Garcia v. Sopros Investments Corporation, No. 4:2022cv03202 - Document 22 (S.D. Tex. 2023)
Court Description: MEMORANDUM OPINION AND ORDER - For the reasons explained, Defendant Sopros Investments Corporation's 15 MOTION to Dismiss for Lack of Subject Matter Jurisdiction is DENIED. Plaintiff is ORDERED to amend the Complaint by June 30, 2023 to specify which of the alleged violations he personally encountered, which he observed, and which he later became aware of. If the parties are not able to settle the case in the next thirty days, they will provide the name and contact information of an agreed mediator or request that the court refer the case to Magistrate Judge Christina A. Bryan for a settlement conference. ( Amended Complaint due by 6/30/2023 ) (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)
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Garcia v. Sopros Investments Corporation Doc. 22 Case 4:22-cv-03202 Document 22 Filed on 05/24/23 in TXSD Page 1 of 8 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ERIK GARCIA, May 24, 2023 Nathan Ochsner, Clerk § § Plaintiff, § § v. § SOPROS INVESTMENTS CORPORATION, Defendant. § CIVIL ACTION NO. H-22-3202 § § § MEMORANDUM OPINION AND ORDER Erik Garcia ("Plaintiff") filed this action against Sopros Investments Corporation ("Defendant"), alleging violations of the American with Disabilities Act ("ADA"). 1 Pending before the court is Defendant Sopros Investments Corporation's Amended Motion to Dismiss for Lack of Subject Matter Jurisdiction ("Defendant's MTD") (Docket Entry No. 15). Defendant argues that Plaintiff's allegations do not support standing and that his claims are now moot. 2 For the reasons explained below, Defendant's MTD will be denied, but aintiff will be ordered to amend the Complaint to supplement his standing allegations. Complaint, Docket Entry No. 1, p. 1. For purposes of identification all page numbers reference the pagination imprinted at the top of the page by the court's Electronic Case Filing ("ECF") system. 1 2 Defendant's MTD, Docket Entry No. 15, p. 2 11 4-5. Dockets.Justia.com Case 4:22-cv-03202 Document 22 Filed on 05/24/23 in TXSD Page 2 of 8 I. Background Plaintiff filed the Complaint on September 19, 2022.3 states that he is disabled as defined by a wheelchair for mobility. 4 He ADA and that he uses Defendant is an owner of property located at 10001 Westheimer, Houston, TX 77042 ("the Property") .5 Plainti states that on August 22, restaurants situated on the Property, Marini's Empanada. 6 barr 2022, he Chili's Bar visited & two Grill and Plaintiff states that he encountered some rs to access and became aware of others. 7 of alleged barriers, He includes a list but he does not specify which ones he personally encountered.8 Plaintiff requests attorney's fees and an injunction requiring Defendant to remedy the alleged violations. 9 Defendant's MTD was led on January 25, 2023.10 Defendant argues that the Complaint should be dismissed for lack of Article III standing and mootness.11 Defendant argues that Plaintiff has failed to plead facts that would give him standing, i.e., that he 3 Complaint, Docket Entry No. 1. 4 Id. at 1 'l[ 3, 2 'l[ 5. 5 Id. at 2 'l[ 9, 3 'l[ 11. 6 Id. at 2 'I[ 9. 7 Id. at 4 <J['l[ 8 Id. at 8 'I[ 9 10 11 at 16 16-17 32. 'l[ 45, 17 'I[ 46. Defendant's MTD, Docket Entry No. 15. at 2 'l['l[ 4-5 . -2- Case 4:22-cv-03202 Document 22 Filed on 05/24/23 in TXSD Page 3 of 8 encountered any speci barrier and that he has no concrete plan to return.12 Defendant argues that this case is moot because it performed repairs in response to the Complaint. 13 Plaintiff responds that he has standing because he encountered barriers to access and because he will return after Defendant remedies the alleged violations.14 Plaintiff argues that his claims are not moot because Defendant has not addressed all the alleged ADA violations. 15 II. A. Legal Standard Article III Standing Federal Rule of Civil Procedure 12 (b) (1) allows a party to assert k of subject matter jurisdiction as a defense in a pretrial motion. jurisdiction.u "Standing is a component of subject matter HSBC Bank USA, N.A. as Trustee for Merrill Lynch Mortgage Loan v. Crum, 907 F.3d 199, plaintiff has standing if he "(1) 202 (5th Cir. 2018). A suffered an injury in (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial ision.u Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 at 6-8 ':![':I[ 13-17. 13 Id. at 8-11 ':![':I[ 18-25. Response in Opposition to Defendants' Dismiss, Docket Entry No. 20, p. 2. 14 15 at 1-2. -3- Amended Motion to Case 4:22-cv-03202 Document 22 Filed on 05/24/23 in TXSD Page 4 of 8 (2016). "To establish injury in fact, a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and conjectural or hypothetical.'" 'actual or imminent, Id. at 1548 (quoting Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992)). plainti not "[I]f the seeks equitable relief, he must also show that there real and immediate threat of repeated injury." a Deutsch v. Annis Entergrises, Inc., 882 F.3d 169, 173 (5th Cir. 2018) (per curiam) (internal quotations omitted}. B. Mootness Mootness is also a matter of subject matter jurisdiction. v. Klein Indegendent (5th Cir. 2021). School District, 860 F. App'x 894, 907 An action may be mooted if the defendant "simply accords all the relief demanded by the plaintiff." 