998 F.3d 1221
11th Cir.2021Background
- Plaintiff Patricia Kennedy, an ADA-disabled "tester," sued Floridian Hotel alleging (1) physical barriers at the hotel (Count I) and (2) deficiencies in its online reservation system (ORS) (Count II). Kennedy previously sued Floridian (Floridian I) about the ORS, which was dismissed for lack of standing.
- Kennedy lives ~50–60 miles from the hotel, visited the hotel once for 2–3 hours in Oct. 2018, attempted an online reservation for Apr. 2019, and has not shown concrete plans to return; she asserts she re-visits sued properties as an ADA tester and has a case-tracking system.
- District court dismissed Count II with prejudice as improper claim splitting (same parties and same nucleus of operative facts as Floridian I). It later dismissed Count I with prejudice under Rule 12(b)(1) for lack of Article III standing to seek injunctive relief, finding no real and immediate threat of future injury.
- On appeal the Eleventh Circuit held the district court properly treated Floridian’s standing challenge as a factual Rule 12(b)(1) attack and was not required to hold an evidentiary hearing because the record was well developed.
- Applying the Houston totality-of-circumstances factors (proximity, past patronage, definiteness of plan to return, travel frequency), the court found Kennedy’s intent to return was too speculative ("some day" intentions), so she lacked standing for injunctive relief.
- The Eleventh Circuit affirmed both dismissals but reversed the dismissal-with-prejudice of Count I, holding jurisdictional dismissals must be without prejudice, and remanded to correct that judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to seek injunctive relief under Title III (Count I) | Kennedy intended to return (visit friend, attend blues festival, and as ADA tester with tracking system) so future injury is real and immediate | Kennedy lacks sufficiently definite, imminent plans to return; therefore no Article III injury for injunctive relief | No standing: intent to return was speculative; Count I dismissed for lack of jurisdiction (remanded to be without prejudice) |
| Proper procedural vehicle: Rule 12(b)(1) factual attack vs. merits treatment | Plaintiff: intent to return is intertwined with merits; court should treat motion as merits attack | Floridian: standing is a jurisdictional threshold; court may weigh evidence under Rule 12(b)(1) | Court properly treated motion as a factual Rule 12(b)(1) attack and weighed evidence |
| Necessity of an evidentiary hearing on standing | Kennedy: credibility disputes over intent to return required live testimony/hearing | Floridian: record was developed (depositions, declarations) so hearing unnecessary | No abuse of discretion in declining to hold evidentiary hearing given extensive record |
| Claim splitting re: ORS (Count II) | Kennedy: additional third-party website allegations post-Floridian I raised new claims; dismissal produced a "catch-22" after Floridian I dismissal | Floridian: Count II arises from same nucleus of operative facts as Floridian I (same parties, same transaction) | Court affirmed dismissal of Count II for improper claim splitting; additional facts did not create a new, independent transaction |
Key Cases Cited
- Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013) (sets multi-factor test for ADA-tester standing to seek injunctive relief)
- Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001) (injunctive-relief standing requires real and immediate threat of future injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ("some day" intentions insufficient for imminence requirement)
- Lawrence v. Dunbar, 919 F.2d 1525 (11th Cir. 1990) (distinguishes facial vs. factual Rule 12(b)(1) attacks and authorizes weighing evidence)
- Bischoff v. Osceola County, 222 F.3d 874 (11th Cir. 2000) (when standing evidence is sharply contradicted, a hearing is required for credibility determinations)
- Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159 (11th Cir. 2011) (district court has discretion to decide method for resolving jurisdictional factual disputes; hearing not always required)
- Vanover v. NCO Financial Services, Inc., 857 F.3d 833 (11th Cir. 2017) (explains claim-splitting doctrine and transactional test)
- Colonial Pipeline Co. v. Collins, 921 F.2d 1237 (11th Cir. 1991) (a plaintiff must have ample opportunity to present jurisdictional evidence)
- MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co., 935 F.3d 573 (7th Cir. 2019) (dismissal for lack of jurisdiction is not a merits judgment and should be without prejudice)