[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-14356

Non-Argument Calendar

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D.C. Docket No. 6:17-cv-01047-RBD-GJK

PATRICIA KENNEDY, Individually,

 Plaintiff - Appellant,

versus

BEACHSIDE COMMERCIAL PROPERTIES, LLC,

a Florida Limited Liability Company,

COCOA BEACH SURF COMPANY,

a Florida Corporation,

 Defendants - Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

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(May 1, 2018)

Before WILSON, JORDAN, and DUBINA, Circuit Judges.

PER CURIAM: 

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Plaintiff-Appellant Patricia Kennedy (“Plaintiff”), who is disabled, sued 

Defendants-Appellees Beachside Commercial Properties, LLC and Cocoa Beach 

Surf Company (collectively “Defendants”) to compel them to bring their premises 

at a Port of Call at Beach (“Port of Call”) store into compliance with Title III of the 

Americans with Disabilities Act, 42 U.S.C. §§ 12181–12189 (“ADA”). The 

district court determined Plaintiff lacked standing and dismissed her complaint for 

lack of subject matter jurisdiction. After reviewing the record and the parties’ 

briefs, we affirm.

I. BACKGROUND

Plaintiff Kennedy is mobility impaired and ambulates by wheelchair. She 

filed her amended complaint against Defendants, alleging they failed to provide 

adequate facilities in the Port of Call shop in Cocoa Beach when she visited the 

property on February 15, 2017. She sued for declaratory judgment and injunctive 

relief, seeking Defendants’ compliance with ADA provisions. 

A. Plaintiff’s Title III Claim

Title III provides that “[n]o individual shall be discriminated against on the 

basis of disability” in “any place of public accommodation.” 42 U.S.C. § 12182(a). 

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In her amended complaint,1 Plaintiff indicated she was both a bona fide patron of 

Port of Call as well as a “tester” for ADA accommodations, by which she 

advocates for herself and other disabled persons. Plaintiff alleges she encountered 

architectural and other barriers that caused her to be barred from accessing all of 

the premises and otherwise caused her humiliation, including: missing 

handicapped parking signs, lack of accessible routes to different store levels, 

merchandise obstructing wheelchair access in aisles, inaccessible and otherwise 

non-ADA compliant restrooms, and unsecured floor mats. 

B. Defendants’ Motion to Dismiss

Defendants moved to dismiss Plaintiff’s amended complaint for failure to 

state a claim and for lack of standing or, in the alternative, moved for summary 

judgment. In this challenge to the amended complaint, Defendants raised a factual 

challenge to subject matter jurisdiction. Defendants challenged Plaintiff’s ability 

to show a real and immediate threat of future injury on the basis that she most 

likely would not return to Port of Call and face future discrimination. Defendants 

 

1 Plaintiff initially filed her complaint on June 8, 2017. The district court, however, 

dismissed the complaint without prejudice on the basis that the complaint “constitute[d] an 

impermissible form of shotgun pleading,” which appears to be a reoccurring problem with 

Plaintiff’s filings. [See R. 7 at 1–2]. The district court allowed Plaintiff to refile an amended 

complaint correcting the many errors of the original, but Plaintiff missed the filing deadline. [R. 

8]. The district court then dismissed the complaint with prejudice. Id. Plaintiff sought relief 

under Fed. R. Civ. P. 60(b) on the basis of excusable neglect, and the district court allowed her to 

file her amended complaint and reopened the case on June 29, 2017. [R. 10, 11]. 

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stressed Plaintiff lives approximately 175 miles away from the premises, that she 

had only visited the premises once before, that she provided only “generalized 

allegations” of her plan(s) to return to the store, and that she failed to detail how 

frequently she travels in the area where the store is located. In essence, Defendants 

argued Plaintiff failed to meet the factors of the “proximity test” employed by 

district courts throughout this circuit. See Silva v. Baptist Health S. Fla., Inc., 856 

F.3d 824, 832 (11th Cir. 2017); Houston v. Marod Supermarkets, Inc., 733 F.3d 

1323, 1336–37 (11th Cir. 2013); Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 

447, 455–56 (4th Cir. 2017) (citing favorably to Houston and other circuit court 

decisions for application of the proximity or similar tests). 

In response to Defendants’ motion, Plaintiff filed an affidavit providing 

details about her visit to Port of Call and her future plans to revisit the store and the 

general Cocoa Beach area. In that document, Plaintiff stated she first visited the 

Port of Call premises on February 15, 2017 and then returned on July 19, 2017. 

[R. 22-1 at ¶ 4]. Plaintiff stated she “travel[s] along the Florida East Coast 

frequently,” including at least ten visits to the Cocoa Beach area “in the past 

several months” and “at least 50 times over the course of my lifetime.” [Id. at ¶ 2]. 

