                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 11-1191


GILROY J. DANIELS, SR.,

                Plaintiff – Appellant,
and

JEFFREY JOEL JUDY

                Plaintiff,

           v.

ARCADE, L.P.,

                Defendant – Appellee,

-------------------

NATIONAL FEDERATION OF THE BLIND

                Amicus Supporting Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:10-cv-00607-RDB)


Argued:   March 20, 2012                   Decided:   April 24, 2012


Before KEENAN and FLOYD, Circuit Judges, and Norman K. MOON,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.


Vacated and remanded by unpublished opinion. Judge Keenan wrote
the opinion, in which Judge Floyd and Judge Moon joined.
ARGUED: Jessica Paulie Weber, BROWN, GOLDSTEIN & LEVY, LLP,
Baltimore, Maryland, for Appellant.   Suzanne Sangree, BALTIMORE
CITY DEPARTMENT OF LAW, Baltimore, Maryland, for Appellee.    ON
BRIEF: Brien Penn, THE LAW OFFICE OF BRIEN PENN, LLC, Glenwood,
Maryland, for Appellant.   Eve L. Hill, Gregory P. Care, BROWN,
GOLDSTEIN   &  LEVY,  LLP,   Baltimore,  Maryland,   for  Amicus
Supporting Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                2
BARBARA MILANO KEENAN, Circuit Judge:

       Gilroy J. Daniels, Sr. appeals from the district court’s

order dismissing his lawsuit against Arcade, L.P.                              In the first

amended complaint, Daniels and Jeffrey Joel Judy, a co-plaintiff

who is not a party to this appeal, alleged that Arcade violated

Title III of the Americans with Disabilities Act, 42 U.S.C. §§

12181, et seq. (the ADA), by failing to provide adequate access

for    persons    who       require   the    use    of    wheelchairs           to    certain

property purportedly owned or operated by Arcade.                              The district

court held that Daniels and Judy each lacked standing because

they failed to state plausible allegations that they suffered a

“concrete, particularized injury,” or that such injury, if it

had occurred, was “traceable” to Arcade’s actions.                                   Upon our

review    of     the    parties’       arguments,        we     hold      that       Daniels’

allegations concerning injury and traceability were sufficient

to    withstand    Arcade’s      motion      to    dismiss,         and   we    vacate    the

district court’s decision and remand for further proceedings.



                                            I.

       This case began in March 2010 when Judy, a resident of

Florida    who    requires       a    wheelchair     as       his    primary      means    of

mobility,      filed    a    complaint      (the   original         complaint)        against

Arcade seeking injunctive and declaratory relief for Arcade’s

alleged violations of the ADA with respect to the Lexington

                                             3
Market (the Market), in Baltimore, Maryland.                    The Market, which

has been in operation for many years and includes the separate

businesses of individual vendors, allegedly is owned or operated

by Arcade.       Daniels was not a party to the original complaint.

       After     Arcade    filed   a    motion       to    dismiss     the    original

complaint, Judy filed an amended complaint in which Daniels was

added as a co-plaintiff.               Daniels is a resident of Pasadena,

Maryland, which is located about 20 miles from the Market.                       Like

Judy, Daniels also requires a wheelchair as his primary means of

mobility.

       The amended complaint alleged that the Market, a place of

public accommodation subject to the ADA, was in violation of the

ADA    because     the     property      had    inaccessible          entry    routes,

inaccessible       ramps       throughout      the        facility,     inaccessible

restrooms, inaccessible counters, and other amenities that are

inaccessible for persons who require the use of a wheelchair.

The amended complaint also alleged that Arcade is the “owner,

lessee, and/or operator” of the Market, “whose main entrance is

located at 400 West Lexington Street, . . . but whose property

is located between N. Eutaw St., Marion St., W. Lexington St.,

N. Greene St., and W. Saratoga St.”

       With respect to Daniels, the amended complaint alleged that

he    “resides    in   close    proximity      to”   the    Market,     and   that   he

“regularly visits” the Market.                 The amended complaint further

                                          4
alleged that Daniels “intends to continue to visit the [Market]

in    the    future    for   his    shopping    needs,”      but    that   he    will

