Brito v. Holland & Williams Real Estate, LLC

          ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          NINA Y. WANG UNITED STATES MAGISTRATE JUDGE

         This 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.

         BACKGROUND

         The 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 ¶ 15].

         Plaintiff 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].

         On 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.

         Defendants 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 in turn.

         ANALYSIS

         I. Defendant's Motion to Dismiss

         A. Legal Standard

         Federal 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. 2016).

         Pursuant 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. 1974).

         B. Application

         Defendants 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 ...