NINA Y. WANG, Magistrate Judge.
This matter is before the court on Defendant Kai, Inc.'s ("Defendant" or "Kai") Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and Memorandum in Support Thereof ("Motion to Dismiss" or "Motion"). [#17, filed June 14, 2017]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(c) and the Order of Reference dated May 30, 2017 [#13]. Having reviewed the Motion and associated briefing, the entire docket, and the applicable case law, the court respectfully DENIES the Motion for the reasons stated herein.
Plaintiff Vicki Mize ("Plaintiff" or "Ms. Mize") initiated this action by filing her Complaint, pursuant to the Americans with Disabilities Act ("ADA" or "Act"), 42 U.S.C. § 12101 et seq., with the United States District Court for the District of Colorado on April 14, 2017.
On November 29, 2016, Plaintiff allegedly visited Defendant's PPA to enjoy its offered goods and services; however, Plaintiff "was denied full and equal access and full and equal enjoyment of the facilities, services, goods and amenities." [Id. at ¶¶ 8-9, 31-32, 41]. Specifically, Kai failed to: (1) "provide a parking space identified with a sign that includes the International Symbol of Accessibility" ("Violation I"); (2) "provide accessible parking space identification signs 60 inches (1525mm) above the finish floor or ground surface" ("Violation II"); (3) "provide signs containing the designation `van accessible' that identify van parking spaces" ("Violation III"); (4) "locate mirrors over lavatories and countertops with the bottom edge of the reflecting surface no greater than 40 inches (1015 mm) above the ground" ("Violation IV"); and (5) "provide a toilet with a seat height between 17 inches (430 mm) minimum and 19 inches (485 mm) maximum above the floor as required" ("Violation V"). [Id. at ¶¶ 32a-e]. Plaintiff alleges that members of the public who do not suffer from physical disabilities can utilize Kai's PPA without any restrictions. [Id. at ¶ 9]. Plaintiff continues that, "should Defendant modify its PPA to accommodate her disabilities, she intends to avail herself of the goods and services offered at the PPA in the future." [Id. at ¶ 10].
Plaintiff asserts that Defendant has violated Title III of the ADA by discriminating against patrons with disabilities similar to Plaintiff. See [id. at ¶¶ 34-36, 38-41]; see also 42 U.S.C. § 12182(a). Plaintiff seeks declaratory relief; injunctive relief in the form of a preliminary and permanent injunction requiring Kai to remove all barriers to the use of its PPA by persons with disabilities and ordering Kai to undertake the necessary alterations to make its PPA accessible to individuals with disabilities; as well as attorney's fees and costs. [Id. at 8].
Defendant filed the instant Motion on June 14, 2017. [#17]. Defendant seeks dismissal of Plaintiff's Complaint in its entirety because Plaintiff's claims are moot, as Kai completed remedial measures to ensure compliance with the Act, and Plaintiff's claims are either false or brought against the wrong person and/or entity. [Id. at 1-2]. Plaintiff filed a Response and Defendant a Reply. [#21; #22]. Upon receipt of Defendant's Reply, the court permitted Ms. Mize to file a sur-reply to address the new issues raised by Defendant in its Reply, as well as to help guide the court's determination as to whether the Motion to Dismiss should be converted to one for summary judgment. [#23]. Plaintiff filed her Sur-Reply on August 18, 2017. [#27].
