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Ingram v. Conway Foods Inc.

United States District Court, D. South Carolina, Florence Division

July 29, 2016

MARCUS INGRAM, Individually, Plaintiff,
v.
CONWAY FOODS INC., a South Carolina Corporation d/b/a MARYLAND FRIED CHICKEN, and GATOR COASTAL SHOPPING CENTRE, LLC, a Delaware Limited Liability Company, Defendants.

          Marcus Ingram, Plaintiff, represented by Vanessa Ann Richardson, VAR Law Firm & Lawrence Arthur Fuller, Fuller Fuller and Associates PA, pro hac vice.

          Conway Foods Inc, Defendant, represented by Edward K. Pritchard, III, Pritchard and Elliott & Elizabeth Fraysure Fulton, Pritchard Law Group LLC.

          Gator Coastal Shopping Centre LLC, Defendant, represented by Steven A. Meckler, Shumaker Loop and Kendrick.

          ORDER

          R. BRYAN HARWELL, District Judge.

         Currently pending before the court is Defendant Conway Foods Inc.'s motion to dismiss plaintiff's first supplemental complaint [ECF #45] and Defendant Gator Coastal Shopping Centre, LLC's motion to dismiss plaintiff's first supplemental complaint [ECF #46]. Both parties have had the opportunity to extensively brief the issues raised in the motion to dismiss, and this Court has thoroughly considered all pleadings filed in this case.[1] Defendant Gator Coastal Shopping Centre, LLC adopted and joined the arguments asserted by Defendant Conway Foods, Inc. in its motion to dismiss. [ECF #46]. Accordingly, this Court will analyze both motions simultaneously in this Order.

         Factual Background and Procedural History

         On August 25, 2015, Plaintiff Marcus Ingram filed this civil action against Defendants Conway Foods, Inc. ("Conway Foods") and Gator Coastal Shopping Centre LLC ("Gator Coastal") alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (the "ADA"). [ECF #1]. After Defendant Conway Foods filed a motion to dismiss for lack of jurisdiction on September 29, 2015 [ECF #11], Plaintiff amended his complaint on October 14, 2015. [ECF #15]. On October 28, 2015, Defendant Conway Foods filed a subsequent motion to dismiss for lack of jurisdiction. [ECF #19]. Defendant Gator Coastal filed a motion to dismiss on February 15, 2016. [ECF #38]. Plaintiff again amended his complaint on March 22, 2016. [ECF #43]. The prior motions to dismiss were either terminated or denied as moot. On April 4, 2016, Defendant Conway Foods filed its motion to dismiss plaintiff's complaint, which is currently before this Court. [ECF #45]. On April 8, 2016, Defendant Gator Coastal filed its motion to dismiss plaintiff's complaint, which is also currently pending before this Court. [ECF #46].

         Plaintiff Marcus Ingram is a Georgia resident who is paralyzed as a result of a spinal cord injury and relies on a wheelchair to ambulate. [ECF #43, p. 2]. Plaintiff visits the Myrtle Beach, South Carolina area and surrounding areas approximately once every quarter with family and friends. [ECF #43, p. 2]. Plaintiff alleges he has been visiting this area for ten to fifteen years. [ECF #43, p. 2]. Plaintiff lives approximately three hundred fifty (350) miles from the Defendants' subject location. [ECF #46, Ex. C]. Plaintiff alleges Gator Coastal owns the subject shopping center where the Maryland Fried Chicken is located. [ECF #43, pp. 1-2]. While visiting the area, Plaintiff alleges he frequently shops at the subject shopping center and that he has been to Maryland Fried Chicken. [ECF #43, p. 2]. Plaintiff alleges that he has encountered architectural barriers at the Defendants' locations which have impaired his ability to safely enter the premises, navigate the premises, park in accessible parking spaces, enter certain tenant spaces, and use certain restrooms and amenities without assistance. [ECF #43, pp. 2-6]. According to the supplemental complaint, the last time he visited the Defendants' premises was on December 21, 2015. [ECF #43, p. 2]. Plaintiff alleged that he "definitely" intends to return to Myrtle Beach, and consequently the Defendants' premises in the near future on his regular visits to the area. [ECF #43, p. 2]. Aside from his status as a bona fide purchaser, Plaintiff also goes to public accommodations for the purpose of confirming these public areas are compliant with the ADA. [ECF #43, p. 2].

         Plaintiff's lawsuit alleges that he has a realistic, credible, existing and continuing threat of discrimination from the Defendants' noncompliance with the ADA. [ECF #43, p. 3]. Plaintiff provides specific examples, though not an exclusive list, in the supplemental complaint of the violations he claims he encountered during his visit to the subject location. [ECF #43, pp. 4-6]. Plaintiff seeks a permanent injunction requiring Defendants to remedy any ADA violations found on the premises, in addition to attorney's fees, costs, and expenses and a declaratory judgment that Defendants have violated the ADA. [ECF #8, p. 6].

         In response, Defendants both filed a motion to dismiss pursuant to 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, alleging Plaintiff lacks standing to bring this lawsuit as required by Article III of the United States Constitution, in part because of Plaintiff's status as a tester. [ECF #45; ECF #46]. Defendants define as a "tester" as a qualified individual with a disability who travels to public places to determine compliance with the ADA. [ECF #45-1, p. 2]. Defendants argue that Plaintiff lacks standing to sue under the ADA because Plaintiff cannot demonstrate that he will suffer an injury in fact of the alleged violations of the ADA while on their premises. [ECF #45-1, p. 5].

         Standard of Review

         Defendants file their motions pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for "lack of subject-matter jurisdiction." The plaintiff has the burden of proving federal jurisdiction is proper. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) is proper only if the claim is "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277, 1280-81 (3d Cir. 1993) ( quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974)). "The threshold to withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(1) is thus lower than that required to withstand a Rule 12(b)(6) motion." Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d Cir. 1989).

         Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for "failure to state a claim upon which relief can be granted." The purpose of such a motion is to test the sufficiency of the facts alleged in a plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion to dismiss, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. The United States Supreme Court recently stated that

[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable ...

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