“continue to experience serious difficulty due to the barriers”

described in the complaint.             Arcade filed a motion under Rule

12(b)(6) of the Federal Rules of Civil Procedure seeking to

dismiss the amended complaint on the basis that Daniels and Judy

lacked standing.1

       The    district    court     granted    Arcade’s     motion    to   dismiss,

holding that Daniels and Judy failed to allege a “concrete and

particularized injury,” and that they failed to allege facts

that       plausibly     would     suggest     that   any     such    injury      was

“traceable” to Arcade’s actions.               With respect to the “concrete

and    particularized”       injury    requirement,         the    district     court

adopted a four-factor test from an unpublished decision rendered

by an Ohio federal district court.2              See Judy v. Pingue, No. 08-



       1
       Arcade’s motion to dismiss was premised on both Rule
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure,
although the district court analyzed the parties’ arguments
solely under Rule 12(b)(6). Neither party assigns error to the
district   court’s  omission   of  a   Rule  12(b)(1)  analysis.
Accordingly, we address only whether the district court erred in
dismissing the amended complaint under Rule 12(b)(6).
       2
       In Pingue, the Southern District of Ohio also relied on
unpublished district court decisions in setting forth this four-
factor test.    See 2009 WL 4261389, at *2 (citing D’lil v.
Stardust Vacation Club, No. 2:00-CV-01496, 2001 WL 1825832, at
*3 (E.D. Cal. Dec. 21, 2001); Vaughn v. Rent-a-Center, No. 2:06-
CV-1207, 2009 WL 723166 (S.D. Ohio March 16, 2009)). We are not
(Continued)
                                         5
859, 2009 WL 4261389 (S.D. Ohio Nov. 25, 2009).                         Accordingly,

the district court analyzed “(1) the proximity of defendant’s

business       to   plaintiff’s    residence,     (2)    the    plaintiff's       past

patronage      of    defendant’s   business,     (3)     the   definitiveness       of

plaintiff’s plans to return, and (4) the plaintiff’s frequency

of travel near defendant.”              Id. at *2.        In addition to these

four    factors,      the   district    court    added    a    fifth    factor,    the

number of lawsuits previously filed by the plaintiffs.

       With regard to Daniels, the district court held that the

“proximity” factor weighed in his favor because he lived about

20 miles from the Market.          However, the district court held that

the remaining factors weighed against a finding that Daniels

suffered a concrete and particularized injury.                         The district

court noted Daniels’ allegation that he “regularly visits” the

Market, but held that Daniels’ failure to provide specific dates

on     which    he    previously       visited   the     Market        rendered   his

allegations vague, “cast[ed] doubt” on whether he would continue

to patronize the Market in the future, and did not suffice to

establish his “frequency of travel near defendant.”

       The district court also noted Daniels’ statement that he

“intends to continue to visit [the Market] in the future for his



aware of any published federal appellate decisions that have
adopted Pingue’s four-factor test.


                                          6
shopping     needs,”       but   held        that    this      assertion     failed    to

demonstrate       the    “requisite      concrete        and      specific    intent   to

return” necessary to establish standing.                       Finally, the district

court held that Daniels’ “litigation history” of joining two

other ADA complaints filed by Judy “undermine[d]” his “vague

statements” regarding his intention to return to the Market.

Accordingly,       the     district      court       held      that    Daniels    lacked

standing because he failed to allege facts suggesting that he

was   likely      to    return   to    the    Market,       and    therefore     did   not

adequately allege a “real threat of future harm.”

      As an independent basis for dismissal, the district court

also held that the amended complaint failed to allege facts

suggesting that any injury was traceable to Arcade.                          In reaching

this conclusion, the district held that although the amended

complaint alleged that Arcade was the “owner, lessee, and/or

operator” of the Market, this allegation was insufficient in

light   of   an    affidavit     submitted          by   John     M.   Prugh,    Arcade’s

general partner.          In this affidavit, Prugh stated that Arcade

owns the buildings located at 403, 421, and 423 West Lexington

Street, but that Arcade does not own or lease 400 West Lexington

Street nor does Arcade “operate” the Market.                           Relying on this

affidavit, the district court concluded that Arcade could not be

held responsible for the architectural barriers identified in

the amended complaint.                After the district court entered its

                                              7
order    granting      Arcade’s   motion    to   dismiss,       Daniels,    but   not

Judy, timely filed a notice of appeal.


                                       II.

