11-110-cv
Harty v. Simon Prop. Grp., L.P.
                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 29th day of June, two thousand eleven.

PRESENT: ROGER J. MINER,
         REENA RAGGI,
         GERARD E. LYNCH,
                   Circuit Judges.

----------------------------------------------------------------------
OWEN HARTY,
                                          Plaintiff-Appellant,

                     v.                                                  No. 11-110-cv

SIMON PROPERTY GROUP, L.P., a Foreign Limited
Partnership,
                                          Defendant-Appellee.
----------------------------------------------------------------------

FOR APPELLANT:                       THOMAS B. BACON, Thomas B. Bacon, P.A., Cooper City,
                                     Florida.

FOR APPELLEE:                        ROBERT W. THIELHELM, JR. (Brian C. Blair and Sylvia
                                     Jeanine Conley, on the brief), Baker & Hostetler LLP, Orlando,
                                     Florida & New York, New York.



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       Appeal from the United States District Court for the Southern District of New York

(George B. Daniels, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on December 7, 2010, is VACATED and the case is

REMANDED for further proceedings.

       Plaintiff Owen Harty, a wheelchair-bound paraplegic, sued defendant Simon Property

Group, L.P. (“Simon”), the owner of the Nanuet Mall, for injunctive relief pursuant to Title

III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189, claiming

discrimination on the basis of his disability due to lack of accessibility. He appeals dismissal

of his claim for lack of standing, see Fed. R. Civ. P. 12(b)(1), and further argues that the

district court erred in concluding that he failed to state a claim, see Fed. R. Civ. P. 12(b)(6),

and in denying his motion for leave to amend the complaint. We assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to vacate and remand.

1.     Standing

       “We review de novo a district court’s dismissal of a complaint for lack of standing.”

 Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009); see Fed. R. Civ. P.

12(b)(1). For the purposes of such review, we “accept[ ] as true all material allegations in

the complaint and constru[e] the complaint in favor of the complaining party.” Fuentes v.

Bd. of Educ., 540 F.3d 145, 148 (2d Cir. 2008).

       To establish standing, a plaintiff must demonstrate: (1) an “injury in fact” that is

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“concrete and particularized” and “actual or imminent, not conjectural or hypothetical”; (2)

“a causal connection between the injury and the conduct complained of”; and (3)

redressability of the injury by a favorable decision. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992) (internal quotation marks omitted). Moreover, a plaintiff seeking

injunctive relief cannot rely only on past injury to satisfy the injury requirement but must

show a likelihood of future harm. See City of Los Angeles v. Lyons, 461 U.S. 95, 105

(1983); McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 284 (2d

Cir. 2004). Therefore, to establish standing in an ADA suit seeking injunctive relief based

upon lack of access to a public accommodation, we have held that a plaintiff must

(1) “allege[ ] past injury under the ADA”; (2) show that “it is reasonable to infer from [his

or] her complaint that this discriminatory treatment will continue”; and (3) show that “it is

also reasonable to infer, based on the past frequency of [his or] her visits and the proximity

of [the public accommodation] to [his or] her home, that [he or she] intends to return to [the

public accommodation] in the future.” Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d

Cir. 2008).

       Harty’s allegations are sufficient, for pleading purposes, to establish ADA standing

based upon a plausible intention to return to the Nanuet Mall. The amended complaint

alleges that Harty plans to return both as a patron “to avail himself of the goods and services

offered to the public at the property” and as a tester “to determine whether the property has

been made ADA compliant.” Am. Compl. ¶ 5. Further, in a September 2, 2010 affidavit

submitted in opposition to Simon’s motion to dismiss (and considered by the district court

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for purposes of its standing analysis), Harty states that he “teach[es] courses in weapons

handling and safety” for which he “travel[s] nationwide and visit[s] gun shows throughout

the country,” and that, as a former resident of New York, he “return[s] to the area quite often

to visit family who still reside there.” Aff. of Owen Harty ¶¶ 2-3, Harty v. Simon Prop. Grp.,

L.P., No. 10 CV 3408 (S.D.N.Y. Sept. 2, 2010). Harty attached a list of upcoming New

York-area gun shows to his affidavit, and further averred:

              I will be attending these gun shows and will be traveling
              through, and shopping at, various shopping centers. I will also
              be visiting my friends and family again in New York. I would
              like to shop at Nanuet Mall again when I attend the gun shows
              there, or when I am visiting family.

Id. ¶ 7. These allegations and sworn statements are sufficient to support a plausible inference

at the pleading stage that Harty will likely return to the Nanuet Mall. See Camarillo v.

Carrols Corp., 518 F.3d at 158.

