Michalares-Owens v. Me, Myself & I, Inc., 8:19-cv-03055

Plaintiff Melodee Michalares-Owens is a person with a disability who uses mobility aids and sued under the ADA alleging 14 access barriers at defendants’ public accommodations in Largo, Florida.
Defendants are Me, Myself & I, Inc. (owner of one location) and Betty Hughes (owner/lessee of Lanore’s Nifty 50’s Café).
Defendants moved to dismiss for lack of standing to seek injunctive relief; the Court treated the challenge as a facial Rule 12(b)(1) attack.
The Court accepted the Complaint’s allegations as true for the facial attack and found an injury-in-fact as to past access barriers.
Because plaintiff seeks injunctive relief, the Court applied Eleventh Circuit precedent requiring a plausible allegation of a real and immediate threat of future discrimination, analyzing the Marod factors: proximity, past patronage, definiteness of plan to return, and frequency of travel.
The Court held proximity sufficiently alleged (both parties and the restaurant are in Pinellas County), but plaintiff’s single prior visit, vague plan to return, and generalized allegation of traveling in the broad “Tampa Bay area” were insufficient to show a credible, imminent intent to return; dismissal without prejudice and 20 days’ leave to amend were ordered.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing to seek injunctive relief under the ADA	Plaintiff alleges disability and encounters barriers; that suffices for injury-in-fact	Plaintiff lacks standing because she cannot plausibly show a real and immediate threat of future discrimination	Injury-in-fact for past barriers pleaded, but plaintiff failed to plead a plausible threat of future injury required for injunctive relief
Proximity (Marod factor)	Residency in Pinellas County and restaurant in Pinellas County show proximity	Allegation of county residency is too general; must plead residential location/proximity	Allegation that both plaintiff and restaurant are in Pinellas County is sufficient at pleading stage to satisfy proximity
Past patronage (Marod factor)	Plaintiff visited the restaurant (allegedly)	Single prior visit is insufficient to support a credible future threat	Single visit cuts against finding a reasonable likelihood of future discrimination
Intent to return / frequency (Marod factors)	Plaintiff will return within 90 days and frequently travels the Tampa Bay area for business/appointments	Plaintiff’s stated intent is not credible (serial litigator) and allegations of frequent travel are too vague	Allegations of intent to return and frequency are too indefinite and generalized to establish a real and immediate threat; these factors weigh against standing

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (pleading-stage requirement to allege concrete and particularized injury)
Marod Supermarkets, Inc. v. NLRB/Houston v. Marod Supermarkets, 733 F.3d 1323 (11th Cir. 2013) (injunctive-relief standing under the ADA requires a plausible threat of future discrimination; list of proximity/patronage/intent/frequency factors)
Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001) (standing elements summarized)
Doe v. Pryor, 344 F.3d 1282 (11th Cir. 2003) (jurisdictional attack under Rule 12(b)(1))
McElmurray v. Consolidated Gov’t of Augusta-Richmond Cty., 501 F.3d 1244 (11th Cir. 2007) (standard for facial jurisdictional attack; treat allegations as true)
Warth v. Seldin, 422 U.S. 490 (1975) (pleading requirement to allege facts demonstrating each standing element)
Hoewischer v. Cedar Bend Club, Inc., 877 F. Supp. 2d 1212 (M.D. Fla. 2012) (existence of other businesses does not negate plaintiff’s stated intent to return)
Norkunas v. Seahorse NB, L.L.C., 720 F. Supp. 2d 1313 (M.D. Fla. 2010) (ADA standing and intent-to-return analysis)