Federal courts are courts of limited jurisdiction and, as such, "are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction." The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party. Image Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may bring either a facial or factual attack on subject matter jurisdiction, and a court must dismiss a complaint if it lacks subject matter jurisdiction. See generally Pueblo of Jemez v. United States, 790 F.3d 1143, 1147 n.4 (10th Cir. 2015). For a facial attack, the court takes the allegations in the Complaint as true; however, when reviewing a factual attack, the court may not presume the truthfulness of the Complaint's factual allegations and may consider affidavits or other documents to resolve jurisdictional facts. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). The burden of establishing jurisdiction rests with the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Mootness is a threshold issue as federal court jurisdiction depends on a live case or controversy—without a live, concrete controversy, the court cannot consider the plaintiff's claim(s) no matter how meritorious. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1110 (10th Cir. 2010). "If an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point during litigation, the action can no longer proceed and must be dismissed as moot." Brown v. Buhman, 822 F.3d 1151, 1165 (10th Cir. 2016) (internal quotations omitted) (quoting Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1528 (2013)). Thus, the inquiry focuses on whether the court's determination of the issues will have "some effect in the real world." Wyoming v. U.S. Dep't of Argic., 41 F.3d 1207, 1212 (10th Cir. 2005) (internal quotations and citation omitted).
However, there is an exception to mootness when the defendant voluntarily ceases the challenged conduct for purposes of evading judicial review, but is free to continue the challenged conduct once the court dismisses the case as moot. Brown, 822 F.3d at 1166. The defendant bears the "formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Already, LLC v. Nike, Inc., 133 S.Ct. 721, 727 (2013) (internal quotations omitted) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190 (2000)).
Title III of the ADA prohibits discrimination against persons with disabilities in places of public accommodation. See 42 U.S.C. § 12182(a). For violations of Title III, a plaintiff may seek prospective injunctive relief only; monetary damages are unavailable. See Lewis v. Burger King, 361 F. App'x 937, 938 n.1 (10th Cir. 2010); accord A.R. v. Kogan, 964 F.Supp. 269, 271 (N.D. Ill. 1997) (explaining that relief under Title III is "specifically limited to providing injunctive relief and not damages" (emphasis in original)). And, as with any case before a federal court, the existence of a live case or controversy must exist at all stages of litigation. See Front Range Equine Rescue v. Vilsack, 782 F.3d 565, 568 (10th Cir. 2015). "When a party seeks only equitable relief, as here, past exposure to alleged illegal conduct does not establish a present live controversy if unaccompanied by any continuing present effects." McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). In other words, "a claim for prospective injunction becomes moot once the event to be enjoined has come and gone." Citizen Ctr. v. Gessler, 770 F.3d 900, 907 (10th Cir. 2014).
Kai moves to dismiss Plaintiff's Complaint because the alleged ADA violations, see [#1 at ¶¶ 32a-e], are all moot. [#17 at 2]. For example, Kai avers that the landlord
Plaintiff responds that her claims are not moot because Kai has not met its heavy burden of establishing that these ADA violations are not likely to recur. [#21 at 6-7; #27 at 1-2, 7, 8, 9-12]. This is because the only evidence provided to the court are pictures of the alleged remediation and Defendant's conclusory assertions that these violations have been permanently remediated. See [#27 at 8, 9-10]. According to Plaintiff, Kai could easily continue its discriminatory conduct in the future. [#21 at 6-7; #27 at 1-2, 7, 8, 9-12]. Based on the record before it, the court respectfully agrees.
As explained, "[i]t is well settled that voluntary cessation of illegal conduct by itself does not make the case moot." Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1229 (10th Cir. 1997) ("Defendant's voluntary suspension of its unlawful policy did not completely remove the threat of injury"). For voluntary cessation to moot Ms. Mize's ADA claim, Kai must demonstrate that (1) "it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Ind v. Colo. Dep't of Corr., 801 F.3d 1209, 1214 (10th Cir. 2015) (citations and internal quotation marks omitted). Indeed, "voluntary cessation of offensive conduct will only moot litigation if it is clear that the defendant has not changed course simply to deprive the court of jurisdiction." Nat'l Advert. Co. v. City of Miami, 402 F.3d 1329, 1333 (11th Cir. 2005). In other words, if a defendant's minor temporary changes to its establishment rendered an ADA claim moot, this would permit the defendant to "engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where [it] left off, repeating this cycle until [it] achieves all [its] unlawful ends." Already, LLC, 568 U.S. at 91.
