United States District Court, W.D. Louisiana, Monroe Division
A. DOUGHTY JUDGE
REPORT AND RECOMMENDATION
L. HAYES UNITED STATES MAGISTRATE JUDGE
the undersigned magistrate judge, on reference from the
District Court, is a motion to dismiss for lack of subject
matter jurisdiction and for failure to state a claim upon
which relief can be granted [doc. # 13] filed by defendants
Louisiana Tech University and President Leslie Guice. The
compound motion is opposed. For reasons assigned below, it is
recommended that the motion to dismiss for lack of subject
matter jurisdiction be GRANTED, and that plaintiff's
complaint, as amended, be dismissed, without prejudice.
18, 2018, the Advocacy Center filed the instant suit seeking
declaratory and injunctive relief, plus attorney's fees,
against Louisiana Tech University and President Leslie
Guice (collectively, “Louisiana
Tech”) because of defendants' failure to make its
public buildings, paths of travel, and places of public
accommodation accessible to persons with disabilities who
have mobility and vision impairments in violation of Title II
of the Americans with Disabilities Act, 42 U.S.C. §12131
et seq. (the “ADA”), and § 504 of the
Rehabilitation Act of 1973, 29 U.S.C. §794 (the
“Rehabilitation Act”). (Compl.).
October 24, 2018, the Advocacy Center amended its complaint
to assert, inter alia, that it was bringing suit on
its own behalf, on behalf of its employees, and “on
behalf of persons with visual and mobility impairments who
attend, reside on the campus of, or seek access to [Louisiana
Tech].” (First Amend. Compl. (“FAC”)). The
FAC also included additional allegations in an attempt to
shore up the Advocacy Center's standing to bring suit.
December 1, 2018, Louisiana Tech filed the instant motion to
dismiss the FAC for lack of subject matter jurisdiction
and for failure to state a claim upon which relief can be
granted. Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Louisiana Tech
contends that the case is subject to dismissal because the
Advocacy Center lacks standing, both organizational and
representative/associational, as required to prosecute the
suit. Louisiana Tech further argues that the FAC fails to
state a claim for relief because: 1) neither the
Rehabilitation Act, nor ADA Title II require every building
to be accessible to every person; 2) the Advocacy Center is
not a qualified individual for any Louisiana Tech program;
and 3) it comprises only bare allegations of violations of
the 2010 ADA Accessibility Guidelines (the
Advocacy Center filed its opposition to the motion to dismiss
on December 24, 2018. [doc. # 18]. A flurry of replies and
sur-replies followed - the most recent filed on January 16,
2019. See doc. #s 17-24. In light of the current
sustained lull in briefing, the court finds that the matter
for purposes of the federal courts, comes in two varieties:
“Article III standing, which enforces the
Constitution's case-or-controversy requirement, and
prudential standing, which embodies judicially self-imposed
limits on the exercise of federal jurisdiction.”
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1,
11-12, 124 S.Ct. 2301, 2308-09 (2004), abrogated in part by
Lexmark Int'l, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 134 S.Ct. 1377 (2014) (internal
citations and quotation marks omitted).
defect in the court's Article III or constitutional
standing implicates the court's subject matter
jurisdiction, and therefore, is properly raised by a party
via Rule 12(b)(1). See Cadle Co. v. Neubauer, 562
F.3d 369, 374 (5th Cir.2009) (citation omitted); Moore v.
Bryant, 853 F.3d 245, 248 n.2 (5th Cir.2017)
(“Dismissals for lack of Constitutional standing are
granted pursuant to Rule 12(b)(1)”). Further,
“[w]hen a Rule 12(b)(1) motion is filed in conjunction
with other Rule 12 motions, the court should consider the
Rule 12(b)(1) jurisdictional attack before addressing any
attack on the merits.” Ramming v. United
States, 281 F.3d 158, 161 (5th Cir.2001).
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
(2nd Cir. 1996)). The party seeking to invoke jurisdiction
bears the burden of demonstrating its existence. See
Ramming, supra; Howery v. Allstate Ins. Co.,
243 F.3d 912, 916 (5th Cir. 2001). “[T]here is a
presumption against subject matter jurisdiction that must be
rebutted by the party bringing an action to federal
court.” Coury v. Prot, 85 F.3d 244, 248 (5th
Cir. 1996) (citation omitted). Moreover, because this action
is at the motion to dismiss stage, plaintiff must
“clearly . . . allege facts demonstrating” each
element of Article III standing. Spokeo, Inc. v.
Robins, ___ U.S.___, 136 S.Ct. 1540, 1547 (2016)
(citation omitted); see also NOLA Health Sols., LLC v.
New Orleans Reg'l Physician Hosp. Org., Inc., No.
