PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-1638

JOHN NANNI,

Plaintiff – Appellant,

v.

ABERDEEN MARKETPLACE, INC.,

Defendant – Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. 

William M. Nickerson, Senior District Judge. (1:15-cv-02570-WMN)

Argued: September 12, 2017 Decided: December 21, 2017

Before TRAXLER and KING, Circuit Judges, and Raymond A. JACKSON, United 

States District Judge for the Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge King wrote the opinion, in which 

Judge Traxler and Judge Jackson joined.

ARGUED: Brian T. Ku, KU & MUSSMAN, P.A., Pembroke Pines, Florida, for 

Appellant. William Nelson Sinclair, SILVERMAN, THOMPSON, SLUTKIN & 

WHITE, LLC, Baltimore, Maryland, for Appellee. ON BRIEF: Robert W. King, 

Hyattsville, Maryland, for Appellant.
2

KING, Circuit Judge:

Plaintiff John Nanni — a Delaware resident who suffers from post-polio syndrome 

and generally uses a wheelchair — appeals from the dismissal of his civil action against

Aberdeen Marketplace, Inc. According to the operative amended complaint that Nanni

filed in the District of Maryland in 2015, he has encountered and will continue to 

encounter unlawful barriers to access at Aberdeen’s Marketplace Shopping Center (the 

“Marketplace”), which is located in northeast Maryland. See Nanni v. Aberdeen 

Marketplace, Inc., No. 1:15-cv-02570 (D. Md. Nov. 5, 2015), ECF No. 5 (the 

“Complaint”). Those barriers — the Complaint alleges — hinder access to the 

Marketplace and discriminate against Nanni, in violation of the Americans with 

Disabilities Act (the “ADA”). Aberdeen sought dismissal of the Complaint by 

contending, inter alia, that Nanni’s lack of standing to sue deprives the district court of 

subject matter jurisdiction. In May 2016, the court agreed with Aberdeen and dismissed

the Complaint. See Nanni v. Aberdeen Marketplace, Inc., No. 1:15-cv-02570 (D. Md. 

May 4, 2016), ECF No. 12 (the “Opinion”). Nanni has appealed the standing decision, 

asserting that the judgment of dismissal was erroneously awarded. As explained below,

we are satisfied that Nanni has sufficiently alleged standing to sue and is entitled to 

pursue his ADA claim. We therefore vacate the judgment in favor of Aberdeen and 

remand for further proceedings.
3

I.

A.

In August 2015, Nanni initiated this civil action in the district court at Baltimore, 

alleging disability discrimination in contravention of the ADA and seeking declaratory 

and injunctive relief against Aberdeen. The Complaint identifies the essential relief that

Nanni seeks as the district court’s declaration that the Marketplace is in violation of the 

ADA, plus an injunction requiring Aberdeen to alter the Marketplace to “make it 

accessible to and usable by individuals with disabilities.” See Compl. 5.

Nanni’s ADA claim is premised on allegations that, several times each year, he

travels southwest on I-95 from his home in Delaware to Baltimore and Washington, D.C., 

where he attends sporting events, visits with relatives, and participates in events for the 

disabled. See Compl. ¶ 10.1 The Marketplace, which is located near exit 85 on I-95 in 

Maryland, constitutes a place of public accommodation and provides “a perfect place” to 

“stop to rest on drives and to take bathroom breaks.” Id. ¶¶ 9-10.2 Between 2013 and 

June 2015, Nanni visited the Marketplace at least three or four times, and he intends to

make additional visits on his journeys to and from Baltimore and Washington. Id. ¶¶ 10, 

 1 The relevant facts with respect to this appeal are largely derived from the 

Complaint. We take the factual allegations made therein as true and draw reasonable 

inferences in favor of Nanni. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 

591 F.3d 250, 253 (4th Cir. 2009).

2 Travelling southbound on I-95 from Delaware, the Marketplace is readily

accessed off exit 85 onto Maryland Route 22. It is situated on Beards Hill Road in 

Aberdeen, about forty miles from Nanni’s residence and approximately halfway to 

Baltimore. 
4

13. Independent of Nanni’s intention to return to the Marketplace as a customer, he plans 

to return as what the Complaint calls an “ADA tester.” Id. ¶ 19.