Here, the only evidence Defendant provides are several pictures of the alleged remediation, to which it argues clearly establishes that Plaintiff's ADA claim is moot. See [#17-2 through #17-6]; see also [#22 at 3 ("Defendant has provided photographs of the voluntary and permanent remediation . . . to ensure compliance with the ADA.")]. Kai contends that the work completed "is permanent, making it clear that the allegedly wrongful behavior could not reasonably be expected to recur," [#17 at 8]; that its "voluntary and permanent remediation" moots this lawsuit and deprives the court of subject matter jurisdiction, [#22 at 3]; and that it "is nonsensical to suggest that despite Defendant's clear desire and interest to bring [its] business into compliance, Defendant would immediately undo the remediation . . . thereby opening [itself] up to future lawsuits[,]" [id. at 5].
The court agrees with Ms. Mize, however, that Defendant fails, at this juncture, to satisfy its "formidable burden" that it is "absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Tandy v. City of Wichita, 380 F.3d 1277, 1291 (10th Cir. 2004) (citation and quotation marks omitted). That is, it is unclear from the proffered pictures and Kai's own conclusory assertions, that its remedial work is truly permanent. Kai proffers no testimonial evidence authenticating the pictures or the work performed, no expert opinions as to the nature of the work performed and its compliance with the ADA, and, as Plaintiff notes, there is no evidence that Defendant has implemented policies or procedures to ensure that it remains complaint with the ADA moving forward. Based on the record before the court, it cannot conclude that Defendant has affirmatively established that the ADA violations will not recur. See Equal Emp't Opportunity Comm'n v. CollegeAmerica Denver, Inc., 869 F.3d 1171, 1173-74 (10th Cir. 2017).
Additionally, as the briefs make clear, there are contested factual issues regarding the court's subject matter jurisdiction. Under such circumstances, "either party should be allowed discovery on the factual issues" raised by a Rule 12(b)(1) motion, Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1326 (10th Cir. 2002), and, although this court has discretion in how to resolve jurisdictional challenges, "a refusal to grant discovery constitutes an abuse of discretion if the denial results in prejudice to a litigant," id. At this stage, the court concludes that the more prudent course is to allow discovery to proceed on these issues such that the Parties can better support their positions at summary judgment. This is also true of Kai's arguments regarding Violation V, i.e., the height of its toilet seats. It is unclear how Defendant's argument—that its toilet seats comply with the ADA—demonstrates that Plaintiff's claim is moot, as there appears to be a dispute about the proper legal interpretation of the ADA regulations concerning the proper height of toilet seats. Plaintiff maintains that Defendant's toilet seats are too low and Defendant contends just the opposite. This does not go to the court's subject matter jurisdiction but, rather, to the merits of Plaintiff's claim. Such an argument is better suited for a properly filed summary judgment motion. See Frederick v. Coffee House Holdings, Inc., No. 17-cv-00409-MEH, 2017 WL 3390557, at *3 (D. Colo. Aug. 8, 2017) ("Defendant's contention that its floor has always complied with the ADA does not challenge this Court's jurisdiction; rather, it demonstrates a dispute on the merits of Plaintiff's claim."). Because it is clear that Defendant has made no permanent adjustments to its toilet seats, Plaintiff's claim is not moot. For this reason and those above, Kai's Motion to Dismiss on mootness grounds is DENIED.
For the first time in its Reply, Defendant moves to dismiss Plaintiff's Complaint because Plaintiff failed to exhaust her state administrative remedies. [#22 at 9]. That is, prior to filing suit, Ms. Mize was required to give notice to the Colorado Civil Rights Division ("CCRD") of the alleged discrimination at Kai's PPA. [Id. at 10]. Plaintiff counters that there is no such requirement, as there is a split among courts, including within this District, but that a majority of courts have concluded that no exhaustion requirement applies. [#27 at 3-7]. For the following reasons, the court respectfully agrees with Plaintiff.