18-7007, 2019 WL 112031, at *5 (E.D. La. Jan. 4, 2019).
court can find that subject matter jurisdiction is lacking
based on (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.” Enable
Mississippi River Transmission, L.L.C. v. Nadel &
Gussman, L.L.C., 844 F.3d 495, 497 (5th Cir.2016)
(citations and internal quotation marks omitted).
United States Constitution, via Article III, limits federal
courts' jurisdiction to “cases” and
“controversies.” Sample v. Morrison, 406
F.3d 310, 312 (5th Cir.2005) (citing U.S. Const. art. III,
§ 2). The “law of Article III standing, which is
built on separation-of-powers principles, serves to prevent
the judicial process from being used to usurp the powers of
the political branches.” Town of Chester, N.Y. v.
Laroe Estates, Inc., ___ U.S.___, 137 S.Ct. 1645,
1650-51 (2017) (citation omitted). Thus, “the standing
question is whether the plaintiff has alleged such a personal
stake in the outcome of the controversy as to warrant [its]
invocation of federal-court jurisdiction and to justify
exercise of the court's remedial powers on his behalf.
Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct.
2197, 2205 (1975) (citation and internal quotation marks
omitted). The Article III standing requirements apply to
claims for injunctive and declaratory relief. See Seals
v. McBee, 898 F.3d 587, 591 (5th Cir.2018); Lawson
v. Callahan, 111 F.3d 403, 405 (5th Cir.1997).
plaintiff must demonstrate standing for each claim he seeks
to press and for each form of relief that is sought.”
Town of Chester, N.Y. v. Laroe Estates, Inc., ___
U.S.___, 137 S.Ct. 1645, 1650-51 (2017) (citations omitted).
When deciding a motion to dismiss for want of standing, the
trial court must accept as true all material allegations of
the complaint, and must construe the complaint in favor of
the plaintiff. Warth, supra.
III standing is comprised of three essential elements.
Spokeo, supra (citation omitted). “The
plaintiff must have (1) suffered an injury in fact, (2) that
is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a
favorable judicial decision. The plaintiff, as the party
invoking federal jurisdiction, bears the burden of
establishing these elements.” Id. (internal
organization or association such as the Advocacy Center may
establish injury-in-fact standing in one of two ways: (1)
organizational, i.e., in its own name, or (2)
associational/representational, which derives from the
“standing of the association's members, requiring
that they have standing and that the interests the
association seeks to protect be germane to its
purpose.” OCA-Greater Houston v. Texas, 867
F.3d 604, 610 (5th Cir.2017) (“OCA”)
(citing inter alia, Hunt v. Wash. State Apple
Adver. Comm'n, 432 U.S. 333, 341-42, 97 S.Ct. 2434,
53 L.Ed.2d 383 (1977)). The court will address each basis for
standing, in turn.
satisfy “organizational standing, ” the
organization must meet the same standing test that applies to
individuals. Ass'n of Cmty. Organizations for Reform
Now v. Fowler, 178 F.3d 350, 356 (5th Cir.1999)
(“Fowler”) (citing inter alia,
Havens Realty Corp. v. Coleman, 455 U.S. 363,
378-79, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)). Therefore,
the plaintiff must demonstrate that it “has suffered
‘injury in fact,' that the injury is ‘fairly
traceable' to the actions of the defendant, and that the
injury will likely be redressed by a favorable
decision.” Id. (quoted sources omitted).
on Havens, supra, the Fifth Circuit has recognized
that “an organization may establish injury in fact by
showing that it had diverted significant resources to
counteract the defendant's conduct . . .”
N.A.A.C.P. v. City of Kyle, Tex., 626 F.3d 233, 238
(5th Cir.2010) (“City of Kyle”) (citing
Havens, 455 U.S. at 379, 102 S.Ct. 1114). In other
words, “the defendant's conduct significantly and
perceptibly impaired the organization's ability to
provide its activities-with the consequent drain on the
organization's resources . . .” Id.
(citation and internal quotation marks omitted).
injury in fact requirement under Article III is qualitative,
not quantitative. Fowler, 178 F.3d at 357-358.
Therefore, although the alleged injury must be concrete and
particularized and actual or imminent, it need not measure
more than an “identifiable trifle.” Id.
Nonetheless, an “organization cannot obtain standing to
sue in its own right as a result of self-inflicted injuries,
i.e., those that are not fairly traceable to the actions of
the defendant.” Id. (citation and internal
quotation marks omitted). Accordingly, “[i]t is
fundamental that no plaintiff may claim as injury the expense
of preparing for litigation, for then the injury-in-fact
requirement would pose no barrier.” OCA, 867
F.3d at 611. Moreover, although an organization conceivably
could have standing if it incurred other costs, e.g.,
monitoring expenses, the organization still must show that it
would not have incurred these costs in the absence of