During his visits to the Marketplace, Nanni has “experienced serious difficulty 

accessing the goods and utilizing the services therein,” due to defendant Aberdeen’s 

failure to comply with the ADA. See Compl. ¶ 11. Nanni has encountered major 

obstacles at the Marketplace, that is, barriers to access that pose serious difficulties for 

disabled individuals who rely on wheelchairs for mobility, including the following:

• Parking designated for use by persons with disabilities is

inaccessible “due to excessive slopes, pavement in disrepair and lack 

of proper access aisles”; 

• Curb ramps for use by persons with disabilities are inaccessible “due 

to excessive slopes, steep side flares, failure to provide smooth 

transitions, and pavement in disrepair”;

• One of the sidewalk ramps causes problems for the disabled because 

it has “excessive running slopes”; and 

• Various routes of travel about the Marketplace are inaccessible to 

disabled persons “due to excessive slopes and pavement in 

disrepair.”

Id. ¶ 14.

Each of those major obstacles and barriers to access have caused serious 

difficulties for Nanni. For example, the noncompliant parking spaces caused problems 

with entering and exiting Nanni’s vehicle and required him to use extra care to avoid 

falling. See Compl. ¶ 14. The noncompliant curb ramps, sidewalk ramp, and routes of 

travel caused him serious difficulties in safely navigating and accessing the Marketplace. 

Id. Aberdeen’s failure to comply with the accessibility requirements of the ADA have
5

thus deprived Nanni of his right to full and equal enjoyment of the Marketplace and his 

right to be free from discrimination on the basis of disability. Id. ¶ 15. As the Complaint 

specifies, those noncompliant barriers to access remain in place. Id. ¶ 16. As a result,

Aberdeen

continues to discriminate against [Nanni] by failing to make reasonable 

modifications in policies, practices or procedures, when such modifications

are necessary to provide [him] an equal opportunity to participate in, or 

benefit from, the goods, services, facilities, privileges, advantages, and 

accommodations which [the Marketplace] offers to the general public.

Id. ¶ 15.

Notably, each of the specified barriers to access is readily removable, and removal

would not impose an undue burden on Aberdeen. See Compl. ¶ 17. As the Complaint

explains, a court ruling in Nanni’s favor — i.e., a declaration of unlawfulness plus an 

injunction requiring Aberdeen to remove or modify the unlawful barriers to access and

comply with the ADA — would resolve the equal access problems that have caused and 

otherwise will continue to cause Nanni’s injuries. Id. ¶¶ 16-18.

B.

In response to the Complaint, Aberdeen sought its dismissal on two grounds. 

Aberdeen argued under Rule 12(b)(6) of the Federal Rules of Civil Procedure that the 

Complaint fails to state a claim upon which relief can be granted. Of relevance,

Aberdeen also asserted under Rule 12(b)(1) that the district court is without subject 

matter jurisdiction because Nanni lacks standing to sue. See Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560-61 (1992) (explaining that, to possess Article III 

constitutional standing to sue, three elements must be satisfied, that is, (1) the plaintiff 
6

“must have suffered an injury in fact”; (2) “there must be a causal connection between 

the injury and the [defendant’s] conduct”; and (3) the injury will likely “be redressed by a 

favorable decision”). Aberdeen specifically challenged the sufficiency of the Complaint 

with respect to Lujan’s injury-in-fact element.

By its Opinion of May 4, 2016, the district court dismissed Nanni’s Complaint for 

lack of standing to sue. The Opinion recognized that, to satisfy the constitutional 

standing mandate, the Complaint must sufficiently allege the essential elements of 

standing. See Op. 4. Explaining the injury-in-fact element, the Opinion related that the 

Complaint must demonstrate “a concrete and particularized, actual or imminent invasion 

of a legally protected interest.” Id. Additionally, because Nanni is seeking declaratory 

and injunctive relief, the Opinion recognized that the Complaint must establish “a real 

and immediate threat that [Nanni] will be wronged again.” Id. (internal quotation marks 

omitted). Relying on a recent decision of the same district court, the Opinion specified 

that, in order to show a “real and immediate threat” of future injury, the Complaint had to

allege and describe Nanni’s “concrete, specific plans to return to the locus of the injury”

and “indicate that [he] is likely to suffer the same injuries upon return.” Id. at 5 (internal 

quotation marks omitted).