To begin, there is a recognized split among courts that have addressed this issue. Compare Lillard v. Sunflower Farmers Mkt., Inc., No. 12-cv-1497-JLK, 2012 WL 5936543, at *1 (D. Colo. Nov. 27, 2012) (holding that Title III of the ADA, 42 U.S.C. § 12188, incorporates Title VII of the Civil Rights Act's notice requirement under 42 U.S.C. § 2000a-3(c), thereby requiring Title III plaintiffs to provide notice to state or local authorities prior to filing suit in federal court); Snyder v. San Diego Flowers, 21 F.Supp.2d 1207, 1208-11 (S.D. Cal. 1998) (same); Mayes v. Allison, 983 F.Supp. 923, 924-25 (D. Nev. 1997) (same) with Botosan v. Paul McNally Realty, 216 F.3d 827, 831-32 (9th Cir. 2000) (holding that the clear and unambiguous statutory language of 42 U.S.C. § 12188(a)(1) does not incorporate the notice requirement of 42 U.S.C. § 2000a-3(c) (collecting cases)); Stan v. Wal-Mart Stores, Inc., 111 F.Supp.2d 119, 123 (N.D.N.Y. 2000) (same); Parr v. L & L Drive-Inn Rest., 96 F.Supp.2d 1065, 1076-77 (D. Haw. 2000) (same); Guzman v. Denny's Inc., 40 F.Supp.2d 930, 934 (S.D. Ohio 1999) (same); Moyer v. Showboat Casino Hotel, 56 F.Supp.2d 498, 501 (D.N.J. 1999) (same); Botosan v. Fitzhugh, 13 F.Supp.2d 1047, 1049-50 (S.D. Cal. 1998) (same); Disabled in Action of Metro. New York v. Trump Int'l Hotel & Tower, 2003 WL 1751785, at *10 (S.D.N.Y. Apr. 2, 2003) (same). Indeed, there is even a split among courts in this District. Compare Jones v. Reg'l Transp. Dist., 2010 WL 3341205, at *2 (D. Colo. Aug. 23, 2010) (holding that the plaintiff must give notice to the CCRD prior to filing a Title III claim) with Abreu v. Tavin Foods, Inc., No. 16-cv-00432-MEH (D. Colo. Nov. 14, 2016) [ECF No. 44 at 10 (holding that there is no exhaustion requirement under Title III)] (attached as Ex. A).
In support of its argument, Defendant relies on Howard v. Cherry Hills Cutters, Incorporated ("Howard I"), wherein the Honorable John L. Kane held, "By making § 2000a-3 applicable to enforcement actions under 42 U.S.C. § 12188, Congress has imposed a state law exhaustion requirement on disabled individuals seeking to enforce their rights under Subchapter III of the ADA." 935 F.Supp. 1148, 1150 (D. Colo. 1996). Senior Judge Kane reaffirmed this holding in Howard v. Cherry Hills Cutters, Incorporated ("Howard II"), 979 F.Supp. 1307, 1308-09 (D. Colo. 1997), noting that § 12188(a) of Title III incorporates the "remedies and procedures set forth in [§] 2000a-3(a) of [Title VII of the Civil Rights Act]," and because § 2000a-3(a) is limited by the notice requirements in § 2000a-3(c), Title III requires notice to state or local authorities prior to filing suit. Then, in Lillard v. Sunflower Farmers Market, Incorporated, Senior Judge Kane further explained:
2012 WL 5936543, at *1. Respectfully, this court's statutory interpretation leads to a different conclusion and is consistent with analogous determinations by the United States Court of Appeals for the Tenth Circuit ("Tenth Circuit") and other circuits.
