212 F. Supp. 3d 239
D. Mass.2016Background
- Plaintiff Raoul Marradi, a wheelchair user who alleges disability under the ADA, attempted to patronize Pho Pasteur Restaurant in Boston and encountered architectural barriers; he identified 25 ADA violations in the facility.
- Marradi filed a Title III ADA suit against the property owner (K&W Realty) and the tenant/operator (Pho Pasteur, Inc.) seeking injunctive relief to remove access barriers.
- Marradi asserts he visited the restaurant both personally and as a "tester" and alleges he intends to return "in the near future."
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of Article III standing and under 12(b)(6) for failure to state an ADA claim, arguing (inter alia) that Marradi lacks a likely future injury and failed to allege that barrier removal is "readily achievable."
- The court treated defendants’ arguments as both sufficiency and factual challenges to standing and as a merits challenge on the "readily achievable" element for an ADA failure-to-remove claim.
- The Court denied the motion to dismiss, finding Marradi adequately pleaded imminent injury and a plausible claim that the alleged barrier removals are readily achievable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (injury in fact / likelihood of future injury) | Marradi alleges prior deterrence, attempted access, residence in district, and an intent to return soon | Marradi's general "intent to return" is too speculative; his status as a frequent tester/litigator undermines credibility of future visit | Court: averments sufficiently allege imminent/future harm; factual challenge unsupported; standing satisfied |
| Sufficiency of specificity for intent to return | General statement of intent to return "in the near future" plus past attempts is adequate | Must plead concrete plans or timing to show the injury is imminent | Court: specificity not required here; precedent supports similar averments as sufficient |
| Effect of tester/litigation history on standing | Tester status and past visits support likelihood of return to ensure compliance | Large number of ADA suits suggests implausibility of return to each site | Court: tester status does not defeat standing; Marradi's history not so extensive as to be implausible; credibility not undermined by defendants' assertions |
| Failure to state an ADA claim (readily achievable element) | Alleged 25 barriers and a categorical allegation that removal is "readily achievable" make removal plausible at pleading stage | Plaintiff has not produced factual showing that removal is readily achievable; burden should preclude claim | Court: at pleading stage plaintiff plausibly alleged removability; more detailed proof is a later-stage issue; claim survives 12(b)(6) |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury in fact, causation, redressability)
- Katz v. Pershing, LLC, 672 F.3d 64 (1st Cir. 2012) (mere statutory violation insufficient for standing)
- Disabled Americans for Equal Access, Inc. v. Ferries Del Caribe, 405 F.3d 60 (1st Cir. 2005) (ADA plaintiff deterred from patronizing a place can have standing based on intent to return)
- City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (injunctive relief requires likely future injury)
- Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000) (standing may exist where plaintiffs would use resource but for defendant's conduct)
- Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133 (9th Cir. 2002) (futility doctrine in ADA context)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleadings)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must be plausible on its face)
- Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1 (1st Cir. 2011) (pleading plausibility and inference of liability)
- Valentin v. Hospital Bella Vista, 254 F.3d 358 (1st Cir. 2001) (distinguishing sufficiency and factual challenges to jurisdiction)
- Colorado Cross Disability Coal. v. Hermanson, 264 F.3d 999 (10th Cir. 2001) (shifting burdens regarding readily achievable defense)
- Haley v. City of Boston, 657 F.3d 39 (1st Cir. 2011) (scope of materials considered on motion to dismiss)
- Massachusetts v. E*Trade Access, Inc., 464 F. Supp. 2d 52 (D. Mass. 2006) (discussing burden of production on ADA barrier-removal claims)