Filed: Dec. 21, 2015
Latest Update: Dec. 21, 2015
Summary: ORDER BRIAN A. JACKSON , Chief District Judge . Before the Court is an unopposed Motion to Dismiss for Failure to State a Claim (Doc. 14) filed by Defendant BR Pig, LLC ("Defendant"), seeking dismissal with prejudice of Plaintiff Deborah Thomas's ("Plaintiff") complaint. For the reasons stated below, the motion is GRANTED. On August 27, 2015, Plaintiff filed a complaint asserting one claim pursuant to Title III of the Americans with Disabilities Act, 42 U.S.C. 12181 et seq. ( See
Summary: ORDER BRIAN A. JACKSON , Chief District Judge . Before the Court is an unopposed Motion to Dismiss for Failure to State a Claim (Doc. 14) filed by Defendant BR Pig, LLC ("Defendant"), seeking dismissal with prejudice of Plaintiff Deborah Thomas's ("Plaintiff") complaint. For the reasons stated below, the motion is GRANTED. On August 27, 2015, Plaintiff filed a complaint asserting one claim pursuant to Title III of the Americans with Disabilities Act, 42 U.S.C. 12181 et seq. ( See ..
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ORDER
BRIAN A. JACKSON, Chief District Judge.
Before the Court is an unopposed Motion to Dismiss for Failure to State a Claim (Doc. 14) filed by Defendant BR Pig, LLC ("Defendant"), seeking dismissal with prejudice of Plaintiff Deborah Thomas's ("Plaintiff") complaint. For the reasons stated below, the motion is GRANTED.
On August 27, 2015, Plaintiff filed a complaint asserting one claim pursuant to Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (See Doc. 1). Plaintiff was limited to requesting declaratory and injunctive relief. See 42 U.S.C. § 12188(a). On October 1, 2015, Plaintiff's counsel filed a suggestion of death pursuant to Fed. R. Civ. P. 25(a)(1). (See Doc. 9).
Defendant contends that "an action seeking declaratory and injunctive relief and not money damages is extinguished upon the plaintiff's death." (Doc. 15 at p. 1). Defendant relies upon Flores v. Fox, 394 Fed. App'x 170, 171 — 72 (5th Cir. 2010), wherein the Fifth Circuit instructed that a prisoner's death mooted his request for injunctive relief. Id. (citing Rhodes v. Stewart, 488 U.S. 1, 4 (1988); Copsey v. Swearingen, 36 F.3d 1336, 1339 n.3 (5th Cir. 1994)). Defendant also asserts that an award for attorney's fees is no longer available given the absence of a viable claim under the ADA. (Doc. 15 at p. 2).
Because Plaintiff has not presented any argument in opposition, the Court will assume that Plaintiff concedes the applicability of the law cited by Defendant. See Robinson v. City of St. Gabriel, No. 13-cv-00298-BAJ-SCR, 2014 WL 991773, at *3 (M.D. La. Mar. 13, 2014). Upon review, this Court agrees that Plaintiff's death rendered her claim seeking declaratory and injunctive relief under the ADA moot. See Flores, 394 Fed. App'x 170, 171-72; Barria v. Yu, No. 08-cv-0908-BEN-CAB, 2010 WL 2653322, at *1 (S.D. Cal. July 1, 2010). Therefore, a party cannot be properly substituted as to Plaintiff for the only claim she asserted. Fed. R. Civ. P. 25(a)(1).
I. CONCLUSION
Accordingly,
It is ORDERED that Defendant's Motion to Dismiss for Failure to State a Claim (Doc. 14) is GRANTED.
It is FURTHER ORDERED that Plaintiff's complaint is DISMISSED WITH PREJUDICE.
