United States District Court, E.D. Louisiana
SCOTT MAGEE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
GLACIER WATER SERVICES, INC. AND WINN-DIXIE STORES, INC.
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
GW Services, LLC (GWS) 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. For the following reasons
defendants' motion is GRANTED.
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. The stations are connected to a
municipal water source and allow customers to bring their own
water bottles and purchase water refills. 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. 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.
Scott Magee suffers from Macular Degeneration, and as a
result, is legally blind. Plaintiff lives near the Winn-Dixie
located at 211 Veterans Memorial Boulevard in Metairie,
Louisiana. 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
Thus, consumers need not actually enter the Winn-Dixie to use
the refill station.
second amended complaint alleges that on May 1, 2016, Magee
went to the Winn-Dixie after the interior had closed for the
night.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.” 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. 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. 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.
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.
Plaintiff amended his complaint on May 18, 2016 to add GWS as
a defendant. On May 25, 2016, plaintiff filed a
motion for class certification,  and on September 19,
2016, plaintiff amended his complaint for a second
time. Plaintiff seeks declaratory and
injunctive relief, as well as reasonable attorneys' fees,
expenses, and costs.
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. 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. Magee filed a
response in opposition,  and defendants replied.
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)
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).
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
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. 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 of the security camera footage
from the Winn-Dixie on the night plaintiff allegedly visited
the refill station and the declaration of Magan
Breaux. 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. 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.
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, ...