       We review de novo the district court’s decision granting

Arcade’s motion to dismiss and, in conducting our review, we

assume as true all well-pleaded facts and draw all reasonable

inferences in favor of Daniels, the plaintiff.                    Nemet Chevrolet,

Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir.

2009).        However, we will not accept as true any unwarranted

inferences      or   unreasonable    conclusions.           Id.      Instead,     the

allegations must establish a plausible claim to relief.                           See

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (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”).

       In reviewing the district court’s dismissal of the amended

complaint on the basis that Daniels lacked standing, we observe

that    the    requirement   of   standing       is   a   threshold    requirement

implicating      the    jurisdiction   of    the      federal     courts,   and   is

“perhaps the most important” condition for a justiciable claim.

Allen v. Wright, 468 U.S. 737, 750 (1984).                 The standing inquiry

ensures that a plaintiff has a sufficient personal stake in a




                                        8
dispute to render its judicial resolution appropriate.               See id.

at 750-51.

      To   meet    the   minimum     constitutional     requirements     for

standing, a plaintiff must establish three elements: (1) that

the plaintiff has sustained an injury in fact; (2) that the

injury is traceable to the defendants’ actions; and (3) that the

injury likely can be redressed by a favorable judicial decision.

Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629

F.3d 387, 396 (4th Cir. 2011) (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992)).           At the pleading stage,

general factual allegations concerning the plaintiff’s injury

are   sufficient   because,     in   evaluating   a   motion   to   dismiss,

courts     “presum[e]    that   general    allegations     embrace     those

specific facts that are necessary to support the claim.”              Lujan,

504 U.S. at 561 (citation omitted).

      To demonstrate an injury in fact, a plaintiff must suffer

an invasion of a legally-protected interest that is concrete and

particularized, as well as actual or imminent.             Friends of the

Earth, 629 F.3d at 396 (citing Lujan, 504 U.S. at 560).                   To

satisfy the “traceability” requirement, “there must be a causal

connection between the injury and the conduct complained of,”

rather than the injury occurring as a result of “the independent

action of some third party not before the court.”               Lujan, 504

U.S. at 560 (citation omitted).

                                      9
                                        A.

    We first address Daniels’ argument that the district court

erred in holding that he failed to allege facts demonstrating

that he suffered an “injury in fact.”                  We decline at this time

to endorse the four-factor test that the district court adopted

from the Southern District of Ohio in Pingue.                     Although this

Court    often    has   formulated    or     adopted    factor-based    tests   to

guide our analyses, the use of this type of analysis in some

cases, such as in the present one, overly and unnecessarily

complicates the issue at hand.

    In this case, we simply are required to determine whether

the amended complaint sufficiently alleges that Daniels suffered

an injury that is concrete and particularized, as well as actual

or imminent.       With regard to the “concrete and particularized”

prong of the       “injury in fact” requirement, we conclude that

Daniels’     allegations     were     sufficient       to   withstand   Arcade’s

motion to dismiss.         Assuming that his allegations are true and

construing all inferences in Daniels’ favor, as we are required

to do in this context, we observe that Daniels lives near the

Market, had visited the Market before the filing of the amended

complaint, and in fact “regularly visits” the Market.                      During

these visits, Daniels alleges, he was subject to discrimination

within    the    meaning   of   the    ADA     by   the     following   purported

structural       deficiencies   of     the     Market:      inaccessible    entry

                                        10
routes, inaccessible ramps, inaccessible restrooms, and other

inaccessible amenities.           These alleged structural deficiencies

excluded Daniels from, or denied him the benefits of, the goods

and services offered by the Market’s vendors.

       Because    he    visited     the     Market      and   encountered       these

difficulties       himself,       Daniels’        injury      is     “actual”        and

“concrete,” rather than theoretical.                   Moreover, the injury is

“particularized”        because    the     injury      affected     Daniels     “in    a

personal and individual way.”             Lujan, 504 U.S. 561 n.1.

       Rather than monetary damages, the amended complaint seeks

only    declarative       and     injunctive        relief,    in     addition        to

attorneys’ fees and court costs.                In seeking such “prospective

equitable relief instead of damages for a concrete past harm,”

Daniels also must allege and prove that there is a “real and

immediate threat” that he will be wronged again.                         Bryant v.

