Magee v. Winn-Dixie Stores, Inc., No. 2:2016cv04364 - Document 38 (E.D. La. 2017)
Court Description: ORDER denying 8 Motion to Certify Class; granting 32 Motion to Dismiss for Failure to State a Claim. Signed by Judge Sarah S. Vance on 1/30/2017. (mmm)
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Magee v. Winn-Dixie Stores, Inc. Doc. 38 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SCOTT MAGEE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED VERSUS CIVIL ACTION NO. 16-4364 GLACIER WATER SERVICES, INC. AND WINN-DIXIE STORES, INC. SECTION “R” (4) ORD ER AN D REASON S Defendants GW Services, LLC (GWS) 1 and Winn-Dixie Stores, Inc. m ove the Court to dism iss plaintiff Scott Magee’s second am ended com plaint pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. 2 For the following reasons defendants’ m otion is GRANTED. I. BACKGROU N D Defendant GWS is a California corporation that owns and operates water refill stations, and GWS contracts with com panies like Winn-Dixie to install and operate the refill stations in those companies’ locations. 3 The 1 GW Services, LLC was im properly nam ed in the com plaint as Glacier Water Services, Inc. 2 R. Doc. 32. 3 R. Doc. 28 at 4 ¶ 12. Dockets.Justia.com stations are connected to a m unicipal water source and allow custom ers to bring their own water bottles and purchase water refills. 4 Plaintiff alleges that to use the m achine, a consumer places an em pty water bottle into the m achine and inserts payment, and then follows the written instructions on the m achine by pressing buttons on the m achine. 5 According to plaintiff, the refill stations offer filtered water at prices significantly less expensive than com parable water products, and they also offer consumers the choice of obtaining filtered water in an environmentally friendly way. 6 Plaintiff Scott Magee suffers from Macular Degeneration, and as a result, is legally blind. 7 Plaintiff lives near the Winn-Dixie located at 211 Veterans Memorial Boulevard in Metairie, Louisiana. 8 According to plaintiff, he has shopped at this Winn-Dixie m ultiple times and reasonably expects to visit again in the future. This Winn-Dixie location has a GWS water refill station located right outside the m ain entrance and the m achine is open to the public 24 hours a day. 9 Thus, consum ers need not actually enter the Winn-Dixie to use the refill station. 4 5 6 7 8 9 R. Doc. 32-1 at 3. R. Doc. 28 at 2 ¶ 3. Id. at 5 ¶¶ 17-18. Id. at 3-4 ¶ 11. Id. at 7 ¶¶ 35-36. Id. at 5-6 ¶¶ 20 -22. 2 Plaintiff’s second am ended complaint alleges that on May 1, 20 16, Magee went to the Winn-Dixie after the interior had closed for the night. 10 According to plaintiff, he approached the water refill station to purchase water, but “quickly determ ined that [plaintiff] was unable to use it because it did not offer a non-visual m eans of operation.”11 Magee alleges that the m achine did not utilize any braille markings or other non-visual means for Magee or others sim ilarly situated to interact with the m achine. Thus, Magee argues that he and other blind customers cannot use the m achines without the assistance of others. According to Magee, the stations could easily be retrofitted with braille instructions and other non-visual technologies to allow blind consum ers to use the m achines. 12 Magee further alleges that his May 20 16 visit was not Magee’s only experience with the m achine and that he has attem pted to use the m achine in the past with no success. 13 Magee does not, however, m ention any dates or tim es of his alleged previous visits, nor does he allege that these previous visits occurred when the store was closed. 10 Id. at 7 ¶ 37. Notably, Magee did not allege that he visited WinnDixie at night when its interior was closed in his initial lawsuit or his first am ended com plaint. 11 Id. at 8 ¶ 38. 12 Id. at 7 ¶ 33. 13 Id. at 8 ¶ 40 . 3 On May 6, 20 16, Magee filed this class action lawsuit against WinnDixie, asserting that Winn-Dixie’s refill stations unlawfully discrim inate against the blind in violation of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 1210 1, et seq. 14 Plaintiff am ended his com plaint on May 18, 20 16 to add GWS as a defendant. 