3

 3 Although the Opinion’s analysis of the injury-in-fact element references the

Supreme Court’s Lujan decision, the standard applied by the district court was drawn 

from a decision rendered in the District of Maryland. See Nat’l All. for Accessibility, Inc. 

v. Millbank Hotel Partners, No. 1:12-cv-03223 (D. Md. Feb. 20, 2013), ECF No. 22.
7

Although the Opinion recognized that the Complaint “clearly state[s] [Nanni’s] 

intent to return” to the Marketplace, the district court dismissed on the premise that the 

Complaint fails to establish Nanni’s likelihood of suffering future harm there. See Op. 6. 

In so ruling, the Opinion first determined that the Complaint inadequately describes 

Nanni’s past injuries, leaving the court “to speculate as to the type of harm [Nanni] is 

likely to face on his return to the [Marketplace].” Id. at 6-7. Next, the Opinion related 

that the Complaint’s lack of specificity left the court “to wonder which business within 

the [Marketplace] is ‘the perfect place’ for [Nanni] to stop and rest.” Id. at 7. That is, the 

Opinion deemed the Complaint to be insufficiently specific regarding Nanni’s alleged

future injuries, explaining that the court was

unable to find more than a mere possibility of future harm without any 

indication of the specific goods and services at [the Marketplace] that 

[Nanni] seeks out in his travels, or a particular convenience at this center 

that is more advantageous to [him] than that available at other centers along 

his route.

Id. at 8. The court considered Nanni’s connection to the Marketplace to be “tenuous at 

best,” explaining that Nanni could easily stop at any number of other places while driving

up and down I-95 in order to rest or use the bathroom. Id.

Finally, the Opinion addressed the Complaint’s allegation that Nanni would return 

to the Marketplace as an “ADA tester.” See Op. 8. The Opinion accepted that Nanni 

would return to the Marketplace “to confirm its ADA-compliance,” but recognized that 

Nanni “cannot use his status as a tester to satisfy the standing requirements where [he] 

would not have standing otherwise.” Id. (internal quotation marks omitted). The 

Opinion further recognized that acting as a tester “is not improper,” but observed that 
8

Nanni’s litigation history undermined “the plausibility of [Nanni’s] threat of future injury 

at [the Marketplace].” Id. at 9.4

 Specifically, the Opinion invoked “substantially similar 

complaints” filed by Nanni in the District of Maryland against “defendant properties in 

the vicinity of Interstate 95,” indicating that the Marketplace is not Nanni’s sole choice of 

rest stop. Id. According to the Opinion, Nanni’s litigation history also “heighten[ed] the 

appearance” that he planned to return to the Marketplace as an opportunistic litigant, 

rather than as a “bona fide patron[].” Id. at 10.

By its Order accompanying the Opinion, the court then dismissed the Complaint

for lack of standing. See Nanni v. Aberdeen Marketplace, Inc., No. 1:15-cv-02570 (D. 

Md. May 4, 2016), ECF No. 13. Nanni timely noted this appeal from the judgment, 

challenging the dismissal of his Complaint. We possess jurisdiction pursuant to 28 

U.S.C. § 1291.

II.

We review issues of subject matter jurisdiction de novo. See Columbia Gas 

Transmission Corp. v. Drain, 237 F.3d 366, 369 (4th Cir. 2001). It is established that “a 

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We have recognized 

 4 Nanni’s litigation history is not apparent in this record, but some aspects thereof 

were apparently brought to the district court’s attention by way of written submissions 

made with respect to Aberdeen’s dismissal request.
9

that “facial plausibility is established once . . . the complaint’s factual allegations produce 

an inference . . . strong enough to nudge the plaintiff’s claims ‘across the line from 

conceivable to plausible.’” See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 

F.3d 250, 256 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 570). In assessing the 

sufficiency of a complaint, we assume as true all its well-pleaded facts and draw all 

reasonable inferences in favor of the plaintiff. Id. at 253. Thus, to satisfy the plausibility 

standard, a plaintiff is not required to plead factual allegations in great detail, but the 

allegations must contain sufficient factual heft “to allow a court, drawing on ‘judicial 

experience and common sense,’ to infer ‘more than the mere possibility’” of that which is 

alleged. Id. at 256 (quoting Iqbal, 556 U.S. at 679).

III.

A.

