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Thomas v. Branch Banking & Trust Co.

United States District Court, N.D. Georgia, Atlanta Division

June 23, 2014

EMPISH THOMAS, individually and on behalf of all others similarly situated, Plaintiff,
v.
BRANCH BANKING AND TRUST COMPANY, Defendant

For Empish Thomas, individually and on behalf of all others similarly situated, Plaintiff: Anthony C. Lake, LEAD ATTORNEY, Gillen Withers & Lake, LLC, Atlanta, GA; Thomas A. Withers, LEAD ATTORNEY, Gillen, Withers & Lake, LLC, Savannah, GA.

For Branch Banking and Trust Company, Defendant: J. Colin Knisely, LEAD ATTORNEY, Duane Morris-PA, Philadelphia, PA; William Durham Barwick, Duane Morris, LLP - ATL, Atlanta, GA.

Page 1267

ORDER

Timothy C. Batten, Sr., United States District Judge.

This case is before the Court on Defendant Branch Banking and Trust's motion to dismiss [21]. The motion will be granted.

I. Background[1]

Plaintiff Empish Thomas is legally blind and therefore a member of a protected class under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. She visited two automated teller machines owned and operated by BB& T but was unable to use the ATMs because they did not comply with the 2010 ADA Standards for Accessible Design. The ATMs lacked required features, including voice-guidance, Braille instructions, and function keys with tactile buttons. Thomas avers that BB& T has no institutional policy to ensure its ATMs are ADA-compliant, but as discussed below, BB& T presents evidence to the contrary.

On February 28, 2013, Thomas filed this putative class action against BB& T seeking declaratory judgment and injunctive relief for violations of the ADA. BB& T now moves to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that the Court lacks subject-matter jurisdiction to hear this action. Because it has brought the offending ATMs into compliance, BB& T claims that the action is now moot. Additional facts relating to mootness are discussed below.

II. Legal Standard

Article III of the United States Constitution limits the subject-matter jurisdiction of the federal courts to active cases and controversies. See Al Najjar v. Ashcroft, 273 F.3d 1330, 1335 (11th Cir. 2001) (quoting U.S. Const. art. III, § 2). The Court must dismiss an action if it lacks subject-matter jurisdiction at any

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stage of the proceeding. Cormier v. Horkan, 397 F.App'x 550, 551 (11th Cir. 2010) (citing Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332 n.6 (11th Cir. 2001)). Attacks on subject-matter jurisdiction come in two forms: facial and factual. Garcia v. Copenhaver, Bell & Assocs., M.D.'s, P.A., 104 F.3d 1256, 1260-61 (11th Cir. 1997). A facial attack requires the Court to look only to the complaint to determine whether it has subject-matter jurisdiction. Id. On the other hand, when reviewing a factual attack, the Court may look beyond the complaint to determine whether subject-matter jurisdiction exists " in fact, irrespective of the pleadings." Id.

When analyzing a factual attack, the Court is free to weigh evidence and need not assume the truth of the plaintiff's averments. Makro Capital of Am., Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008). BB& T lodges a factual attack; it does not claim that Thomas fails to allege subject-matter jurisdiction on the face of her complaint, but instead that events occurring after Thomas initiated this action have rendered it moot. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (explaining that factual attacks challenge the basis for subject matter jurisdiction " in fact, irrespective of the pleadings" (internal quotation marks omitted)).

Mootness undermines subject-matter jurisdiction because " an action that is moot cannot be characterized as an active case or controversy." Adler v. Duval Cnty. Sch. Bd., 112 F.3d 1475, 1477 (11th Cir. 1997). An action is moot " when it no longer presents a live controversy" about which the Court can fashion relief. Fla. Ass'n of Rehab Facilities, Inc. v. Fla. Dep't of Health & Rehab Servs., 225 F.3d 1208, 1216-17 (11th Cir. 2000). An action that starts out as a live case or controversy can later become moot; " [i]f events that occur subsequent to the filing of a lawsuit . . . deprive the [C]ourt of the ...


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