United States District Court, D. Colorado
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. WANG UNITED STATES MAGISTRATE JUDGE
matter comes before the court on Defendants Holland &
Williams Real Estate, LLC and Wendy's of Colorado
Springs, Inc.'s (collectively, “Defendants”)
Motion to Dismiss Plaintiff's Claims (“Motion to
Dismiss”) [#10, filed March 19, 2018] and Motion to
Stay Discovery (“Motion to Stay”) [#38, filed
June 15, 2018]. The undersigned Magistrate Judge considers
the Motions pursuant to 28 U.S.C. § 636(b), Rule 72(b)
of the Federal Rules of Civil Procedure, and the Memoranda
dated April 6, 2018 [#23] and June 15, 2018 [#39]. This court
concludes that oral argument will not materially assist in
the resolution of this matter. Upon careful review of the
Motions and related briefing, the applicable case law, and
the entire docket, I respectfully RECOMMEND that the Motion
to Dismiss be DENIED, and it is ORDERED that the Motion to
Stay is DENIED.
court draws the following facts from Plaintiff's
Complaint [#1] and Amended Complaint [#37] and takes them as
true for the purposes of this Recommendation. Plaintiff
Carlos Brito (“Plaintiff” or “Mr.
Brito”) is a “disabled individual who has a
physical impairment that substantially limits one or more
major life activities[, ]” requiring him to “use
a wheelchair to ambulate” as he cannot do so without
one. See [#1 at ¶¶ 3-4]. He brings this
action pursuant to Title III of the Americans with
Disabilities Act (“ADA” or “Act”), 42
U.S.C. § 12181 et seq., against Defendants as
the owners, lessors, or operators of the real property and
Wendy's Restaurant located at 2515 W. Montebello Drive,
Colorado Springs, Colorado 80918-a place of public
accommodation (“PPA”) under the Act. See
[#37 at ¶¶ 1, 6-9]. He identifies himself as a
“tester” for the purposes of discovering,
encountering, and engaging discrimination against the
disabled in public accommodations. [Id. at ¶
alleges that he visited Defendants' PPA on or about June
15, 2017, and personally encountered several architectural
barriers that mired his access to the premises. See
[id. at ¶¶ 14, 16]. These included
noncompliant handicap accessible parking spaces; noncompliant
and obstructed entry ways and paths of travel; noncompliant
and obstructed access to dinning; and noncompliant restrooms.
See [id. at ¶¶ 24-25]. Thus, he
was unable to fully and equally enjoy the goods and services
of Defendants' PPA and, because the architectural
barriers remain, he is deterred from returning despite his
desire to do so in the future. See [id. at
¶¶ 17, 23, 27].
March 19, 2018, Defendants' moved to dismiss
Plaintiff's Complaint pursuant to Rule 12(b)(1), arguing
that the court lacks subject matter jurisdiction because Mr.
Brito does not have standing to sue. See [#10].
Plaintiff has since filed a Response [#15] and Defendants a
Reply [#24]. Since then, Plaintiff moved to amend his
Complaint so as to remove Defendant Holland Buerk
Enterprises, Inc. a/k/a Wendy's #4941 and to name
Wendy's of Colorado Springs, Inc. as the true owner,
lessor, or operator of the Wendy's Restaurant that is the
subject of this suit. See [#34]. Because amendment
was unopposed, the court ordered, and Plaintiff filed, his
Amended Complaint on May 8, 2018 [#36; #37], the operative
pleading in this matter. This court noted that the Amended
Complaint did not appear to moot the pending Motion to
Dismiss, and informed the Parties that it would consider the
Motion to Dismiss as directed to the Amended Complaint [#36];
neither Party objected to this determination.
then filed the instant Motion to Stay on June 15, 2018.
[#38]. Though acknowledging that this case has proceeded with
discovery since the filing of the Motion to Dismiss,
Defendants now request that this court stay discovery until
there is a ruling on the Motion to Dismiss to avoid needless
discovery. Plaintiff has yet to respond, but given this
court's Recommendation on the Motion to Dismiss, ruling
on the Motion to Stay is appropriate at this time.
See D.C.COLO.LCivR 7.1(d). I consider both Motions
Defendant's Motion to Dismiss
courts are courts of limited jurisdiction and, as such,
“are duty bound to examine facts and law in every
lawsuit before them to ensure that they possess subject
matter jurisdiction.” The Wilderness Soc. v. Kane
Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011)
(Gorsuch, J., concurring); accord 1mage Software, Inc. v.
Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th
Cir. 2006) (noting that courts have an independent obligation
to satisfy themselves that subject matter jurisdiction
exists, even in the absence of a challenge by either party).
Under Article III of the United States Constitution, federal
courts have jurisdiction to hear only certain
“cases” and “controversies.”
Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334,
2341 (2014). To satisfy Article III's case or controversy
requirement, Plaintiffs must establish: (1) an injury in
fact; (2) a sufficient causal connection between the injury
and the conduct complained of; and (3) a likelihood of
redressability by a favorable decision. New Mexico v.
Dep't of Interior, 854 F.3d 1207, 1214-15 (10th Cir.
2017). Indeed, standing cannot be assumed “in order to
proceed to the merits of the underlying claim, regardless of
the claim's significance.” Colo. Outfitters
Ass'n v. Hickenlooper, 823 F.3d 537, 543 (10th Cir.
to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a
party may either facially or factually attack the court's
subject matter jurisdiction. See generally Pueblo of
Jemez v. United States, 790 F.3d 1143, 1147 n.4 (10th
Cir. 2015). When, as here, a party levies a facial attack the
court presumes the truthfulness of the facts alleged in the
complaint. Holt v. United States, 46 F.3d 1000,
1002-03 (10th Cir. 1995). In doing so, the court applies the
same standards as Rule 12(b)(6) in that the court must accept
well-pleaded factual allegations but not unsupported
conclusory assertions. Muscogee (Creek) Nation v.
Oklahoma Tax Comm'n, 611 F.3d 1222, 1227 & n.1
(10th Cir. 2010). Like standing, the burden of establishing
jurisdiction rests with the party asserting it. Basso v.
Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
argue that Mr. Brito lacks standing to sue because he has not
alleged an injury-in-fact that is concrete and
particularized. See [#10 at 6; #24 at 3-4].
According to Defendants, this is particularly fatal to
Plaintiff's claim for prospective injunctive relief
because there is no allegation of a real and immediate threat
of future injury. See [#10 at 7-9; #24 at 3- 5].
And, Defendants contend, Plaintiff's status as a
“tester” does not cure his deficient pleading,
nor does the application of a ...