United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Excalibur
Investments, LLC's (“Defendant”) Motion to
Dismiss for Failure to State a Claim, or, in the Alternative,
Motion for a More Definite Statement  (the “Motion
Vernon Shyvers is an individual residing in Lauderhill,
Florida. He is a paraplegic and uses a wheelchair to
ambulate. ( ¶ 5). Defendants own the Virginia Station
Shopping Center located at 1640 Virginia Ave., College Park,
Georgia (the “Shopping Center”). ( ¶ 2,
8). Plaintiff alleges that he frequently visits East Point,
Georgia with family and friends, including his sister, and
“has visited the Defendant's shopping center
numerous times in the past, and intends to visit the subject
facility in the near future.” ( ¶ 6). Plaintiff
does not describe any of his alleged visits to the Shopping
Center. Plaintiff states that he “desires to visit
[the] shopping center not only to avail himself of the goods
and services available at the property but to assure himself
that this property is compliant with the [Americans with
Disabilities Act].” ( ¶ 9).
alleges that the Shopping Center is a place of public
accommodation as defined by the Americans with Disabilities
Act, 42 U.S.C. § 12181 et seq. (the
“ADA”). He outlines twenty-one alleged violations
which he “personally encountered or observed”
regarding “general sites and building elements, ”
accessible routs, and the Bole Ethiopian Restaurant. (
March 29, 2017, Plaintiff filed his complaint for injunctive
relief . On May 22, 2017, Plaintiff filed his
fourteen-page Amended Complaint  seeking injunctive
relief, attorney's fees, litigation expenses, and costs,
for purported violations of the ADA.
6, 2017, Defendant filed its Motion to Dismiss .
Defendant moves to dismiss on the grounds that Plaintiff
lacks standing because there is no likelihood of future
injury to Plaintiff. Defendant alternatively moves to dismiss
the Amended Complaint for lack of specificity under Rule
12(b)(6), and under Rule 12(e) for Plaintiff to provide a
more definite statement because, Defendant argues, the
allegations in the Amended Complaint are so vague and
ambiguous that Defendant cannot frame a responsive pleading.
Article III Standing Under the ADA
is a doctrine that stems directly from Article III's
‘case or controversy' requirement, and thus it
implicates [a court's] subject matter
jurisdiction.” Bochese v. Town of Ponce Inlet,
405 F.3d 964, 974 (11th Cir. 2005) (internal quotations
omitted). “In the absence of standing, a court is not
free to opine in an advisory capacity about the merits of a
plaintiff's claims.” Id.
Lujan, the Supreme Court held that a party seeking
to invoke the subject matter jurisdiction of a federal court
must satisfy three constitutional prerequisites of
standing.” DiMaio v. Democratic Nat. Comm.,
520 F.3d 1299, 1301-02 (11th Cir. 2008) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)). First,
a plaintiff must show that he has suffered an
“injury-in-fact.” Lujan, 504 U.S. at
560. Second, the plaintiff must demonstrate a causal
connection between the asserted injury-in-fact and the
challenged action of the defendant. Id. Third, the
plaintiff must show that “the injury will be redressed
by a favorable decision.” Id. at 561
(citations and internal quotations omitted). “These
requirements are the irreducible minimum required by the
Constitution for a plaintiff to proceed in federal
court.” Shotz v. Cates, 256 F.3d 1077, 1081
(11th Cir. 2001) (quotations omitted).
litigant seeking injunctive relive faces an additional
inquiry. “Because injunctions regulate future conduct,
a party has standing to seek injunctive relief only if the
party alleges . . . a real and immediate-as opposed to a
merely conjectural or hypothetical-threat of future
injury.” Shotz, 256 F.3d at 1081 (citing
Wooden v. Board of Regents of University System of
Georgia, 247 F.3d 1262, 1284 (11th Cir. 2001)).
ADA cases, courts have held that a plaintiff lacks standing
to seek injunctive relief unless he alleges facts giving rise
to an inference that he will suffer future discrimination by
the defendant.” Shotz, 256 F.3d at 1081.
“In 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 v. Baptist
Health S. Florida, Inc., 856 F.3d 824, 832 (11th Cir.
2017). “Absent an allegation that he intends to return
to the public accommodation, an ADA plaintiff fails to
demonstrate this ‘irreducible minimum' and thus
lacks standing to sue for injunctive relief.”
Access Now, Inc. v. S. Florida Stadium Corp., 161
F.Supp.2d 1357, 1364 (S.D. Fla. 2001). On a defendant's
motion to dismiss a court must evaluate standing based on the
facts alleged ...