United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON UNITED STATES DISTRICT JUDGE.
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.
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
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).
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).
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).
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)
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.
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).
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)). A past injury will not do. See
Lyons, 461 U.S. at 111.
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)). It is instead the type of "some
day" allegation that, "without any ...