        Our unpublished decision in Freydel v. New York Hospital, 242 F.3d 365

(unpublished table decision), 2000 WL 1836755 (2d Cir. 2000), upon which the district court

relied, is not to the contrary. Freydel sued New York Hospital for failing to provide Russian

sign-language interpretation services during her in-patient treatment following a heart attack.

See id. at *1-2. Freydel argued that she had standing to seek injunctive relief based upon

likely future injury, because her chronic medical conditions could require future care and it

was possible that she could be referred again to New York Hospital, a tertiary care center in

the same medical network as her local hospital. See id. at *5. We rejected this attenuated

line of reasoning, concluding that while “plaintiff ‘may’ be referred to [New York Hospital]

                                              4
in the future, such an indefinite speculation is insufficient to maintain standing to seek

injunctive relief.” Id. at *6. That is not this case. The likelihood of Freydel returning to

New York Hospital was contingent upon events whose occurrence was speculative and

beyond her control, i.e., her future health care needs and her being referred to New York

Hospital. By contrast, Harty avows a present intention to return to the Nanuet Mall, an act

that depends only upon his own volition, and the likelihood of which finds some support in

professional and family reasons.

       If the district court continues to doubt whether Harty’s professed intent to return to

the Nanuet Mall was genuine, this doubt should be resolved by the court before proceeding

further. See Alliance for Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 85

(2d Cir. 2006) (“[A] district court must generally resolve material factual disputes and

establish that it has federal constitutional jurisdiction, including a determination that the

plaintiff has Article III standing, before deciding a case on the merits.”). In deciding this

question, the court may conduct relevant discovery and fact finding (including findings as

to Harty’s credibility). Cf. Norkunas v. Park Road Shopping Cent., Inc., --- F. Supp. 2d. ----,

No. 3:10-cv-210, 2011 WL 1438157, at *4-5 (W.D.N.C. Apr. 14, 2011) (describing

evidentiary hearing held in Disabled Patriots of Am., Inc. v. Promenade Shopping Ctr. LLC,

No. 3:08-cv-533 (W.D.N.C. Nov. 25, 2009), to determine credibility of Harty’s intent to

return to place of discrimination).

2.     Failure to State a Claim and Leave to Amend

       As an alternative ground for affirmance, Simon contends that the district court

                                              5
    correctly held pursuant to Fed. R. Civ. P. 12(b)(6) that Harty’s complaint failed to state a

    claim upon which relief could be granted. Because the district court dismissed Harty’s ADA

    claim for lack of standing, however, it lacked jurisdiction to adjudicate Simon’s alternative

    motion to dismiss for failure to state a claim. See Morrison v. Nat’l Austl. Bank Ltd., 547

    F.3d 167, 170 (2d Cir. 2008) (“Determining the existence of subject matter jurisdiction is a

    threshold inquiry . . . .”). We accordingly understand the district court to have been

    expressing no more than an advisory view on the adequacy of Harty’s complaint in dicta

    when it observed that, assuming that Harty had standing, dismissal still “would be warranted”

    because Harty offered only “unsupported conclusory allegations of discrimination.” Harty

    v. Simon Prop. Grp., L.P., No. 10 CV 3408, 2010 WL 5065982, at *3 n.4 (S.D.N.Y. Dec. 7,

    2010). There was thus no ruling on Simon’s Rule 12(b)(6) motion that is subject to our

    review on appeal.

           We nevertheless note that we are not persuaded that Harty’s complaint warrants

    12(b)(6) dismissal. Moreover, even if we shared this concern, we could not conclude that

    amendment would be futile.1 In his affidavit in opposition to Simon’s motion to dismiss,

    Harty provided additional details concerning the ADA violations he personally encountered

    on his visit to the Nanuet Mall, see Aff. of Owen Harty ¶ 5, Harty v. Simon Prop. Grp., L.P.,




           1
1            The district court determined that proposed amendments to Harty’s complaint would
2   be futile as to standing; it did not address whether it would be possible for Harty to cure any
3   perceived failure to state an ADA claim.

                                                  6
    No. 10 CV 3408 (S.D.N.Y. Sept. 2, 2010),1 which would preclude 12(b)(6) dismissal if

    pleaded in an amended complaint. See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 177

    (2d Cir. 2006) (“[L]eave to amend should be freely granted when justice so requires.”

    (internal quotation marks omitted)).

          For the foregoing reasons, the district court’s judgment is VACATED and the case

    is REMANDED for further proceedings consistent with this order.

                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, Clerk of Court




          1
1           Harty’s affidavit contains two paragraphs numbered “5.” We refer to the first such
2   paragraph.

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