United States District Court, D. Colorado
CARLOS G. BRITO, Plaintiff,
BIG LOTS STORES, INC., an Ohio Corporation d/b/a Big Lots at Chelton Center, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO
CHRISTINE M. ARGUELLO United States District Judge.
matter is before the Court on Defendant's Motion to
Dismiss Plaintiff's Complaint under Fed.R.Civ.P. 12(b)(1)
and 12(b)(6). (Doc. # 9.) For the reasons discussed herein,
the Court denies Defendant's Motion.
Carlos G. Brito is paraplegic and requires the use of a
wheelchair to ambulate. (Doc. # 1 at ¶ 10.) Defendant
Big Lots Stores, Inc. d/b/a Big Lots at Chelton Center operates
a retail business at 1990 S. Academy Blvd., Colorado Springs,
Colorado 80916 (“Premises”). (Doc. # 1 at ¶
6.) On August 25, 2017, Plaintiff commenced this suit seeking
injunctive relief under Title III of the Americans with
Disabilities Act (“ADA”), after encountering
“multiple violations of the ADA that directly affected
his ability to use and enjoy” the Premises “on or
about April 25, 2017.” (Doc. # 1 at ¶ 11.)
Plaintiff contends he lives near the Premises, has frequented
the area for “pleasure purposes, ” and intends to
return within three months from the date of filing his
Complaint. (Doc. # 1 at ¶ 12.)
October 6, 2017, Defendant moved to dismiss pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Doc. # 9.) Defendant
argues for dismissal because, he alleges, Plaintiff failed to
exhaust his administrative remedies and lacks standing. The
Court addresses each argument in turn.
ADMINISTRATIVE EXHAUSTION UNDER TITLE III
argues the Court lacks subject-matter jurisdiction because
Plaintiff failed to exhaust his administrative remedies
pursuant to 42 U.S.C. § 12188, which, Defendant
contends, requires Plaintiff to give notice of the alleged
violations to the Colorado Civil Rights Coalition
(“CCRC”) thirty days before filing his Complaint.
Plaintiff's failure to give notice is uncontested.
III of the ADA provides that “[t]he remedies and
procedures set forth in section 2000a-3(a) of this title are
the remedies and procedures this subchapter provides to any
person who is being subjected to discrimination on the basis
of disability.” 42 U.S.C. § 12188(a)(1). In turn,
42 U.S.C. § 2000a-3(a) provides that an aggrieved
individual may bring “a civil action for preventive
relief, including an application for a permanent or temporary
injunction, restraining order, or other order.” §
2000a-(3)(a). Defendant proposes that, although not expressly
referenced in § 12188(a)(1), Title III plaintiffs are
also subject to the notice requirement in § 2000a-3(c),
[N]o civil action may be brought under subsection (a) of
[§ 2000a-3] before the expiration of thirty days after
written notice of such alleged act or practice has been given
to the appropriate State or local authority by registered
mail or in person, provided that the court may stay
proceedings in such civil action pending the termination of
State or local enforcement proceedings.
42 U.S.C. § 2000a-3(c).
are split on whether § 2880a-3(c) is incorporated into
Title III by way of § 12188(a)(1), i.e. whether notice
is required before filing suit under Title III. Some courts
have held that pre-suit notice is not required.
See, e.g., Botosan v. Paul McNally
Realty, 216 F.3d 827 (9th Cir. 2000); Iverson v.
Comsage, Inc., 132 F.Supp.2d 52 (D. Mass. 2001);
Disabled in Action of Metro. New York v. Trump Int'l
Hotel & Tower, No. 01-cv-5518, 2003 WL 1751785
(S.D.N.Y. Apr. 2, 2003); Love v. Omni Netherland
Plaza Hotel, No. 1-00-700, 2001 WL 1842450
(S.D. Ohio May 10, 2001); Zimmerman v. GJS Grp.,
Inc., No. 2-17-cv-00304, 2017 WL 4560136 (D. Nev. Oct.
11, 2017). Other courts have held otherwise-that pre-suit
notice is required under Title III. See,
e.g., Spicer v. Auraria Campus Bookstore, No.
12-cv-00245, 2012 U.S. Dist. LEXIS 28295, at *4 (D. Colo.
Mar. 5, 2012); Tanner v. Wal-Mart Stores, Inc., No.
99-44-JD, 2000 WL 620425 (D.N.H. Feb. 8, 2000); Snyder v.
San Diego Flowers, 21 F.Supp.2d 1207, 1208-11 (S.D. Cal.
1998); Mayes v. Allison, 983 F.Supp. 923, 924-25 (D.
Nev. 1997). Indeed, courts in this District are divided.
Compare Howard v. Cherry Hills Cutters, Inc., 935
F.Supp. 1148, 1150 (D. Colo. 1996) (Howard I)
(notice required under Title III); Howard v. Cherry Hills
Cutters, Incorporated, 979 F.Supp. 1307, 1308-09 (D.
Colo. 1997) (Howard II) (affirming
Howard I); Lillard v. Sunflower Farmers Mkt.,
Inc., No. 12-cv-1497-JLK, 2012 WL 5936543 (D. Colo. Nov.
27, 2012) (notice required under Title III); Jones v.
Reg'l Transp. Dist., No. 10-cv-01535-JLK, 2010 WL
3341205 (D. Colo. Aug. 23, 2010) (same) with Mize v. Kai,
Inc., No. 17-cv-00915-NYW, 2017 WL 5195203 (D. Colo.
Nov. 9, 2017) (notice not required); Abreu v. Tavin Food,
Inc., No. 16-cv-00432-MEH (D. Colo. Nov. 14, 2016)
(same); Frederick v. Coffee House Holdings, Inc.,
No. 17-cv-00409-MEH, 2017 U.S. Dist. LEXIS 75857, at 13 (D.
Colo. May 11, 2017) (same). The Tenth Circuit has not yet
addressed the issue.
support of its argument that notice is required, Defendant
relies on a series of cases decided by the Honorable John L.
Kane. First, in Howard I, Senior Judge Kane held,
“By making § 2000a-3 applicable to enforcement
actions under 42 U.S.C. § 12188, Congress has imposed a
state law exhaustion requirement on disabled individuals
seeking to enforce their rights under Subchapter III of the
ADA.” 935 F.Supp. at 1150. Judge Kane affirmed this
holding in Howard II, and further explained his
reasoning in Lillard, 2012 WL 5936543, wherein he
concluded that the plain language of 42 U.S.C. § 12188
compels this construction. He explained:
42 U.S.C. § 12188(a)(1) states, ‘the remedies
and procedures set forth in . . . 42 U.S.C. 2000a-3(a)
are the remedies and procedures of this title.'
(emphasis added). Section 2000a-3(a) sets forth the
remedies and authorizes aggrieved parties to
commence a civil action for injunctive relief. Section
2000a-3(c) sets forth the procedure for commencing a
civil action and imposes a pre-suit notice requirement on
claims for relief under § 2000a-3.
If Congress intended only to incorporate the . . . remedies,
and not the procedures, it would have excluded the word
‘procedures' from 42 U.S.C. § 12188(a)(1).
Accordingly, §2000a-3(a) is, in turn, limited by ...