United States District Court, D. South Carolina, Florence Division
Ingram, Plaintiff, represented by Vanessa Ann Richardson, VAR
Law Firm & Lawrence Arthur Fuller, Fuller Fuller and
Associates PA, pro hac vice.
Foods Inc, Defendant, represented by Edward K. Pritchard,
III, Pritchard and Elliott & Elizabeth Fraysure Fulton,
Pritchard Law Group LLC.
Coastal Shopping Centre LLC, Defendant, represented by Steven
A. Meckler, Shumaker Loop and Kendrick.
BRYAN HARWELL, District Judge.
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. 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.
Background and Procedural History
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. Â§ 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].
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].
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].
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].
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).
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