Section 12188(a)(1) provides, "The remedies and procedures set forth in section 2000a-3(a) of [Title VII of the Civil Rights Act] are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of [Title III of the ADA]. . . ." 42 U.S.C. § 12188(a)(1) (emphasis added). When interpreting a statute, the court begins its inquiry with the language of the statute itself—if the statute's language is plain and unambiguous, the court's function is to enforce it as written. See In re Cowen, 849 F.3d 943, 949 (10th Cir. 2017). This is true "unless the plain language would `produce a result demonstrably at odds with the intention of its drafters[.]'" United States v. Dahda, 853 F.3d 1101, 1113 (10th Cir. 2017) (quoting Starzynski v. Sequoia Forest Indus., 72 F.3d 816, 820 (10th Cir. 1995)).
The court concludes that the plain language of § 12188(a)(1) is clear and unambiguous— it incorporates only § 2000a-3(a), not the entirety of § 2000a-3. See Colo. Cross Disability Coal. v. Hermanson Family Ltd. P'ship I, 1997 WL 33471624, at *2-6 (D. Colo. Mar. 3, 1997) ("[T]he ADA does not, by its express terms, incorporate the portions of the Civil Rights Act of 1964 that require exhaustion of administrative remedies."); cf. McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2007) (holding that Title III does not require exhaustion of EEOC administrative remedies, because Title III incorporates only 42 U.S.C. § 2000a-3(a), not § 2000e-5). "To hold the entirety of § 2000a-3 is adopted is to impermissibly render superfluous the explicit textual reference to § 2000(a)-3(a) [sic]." Guzman, 40 F. Supp. 2d at 934. Indeed, there is no mention of § 2000a-3(c) in § 12188(a)(1), and there is no basis in the legislative history or otherwise to implicitly incorporate § 2000a-3(c). Botosan, 216 F.3d at 832 ("[T]he statute's legislative history, the Code of Federal Regulations, see 28 C.F.R. § 26.501(a), and the Department of Justice's Technical Assistance Manual generally support the conclusion that Title III actions do not require state notification."). Consistent with the cannon of statutory construction expression unius est exclusion alterius—to "express or include one thing implies the exclusion of the other, or the alternative," Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1308 (10th Cir. 2003)—the court concludes the inclusion of § 2000a-3(a) only indicates that no state exhaustion requirement under § 2000a-3(c) applies to Title III claims.
Defendant also moves for costs and fees, asserting that Plaintiff's claims are frivolous, groundless, or brought in bad faith. See [#17 at 9-13; #22 at 8-9, 11]. However, in light of the court's conclusions above, the court DENIES without prejudice Kai's request for fees and costs, as the court cannot presently conclude, based on the current record, that Plaintiff's claims are frivolous, groundless, or brought in bad faith.
For the reasons stated herein,
(1) Defendant Kai, Inc.'s Motion to Dismiss [#17] is
Before the Court is Defendant's Motion to Dismiss [
Plaintiff, Santiago Abreu, initiated this public accommodations action against the Defendant, Tavin Foods, Inc. d/b/a Riverbend Market & Eatery, on February 23, 2016.
The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by the Plaintiff in his Complaint, which are taken as true for analysis under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Defendant is the lessee, operator, owner and/or lessor of the subject Real Property, which is located at 60006 U.S. Highway 285, Bailey, Colorado 80470 ("Premises") and is the owner of the improvements where the Premises is located.
Plaintiff is an individual with numerous disabilities including moderately severe multiple sclerosis and is also paraparetic. These conditions cause sudden onsets of severe pain, require Plaintiff to use a wheelchair, and significantly limit Plaintiff's life activities. Certain medical treatments are available to Plaintiff pursuant to the laws of the State of Colorado that are not otherwise available to Plaintiff in Florida. As such, Plaintiff frequently travels to Colorado and averages two trips per year for the past four years. Weather and health permitting, Plaintiff will continue this pattern of travel.