Cheney, 924 F.2d 525, 529 (4th Cir. 1991) (citing City of Los

Angeles v. Lyons, 461 U.S. 95, 101-03 (1983)); see also Lyons,

461 U.S. at 111 (equitable remedy unavailable absent showing of

irreparable injury, which requires sufficient likelihood that

plaintiff will again be wronged in a similar way).                      It is this

requirement      that   the     district       court   held   was    lacking     from

Daniels’ allegations in the amended complaint.

       Although we agree with the district court that Daniels was

required   to    state    a     plausible      allegation     that    there     is    a

                                          11
likelihood that he will suffer future harm, we disagree with the

district       court’s     conclusion           that   Daniels’     allegations       are

insufficient.        Daniels alleged that he “intends to continue to

visit the [Market] in the future for his shopping needs.”                              We

must accept this allegation as true for purposes of the motion

to dismiss, and we deem the allegation plausible because Daniels

resides in relatively close proximity to the Market.

       The district court found Daniels’ statement that he intends

to return to the market implausible for two reasons.                      First, the

district court held that Daniels’ failure to provide exact dates

that he visited the Market in the past, and a more specific time

at     which   he    intends      to     visit     the   Market     in   the   future,

demonstrated        the   absence      of   a    reasonable   likelihood       that   he

would return.         However, we are aware of no precedent in this

Circuit that requires this degree of specificity to survive a

motion to dismiss, and we decline to impose such a requirement

here.

       Second, the district court held that Daniels’ litigation

history “undermine[d]” his statements concerning his intention

to return to the Market.                 However, we are not faced with the

issue here whether a party’s extensive litigation history may be

used     to    determine    the        plausibility      of   his    alleged    future

intentions, because Daniels’ litigation history is scant and,

thus, cannot have served to undermine his allegations.                          As the

                                            12
district court observed, Daniels was a party to two lawsuits

raising    claims    of       ADA   violations   in    Maryland.        There    is    no

indication in the record that either of these two lawsuits was

held to have been frivolous.

      “The right to sue and defend in the courts . . .                       is one of

the highest and most essential privileges of citizenship . . .

[and] is granted and protected by the Federal Constitution.”

Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148 (1907).

Absent a determination that Daniels has abused those privileges,

we will not hold his past participation in the judicial process

against him.        Accordingly, we conclude that Daniels’ litigation

history is not relevant to this case.

      For these reasons, we hold that the district court erred in

determining that Daniels failed to satisfy the “injury in fact”

component of the standing requirement.                   Our conclusion is not

altered by Arcade’s additional argument, not addressed by the

district court, that Daniels failed to allege that he visited

the Market before Judy filed the original complaint, to which

Daniels    was   not      a    party.     Although      it   is    unclear      whether

Daniels’ “regular[]” visits to the Market began before the date

of   the   original     complaint,       March    3,   2010,      or   instead       began

merely before the date of the amended complaint, August 9, 2010,

we   conclude    that         the   resolution    of    this      question      is     not

