Magee v. Winn-Dixie Stores, Inc., No. 2:2017cv08063 - Document 20 (E.D. La. 2018)
Court Description: ORDER AND REASONS granting 6 Motion to Dismiss. Plaintiff's complaint is DISMISSED. Signed by Judge Sarah S. Vance on 1/22/2018. (cg)
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Magee v. Winn-Dixie Stores, Inc. Doc. 20 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SCOTT MAGEE, on behalf of himself and all others sim ilarly situated VERSUS CIVIL ACTION NO. 17-80 63 WINN-DIXIE STORES, INC. SECTION “R” (4) ORD ER AN D REASON S Before the Court is Defendant Winn-Dixie Stores, Inc.’s m otion to dism iss. 1 For the following reasons, the Court grants the motion. I. BACKGROU N D This putative class action arises out of a dispute over the accessibility of Glacier Water Refill Stations at Winn-Dixie stores. 2 The water refill stations are self-service m achines that dispense filtered water into containers provided by the custom er. 3 These water refill m achines are located outside Winn-Dixie stores and are allegedly accessible 24 hours a day. 4 Plaintiff 1 2 3 4 R. Doc. 6. R. Doc. 1. Id. at 1 ¶ 2. Id. at 5 ¶ 17. Dockets.Justia.com Scott Magee is legally blind. 5 According to the com plaint, plaintiff attem pted to use a water refill station at the Winn-Dixie store located at 211 Veterans Mem orial Boulevard in Metairie, Louisiana, in the late evening of August 17, 20 17, or the early m orning of August 18, 20 17. 6 Plaintiff alleges that he was unable to use the water refill station during this visit because the station “did not utilize any braille m arkings or other non-visual m eans for [plaintiff] to interact with the m achine.”7 Plaintiff further asserts that the Winn-Dixie store on Veterans Mem orial Boulevard is located near his home, he has previously attem pted to access the water refill station at this store without success, and he reasonably expects to visit the store again in the future. 8 On August 21, 20 17, plaintiff filed a class action com plaint asserting violations of the Am ericans with Disabilities Act (ADA), and requesting injunctive and declaratory relief against defendant, as well as attorneys’ fees, expenses, and costs. 9 Plaintiff alleges that defendant’s water refill stations are not accessible to blind custom ers because they “have no braille stickers or braille m arkings.”10 The com plaint further asserts that the m achines 5 6 7 8 9 10 Id. at Id. at Id. at Id. at Id. at Id. at 3 ¶ 10 . 7 ¶ 32. 7 ¶¶ 35-36. 7 ¶¶ 33, 37. 9-12. 6 ¶ 26. 2 “could easily be retrofitted with braille stickers and/ or braille lettering” to render the refill stations accessible to blind customers. 11 Plaintiff proposes to represent a class of all legally blind individuals who have been or are being denied access to Glacier Water Refill Stations at any Winn-Dixie location in the United States. 12 Defendant contends that plaintiff lacks standing to bring suit, and m oves to dism iss for lack of subject m atter jurisdiction. 13 II. LEGAL STAN D ARD A plaintiff m ust satisfy the standing requirem ents of Article III of the U.S. Constitution to establish the existence of an “actual case or controversy” subject to federal jurisdiction. O’Shea v. Littleton, 414 U.S. 488, 493-94 (1974). A m otion to dism iss for lack of standing therefore challenges the court’s subject m atter jurisdiction, and is governed by Federal Rule of Civil Procedure 12(b)(1). 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 11 Id. at 6 ¶ 30 . Id. at 8 ¶ 38. This is plaintiff’s second lawsuit seeking to represent this proposed class. See Magee v. Glacier W ater Services, Inc., No. 164364, 20 17 WL 396287, at *2 (E.D. La. 20 17). The Court dism issed plaintiff’s previous class action com plaint for lack of standing because video evidence contradicted plaintiff’s assertion that he attem pted to use the water refill station at defendant’s store. Id. at *4-5. 13 R. Doc. 6-1. 