Kirchner v. Albania LLC, 4:24-cv-00206

Plaintiff Gary Kirchner, who uses a wheelchair, alleges ADA Title III violations by Albania LLC, owner of the property housing Arber Café, due to the restaurant’s lack of wheelchair access.
Kirchner lives about a mile from Arber Café and has attempted to visit multiple times, sometimes having to be carried inside due to a raised entry curb; he provided photos as evidence.
Kirchner also acts as a disability rights advocate and "tester" monitoring ADA compliance in public accommodations.
Plaintiff claims he intends to revisit Arber Café within six months after barriers are removed and seeks declaratory and injunctive relief, as well as attorney’s fees.
Defendant Albania LLC filed a motion to dismiss for lack of subject matter jurisdiction, arguing Kirchner lacks Article III standing and is a “serial ADA plaintiff.”
The defendant provided evidence of Kirchner's history of ADA filings but did not challenge the facts of his visits to the Arber Café directly.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kirchner has Article III standing under the ADA	Kirchner suffered injury due to barriers, has concrete plans to return, and lives nearby	Kirchner is a "tester" and serial litigant with no real intent to return; lacks actual injury	Kirchner has standing due to credible intent to return and actual injury
Application of "tester" status to standing	Being a tester does not preclude standing if genuine harm and intent are present	Serial lawsuits and advocacy activities undermine credibility and intent	Tester status alone does not defeat standing if facts show concrete intent to return
Requirement of specific factors for standing (e.g. proximity, frequency)	Eighth Circuit uses a less burdensome standard; factors not strictly required	Court should apply multifactor test to assess genuine intent	Even using those factors, plaintiff shows credible intent, so standing is satisfied
Effect of serial litigation history on credibility/standing	Past lawsuits don’t negate actual community membership or right to enjoy local accommodation	Serial ADA filings question credibility and likelihood of intent to return to all sites	Litigation history does not nullify credible, particularized intent to return to the specific property

Spokeo, Inc. v. Robins, 578 U.S. 330 (defining constitutional standing requirements: concrete, particularized, actual/imminent injury)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (setting forth the three elements of standing: injury in fact, causation, redressability)
Warth v. Seldin, 422 U.S. 490 (standing is a threshold jurisdictional issue in federal court)
Steger v. Franco, Inc., 228 F.3d 889 (in ADA cases, plaintiff must show knowledge of barriers and concrete intent to return)