On appeal, Nanni urges us to vacate the district court’s decision on standing as

fatally erroneous and to reinstate his Complaint. Put succinctly, Nanni maintains that the 

court erred in its Opinion by failing to recognize that the Complaint demonstrates that he 

suffered a concrete and particularized injury when he encountered the noncompliant 

parking spaces, curb ramps, sidewalk ramp, and routes throughout the Marketplace. See

Br. of Appellant 12-19. Because the Complaint alleges that those “architectural barriers 

have not been removed and still exist,” the court should have concluded that Nanni will 

“encounter the same barriers and suffer the same harm” on his future visits to the 

Marketplace. Id. at 19. Nanni relies on, inter alia, our unpublished decision in Daniels v. 
10

Arcade, L.P., 477 F. App’x 125, 129-30 (4th Cir. 2012), a similar ADA case in which we 

concluded that the complaint sufficiently pleaded the injury-in-fact element of standing 

by alleging that the plaintiff, who used a wheelchair, lived near and regularly visited the 

defendant property; that he had encountered structural deficiencies there, including 

inaccessible entry routes, ramps, restrooms, and other amenities; that those structural 

deficiencies had excluded the plaintiff from, or denied him the benefits of, the goods and 

services offered by the defendant property; and that the plaintiff planned to continue to 

visit the defendant property to shop.

Additionally, Nanni takes umbrage with the Opinion’s determination that the 

Complaint is insufficiently specific as to the particular goods and services at the 

Marketplace that Nanni seeks out in his travels, and as to the reasons why Nanni chooses 

the Marketplace over other available rest stops. See Br. of Appellant 19-22. According 

to Nanni, once the district court acknowledged — as it properly did — that the Complaint 

plausibly alleges Nanni’s intent to return to the Marketplace, that should have ended the 

court’s inquiry on the likelihood of future harm. Instead, however, the Opinion deemed 

the Complaint inadequate and questioned Nanni’s credibility and motives in returning to 

the Marketplace and pursuing his ADA claim against Aberdeen. Nanni contends that his 

motivations are “irrelevant to [his] right to be free from discrimination,” id. at 21, and 

that the court inappropriately used merits-based criteria to dismiss the Complaint.

Aberdeen, on the other hand, maintains on appeal that the district court correctly

dismissed the Complaint for lack of Nanni’s standing to sue. As Aberdeen would have it, 

more than even the Opinion required is necessary to demonstrate the likelihood of future 
11

injury. See Br. of Appellee 12-17. More specifically, the Complaint fatally fails to allege

“a planned date of [Nanni’s] return” to the Marketplace, as well as “any arrangements 

made for return, a reason why he would return, specific establishments [at the 

Marketplace] that he intends to return to, or information about what he intends to do on 

his return.” Id. at 16. Aberdeen also distinguishes Nanni’s ADA claim from the ADA 

claim in our Daniels decision, arguing that the likelihood of future injury was more 

plausible in Daniels because the plaintiff lived just twenty miles from the defendant 

property, whereas there are forty miles between Nanni’s residence and the Marketplace. 

Id. at 18-21. Premised on Daniels, Aberdeen advocates the adoption of a “close 

proximity” test to determine the plausibility of a future injury allegation. Id.

As for the Opinion’s reliance on Nanni’s credibility and motives, Aberdeen 

defends it on the ground that matters such as Nanni’s “tenuous at best” connection with 

the Marketplace and his litigation history go to the plausibility of the Complaint’s 

allegation that Nanni is likely to suffer future injuries. See Br. of Appellee 21-23. 

Aberdeen also agrees with the district court that Nanni’s intention of returning to the 

Marketplace as an “ADA tester” is — standing alone — insufficient to establish Nanni’s 

standing to sue. Id. at 24-27. Finally, Aberdeen characterizes the Complaint as merely 

alleging “fears” of re-encountering barriers that cannot be substantiated without details 

about Nanni’s plans for his return to the Marketplace. Id. at 27-29.
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B.

1.

Turning to our analysis of Nanni’s standing to sue, Title III of the ADA bars 

discrimination against individuals on the basis of disability in places of public 

accommodation. See 42 U.S.C. § 12182. In enacting the ADA, Congress recognized that 

we live in a “society [that] has tended to isolate and segregate individuals with 

disabilities.” Id. § 12101. Such individuals “continually encounter various forms of 

discrimination, including outright intentional exclusion” as a result of various barriers to 

access, including those of an architectural nature. Id. The ADA applies to privately 

operated places of public accommodation, such as the Marketplace. Id. § 12182(a).5

 

Furthermore, discrimination under the ADA includes the “failure to remove architectural 

barriers . . . in existing facilities . . . where such removal is readily achievable.” 

