              Case: 18-10250    Date Filed: 05/29/2018   Page: 1 of 6


                                                             [DO NOT PUBLISH]




               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-10250
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 6:17-cv-00605-CEM-GJK




PATRICIA KENNEDY,
Individually,

                                                  Plaintiff - Appellant,

versus

RHODA SOLANO,
a.k.a. Rhoda Solano-Brennan,
SOLANO ENTERPRISES, INC.,
a Florida Corporation d.b.a. Sunset Cafe,

                                                  Defendants - Appellees.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (May 29, 2018)
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Before WILSON, JORDAN and DUBINA, Circuit Judges.

PER CURIAM:

      Plaintiff/Appellant, Patricia Kennedy (“Kennedy”), filed suit against

Appellees/Defendants, Rhoda Solano and Solano Enterprises, Inc., d/b/a Sunset

Café (“Sunset Café”), alleging violations of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12181 et seq., because Sunset Café failed to make its place

of public accommodation readily accessible to and usable by individuals with

disabilities. Sunset Café moved the district court to dismiss Kennedy’s complaint

because the court lacked subject matter jurisdiction. Specifically, Sunset Café

argued that Kennedy does not have standing to assert her ADA claim because she

fails to articulate a definite plan to return to the Sunset Café in the near future. The

district court granted Sunset Café’s motion to dismiss, and Kennedy appeals. After

reading the parties’ briefs and reviewing the record, we affirm the order dismissing

Kennedy’s complaint.

                                I. BACKGROUND

      As both a patron and a tester, Kennedy visited the Sunset Café for the first

time on February 15, 2017. Kennedy traveled approximately 170 miles from her

home to the restaurant. Kennedy uses a wheelchair to ambulate, and due to access

barriers at the Sunset Café, she claims that she suffered discrimination because she


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was deprived of the equal enjoyment of Sunset Café’s goods and services.

Specifically, she alleged that one of the handicapped parking spaces was missing a

sign; for the other parking space, the sign was too low to see if a car was parked in

the space; the access aisle was un-level and impeded by a ramp; in the restroom,

the commode was inaccessible because the flush valve was on the wrong side and

the rear grab bar was missing; the sink had exposed pipes; and there was no

lowered section at the bar for a person in a wheelchair to be served. (Plaintiff’s

Affidavit, DE 16-1, ¶ 4.)

      Kennedy filed her ADA complaint on April 5, 2017, seeking injunctive

relief and attorney’s fees. After the Sunset Café filed its motion to dismiss based

on Kennedy’s lack of standing, Kennedy responded that she returned to the Sunset

Café on May 8, 2017, and that she plans to return to the Sunset Café in the near

future. The district court dismissed the complaint with prejudice, noting that

although Kennedy travels along the Florida East Coast frequently and returned to

the Sunset Café after filing her complaint, she does not have standing to sue. “In

reviewing a district court's dismissal of a complaint under Rule 12(b)(1) for lack of

subject matter jurisdiction, we review the district court's legal conclusions de novo,

including the court's conclusion concerning standing.” Houston v. Marod

Supermarkets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013).


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                                   II. ANALYSIS

      Kennedy must satisfy three requirements to have standing under Article III

of the Constitution: (1) “injury-in-fact”; (2) “a causal connection between the

asserted injury-in-fact and the challenged action of the defendant”; and (3) “that

the injury will be redressed by a favorable decision.” Shotz v. Cates, 256 F.3d

1077, 1081 (11th Cir.2001) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

560–61, 112 S.Ct. 2130, 2136 (1992)). In the ADA context, when seeking

prospective injunctive relief, a plaintiff must also plausibly show that she will

suffer disability discrimination by the defendant in the future. Houston, 733 F.3d

at 1328–29. This means that the threat of future injury must be “real and

immediate—as opposed to . . . merely conjectural or hypothetical.” Id. at 1329

(quoting Shotz, 256 F.3d at 1081). In Lujan v. Defenders of Wildlife, the Supreme

Court explained that to establish successfully a future injury, a plaintiff must

demonstrate more than an intent to return to the place responsible for the initial

injury. 504 U.S. at 563–64, 112 S. Ct. at 2137. The Court elaborated that “[s]uch

‘some day’ intentions—without any description of concrete plans, or indeed even

any specification of when the some day will be—do not support a finding of the

‘actual or imminent’ injury that our cases require.” Id. at 564, 112 S. Ct. at 2138.




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      As the district court correctly found, Kennedy has not shown that she will

suffer an actual or imminent injury in the future. First, Kennedy lives 170 miles

from the Sunset Café, which is not a close proximity. Second, Kennedy’s past

patronage of the Sunset Café does not weigh in her favor because at the time she

initiated this action, she had only patronized the café once. Although she visited

the restaurant a second time after she filed suit, courts determine standing at the

time of filing; thus, the second visit is immaterial. Cf. Houston, 733 F.3d at 1336

(finding that plaintiff’s past patronage of the business helped establish standing

because he did return to the property before filing his lawsuit). Third, Kennedy

fails to allege a definitive time to return to the Sunset Café. She avers that she

intends to return to the restaurant in the future when it is ADA compliant, but these

conclusory allegations contain no concrete plan regarding her return. Additionally,

although Kennedy alleges that she travels frequently in the vicinity of the Sunset

Café, based on the totality of her allegations and the factors we consider for

standing, Kennedy has not met her burden to show a plausible threat that she will

face future discrimination at the Sunset Café. Hence, absent standing, Kennedy

cannot seek prospective injunctive relief against the Sunset Café.

      Accordingly, for the aforementioned reasons, we affirm the district court’s

order dismissing Kennedy’s ADA complaint with prejudice.


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AFFIRMED.




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