15 On May 25, 20 16, plaintiff filed a m otion for class certification, 16 and on September 19, 20 16, plaintiff am ended his com plaint for a second tim e. 17 Plaintiff seeks declaratory and injunctive relief, as well as reasonable attorneys’ fees, expenses, and costs. 18 Plaintiff brings his ADA claim on behalf of him self and a proposed class consisting of all legally blind individuals who have been or are being “denied access to Glacier Water Refill Stations” located in the United States and owned and/ or operated by GWS, as well as a subclass of legally blind individuals who have been denied access to the stations at locations owned and/ or operated by Winn-Dixie. 19 Defendants filed this motion to dism iss, arguing that plaintiff lacks standing to bring this suit, and that even if 14 15 16 17 18 19 R. Doc. 1 at 10 ¶ 44. R. Doc. 5 at 4 ¶ 11. R. Doc. 8. R. Doc. 28. Id. at 12-13. Id. at 8 ¶¶ 41-42. 4 plaintiff has standing, he has failed to state a claim upon which relief can be granted. 20 Magee filed a response in opposition, 21 and defendants replied. 22 II. D ISCU SSION A. Ru le 12 ( b) ( 1) A standing m otion challenges the Court’s subject m atter jurisdiction, and it is governed by Federal Rule of Civil Procedure 12(b)(1). “A case is properly dism issed for lack of subject m atter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Hom e Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 10 0 6, 10 10 (5th Cir. 1998) (quoting N ow ak v. Ironw orkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). A district court m ay dism iss for lack of subject m atter jurisdiction on any one of three bases: “(1) the complaint alone; (2) the com plaint supplem ented by undisputed facts in the record; or (3) the com plaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Clark v. Tarrant County , 798 F.2d 736, 741 (5th Cir. 1986) (citation om itted). 20 21 22 R. Doc. 32. R. Doc. 34. R. Doc. 37. 5 If a defendant m akes a “facial attack” on the com plaint and the court’s jurisdiction to hear the case, the trial court m erely looks to the sufficiency of the allegations in the com plaint because they are presum ed to be true. Paterson v. W einberger, 644 F.2d 521, 523 (5th Cir. 1981). Here, defendants m ake a “factual attack” on the court’s subject m atter jurisdiction where they subm it affidavits, testim ony, or other evidentiary m aterials. See id. When a defendant m akes a factual attack, the plaintiff is required to subm it facts through some evidentiary m ethod and “has the burden of proving by a preponderance of the evidence that the trial court does have subject m atter jurisdiction.” Id.; see also Peaker Energy Grp., L.L.C. v. Cargill, Inc. & Louisiana Sugar Ref., L.L.C., No. 14-210 6, 20 16 WL 7385622, at *2 (E.D. La. Dec. 21, 20 16) (citing Paterson, 644 F.2d at 523). III. D ISCU SSION A. Stan d in g Defendants argue in their m otion to dism iss that plaintiff lacks standing because plaintiff has not suffered an injury-in-fact. The requirement that a party have standing to bring suit flows from Article III of the Constitution, which lim its the scope of the federal judicial power to the adjudication of “cases” or “controversies.” U.S. Const. art. III, § 2. Standing 6 consists of three elem ents: (1) the plaintiff m ust have suffered an “injury-infact,” which is an “actual or im m inent” invasion of a legally protected interest that is “concrete and particularized;” (2) the injury m ust be “fairly traceable” to the challenged conduct of the defendant; and (3) it m ust be likely that plaintiff’s injury will be redressed by a favorable judicial decision. Lujan v. Defs. of W ildlife, 50 4 U.S. 555, 560 (1992). As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing each element. Spokeo, Inc. v. Robins, 136 S. Ct. 1540 , 1547 (20 16). Because a standing challenge attacks the Court’s jurisdiction to hear the case, the Court m ust resolve the standing issue as a threshold m atter of jurisdiction. See, e.g., Cole v. Gen. Motors Corp., 484 F.3d 717, 721 (5th Cir. 20 0 7). The gravamen of plaintiff’s second amended com plaint is that WinnDixie’s policy of allowing custom ers to use the refill station when Winn-Dixie is closed is discrim inatory because blind custom ers cannot use the m achines without assistance and there are no store employees to assist blind custom ers when the store is closed. 