Id. § 12182(b)(2)(A)(iv).

In order for Nanni to pursue his ADA claim, he must satisfy “the irreducible 

constitutional minimum of standing” that is required in order to invoke jurisdiction in the

 5 The ADA’s prohibition against discrimination in public accommodations, which 

is in part codified in section 12182(a) of Title 42 of the United States Code, proscribes

private entities from discriminating on the basis of disability:

No individual shall be discriminated against on the basis of disability in the

full and equal enjoyment of the goods, services, facilities, privileges, 

advantages, or accommodations of any place of public accommodation by 

any person who owns, leases (or leases to), or operates a place of public 

accommodation.

See 42 U.S.C. § 12182(a).
13

federal courts. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The doctrine of 

standing is concerned with the constitutional limitation on federal court jurisdiction to the 

tribunal’s resolution of “cases” and “controversies” that are appropriately justiciable. See 

U.S. Const. art. III § 2, cl. 1. We have recognized that “[d]octrines like standing, 

mootness, and ripeness are simply subsets of [the Constitution’s] command that the 

courts resolve disputes, rather than emit random advice.” See Bryant v. Cheney, 924 F.2d 

525, 529 (4th Cir. 1991). In assessing a question of standing to sue, we are not concerned 

with the merits of the plaintiff’s claim. See White Tail Park, Inc. v. Stroube, 413 F.3d 

451, 460 (4th Cir. 2005). Instead, our only aim is to assess “whether [the] plaintiff has a 

sufficiently personal stake in the lawsuit to justify the invocation of federal court 

jurisdiction.” Id. at 461 (internal quotation marks omitted).

In order to possess standing to sue in this proceeding, Nanni must satisfy the

elements of standing enunciated by the Supreme Court in its Lujan decision. And only 

one of those elements — the “injury-in-fact” element — is being litigated here. To 

satisfy that specific element, the Complaint must show that Nanni “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.” See Lujan, 504 U.S. at 560

(footnote, citation, and internal quotation marks omitted). As further mandated by Lujan, 

because Nanni is seeking prospective declaratory and injunctive relief rather than 

damages, the allegations in the Complaint of past injuries “do[] not in [themselves] show 
14

a present case or controversy . . . if unaccompanied by any continuing, present adverse 

effects.” Id. at 564 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).6

2.

The issue we face in this appeal is therefore simple and focused. Does Nanni’s 

Complaint sufficiently allege standing to sue under Lujan’s injury-in-fact element?

a.

First of all, we reject the district court’s determination in its Opinion that the 

Complaint does not sufficiently allege past injuries that are concrete and particularized, 

as well as actual or imminent. To satisfy that standard, a plaintiff may demonstrate an

“actual” “invasion of a legally protected interest” that “affect[s] the plaintiff in a personal 

and individual way.” See Lujan, 504 U.S. at 560 & n.1. As illustrated by our recent 

unpublished decision in Daniels, a past injury is sufficiently pleaded for purposes of an 

ADA claim where a disabled individual who requires a wheelchair for mobility alleges 

that he has personally encountered noncompliant architectural barriers and describes how 

those barriers caused him harm. See 477 F. App’x at 129-30.

 6 The second and third elements of standing to sue, as identified by the Supreme 

Court in Lujan, are the following: “there must be a causal connection between the injury 

and the conduct complained of — the injury has to be fairly traceable to the challenged 

action of the defendant, and not the result of the independent action of some third party 

not before the court”; and “it must be likely, as opposed to merely speculative, that the 

injury will be redressed by a favorable decision.” See 504 U.S. at 560-61 (alterations and 

internal quotation marks omitted). Neither of those Lujan elements are disputed in these 

proceedings.
15

According to the Complaint, Nanni — who relies on a wheelchair for mobility —

visited the Marketplace at least three or four times between 2013 and 2015. See Compl. 

¶ 10. During those visits, Nanni encountered noncompliant parking spaces that “caused 

him difficulty exiting and entering his vehicle because of the extra care needed to avoid a 

fall.” Id. ¶ 14. Nanni also encountered other barriers to access throughout the 

Marketplace, including curb ramps and a sidewalk ramp, which required him to exercise 

“extra care.” Id. Those barriers placed Nanni at risk of physical harm and denied him 

equal access to the goods and services located at the Marketplace. Id. ¶¶ 14-15.