necessary to the result we reach.                It is undisputed that Daniels

                                          13
visited the Market before he became a party to this lawsuit when

the amended complaint was filed.         Under this Court’s precedent,

“an   amended   pleading   ordinarily    supersedes   the   original   and

renders it of no legal effect.”         Young v. City of Mount Ranier,

238 F.3d 567, 572 (4th Cir. 2001).

      We acknowledge the cases from other courts cited by Arcade

for the principle that a court’s jurisdiction is determined by

the pleadings at the time the lawsuit was initiated.3            However,

none of these cases cited by Arcade addresses the situation

presented here, in which the sole plaintiff remaining in the

case was not a party to the original complaint.4            Moreover, all

      3
       See Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000);
Coalition for ICANN Transparency Inc. v. VeriSign, Inc., 771 F.
Supp. 2d 1195 (N.D. Cal. 2011); Doran v. Del Taco, Inc., No. 04-
046, 2006 WL 2037942 (C.D. Cal. July 5, 2006); Brother v. CPL
Investments, Inc., 317 F. Supp. 2d 1358 (S.D. Fla. 2004);
Brother v. Rossmore Tampa L.P., No. 03-1253, 2004 WL 3609350
(M.D. Fla. Aug. 19, 2004); Clark v. McDonald's Corp., 213 F.R.D.
198 (D.N.J. 2003); Ass’n for Disabled Americans, Inc., v.
Claypool Holdings LLC, No. 00-0344, 2001 WL 1112109 (S.D. Ind.
Aug. 6, 2001); Moyer v. Walt Disney World Co., 146 F. Supp. 2d
1249 (M.D. Fla. 2000).
      4
       Arcade appropriately acknowledges in its brief a case from
the District of Maryland, which involved a procedural history
analogous to the present case and supports Daniels’ argument.
See Equal Rights Ctr. v. Abercrombie & Fitch Co., 767 F. Supp.
2d 510 (D. Md. 2010).    The district court held in Abercrombie
that a plaintiff who was not a party to the original complaint,
but who joined the case upon the filing of an amended complaint
in which she asserted injuries that occurred between the filing
of the original and amended complaints, had standing to pursue
her claims. See id. at 515. The court relied on our decision
in Young, as discussed above. See id.


                                  14
but one of these cases was decided before the Supreme Court

issued its opinion in Rockwell International Corp. v. United

States, in which the Court stated that “when a plaintiff files a

complaint    in     federal       court     and       then   voluntarily      amends    the

complaint, courts look to the amended complaint to determine

jurisdiction.”          549 U.S. 457, 473-74 (2007).                 Accordingly, even

if Daniels had not visited the Market until the period between

the filing of the original complaint and when he became a party

to   this   case       by   way    of    the     amended     complaint,    Daniels      had

standing to pursue, and the district court had jurisdiction to

adjudicate, the claims alleged in the amended complaint.



                                                B.

      We next address Daniels’ argument that the district court

erred in holding that Daniels’ alleged injuries were not fairly

traceable to Arcade.              In reaching this conclusion, the district

court stated that Prugh’s affidavit attested that “Arcade does

not, in fact, own, lease or operate” the Market.                                Upon our

examination       of    the   affidavit,         however,     we    conclude    that    the

district    court’s         construction         of    the   affidavit’s      content    is

unwarranted.

      In    the    affidavit,           Prugh    stated      that   “Arcade    owns     the

building located at 403, 421 and 423 West Lexington Street” in

Baltimore.        Prugh further attested that “Arcade does not own or

                                                15
lease 400 West Lexington Street[,] [n]or does it operate the

property commonly known as Lexington Market.”             We agree with

Daniels’ contention that these statements are “artfully worded,”

and   do   not   serve    to   disclaim   Arcade’s   potential   ownership

interest in the Market, or Arcade’s potential operating interest

in the buildings that comprise the Market but which do not have

a street address of 400 West Lexington Street.

      Additionally,      Prugh’s   affidavit   establishes   that   Arcade

does in fact own the “building” located at 403, 421, and 423

West Lexington Street.         Although the mailing address and main

entrance of Lexington Market is listed as “400 West Lexington

Street,” there remains a dispute concerning whether the 403,

421, and 423 West Lexington Street addresses comprise a portion

of the Market.5         Daniels’ injury could be traceable to Arcade,

potentially rendering it liable under the ADA, if Arcade has any

ownership or business interest in at least a part of the Market.

See   42   U.S.C.   §   12182(a)   (prohibiting   discrimination    on   the

basis of disability by anyone who “owns, leases (or leases to),

or operates a place of public accommodation”).

      For these reasons, Prugh’s affidavit does not resolve the

dispute concerning Arcade’s legal relationship to the Market.

      5
       The amended complaint alleged that the Market was located
“between N. Eutaw St., Marion St., W. Lexington St., N. Greene
St., and W. Saratoga St.”


                                     16
Accordingly, the district court erred in holding that Daniels

lacked standing on the basis of his purported failure to allege

adequately in the amended complaint that his injury was fairly

traceable to Arcade’s actions.



                                      III.

    In conclusion, we hold that the district court erred in

determining that Daniels lacked standing to pursue his claims

against   Arcade.      Upon      evaluating    the   amended       complaint   for

purposes of Arcade’s motion to dismiss, we conclude that Daniels

sufficiently      alleged   an    “injury     in   fact”    that     was   “fairly

traceable”   to    Arcade’s      actions.     Accordingly,      we    vacate   the

district court’s decision granting Arcade’s motion to dismiss,

and we remand this matter for further proceedings consistent

with this opinion.

                                                           VACATED AND REMANDED




                                       17