23 Defendants argue that, despite the allegations in plaintiff’s com plaint, Magee did not attem pt to use the refill station while the 23 See, e.g., R. Doc. 34 at 4, challenging “policy of providing a visual-only interface for using [Winn-Dixie’s] Refill Stations during “afterhours” operating tim es when no Winn-Dixie personnel are available onsite to assist;” id. at 5 challenging “policy of offering the Refill Stations afterhours to some patrons—and not others;” id. at 8. 7 Winn-Dixie was closed on May 1, 20 16. In support, defendants attach to their m otion a video 24 of the security cam era footage from the Winn-Dixie on the night plaintiff allegedly visited the refill station and the declaration of Magan Breaux. 25 Breaux is the Customer Service Manager for the Veterans Boulevard Winn-Dixie, and attests that the video constitutes true and accurate reproductions of Winn-Dixie’s surveillance footage from the night in question. 26 A review of the video reveals footage from two cam eras pointed at the parking lot in front of the Winn-Dixie entrance from the hours of 12:0 0 m idnight to 6:0 0 a.m. on May 1, 20 16. 27 Defendants’ attachm ent of the video and the declaration of Breaux indicate that they are m aking a “factual,” as opposed to a “facial,” challenge to the Court’s jurisdiction. As described above, when a defendant m akes a factual attack, the plaintiff is required to subm it facts through some evidentiary m ethod and “has the burden of proving by a preponderance of the evidence that the trial court does have subject matter jurisdiction.” Case law is clear that motions to dism iss for lack of standing can be brought 24 The video was subm itted by hand as a m anual attachm ent and is attached as Exhibit 1. 25 R. Doc. 32-3. 26 Id. 27 The Winn-Dixie in question is open from 6:0 0 a.m. to 12:0 0 a.m. See Winn-Dixie # 1329 Store Inform ation, available at https:/ / www.winndixie.com/ StoreDetails?search=1329. 8 through factual challenges. See, e.g., Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 50 2, 50 4 (5th Cir. 20 15) (“A m otion to dism iss for lack of standing m ay be either ‘facial’ or ‘factual.’”) (citation om itted); Pratt v. Mut. Of Om aha Ins. Co., No. 15-0 9, 20 16 WL 1248885, at *8 (N.D. Miss. Mar. 28, 20 16) (accepting factual attack as to plaintiff’s standing); N orkunas v. W y nn Resorts Holdings, LLC, No. 0 7-96, 20 0 7 WL 2949569, at *2-5 (D. Nev. Oct. 10 , 20 0 7) (granting defendant’s factual challenge to plaintiff’s Title III ADA standing based on plaintiff’s failure to subm it evidence indicating that he suffered injury-in-fact), aff’d sub nom . N orkunas v. W y nn Las Vegas, LLC, 343 F. App’x 269 (9th Cir. 20 0 9). In response to defendants’ factual attack, plaintiff failed to subm it any evidence establishing that he did in fact attem pt to use the refill station on May 1, 20 16 while Winn-Dixie was closed. Nor does plaintiff subm it any evidence at all regarding his alleged previous attem pts to use the refill station. Nor does he allege that those previous visits occurred at night when Winn-Dixie was closed. Instead, plaintiff m erely points out that the security footage does not show the face of the refill station, and incorrectly asserts that at this stage the Court m ust accept his factual allegations as true. 28 While that would be true if defendants m ade a “facial” attack, with factual 28 R. Doc. 34 at 1. 