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Cohan v. TMBC, LLC

United States District Court, M.D. Louisiana

May 17, 2019

HOWARD COHAN
v.
TMBC, LLC

          RULING AND ORDER

          BRIANA A. JACKSON UNITED STATES DISTRICT JUDGE.

         Before the Court are TMBC, LLC's Motions to Dismiss (Docs. 11, 16) Howard Cohan's disability-discrimination claims for lack of standing. For the reasons that follow, the Motions (Docs. 11, 16) are GRANTED.

         I. BACKGROUND

         This dispute arises from Cohan's cross-country treks testing compliance with the Americans with Disabilities Act (ADA). In this case, as in over 1, 600 others, he sues a business for violating Title III of the ADA.[1]

         Cohan alleges that he suffers from a qualified disability under the ADA. (Doc. 1 at ¶ 8). He alleges that he visited a Gonzales, Louisiana Cabela's store and "personally encountered architectural barriers" in the restrooms. (Id. at ¶ 18). He alleges that the "barriers" deny him "full and equal access to the goods and services" Cabela's offers non-disabled persons. (Id. at ¶ 17). These "barriers" include (1) improperly positioned toilet paper, soap, and paper towel dispensers; (2) grab bars of improper height; (3) mirrors of improper height; and (4) toilet seats of improper height. (Id. at ¶ 18).

         Cohan lives in Palm Beach County, Florida. (Id. at ¶ 3). But he alleges that he "would return" to the Cabela's store-over 800 miles away-if it modified its policies to accommodate his disability. (Id. at ¶ 10). He alleges that "he is deterred from returning" to the store because of the "barriers." (Id.). He sued the owner of the store, TMBC, for violating the ADA. (Id. at ¶¶ 11-24). He seeks declaratory and injunctive relief. (Id. at ¶¶ 25-31).

         TMBC moves to dismiss Cohan's claims under Federal Rule of Civil Procedure 12(b)(1) on the ground that Cohan fails to allege sufficient facts to support standing under Spokeo v. Robins, 136 S.Ct. 1540 (2016). (Docs. 11, 16). Cohan opposes. (Doc. 18).

         II. LEGAL STANDARD

         This Court is a court of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Because Cohan invokes that jurisdiction, he bears the burden of proving it. See Glass v. Paxton, 900 F.3d 233, 238 (5th Cir. 2018). In determining its jurisdiction, the Court may consider "(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 [C]ourt's resolution of disputed facts." Carroll v. Abide, 788 F.3d 502, 504 (5th Cir. 2015) (citation omitted).

         III. DISCUSSION

         The Court's jurisdiction extends only to "cases" and "controversies." U.S. CONST, art. Ill. § 2. Standing is part of the case-or-controversy requirement and is "determined as of the commencement of suit[.]" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, Cohan must "clearly allege" three elements: (1) he suffered an injury-in-fact, (2) that is fairly traceable to TMBC's challenged conduct, and (3) that is likely to be redressed by a favorable decision. See Spokeo, 136 S.Ct. at 1548.

         Injury-in-fact is the "first and foremost" of these elements. Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 103 (1998). To establish injury-in-fact, Cohan must allege that he "suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical."' Spokeo, 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560).

         Because Cohan seeks equitable relief, "he must also show that 'there is a real and immediate threat of repeated injury.'" Deutsch v. Annis Ent., Inc., 882 F.3d 169, 173 (5th Cir. 2018) (per curiam) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).[2] A past injury will not do. See Lyons, 461 U.S. at 111.

         Cohan fails to "clearly allege" facts sufficient to show standing. SeeSpokeo, 136 S.Ct. at 1548. He alleges no facts showing a "real and immediate threat of repeated injury." Deutsch, 882 F.3d at 173. His vague allegation that "he is deterred from returning" to the store because of "barriers" is not the type of future-injury allegation that suffices. See id (citing Frame v. City of Arlington,657 F.3d 215, 235-36 (5th Cir. 2011) (en banc)).[3] It is instead the type of "some day" allegation that, "without any ...


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