have been to the defendant’s

restaurant in the past); Association for Disabled Americans, Inc. v. Claypool Holdings LLC,

No. IP-00-0344-C-T/G, 2001 WL 1112109, at *20 (S.D. Ind. Aug. 6, 2001) (court

found standing where the plaintiff visited the area regularly for family occasions and

expressed a desire to stay at the defendant’s hotel); Rosenkrantz v. Markopoulos, 254

F. Supp. 2d 1250, 1253 (M.D. Fla. 2003) (court found that the plaintiff lacked

standing because he traveled only twice a year and other hotels were closer to his

destination). In sum, Esposito has not sustained his burden of establishing “actual or

imminent injury” necessary for a finding of standing. Therefore, the court does not

have subject matter jurisdiction over Esposito’s claims against Wintergreen, and his

claims must be dismissed.

C. Plaintiff Access 4 All’s Standing

An organization may assert standing either on its own behalf (organizational)

or as the representative of its members (representational). See Hunt v. Washington

State Apple Advertising Commission, 432 U.S. 333, 341-42 (1977). A plaintiff choosing

 

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to assert organizational standing must be able to demonstrate some injury it has

suffered that meets the constitutional standing requirements as well as the prudential

limitations on standing, unless Congress evidenced a clear intent to eliminate those

prudential limitations under the statute in question. See Havens Realty Corporation v.

Coleman, 455 U.S. 363, 378-79 (1982); Association for Retarded Citizens of Dallas v.

Dallas County Mental Health & Mental Retardation Center Board of Trustees, 19 F.3d

241, 243-44 (5th Cir. 1994). The court must determine whether the group has

“alleged such a personal stake in the outcome of the controversy as to warrant [ ]

invocation of federal-court jurisdiction.” Havens Realty, 455 U.S. at 378-79 (internal

quotation marks and citations omitted). A “personal stake” includes an organization

challenging “conduct that impedes its ability to attract members, to raise revenues, or

to fulfill its purposes.” Kessler Institute for Rehabilitation, Inc. v. Mayor and Council of

Borough of Essex Fells, 876 F. Supp. 641, 656 (D.N.J. 1995). On the other hand, a

plaintiff has representational standing when (1) at least one of its members would

otherwise have standing to sue in his own right, (2) the interests at stake are germane

to the organization’s purpose, and (3) neither the claim asserted nor the relief

requested requires the participation of the individual members in the lawsuit. See

Hunt, 432 U.S. at 343; United Food & Commercial Workers Union Local 751 v. Brown

Group, Inc., 517 U.S. 544, 552-53 (1996).

 

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2 While Wintergreen contests Access 4 All’s organizational standing in its

motion to dismiss, Access 4 All did not address those arguments. See generally

Response; Plaintiffs’ Surreply to Defendant’s Reply to Plaintiffs’ Response to

Defendant’s Motion to Dismiss; Complaint ¶ 11. Instead, Access 4 All addresses its

standing under the Hunt test analyzing representational standing. Response at 6-9. 

Consequently, Access 4 All has not shown that it has organizational standing. 

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Access 4 All has failed to make a showing of an injury-in-fact sufficient to

confer organizational standing.2

 Although Access 4 All alleges that it and its members

“have suffered and will continue to suffer direct and indirect injury as a result of the

Defendant’s discrimination,” Complaint ¶ 11, this bare assertion is not enough to

articulate an “invasion of a legally-protected interest,” Lujan, 504 U.S. at 560,

affecting itself in its own right, rather than its members. See also Equal Access for All,

2005 WL 2001740, at *7 (an allegation of “frustration” of the organization’s stated

institutional purpose is insufficient to confer standing); Kessler, 876 F. Supp. at 656

(standing is not established by the organization’s mere allegation that “it has an

ideological or abstract social interest that is adversely affected by the challenged

action”). Access 4 All has not alleged any injury to itself as an organization, such as

the need to divert funds in order to challenge Wintergreen’s allegedly illegal conduct. 

See Kessler, 876 F. Supp. at 656. As a result, Access 4 All has not established

organizational standing.

Regarding representational standing, Access 4 All has mentioned only one

member of its organization with individual standing to bring this suit against

Wintergreen: Esposito. As discussed above, however, Esposito has not been shown

 

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3 All is not lost, though, as 42 U.S.C. § 12188(b)(1)(B) permits the

Attorney General to bring a civil suit to enforce Title III. See Delil, 1997 WL

714866, at *5 (the Attorney General may bring a civil action “[i]f the Attorney

General has reasonable cause to believe that . . . any person or group of persons has

been discriminated against . . . and such discrimination raises an issue of general

public importance”). Therefore, dismissal of this action does not preclude

remediation of any alleged discrimination by Wintergreen.

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to have standing. In the absence of other members with individual standing, Access 4

All cannot satisfy the constitutional requirements for representational standing. 

Wintergreen’s motion to dismiss Access 4 All’s claims is therefore granted.3

III. CONCLUSION

For the reasons stated above, Wintergreen’s motion to dismiss for lack of

standing is GRANTED.

SO ORDERED.

November 7, 2005.

 

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