9 attacks “no presum ptive truthfulness attaches to plaintiff’s allegations.” W illiam son v. Tucker, 645 F.2d 40 4, 413 (5th Cir. 1981). Further, the Court can weigh the evidence and m ake determ inations as to disputed factual issues related to the Court’s jurisdiction. See, e.g., Crane v. Johnson, 783 F.3d 244, 251 (5th Cir. 20 15). Although the video does not show the face of the refill station, it shows all plausible routes of approach to the m achine. In the video, nearly the entire parking lot can be seen, as well as the two front entrances to the store. The refill station is located between the two front entrances. 29 Throughout the video, no pedestrian appears to leave the field of view of the cam eras in the direction of the refill station m achine or enter the field of view of the cam eras com ing from the direction of the m achine. 30 Further, no one is seen carrying an empty water bottle, which appears to be a prerequisite to using the water refill station. Given the location of the cam eras, it is im plausible 29 See R. Doc. 37-1 at 1-2 (Exhibit 1). Exhibit 1 is a screen shot of a picture of the refill station from Google Street View. The Court takes judicial notice of the Google Street View photograph showing the location of the refill station, available at https:/ / perm a.cc/ TVA8-A8YH (last visited J an. 12, 20 17). See U.S. v. Perea-Rey , 680 F.3d 1179, 1182 n.1 (9th Cir. 20 12) (taking judicial notice of a Google map and satellite im age). 30 Multiple vehicles drove through the parking lot that night without stopping. There were two instances where som eone drove to the parking lot, and exited his or her vehicle. Both approached the store and tried to enter, but as soon as they learned the entrance was locked, they both im m ediately returned to their vehicles and left. 10 that Magee got close enough to the m achine to determ ine that he could not use the m achine without being seen by any of the cameras. Accordingly, defendants’ unrebutted evidence negates plaintiff’s unsupported allegation that he attem pted to use the refill station on May 1, 20 16. Despite plaintiff’s obligation to respond to defendants’ factual attack with evidence indicating that the Court has jurisdiction, plaintiff failed to do so. See W einberger, 644 F.2d at 523 (noting that when factual attack is m ade plaintiff is “required to subm it facts through some evidentiary m ethod”); Superior MRI, 778 F.3d at 50 4 (noting that when factual attack is m ade plaintiff is “‘obliged to subm it facts through som e evidentiary m ethod to sustain his burden of proof’”) (quoting Irw in v. Veterans Adm in., 874 F.2d 10 92, 10 96 (5th Cir. 1989). Plaintiff’s failure to respond with any evidence at all to defendants’ argument is suggestive of the argument’s truth. Further, it is telling that Magee did not allege at all that he went to Winn-Dixie at night when it was closed until the third version of his com plaint. 31 Therefore, in light of the video evidence and the total lack of evidence from Magee indicating that the Court does have jurisdiction, as well as Magee’s om ission from his first two versions of his com plaint that he visited Winn-Dixie after 31 Com pare R. Doc. 1 at 6-7 ¶¶ 26-27 and R. Doc. 5 at 7 ¶¶ 30 -31 w ith R. Doc. 28 at 7 ¶ 37. Plaintiff’s first two versions of his com plaint do not m ention that the refill station is accessible after hours at all. 11 hours, the Court resolves the disputed fact of whether Magee visited WinnDixie on May 1, 20 16 in defendants’ favor. It is axiom atic that a plaintiff m ust have suffered an injury-in-fact in order to have standing, and hypothetical injuries are insufficient. Lujan, 50 4 U.S. at 560 . Further, a statutory violation of the ADA, not connected to an injury-in-fact, is insufficient to establish standing. See Spokeo, 136 S. Ct. at 1549 (“Article III standing requires a concrete injury even in the context of a statutory violation.”). Therefore, one does not have standing to bring a claim under Title III of the ADA without actually encountering the alleged discrim ination. See By num v. Am . Airlines, Inc., 166 F. App’x 730 , 734 (5th Cir. 20 0 6) (per curiam ) (noting in Title III ADA suit that the Court “agree[s] with the district court that Appellant’s lawsuit against the airlines for which he had not flown lacked any basis in fact