3 12 com plaint supplemented by undisputed facts evidenced in the record; or (3) the com plaint supplem ented by undisputed facts plus the court’s resolution of disputed facts.” Crane v. Johnson, 783 F.3d 244, 251 (5th Cir. 20 15) (internal quotation m arks and citation om itted). When its subject m atter jurisdiction is challenged, the Court first considers whether the defendant has m ade a “facial” or a “factual” attack upon the com plaint. See Paterson v. W einberger, 644 F.2d 521, 523 (5th Cir. 1981). A m otion to dism iss for lack of standing is “‘factual’ rather than ‘facial’ if the defendant ‘subm its affidavits, testim ony, or other evidentiary m aterials.’” Superior MRI Servs., Inc. v. Alliance Healthcare Servs., Inc., 778 F.3d 50 2, 50 4 (5th Cir. 20 15) (quoting Paterson, 644 F.2d at 523). In the case of a facial attack, the court “is required m erely to look to the sufficiency of the allegations in the com plaint because they are presumed to be true.” Paterson, 644 F.2d at 523. When a defendant m akes a factual attack on the complaint, the plaintiff is “required to subm it facts through some evidentiary method and has the burden of proving by a preponderance of the evidence that the trial court does have subject m atter jurisdiction.” Id. 4 III. D ISCU SSION As the party invoking federal jurisdiction, plaintiff bears the burden of establishing each elem ent of standing. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540 , 1547 (20 16). Standing requires that (1) the plaintiff suffered an injuryin-fact; (2) the injury is “fairly traceable” to the challenged conduct of the defendant; and (3) it m ust be likely that the plaintiff’s injury will be redressed by a favorable judicial decision. Lujan v. Defs. of W ildlife, 50 4 U.S. 555, 560 61 (1992). The injury-in-fact m ust be “both concrete and particularized.” Spokeo, 136 S. Ct. at 1545 (internal quotation m arks and citation om itted). Defendant argues that plaintiff lacks standing because he has not suffered an injury-in-fact. 14 The com plaint alleges that plaintiff was unable to use the water refill station at defendant’s store in August 20 17 because the m achine “did not offer a non-visual m eans of operation,” and “did not utilize any braille m arkings or other non-visual m eans for Magee to interact with the m achine.”15 Defendant m akes a factual attack on these allegations, and contends that the water refill station was outfitted with braille stickers at the tim e of plaintiff’s alleged visit on August 17 or 18. 16 14 15 16 R. Doc. 6-1 at 10 -11. R. Doc. 1 at 7 ¶¶ 35-36. R. Doc. 6-1 at 10 -11. 5 Defendant subm its a sworn declaration from Stephen Starnes, an em ployee of Glacier Water. 17 Starnes states that, on February 1, 20 17, he applied braille stickers to the Glacier Water m achine located outside the Winn-Dixie store at 211 Veterans Boulevard. 18 Starnes further declares that these “braille stickers provided inform ation regarding how to operate the water dispensing vending m achine, the products offered by the m achine, and the cost of the different product options.”19 Defendant also subm its the declaration of J ane Heidingsfelder. 20 Heidingsfelder attests that she visited the Winn-Dixie location at 211 Veterans Boulevard on August 22, 20 17, and took photographs of the store and the Glacier Water m achine. 21 The photos attached to Heidingsfelder’s declaration show m ultiple braille stickers on the water refill m achine, although one sticker appears to be peeling off. 22 Defendant represents that, of the eleven braille stickers originally placed on the water refill station in February 20 17, seven rem ained in their original 17 18 19 20 21 22 R. Doc. 6-2 at 2. Id. Id. R. Doc. 6-3 at 2. Id. Id. at 6-11. 6 locations on August 22, 20 17, one was repositioned, and three had fallen off. 23 This representation is consistent with the photographic evidence. 24 Because defendant m akes a factual attack on the com plaint, plaintiff bears the burden to subm it evidence to dem onstrate that he suffered a “real and not abstract” injury. Spokeo, 136 S.Ct. at 1548; see also Paterson, 644 F.2d at 523. The sole evidence plaintiff offers is a personal declaration. 25 Plaintiff first declares that, before February 1, 20 17, he “attem pted but was unable to use the Glacier water machine located in front of the Veterans Location on m ultiple occasions due to the absence of auxiliary aids instructing [him ] how to use the m achine.”26 Plaintiff fails to specify the dates or tim es of his alleged attem pts to use the water refill station before February 20 17. Plaintiff does not assert that these visits occurred outside the store’s norm al operating hours when no staff was available to assist him with the m achine. Nor does he state that he was denied assistance. Plaintiff’s vague declaration that he was unable to use the water refill station before February 20 17 is insufficient to satisfy his burden to dem onstrate an injury because of a lack of auxiliary aids. See Magee, 20 17 WL 396287, at *4. 