At the time of Plaintiff's visit to the Premises on July 14, 2015, Plaintiff required accessible means of entry at the Premises. Plaintiff personally visited and dined at the Premises, but contends he was denied full and equal access and enjoyment of the facilities, services, goods, and amenities within the Premises due to the Defendant's alleged violations of Title III of the Americans with Disabilities Act ("ADA") including:
Independent of his personal desire to have access to the Premises, Plaintiff also acts as a "tester" for the purpose of discovering, encountering, and engaging discrimination against the disabled in public accommodations. When acting as a "tester," Plaintiff employs a routine practice. He personally visits the public accommodation; engages all of the barriers to access, or at least of those that Plaintiff is able to access; tests all of those barriers of access to determine whether and the extent to which they are illegal barriers to access; proceeds with legal action to enjoin such discrimination; and subsequently returns to the premises to verify its compliance or noncompliance with the ADA and to otherwise use the public accommodation as members of the able-bodied community are able to do. Independent of other subsequent visits, Plaintiff also intends to visit the subject Premises regularly to verify its compliance or non-compliance with the ADA, and its maintenance of the accessible features of the Premises. In this instance, Plaintiff, in his individual capacity and as a "tester," alleges he visited the Premises, encountered barriers to access at the Premises, and engaged and tested those barriers.
Based on these allegations, Plaintiff asserts claims for violations of Title III of the ADA. Compl., ECF No. 1 at 4-10. The Plaintiff seeks declaratory and injunctive relief to remedy the alleged violations. Id. at 10-11.
Defendant filed the present motion arguing the "Plaintiff does not allege or produce any evidence that he has exhausted his administrative remedies with the [Colorado Civil Rights Division] as he is required to do by the federal and state laws from which he seeks relief." Mot., ECF No. 35 at 4. Plaintiff responds that the cases on which Defendant relies have been discredited by other opinions examining the statute and finding Title III does not require exhaustion of remedies. Defendant replies that the opinions on which it relies are published decisions from this District and any opinions on which Plaintiff relies from other districts are not binding on this Court.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Twombly requires a two prong analysis. First, a court must identify "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-80. Second, the Court must consider the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.
Plausibility refers "to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs `have not nudged their claims across the line from conceivable to plausible.'" Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008)). "The nature and specificity of the allegations required to state a plausible claim will vary based on context." Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.
However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. The complaint must provide "more than labels and conclusions" or merely "a formulaic recitation of the elements of a cause of action," so that "courts `are not bound to accept as true a legal conclusion couched as a factual allegation.'" Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," the complaint has made an allegation, "but it has not shown that the pleader is entitled to relief." Id. (quotation marks and citation omitted).
Defendant's motion raises a single question of law: does Title III of the ADA incorporate the provision from Title VII requiring that a claimant exhaust state administrative remedies before bringing a claim under the statute? Defendant is correct that the Tenth Circuit has not addressed this question, but some judges in this District have answered it in the affirmative. For the following reasons, this Court sides with the majority of courts, including three courts of appeal, finding that the statute does not require exhaustion.
At the outset, the Court notes that it agrees with Defendant and rejects two of Plaintiff's arguments: (1) that the Honorable John L. Kane reversed a prior order in Howard v. Cherry Hills Cutters, Inc., 979 F.Supp. 1307, 1308 (D. Colo. 1997) ("Howard II"); and (2) Plaintiff's implication that had he brought a claim under state law, only then would Plaintiff be required to comply with the statutory requirements of such law. First, Senior Judge Kane did not reverse any prior order in Howard II; rather, in Howard v. Cherry Hills Cutters, Inc., 935 F.Supp. 1148, 1150 (D. Colo. 1996) ("Howard I"), Judge Kane permitted the plaintiff to file an amended complaint seeking injunctive relief under Title III of the ADA, but "reminded" the plaintiff of "the notice requirement" saying, "By making § 2000a-3 applicable to enforcement actions under 42 U.S.C. § 12188, Congress has imposed a state law exhaustion requirement on disabled individuals seeking to enforce their rights under Subchapter III of the ADA." Id. The following year, in Howard II, Judge Kane
Similarly, the Plaintiff's argument that his case is distinguishable from Howard, et al. based on the fact that he did not bring a state law claim is incorrect. Judge Kane made no distinctions between any state or federal claims in Howard I and Howard II, and specifically referred to federal law in finding an exhaustion requirement. See id.