and that he lacked standing to sue”); Steger v. Franco, Inc., 228 F.3d 889, 892-93 (8th Cir. 20 0 0 ) (finding that Title III ADA plaintiffs lacked standing to bring claim because there was no evidence plaintiffs had ever been in building and therefore had no evidence building was inaccessible to them ); Moy er v. W alt Disney W orld Co., 146 F. Supp. 2d 1249, 1253-54 (M.D. Fla. 20 0 0 ) (plaintiff lacked standing to bring Title III ADA claim against am usement parks plaintiff had not yet visited at tim e of com plaint); Resnick v. Magical Cruise Co., Ltd., 148 F. Supp. 2d 12 1298, 130 1 (M.D. Fla. 20 0 1) (plaintiff lacked standing to bring Title III ADA claim against cruise ship company because it was undisputed that plaintiff “has not been on board or attempted to board” any ship and thus plaintiff “ha[s] not been subjected to discrim ination”). Additionally, plaintiff failed to subm it any evidence whatsoever regarding his alleged previous visits to Winn-Dixie, including the time and date of the visits. Without any inform ation as to the tim e of the day of these previous visits, the Court cannot determ ine what conduct or policy plaintiff is challenging, inform ation necessary to determ ine if he has standing. 32 Therefore, plaintiff’s non-specific, undated allegations of previous visits, as well as his failure to subm it evidence relating to these previous visits in 32 If plaintiff’s visits occurred during the day tim e when Winn-Dixie was open, plaintiff would have to allege that Winn-Dixie denied him assistance in using the Refill Station to have standing. See 42 U.S.C. § 1210 3 (defining “auxiliary aids and services”); 28 C.F.R. § 36.30 3(c)(1)(ii) (“[T]he ultim ate decision as to what m easures to take [to provide appropriate auxiliary aids and services] rests with the public accom modation, provided that the m ethod chosen results in effective com m unication.”); W est v. Moe’s Franchisor, LLC, No. 15-2846, 20 15 WL 8484567, at *2-3 (S.D.N.Y. Dec. 9, 20 15) (holding that Title III does not require beverage dispensers at public accom m odations to “allow[] blind individuals to retrieve beverages w ithout assistance”) (em phasis added); Dicarlo v. W algreens Boot Alliance, Inc., No. 15-2919, 20 16 WL 482982, at *2 (S.D.N.Y. Feb. 5, 20 16) (same); Id., at *1 n.1 (noting that plaintiff had standing because he pleaded that he sought and was denied assistance). Plaintiff m akes no such allegation. 13 response to defendant’s factual challenge, are insufficient to m eet plaintiff’s burden to establish that the Court has jurisdiction. Because the Court finds that Magee has not m et his burden to show that he encountered the water refill station and thus could determ ine that he could not use it, he has not suffered an injury-in-fact, and the Court does not have jurisdiction to hear his claim. Therefore, his suit m ust be dism issed. Defendants ask the Court to dismiss plaintiff’s complaint with prejudice. Plaintiff did not respond to this in his response to defendants’ m otion, and plaintiff did not request leave to file an amended complaint. Still, as the Court is dism issing plaintiff’s suit on jurisdictional grounds, the dism issal is without prejudice. See Hitt v. City of Pasadena, 561 F.2d 60 6, 60 8 (5th Cir. 1977); Cox, Cox, Filo, Cam el & W ilson, L.L.C. v. Sasol N . Am ., Inc., 544 F. App’x 455, 456-57 (5th Cir. 20 13) (per curiam). Finally, because plaintiff has not m et his burden to show an injury-infact, he is not a m em ber of his proposed class. Plaintiffs cannot lead a class to which he or she does not belong, see, e.g., Gen. Tel. Co. of Sw . v. Falcon, 457 U.S. 147, 156 (1982), and therefore plaintiff’s m otion for class certification m ust be denied. 14 IV. CON CLU SION For the foregoing reasons, defendants’ m otion to dism iss is GRANTED. Plaintiff’s complaint is DISMISSED. Plaintiff’s m otion for class certification is DENIED. New Orleans, Louisiana, this _ 30th _ day of J anuary, 20 17. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 15
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