Architectural barriers, such as those identified here, result in exclusion,

segregation, and other differential treatment of persons with disabilities — precisely the 

types of systemic discrimination the ADA seeks to erase. See 42 U.S.C. § 12182(a). By 

alleging that Nanni visited the Marketplace and personally encountered architectural 

barriers to access, the Complaint pleads past injuries that are concrete, particularized, and 

actual. Indeed, there is nothing conjectural or hypothetical about the injuries Nanni 

suffered during his visits to the Marketplace.

b.

We therefore proceed to the question of whether the Complaint sufficiently alleges 

a likelihood that Nanni will again suffer such injuries, and we conclude that it does. See 

Lyons, 461 U.S. at 105 (explaining that “standing to seek the injunction requested 

depended on whether [the plaintiff] was likely to suffer future injury”). That is, the 

Complaint satisfies the future injury requirement by plausibly alleging “a real and 
16

immediate threat of repeated injury.” See Bryant, 924 F.2d at 529 (quoting Lyons, 461 

U.S. at 102).

In our Daniels decision, we addressed — in a similar context — the sufficiency of 

allegations of the likelihood of future injury with respect to the ADA plaintiff’s standing

to seek equitable relief. See 477 F. App’x at 129-30. We therein recognized that the 

complaint’s allegations of past injuries on the plaintiff’s earlier visits to the defendant 

property (the Lexington Market in Baltimore), coupled with his alleged intent “to 

continue to visit the Market in the future for his shopping needs,” were sufficient to plead 

the likelihood of future injury. Id. (alteration and internal quotation marks omitted). We 

also observed that the complaint’s allegation of a plan to return to the Market was 

plausible, in that the plaintiff “reside[d] in relatively close proximity to the Market,” i.e., 

about twenty miles away. Id. at 127, 130.

Importantly, the Daniels principle — that when an ADA plaintiff has alleged a 

past injury at a particular location, his plausible intentions to thereafter return to that 

location are sufficient to demonstrate the likelihood of future injury — is entirely 

consistent with the decisions of our fellow courts of appeals. See, e.g., Kreisler v. Second 

Ave. Diner Corp., 731 F.3d 184, 188 (2d Cir. 2013); Gaylor v. Hamilton Crossing CMBS, 

582 F. App’x 576, 580 (6th Cir. 2014); Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1074 

(7th Cir. 2013); Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000); D’Lil v. Best 

W. Encina Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir. 2008); Tandy v. Wichita, 380 

F.3d 1277, 1284 (10th Cir. 2004); Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 
17

1335 (11th Cir. 2013).7

 Put simply, we are satisfied that the Daniels decision properly 

described and applied the pleading obligations for standing with respect to Lujan’s 

injury-in-fact element. We therefore adopt the Daniels principle and apply it in disposing

of this appeal.

Consistent with the Daniels principle, the Complaint sufficiently pleads that Nanni 

suffered past injuries on his visits to the Marketplace. Thus, contrary to the district 

court’s Opinion, we are not left “to speculate as to the type of harm [Nanni] is likely to 

face on his return to the [Marketplace].” See Op. 7. Rather, we know exactly the type of 

future injury that Nanni faces: the denial of equal access to the Marketplace’s goods and 

services by way of architectural barriers that include noncompliant parking spaces and 

ramps. Significantly, the Complaint’s allegations of future injury also are plausible. That 

is, it is entirely plausible that Nanni will return to the Marketplace to rest and take 

bathroom breaks during his trips several times a year from his home in Delaware to 

Baltimore and Washington, D.C.

In these circumstances, the district court applied an overly stringent and erroneous 

requirement of specificity to its assessment of the Complaint. We reject the court’s

 7 We would be remiss if we failed to mention that certain courts of appeals have 

adopted a less stringent pleading requirement than the Daniels standard. At least two 

courts have recognized that, once an ADA plaintiff has been injured by unlawful barriers 

to access, his allegation of “actual knowledge of illegal barriers at a public 

accommodation” is alone sufficient to show the likelihood of future harm for purposes of 

standing to sue. See Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1135 (9th 

Cir. 2002); see also Dudley v. Hannaford Bros., 333 F.3d 299, 306-307 (1st Cir. 2003) 

(same).
18

conclusion that the Complaint cannot sufficiently allege the likelihood of future harm 

without naming specific goods, services, and conveniences that render the Marketplace a 