13B Wright, Miller & Cooper, Fed. Prac. & Proc. Juris. § 3533.2 (3d ed. 2023). But a case is not moot "if only partial or uncertain relief is afforded." Id. Some courts have held ADA suits to be moot a defendants voluntarily fixed 1 of the alleged violations. er See, . Kennedy v. Omegagas & Oil, LLC, 748 F. App'x 886, 891 (11th Cir. 2018}. III. A. Analysis Standing Defendant argues that Plaintiff lacks standing because he has not alleged a concrete and icularized injury. Specifically he states that Plaintiff "failed to identify any actual barriers to -4- Case 4:22-cv-03202 Document 22 Filed on 05/24/23 in TXSD Page 5 of 8 access at Defendant's location related to his disability that he himself encountered. 1116 The Complaint alleges that Plaintiff "personally encountered many barriers to access [on] the Property that are detailed in this Complaint. 1117 alleged ADA violations. 18 The Complaint lists 25 But the Complaint does not specify which ones he personally encountered, which ones he observed, and which ones he later was made aware of. Plaintiff cites several cases holding that a disabled person can challenge barriers that he did not personally encounter. Ramos v. Uber Technologies, Inc., No. SA-14-CA-502-XR, See 2015 WL 758087, at *9 (W.D. Tex. Feb. 20, 2015) (holding that wheelchair users were not required to try calling an Uber or Lyft ride where they had ample information that the companies did not serve customers in wheelchairs); Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000) (concluding that a plaintiff who encountered one barrier to access could challenge other barriers related to his disability). plaintiff On the other hand, specify at least encountered on the property. one many cases require that the barrier that he personally See, e.g., Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 955 (9th Cir. 2011) ("Chapman leaves the federal court to guess which, if any, of the alleged violations deprived him of the same full and equal access that a person who is 16 Defendant's MTD, Docket Entry No. 15, p. 6 13. 17 Complaint, Docket Entry No. 1, p. 4 16. 18 Id. at 8 32. -5- Case 4:22-cv-03202 Document 22 Filed on 05/24/23 in TXSD Page 6 of 8 not wheelchair bound would enjoy when shopping at Pier One"). Considering the necessary to split in authority and the minimal amendment adequately plead standing, the court will order Plaintiff to amend paragraph 32 of the Complaint to specify which of the listed barrier(s) he personally encountered, which of the barriers he observed, and which of the barriers he later became aware of. See 5B Wright & Miller, Fed. Prac. & Proc. Civ. § 1350 (3d ed.) ( "When the pleader's affidavits or other evidence show either that the court actually has subject matter jurisdiction over the case or that the nonmoving party might be able to amend to allege jurisdiction, the district court may deny the motion and direct the pleader to amend the pleading"). Because Plaintiff seeks an injunction, "he must also show that there is a real and immediate threat of repeated injury" to have standing. Deutsch, 882 F.3d at 173. a concrete intent to return, specific date. but he does not have to allege a See id. at 174; Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1239 (11th Cir. 2000). explain how, An ADA plaintiff must allege upon return, An ADA plaintiff must also the alleged barriers would "actually affect[] his activities in some concrete way." Arlington, 657 F.3d 215, 236 (5th Cir. 2011). Frame v. City of Plaintiff adequately alleges an intent to return, and he states in his sworn declaration that he will do so within six months of the Property becoming accessible. The Complaint explains how each barrier would affect - 6- Case 4:22-cv-03202 Document 22 Filed on 05/24/23 in TXSD Page 7 of 8 his abil y to use the Property. This satisfies his pleading obligation for standing to seek an injunction. He need not state which allegedly noncompliant parking spaces and ramps he will choose upon return. B. Mootness Because the court is ordering Plainti to amend paragraph 32, and because mootness depends on whether the violations alleged in that paragraph have been remedied, the court declines to rule on mootness at this time. Defendant's MTD based on mootness will be denied without prejudice to Defendant's right to file a new motion based on mootness after Plaintiff has amended his Complaint. If Defendant chooses to do so, it should include an affidavit stating what repairs have been done, and Defendant should address each violation in Plaintiff's amended paragraph 32 and explain how has been resolved by the repairs. IV. Conclusion and Order For the reasons explained above, Defendant Sopros Investments Corporation's Amended Motion to Dismiss for Lack of Subject Matter Jurisdiction (Docket Entry No. 15) is DENIED. Plaintiff is ORDERED to amend the Complaint by June 30, 2023 to specify which of the alleged violations he personally encountered, which he observed, and which he later became aware of. If the parties are not able to settle the case in the next thirty days, they will provide the name and contact information of -7- Case 4:22-cv-03202 Document 22 Filed on 05/24/23 in TXSD Page 8 of 8 an agreed mediator or request that the court refer the case to Magistrate Judge Christina A. Bryan for a settlement conference. SIGNED at Houston, Texas, on this 24th day of May, 2023. / SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE -8-
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