Further, she indicated she “will continue to visit the area on a frequent basis[.]” Id. 

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She indicated she “plan[s] to return to the property in the future” so that she can 

“shop, dine, and . . . monitor its ADA conditions.” [Id. at ¶ 6]. 

C. Procedural History

The district court granted Defendants’ motion to dismiss for lack of subject 

matter jurisdiction and dismissed the complaint with prejudice on September 25, 

2017. In its order, the district court found Plaintiff lacked standing because she 

could not demonstrate redressability. [R. 25 at 4]. In addressing this final element 

of standing, the district court determined Plaintiff could not satisfy the four-factor 

proximity test. In doing so, the district court found Plaintiff’s residence 

approximately 175 miles away from Cocoa Beach, in combination with her one 

visit to the store before she filed her suit, did not weigh in her favor. Further, the 

district court characterized Plaintiff’s generalized plans to revisit “someday” to be 

insufficient to shift the totality of the circumstances in her favor. After finding 

Plaintiff most likely did not face a continuing threat of discrimination at Port of 

Call, the district court dismissed her complaint for her lack of standing. Plaintiff 

thereafter perfected this appeal. 

II. STANDARD OF REVIEW

“In reviewing a district court’s dismissal of a complaint under Rule 12(b)(1) 

for lack of subject matter jurisdiction, we review the district court’s legal 

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conclusions de novo, including the court’s conclusion concerning standing.” 

Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013). “We 

review the district court’s ‘findings of jurisdictional facts for clear error.’” Id. 

(quoting City of Vestavia Hills v. Gen. Fidelity Ins. Co., 676 F.3d 1310, 1313 (11th 

Cir. 2012)). 

III. DISCUSSION

A. Article III Standing Requirements 

In order to satisfy the requirements for Article III standing under the 

Constitution, Plaintiff must satisfy three requirements: (1) injury-in-fact, (2) “a 

causal connection between the asserted injury-in-fact and the challenged action of” 

Defendants, and (3) “that the injury will be redressed by a favorable decision.” 

Houston, 733 F.3d at 1328 (internal marks and citations omitted); see also Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130 (1992). The second and 

third elements of standing are easily met and are not challenged on appeal. We 

conclude Plaintiff has adequately shown both causation and redressability.2

 

2 In its order, the district court found Plaintiff had established the first two prongs of standing—

that of an injury-in-fact and causation. [See R. 25 at p. 4]. The district court’s analysis of the 

redressability element follows our case law as set forth in Houston and other decisions. The 

Houston court is clear, however, that the analysis of the threat of future harm speaks to the 

question of an injury-in-fact and not redressability. See Houston, 733 F.3d at 1328; Silva, 856 

F.3d at 832. This minor error in nomenclature, however, is hardly a reason to overturn the 

district court’s well-reasoned analysis. 

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The hurdle Plaintiff faces, thus, is the question of whether Plaintiff suffered 

an injury-in-fact. See Houston, 733 F.3d at 1328. In order to meet the 

constitutional requirements for standing in a suit seeking injunctive relief, Plaintiff 

must do more than show that she was injured in the past; rather, she must also 

demonstrate “a sufficient likelihood that [s]he will be affected by the allegedly 

unlawful conduct in the future.” Id. (internal marks and citation omitted). To do 

so, Plaintiff must “show[ ] ‘a real and immediate—as opposed to a merely 

conjectural or hypothetical—threat of future injury.’” Id. at 1329 (quoting Shotz v. 

Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (emphasis in the original)). Thus, “to 

have standing, Plaintiff [Kennedy] must show past injury and a real and immediate 

threat of future injury.” Id. As this court recently noted, “[i]n the ADA context, 

our standing inquiry has focused on the frequency of the plaintiff’s visits to the 

defendant’s business and the definitiveness of the plaintiff’s plan to return.” Silva, 

856 F.3d at 832 (citing Houston, 733 F.3d at 1337 n. 6) (“While we consider each 

of the four factors [of the proximity test] in reaching our decision today, we note 

that these factors are not exclusive and that no single factor is dispositive. District 

courts must consider the totality of all relevant facts to determine whether a 

plaintiff faces a real and immediate threat of future injury.”). 