“more advantageous” place to stop than others along his travel route. See Op. 8. We 

similarly reject Aberdeen’s theory that Nanni was obliged to allege such specifics as the 

precise dates and arrangements for his return to the Marketplace, his reasons for 

returning, and the particular Marketplace establishments he plans to visit. As we 

explained in Daniels, “we are aware of no precedent in this Circuit that requires this 

degree of specificity to survive a motion to dismiss, and we decline to impose such a 

requirement here.” See 477 F. App’x at 130; see also Dudley v. Hannaford Bros., 333 

F.3d 299, 307 (1st Cir. 2003) (explaining that imposition of a limitation on ADA relief to 

“instances in which a future violation appears certain to occur would create a standard far 

more demanding than that contemplated by the congressional objectives”). Furthermore, 

that other, ADA-compliant facilities may be located near the Marketplace along I-95 will 

not excuse any of Aberdeen’s violations of the ADA.

We also reject Aberdeen’s invitation — premised on the facts of Daniels — to 

draw an arbitrary line of geographical proximity somewhere between twenty and forty 

miles for purposes of determining an ADA plaintiff’s standing to sue. Although 

proximity could be a factor relevant to the plausibility of future injury, the fact that Nanni 

lives forty miles from the Marketplace is not fatal to his standing, especially in view of 

Nanni’s patronage of the Marketplace for rest and bathroom breaks during his regular 

travels. Whereas it was plausible in Daniels that the plaintiff would shop at the Market 

twenty miles from his residence, it is entirely plausible here that Nanni will stop for rest 
19

and bathroom breaks at the Marketplace while travelling north and south on I-95. In 

sum, the facts of each case control the plausibility analysis.

3.

A brief discussion of the district court’s reliance on Nanni’s credibility and 

motives is also warranted. As explained above, the Opinion considered the Complaint’s 

allegation that Nanni would return to the Marketplace as an “ADA tester,” along with his 

litigation history, in assessing whether he possesses standing to sue Aberdeen. The court 

observed that Nanni’s tester status alone is insufficient to confer standing upon him — a 

proposition that Nanni has not, in any event, disputed. The Opinion then went on to 

conclude that, although acting as a tester is not improper, Nanni’s particular litigation 

history undermined the plausibility of his future injury theory. That is, the Opinion 

deemed Nanni to be an opportunistic litigant, rather than a bona fide patron of the 

Marketplace.

Put simply, however, neither Nanni’s status as an “ADA tester” nor his litigation 

history strips him of standing to sue Aberdeen. See Houston, 733 F.3d at 1332 

(explaining that a plaintiff’s “status as a tester does not deprive him of standing to 

maintain his civil action for injunctive relief under . . . the ADA’s Title III”); Daniels, 

477 F. App’x at 130 (rejecting district court’s reliance on plaintiff’s litigation history to 

deem his future injury claim implausible). As we recognized in our Daniels decision —

and emphasize again today — a citizen’s “right to sue and defend in the courts is one of 

the highest and most essential privileges of citizenship and is granted and protected by 

the Federal Constitution.” See 477 F. App’x at 130 (alterations omitted) (quoting 
20

Chambers v. Balt. & Ohio R.R. Co., 207 U.S. 142, 148 (1907)). Moreover, under our 

system, all citizens are obliged to obey the law and to aid law enforcement efforts. In 

various situations, citizens are required by law to report violators to the proper 

authorities. See, e.g., 18 U.S.C. § 4 (requiring citizens to report felony offenses to judges 

and other authorities). As the Supreme Court acknowledged several years ago, the 

“enforcement [of civil rights laws] would prove difficult” and our country will be obliged 

“to rely in part upon private litigation as a means of securing broad compliance.” See 

Newman v. Piggie Park Enters., 390 U.S. 400, 401 (1968). That very principle is also

embodied in the ADA. See Dudley, 333 F.3d at 306-07 (discussing importance of private 

litigation in achieving broad compliance with ADA). In the community of those citizens

who are wheelchair bound, the identification of public accommodation facilities that flout 

the ADA is obviously an important activity.

At bottom, we reject the proposition that Nanni’s motivations in pursuing his 

ADA claim against Aberdeen deprive him of standing to sue in these proceedings. And, 

predicated on our de novo review of the Complaint, we are satisfied that Nanni’s standing 

to sue is sufficiently alleged.

IV.

Pursuant to the foregoing, we vacate the judgment of the district court and remand 

for such other and further proceedings as may be appropriate. 

VACATED AND REMANDED