UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

FRANCIS MARTINEZ, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:16-CV-271-JVB-JEM

)

KIMMIE’S PUB & GRUB, INC., )

Defendant. )

OPINION AND ORDER

This matter is before the Court sua sponte on the issue of standing.1

In Plaintiff Francis Martinez’s Complaint, Martinez alleges that Kimmie’s operates a 

restaurant/bar, which is a place of public accommodation subject to the ADA and that Kimmie’s 

is in violation of certain provisions of Title III of the ADA. Martinez further alleges that he visited 

Kimmie’s, he was denied full and equal enjoyment of the facilities, services, goods, and amenities, 

and he would return to Kimmie’s if it were ADA compliant.

In order for the Court to have standing, there must be a present case or controversy. 

Regarding standing to bring Title III ADA claims,

plaintiffs’ professions of an “intent to return to the places they had visited before—

where they will presumably, this time, [suffer the same injury they suffered 

before]—is simply not enough. Such ‘some day’ intentions—without any 

description of concrete plans, or indeed even any specifications of when the some 

day will be—do not support a finding of the ‘actual or imminent’ injury that our 

cases require.”

Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1074 (7th Cir. 2013) (second alteration in original) 

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992)). Conditional statements in an 

ADA case that a plaintiff would visit a place but for ongoing violations are not the same as “some 

 1 A Clerk’s Entry of Default has been entered against Defendant Kimmie’s Pub & Grub, Inc. (“Kimmie’s”) [DE 7].

Martinez’s Motion for Entry of Default Judgment [DE 9] is currently pending.
2

day intentions.” Id. Still, “a plaintiff must allege past injury under the ADA; show that it is 

reasonable to infer from her complaint that this discriminatory treatment will continue; and show 

that it is also reasonable to infer, based on the past frequency of her visits and the proximity of [the 

public accommodation] to her home, that she intends to return to [the public accommodation] in 

the future.” Id. (alterations in original, internal quotation marks omitted) (quoting Camarillo v. 

Carrols Corp., 518 F.3d 153, 158 (2d Cir. 2008)).

In Scherr, the plaintiff had many family members residing near the defendant hotel, 

travelled to the geographic area frequently both before and after her experience at the defendant 

hotel, and pointed specifically to a cousin’s upcoming wedding as a future travel plan taking her 

to the area. 703 F.3d at 1074-75. The court determined that there was standing to bring an ADA 

suit.

In Cohen v. Bensenville Hospitality Inc., the plaintiff stated that he visited the Chicago area 

an average of three times per year over the previous ten years and was planning to return to Chicago 

within 30 days. No. 15 CV 214, 2016 WL 2733280 at *2 (N.D. Ill. May 11, 2016). The court found 

that the affidavit “could have provided more detail” but was ultimately sufficient to convey 

standing. Id.

In Harty v. Simon Property Group, L.P., the Second Circuit Court of Appeals found that 

there was standing where an ADA “tester” plaintiff brought suit against mall and alleged that he 

is a former resident of the area, returns to the area quite often to visit family that lives there, and 

provided a list of upcoming gun shows in the area that he would be attending for work purposes.

428 F. App’x 69, 71-72 (2d Cir. 2011).

In Norkunas v. Park Road Shopping Center, Inc., however, the District Court for the 

Western District of North Carolina found that, though the ADA tester plaintiff lived in the same 
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state as the place of public accommodation at issue, his residence was 120 miles away from that 

place, the plaintiff only alleged one visit to the place, and the stated plan to return was “after the 

holidays,” which the court deemed vague. 777 F. Supp. 2d 998, 1002 (W.D. N.C. 2011).

On the allegations before the Court, it appears that Martinez lacks standing to bring his 

complaint. Martinez alleges that he is a resident of Ocean County, New Jersey and further alleges 

only an “initial visit” to Kimmie’s. Though Martinez alleges that he acts as a tester for the purpose 

of testing whether a place of accommodation is ADA compliant and subsequently returns to verify 

ADA compliance and generally alleges that he intends to visit Kimmie’s regularly to verify ADA 

compliance, Martinez has not alleged any past trips or specific plans to travel to or through 

northwest Indiana.

The Court is required to give notice and opportunity to respond before sua sponte

dismissing a case. Stewart Title Guar. Co. v. Cadle Co., 74 F.3d 835, 836 (7th Cir. 1996). 

Therefore, the Court hereby NOTIFIES Plaintiff Francis Martinez that the Court intends to 

dismiss this cause of action for lack of standing unless Martinez presents this Court with 

supplemental information showing that he has standing to bring his claims on or before January 

10, 2020.

SO ORDERED on December 5, 2019.

s/ Joseph S. Van Bokkelen

JOSEPH S. VAN BOKKELEN, JUDGE

UNITED STATES DISTRICT COURT