B. Article III Standing Analysis 

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“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). In 

this case, Defendants challenged Plaintiff’s standing on the basis of extrinsic 

material found outside of the amended complaint, namely in Plaintiff’s affidavit 

and response to the district court’s interrogatories. See id. (“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 testimony.”); see also 

Houston, 733 F.3d at 1336. On this basis, we consider not only what Plaintiff has 

alleged in her amended complaint but also the factual information she provided in 

her court filings. Plaintiff, who lives approximately 175 miles away from the 

Cocoa Beach area, visited Defendants’ store only once, in February 2017, before 

filing her complaint in June 2017.3

 Plaintiff further stated she had visited the 

general area about ten times in recent months and about fifty times over the course 

of her lifetime. She further claimed she “will continue to visit the area on a 

 

3 It is true that Plaintiff revisited the premises at Port of Call in July 2017 after the filing of her 

suit and has, thus, visited at least twice. Like the district court, however, we cannot consider her 

second, post-filing visit to determine standing. See Bochese v. Town of Ponce Inlet, 405 F.3d 

964, 976 (11th Cir. 2005) (“However, in making the necessary preliminary determination of 

what claims the plaintiff has actually raised (and therefore, what claims he must have standing to 

raise), we are bound by the contents of the plaintiff’s pleadings . . . .”) (emphasis in the original).

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frequent basis” and indicated she “plan[s] to return to the property in the future” so 

that she can “shop, dine, and . . . monitor its ADA conditions.” We also take note 

that Port of Call has closed since Plaintiff’s filing of her initial suit, although 

Defendant Beachside Commercial Properties, LLC still owns the premises. 

In taking all of the factual allegations and the totality of the circumstances 

into consideration, we conclude that Plaintiff has failed to demonstrate a “real and 

immediate threat of future injury” and thus cannot meet the requirements for 

standing. Plaintiff’s singular documented visit to Port of Call does not weigh in 

her favor. As we noted in Shotz, a plaintiff seeking injunctive relief under Title III 

must “have attempted to return” or at the minimum “intend to do so in the future.” 

256 F.3d at 1081. Like in Shotz, Plaintiff only visited the allegedly non-complaint 

premises once before filing her complaint (and even her amended complaint) and 

thus cannot claim that her singular past injury presents evidence suggesting future

injury. Compare Shotz, 256 F.3d at 1082 (concluding that a single visit to a noncomplaint building with no expressed intent to return amounted to “conjectural, 

hypothetical, or contingent” rather than “real and immediate” future 

discrimination”), with Houston, 733 F.3d at 1336 (determining plaintiff’s multiple 

visits to the discriminating premises before he filed suit evidenced a future threat 

of continued discrimination). 

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Further, Plaintiff’s generalized intent to return to the Cocoa Beach area 

sometime in the future does not bolster her case. Plaintiff lives about three hours 

away from the area and has no definitive plans to return to Port of Call (which, we 

note, is now impossible, as the store has closed). Her vague intent to return to shop 

and monitor the premises cannot pass constitutional muster. Unlike the plaintiff in 

Houston who lived only thirty miles away and had both definitive plans and sound 

reason to revisit the area, Plaintiff uses overly-broad and vague language as a 

“catch-all” to hope that her claim will stick. While neither our court nor the 

Supreme Court require detailed or concrete travel plans to revisit a place to meet 

standing requirements, case law requires more immediacy than a “someday” plan. 

See Houston, 733 F.3d at 1338–40. For example, in its factually-specific inquiry 

into standing, this court determined Houston did have standing in part because 

“Houston visits his lawyer’s offices near the [non-compliant premises] on a 

frequent basis and, thus, drives by the store frequently. During these trips to his 

lawyer’s office in the near future, he wants to visit the store. Unlike the plaintiffs 

in Lujan, Houston has averred a concrete and realistic plan of when he would visit 

the store again.” Id. at 1340. Unlike the plaintiff in Houston, Plaintiff cannot point 

to anything in the record that supports a “concrete and realistic plan” to revisit 

Defendants’ premises. See id.; see also Silva, 856 F.3d at 832 (concluding 

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plaintiffs did have standing to seek injunctive relief for alleged ADA violations on 

the basis that they visited the hospital frequently for appointments and had strong 

evidence supporting the likelihood of future visits). 

In this fact-sensitive inquiry—as that of standing must be4

—we conclude 

Plaintiff does not have standing to seek injunctive relief against Defendants. The 

totality of the circumstances surrounding her past visit to Port of Call, the store’s 

subsequent closing, and the formulaic assertion of a generalized intent to return to 

the premises and/or the area do not amount to a “real and immediate” threat of 

future injury.

IV. CONCLUSION

Having concluded Plaintiff lacks standing, we do not reach Plaintiff’s 

remaining pettifogging arguments. For the reasons set forth above, we affirm the 

district court’s judgment of dismissal for lack of subject matter jurisdiction. 

AFFIRMED.

 

4 We have previously noted, “determining standing for injunctive relief is often a fact-sensitive 

inquiry” and that “each plaintiff must establish standing on the facts of the case before the 

court.” Houston, 733 F.3d at 1340.

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