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Magee v. Winn-Dixie Stores, Inc.

United States District Court, E.D. Louisiana

January 30, 2017

SCOTT MAGEE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
v.
GLACIER WATER SERVICES, INC. AND WINN-DIXIE STORES, INC.

         SECTION “R” (4)

          ORDER AND REASONS

          SARAH S. VANCE UNITED STATES DISTRICT JUDGE.

         Defendants GW Services, LLC (GWS)[1] and Winn-Dixie Stores, Inc. move the Court to dismiss plaintiff Scott Magee's second amended complaint pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure.[2] For the following reasons defendants' motion is GRANTED.

         I. BACKGROUND

         Defendant GWS is a California corporation that owns and operates water refill stations, and GWS contracts with companies like Winn-Dixie to install and operate the refill stations in those companies' locations.[3] The stations are connected to a municipal water source and allow customers to bring their own water bottles and purchase water refills.[4] Plaintiff alleges that to use the machine, a consumer places an empty water bottle into the machine and inserts payment, and then follows the written instructions on the machine by pressing buttons on the machine.[5] According to plaintiff, the refill stations offer filtered water at prices significantly less expensive than comparable water products, and they also offer consumers the choice of obtaining filtered water in an environmentally friendly way.[6]

         Plaintiff Scott Magee suffers from Macular Degeneration, and as a result, is legally blind.[7] Plaintiff lives near the Winn-Dixie located at 211 Veterans Memorial Boulevard in Metairie, Louisiana.[8] According to plaintiff, he has shopped at this Winn-Dixie multiple times and reasonably expects to visit again in the future. This Winn-Dixie location has a GWS water refill station located right outside the main entrance and the machine is open to the public 24 hours a day.[9] Thus, consumers need not actually enter the Winn-Dixie to use the refill station.

         Plaintiff's second amended complaint alleges that on May 1, 2016, Magee went to the Winn-Dixie after the interior had closed for the night.[10]According to plaintiff, he approached the water refill station to purchase water, but “quickly determined that [plaintiff] was unable to use it because it did not offer a non-visual means of operation.”[11] Magee alleges that the machine did not utilize any braille markings or other non-visual means for Magee or others similarly situated to interact with the machine. Thus, Magee argues that he and other blind customers cannot use the machines without the assistance of others. According to Magee, the stations could easily be retrofitted with braille instructions and other non-visual technologies to allow blind consumers to use the machines.[12] Magee further alleges that his May 2016 visit was not Magee's only experience with the machine and that he has attempted to use the machine in the past with no success.[13] Magee does not, however, mention any dates or times of his alleged previous visits, nor does he allege that these previous visits occurred when the store was closed.

         On May 6, 2016, Magee filed this class action lawsuit against Winn-Dixie, asserting that Winn-Dixie's refill stations unlawfully discriminate against the blind in violation of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq.[14] Plaintiff amended his complaint on May 18, 2016 to add GWS as a defendant.[15] On May 25, 2016, plaintiff filed a motion for class certification, [16] and on September 19, 2016, plaintiff amended his complaint for a second time.[17] Plaintiff seeks declaratory and injunctive relief, as well as reasonable attorneys' fees, expenses, and costs.[18]

         Plaintiff brings his ADA claim on behalf of himself and a proposed class consisting of all legally blind individuals who have been or are being “denied access to Glacier Water Refill Stations” located in the United States and owned and/or operated by GWS, as well as a subclass of legally blind individuals who have been denied access to the stations at locations owned and/or operated by Winn-Dixie.[19] Defendants filed this motion to dismiss, arguing that plaintiff lacks standing to bring this suit, and that even if plaintiff has standing, he has failed to state a claim upon which relief can be granted.[20] Magee filed a response in opposition, [21] and defendants replied.[22]

         II. DISCUSSION

         A. Rule 12(b)(1)

         A standing motion challenges the Court's subject matter jurisdiction, and it is governed by Federal Rule of Civil Procedure 12(b)(1). “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). A district court may dismiss for lack of subject matter jurisdiction on any one of three bases: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citation omitted).

         If a defendant makes a “facial attack” on the complaint and the court's jurisdiction to hear the case, the trial court merely looks to the sufficiency of the allegations in the complaint because they are presumed to be true. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). Here, defendants make a “factual attack” on the court's subject matter jurisdiction where they submit affidavits, testimony, or other evidentiary materials. See id. When a defendant makes a factual attack, the plaintiff is required to submit facts through some evidentiary method and “has the burden of proving by a preponderance of the evidence that the trial court does have subject matter jurisdiction.” Id.; see also Peaker Energy Grp., L.L.C. v. Cargill, Inc. & Louisiana Sugar Ref., L.L.C., No. 14-2106, 2016 WL 7385622, at *2 (E.D. La. Dec. 21, 2016) (citing Paterson, 644 F.2d at 523).

         III. DISCUSSION

         A. Standing

         Defendants argue in their motion to dismiss that plaintiff lacks standing because plaintiff has not suffered an injury-in-fact. The requirement that a party have standing to bring suit flows from Article III of the Constitution, which limits the scope of the federal judicial power to the adjudication of “cases” or “controversies.” U.S. Const. art. III, § 2. Standing consists of three elements: (1) the plaintiff must have suffered an “injury-in-fact, ” which is an “actual or imminent” invasion of a legally protected interest that is “concrete and particularized;” (2) the injury must be “fairly traceable” to the challenged conduct of the defendant; and (3) it must be likely that plaintiff's injury will be redressed by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing each element. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). Because a standing challenge attacks the Court's jurisdiction to hear the case, the Court must resolve the standing issue as a threshold matter of jurisdiction. See, e.g., Cole v. Gen. Motors Corp., 484 F.3d 717, 721 (5th Cir. 2007).

         The gravamen of plaintiff's second amended complaint is that Winn-Dixie's policy of allowing customers to use the refill station when Winn-Dixie is closed is discriminatory because blind customers cannot use the machines without assistance and there are no store employees to assist blind customers when the store is closed.[23] Defendants argue that, despite the allegations in plaintiff's complaint, Magee did not attempt to use the refill station while the Winn-Dixie was closed on May 1, 2016. In support, defendants attach to their motion a video[24] of the security camera footage from the Winn-Dixie on the night plaintiff allegedly visited the refill station and the declaration of Magan Breaux.[25] Breaux is the Customer Service Manager for the Veterans Boulevard Winn-Dixie, and attests that the video constitutes true and accurate reproductions of Winn-Dixie's surveillance footage from the night in question.[26] A review of the video reveals footage from two cameras pointed at the parking lot in front of the Winn-Dixie entrance from the hours of 12:00 midnight to 6:00 a.m. on May 1, 2016.[27]

         Defendants' attachment of the video and the declaration of Breaux indicate that they are making a “factual, ” as opposed to a “facial, ” challenge to the Court's jurisdiction. As described above, when a defendant makes a factual attack, the plaintiff is required to submit facts through some evidentiary method and “has the burden of proving by a preponderance of the evidence that the trial court does have subject matter jurisdiction.” Case law is clear that motions to dismiss for lack of standing can be brought through factual challenges. See, e.g., Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir. 2015) (“A motion to dismiss for lack of standing may be either ‘facial' or ‘factual.'”) (citation omitted); Pratt v. Mut. Of Omaha Ins. Co., No. 15-09, 2016 WL 1248885, at *8 (N.D. Miss. Mar. 28, 2016) (accepting factual attack as to plaintiff's standing); Norkunas v. Wynn Resorts Holdings, LLC, No. 07-96, 2007 WL 2949569, at *2-5 (D. Nev. Oct. 10, ...


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