With that said, the Court agrees with Plaintiff, with a judge in this District, and with a majority of courts across the country finding that Title III of the ADA does not incorporate the provision from Title VII governing exhaustion of state remedies. As so cogently explained by the Honorable Alan Johnson in Colo. Cross Disability Coal. v. Hermanson Family Ltd. P'ship, No. 96-WY-2490-AJ, et al., 1997 WL 33471624, at *2-*3 (D. Colo. Mar. 3, 1997):
Hermanson, 1997 WL 33471624, at *3-*4 (emphasis added). This Court agrees with Judge Johnson's analysis and conclusion: Section 12188 incorporates only Section 2000a-3(a), not all of 2000a-3, including subsection (c).
Some cases on which Defendant relies have simply concluded that Title III of the ADA incorporates Title VII's exhaustion requirement without any meaningful analysis, or they are not applicable. See Howard II, 935 F. Supp. at 1150 ("By making § 2000a-3 applicable to enforcement actions under 42 U.S.C. § 12188, Congress has imposed a state law exhaustion requirement on disabled individuals seeking to enforce their rights under Subchapter III of the ADA."); Howard I, 935 F. Supp. at 1150 (same); White v. Denny's Inc., 918 F.Supp. 1418, 1423 (D. Colo. 1996) (Title VII race discrimination case; not applicable). In a later case, however, Judge Kane expands on his conclusion in Howard II saying,
Lillard v. Sunflower Farmers Mkt., No. 12-cv-01497-JLK, 2012 WL 5936543, at *1 (D. Colo. Nov. 27, 2012) (citations omitted) (emphasis in original). This Court respectfully disagrees that Congress intended to incorporate the remedies of Section 2000a-3(a) and the procedure of Section 2000a-3(c) into Section 12188, since Section 2000a-3(a) itself contains "procedures" such as permitting the intervention of the Attorney General and the appointment of an attorney for the complainant. In fact, Section 12188 specifically identifies "[t]he remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination. . . ." 42 U.S.C. § 12188(a) (emphasis added).
In sum, this Court aligns with those courts finding that a Title III disability claimant need not exhaust administrative remedies before filing a lawsuit. See, e.g., Hermanson, 1997 WL 33471624, at *3-*4; Botosan v. Paul McNally Realty, 216 F.3d 827, 831 (9th Cir. 2000) ("§ 12188(a)(1) does not implicitly incorporate § 2000a-3(c). A plaintiff in a private Title III action is not required to provide notice to any state or local agency as a prerequisite to filing suit.") (collecting cases); McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2007) ("The language and structure of the ADA demonstrate that Title III, unlike Title I, does not require administrative exhaustion."); Thomas v. Salvation Army S. Territory, ___ F.3d ____, 2016 WL 6595949, at *4 (4th Cir. Nov. 8, 2016) (finding the plaintiff's Title III ADA claims were "not subject to the administrative exhaustion requirement).
"There is good reason to conclude that Congress intentionally omitted the exhaustion requirement for public-accommodations claims, as it would make little sense to require a plaintiff challenging discrimination in public accommodations to file a charge with the EEOC, an agency with responsibility for and expertise in matters of employment discrimination." McInerney, 505 F.3d at 138-39 (emphasis added). Here, the Court finds that Plaintiff was not required to exhaust any state administrative remedies before filing this Title III ADA action and, thus, the Court
ORDERED at Denver, Colorado this 14th day of November, 2016.
