United States District Court, D. South Carolina, Florence Division
Ingram, Plaintiff, represented by Vanessa Ann Richardson, VAR
Law Firm & John Paul Fuller, Fuller Fuller and Associates PA,
pro hac vice.
Reef Resort LLC, Defendant, represented by Carrie Appleton
Fox, Aiken Bridges Law Firm & Preston Bruce Dawkins, Jr.,
Aiken Bridges Law Firm.
BRYAN HARWELL, District Judge.
matter is before the court on Defendant's motion to
dismiss plaintiff's complaint [ECF #13]; Defendant's
motion to dismiss plaintiff's supplemental complaint [ECF
#22]; and Defendant's motion to stay entry of scheduling
orders and certain deadlines [ECF #25]. Both parties have had
the opportunity to extensively brief the issues raised in the
motions to dismiss, and this Court has thoroughly considered
all pleadings filed in this case.
Background and Procedural History
August 26, 2015, Plaintiff Marcus Ingram originally filed
this civil action against DJEWL, LLC, alleging violations of
the Americans with Disabilities Act, 42 U.S.C. Â§ 12181 et
seq. (the "ADA"). [ECF #1]. On September 23,
2015, Plaintiff amended his complaint to name Crown Reef
Resort, LLC ("Crown Reef Resort") as a defendant.
[ECF #5]. Plaintiff voluntarily dismissed DJEWL, LLC on
September 25, 2015. [ECF #7]. After Defendant filed a motion
to dismiss for lack of jurisdiction on January 20, 2016, [ECF
#13], Plaintiff supplemented his amended complaint on
February 8, 2016. [ECF #17]. On February 22, 2016, Defendant
filed a subsequent motion to dismiss for lack of jurisdiction
that is also currently pending before this Court. [ECF #22].
Defendant raises the same issues in both motions to dismiss
filed in this case.
facts alleged in the supplemental amended complaint are as
follows: 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 #17, p. 2]. Plaintiff visits the
Myrtle Beach, South Carolina area and surrounding areas
approximately once every quarter with family and friends.
[ECF #17, p. 2]. Plaintiff alleges he has been visiting
"this area" for approximately ten to fifteen years.
[ECF #17, p. 2]. Plaintiff initially alleged that he visited
the Crown Reef Resort as a guest on March 10, 2015 and had
plans to return to the property from December 21 through
December 23, 2015. [ECF #5, p. 2]. Thereafter, Defendant
filed its first motion to dismiss for lack of standing,
pointing out that in the same time frame Plaintiff alleged to
have visited the Crown Reef Resort, he filed other lawsuits
alleging he was at other hotels during the same time frame.
[ECF #13, p. 3]. Plaintiff then filed the supplemental
complaint to allege that he did, in fact, return to
Defendant's property on December 21, 2015. [ECF #17, p.
2]. Plaintiff acknowledges in his supplemental complaint that
besides visiting public accommodations, including the subject
resort as a bona fide patron, he also visits for the purpose
of advocating for disabled rights and ensure public
accommodations are in compliance with the ADA. [ECF #17, p.
alleges that he has encountered architectural barriers at the
subject property which have impaired his ability to safely
enter the premises at some arrival points, navigate the
premises, park in accessible parking spaces, enter certain
spaces, and use certain restrooms and amenities. [ECF #17,
pp. 4-5]. Plaintiff's lawsuit alleges that he has a
realistic, credible, existing and continuing threat of
discrimination from the Defendant's noncompliance with
the ADA. [ECF #17, 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 Defendant's premises. [ECF #17, pp. 4-5].
Plaintiff seeks a permanent injunction requiring Defendant to
remedy any ADA violations found on the premises, in addition
to attorney's fees, costs, and expenses and a declaratory
judgment that Defendant has violated the ADA. [ECF #17, p.
response, Defendant filed a motion to dismiss pursuant to
12(b)(1) 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. [ECF #22-1, p.
4]. Defendant argues that Plaintiff lacks standing to sue the
Crown Reef Resort under the ADA because Plaintiff cannot
demonstrate that he will suffer an "injury in fact"
of the alleged violations of the ADA at the premises. [ECF
#22-1, p. 2]. In part, Defendant argues that Plaintiff's
status as a "tester, " an individual with a
disability who travels to public places to determine
compliance with the ADA, calls into question whether he
legitimately suffered an "injury in fact." [ECF
#22-1, pp. 7-8]. Defendant also questions the likelihood that
Plaintiff will suffer future harm. [ECF #22-1, p. 8].
files its motion pursuant to Rule 12(b)(1) 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, " which is the court's
"statutory or constitutional power to adjudicate a
case." Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 89 (1998). 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).
ruling on a motion to dismiss, the court "must accept as
true all of the factual allegations contained in the
complaint." Erickson v. Pardus, 551 U.S. 89, 94
(2007). In considering a motion to dismiss, the factual
allegations in a complaint are accepted as true, and the
plaintiff is afforded the benefit of all reasonable
inferences to be drawn from the allegations contained within
the complaint. Mylan Laboratories, Inc. v. Matkari,
7 F.3d 1130, 1134 (4th Cir. 1993). Moreover, materials
outside the pleadings which relate to jurisdiction can be
considered on a motion to dismiss for lack of jurisdiction.
Land v. Dollar, 330 U.S. 731, 735 (1947); see
also White Tail Park, Inc. v. Stroube, 413 F.3d
451, 459 (4th Cir. 2005) (when a defendant raises standing as
its basis for a 12(b)(1) motion to dismiss, the district
court may consider evidence out side of the pleadings without
converting the motion into one for summary judgment).
doctrine of standing focuses on whether the plaintiff
initiating the action is the proper party to bring suit. The
constitutional minimum of standing requires three elements:
(1) the plaintiff must have suffered an "injury in
fact"-an invasion of a legally protected interest which
is (a) concrete and particularized and (b) "actual or
imminent" and not "conjectural or
hypothetical;" (2) there must be a causal connection
between the injury and the conduct complained of-the injury
has to be "fairly... traceable to the challenged action
of the defendant, and not... the result of the independent
action of some third party not before the court; (3) it must
be "likely, " as opposed to merely
"speculative, " that the injury will be
"redressed by a favorable decision." Lujan v.
Defenders of Wildlife,504 U.S. 555, 560-61 (1992);
see alsoFriends of the Earth, Inc. v. Gaston
Copper Recycling Corp.,629 F.3d 387, 396 (4th Cir.
2011). The party invoking federal jurisdiction bears the
burden of proving these elements exist as they are an
indispensable part of the party's case. Id. at
561. Each element must be supported in the same way as any
other matter on which the plaintiff bears the burden of
proof, i.e. with the manner and degree of evidence required
at the ...