23 24 25 26 R. Doc. 6-1 at 5. R. Doc. 6-3 at 6-7. R. Doc. 16-1. Id. at 2 ¶ 7. 7 Plaintiff further declares that, around m idnight on August 17, 20 17, or August 18, 20 17, he “visited the Veterans Location in an attem pt to use the Glacier water machine” and “found that the m achine was still inaccessible due to a lack of auxiliary aids.”27 In contrast to the complaint, plaintiff’s sworn declaration does not specifically assert that the water refill station lacked any braille markings. Nor does plaintiff indicate that he is able to read braille, and that braille m arkings would render the machine accessible to him . To assure itself of its jurisdiction, the Court “m ust resolve disputed facts without giving a presum ption of truthfulness to the plaintiff’s allegations.” Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 20 0 9). Based on the declarations of Starnes and Heidingsfelder and the attached photographs, the Court finds by a preponderance of the evidence that braille stickers were attached to the water refill station at defendant’s 211 Veterans Boulevard location in February 20 17, and the m ajority of these braille stickers remained in place as of August 22, 20 17. Plaintiff’s general statement that the m achine was inaccessible to him because of a lack of auxiliary aids is insufficient to rebut defendant’s evidence that the water refill station had braille stickers at the tim e of his alleged August 20 17 visit. 27 R. Doc. 16-1 at 2-3 ¶¶ 8-9. 8 Because the Court finds that som e braille stickers were present on the water refill station on August 17 and 18, plaintiff cannot establish an injuryin-fact based on the com plaint’s allegation that the water refill station “did not utilize any braille m arkings or other non-visual m eans for Magee to interact with the machine.”28 Nor has plaintiff dem onstrated that he was injured by the inadequate m aintenance of the braille stickers. Defendant concedes that some of the stickers were in need of repair or replacement in August 20 17. 29 But plaintiff has not alleged, m uch less proven, that the m issing or peeling stickers rendered the m achine inaccessible. Plaintiff’s com plaint and briefing instead m aintain that he was unable to use the water refill station because the m achine had no braille stickers. 30 In the absence of any evidence in the record, the Court will not speculate as to whether the m issing braille stickers were sufficiently im portant to the operation of the water refill station to render it inaccessible to blind customers. As plaintiff’s sole specific claim of injury is contrary to the evidence, he has not shown that he suffered an injury-in-fact sufficient to confer 28 R. Doc. 1 at 7 ¶ 36. R. Doc. 6-1 at 2. 30 R. Doc. 1 at 7 ¶ 36; R. Doc. 16 at 5. Plaintiff asserts in his brief that he “attem pted and was unable to use the Glacier water m achine due to a com plete absence of braille instructions” both before and after February 20 17. See R. Doc. 16 at 5. 9 29 constitutional standing. A statutory violation of the ADA, not connected to any concrete harm , is insufficient to satisfy the injury-in-fact requirem ent. See Spokeo, 136 S. Ct. at 1549. A plaintiff does not have standing to bring a claim under 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). Accordingly, the Court finds that plaintiff lacks standing. In its reply brief, defendant requests an award of attorneys’ fees and costs under 42 U.S.C. § 1220 5. 31 Defendant has subm itted no docum entation of its fees, and plaintiff has had no opportunity to respond to this request. The Court therefore denies defendant’s request at this tim e. Defendant m ay re-urge its request through an appropriate m otion. IV. CON CLU SION For the foregoing reasons, defendant’s m otion is GRANTED. Plaintiff’s com plaint is DISMISSED. 22nd New Orleans, Louisiana, this _ _ _ _ _ day of J anuary, 20 18. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 31 R. Doc. 19 at 9. 10
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