           Case: 17-14356   Date Filed: 05/01/2018   Page: 1 of 11


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 17-14356
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:17-cv-01047-RBD-GJK


PATRICIA KENNEDY, Individually,
                                               Plaintiff - Appellant,
versus

BEACHSIDE COMMERCIAL PROPERTIES, LLC,
a Florida Limited Liability Company,
COCOA BEACH SURF COMPANY,
a Florida Corporation,

                                               Defendants - Appellees.

                       ________________________

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

                               (May 1, 2018)

Before WILSON, JORDAN, and DUBINA, Circuit Judges.

PER CURIAM:
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      Plaintiff-Appellant Patricia Kennedy (“Plaintiff”), who is disabled, sued

Defendants-Appellees Beachside Commercial Properties, LLC and Cocoa Beach

Surf Company (collectively “Defendants”) to compel them to bring their premises

at a Port of Call at Beach (“Port of Call”) store into compliance with Title III of the

Americans with Disabilities Act, 42 U.S.C. §§ 12181–12189 (“ADA”). The

district court determined Plaintiff lacked standing and dismissed her complaint for

lack of subject matter jurisdiction. After reviewing the record and the parties’

briefs, we affirm.

                                  I.    BACKGROUND

      Plaintiff Kennedy is mobility impaired and ambulates by wheelchair. She

filed her amended complaint against Defendants, alleging they failed to provide

adequate facilities in the Port of Call shop in Cocoa Beach when she visited the

property on February 15, 2017. She sued for declaratory judgment and injunctive

relief, seeking Defendants’ compliance with ADA provisions.

   A. Plaintiff’s Title III Claim

      Title III provides that “[n]o individual shall be discriminated against on the

basis of disability” in “any place of public accommodation.” 42 U.S.C. § 12182(a).




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In her amended complaint, 1 Plaintiff indicated she was both a bona fide patron of

Port of Call as well as a “tester” for ADA accommodations, by which she

advocates for herself and other disabled persons. Plaintiff alleges she encountered

architectural and other barriers that caused her to be barred from accessing all of

the premises and otherwise caused her humiliation, including: missing

handicapped parking signs, lack of accessible routes to different store levels,

merchandise obstructing wheelchair access in aisles, inaccessible and otherwise

non-ADA compliant restrooms, and unsecured floor mats.

    B. Defendants’ Motion to Dismiss

       Defendants moved to dismiss Plaintiff’s amended complaint for failure to

state a claim and for lack of standing or, in the alternative, moved for summary

judgment. In this challenge to the amended complaint, Defendants raised a factual

challenge to subject matter jurisdiction. Defendants challenged Plaintiff’s ability

to show a real and immediate threat of future injury on the basis that she most

likely would not return to Port of Call and face future discrimination. Defendants



1
         Plaintiff initially filed her complaint on June 8, 2017. The district court, however,
dismissed the complaint without prejudice on the basis that the complaint “constitute[d] an
impermissible form of shotgun pleading,” which appears to be a reoccurring problem with
Plaintiff’s filings. [See R. 7 at 1–2]. The district court allowed Plaintiff to refile an amended
complaint correcting the many errors of the original, but Plaintiff missed the filing deadline. [R.
8]. The district court then dismissed the complaint with prejudice. Id. Plaintiff sought relief
under Fed. R. Civ. P. 60(b) on the basis of excusable neglect, and the district court allowed her to
file her amended complaint and reopened the case on June 29, 2017. [R. 10, 11].
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stressed Plaintiff lives approximately 175 miles away from the premises, that she

had only visited the premises once before, that she provided only “generalized

allegations” of her plan(s) to return to the store, and that she failed to detail how

frequently she travels in the area where the store is located. In essence, Defendants

argued Plaintiff failed to meet the factors of the “proximity test” employed by

district courts throughout this circuit. See Silva v. Baptist Health S. Fla., Inc., 856

F.3d 824, 832 (11th Cir. 2017); Houston v. Marod Supermarkets, Inc., 733 F.3d

1323, 1336–37 (11th Cir. 2013); Nanni v. Aberdeen Marketplace, Inc., 878 F.3d

447, 455–56 (4th Cir. 2017) (citing favorably to Houston and other circuit court

decisions for application of the proximity or similar tests).

      In response to Defendants’ motion, Plaintiff filed an affidavit providing

details about her visit to Port of Call and her future plans to revisit the store and the

general Cocoa Beach area. In that document, Plaintiff stated she first visited the

Port of Call premises on February 15, 2017 and then returned on July 19, 2017.

[R. 22-1 at ¶ 4]. Plaintiff stated she “travel[s] along the Florida East Coast

frequently,” including at least ten visits to the Cocoa Beach area “in the past

several months” and “at least 50 times over the course of my lifetime.” [Id. at ¶ 2].

Further, she indicated she “will continue to visit the area on a frequent basis[.]” Id.




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She indicated she “plan[s] to return to the property in the future” so that she can

“shop, dine, and . . . monitor its ADA conditions.” [Id. at ¶ 6].

   C. Procedural History

      The district court granted Defendants’ motion to dismiss for lack of subject

matter jurisdiction and dismissed the complaint with prejudice on September 25,

2017. In its order, the district court found Plaintiff lacked standing because she

could not demonstrate redressability. [R. 25 at 4]. In addressing this final element

of standing, the district court determined Plaintiff could not satisfy the four-factor

proximity test. In doing so, the district court found Plaintiff’s residence

approximately 175 miles away from Cocoa Beach, in combination with her one

visit to the store before she filed her suit, did not weigh in her favor. Further, the

district court characterized Plaintiff’s generalized plans to revisit “someday” to be

insufficient to shift the totality of the circumstances in her favor. After finding

Plaintiff most likely did not face a continuing threat of discrimination at Port of

Call, the district court dismissed her complaint for her lack of standing. Plaintiff

thereafter perfected this appeal.

                              II.     STANDARD OF REVIEW

      “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


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conclusions de novo, including the court’s conclusion concerning standing.”

Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013). “We

review the district court’s ‘findings of jurisdictional facts for clear error.’” Id.

(quoting City of Vestavia Hills v. Gen. Fidelity Ins. Co., 676 F.3d 1310, 1313 (11th

Cir. 2012)).

                                         III.    DISCUSSION

    A. Article III Standing Requirements

       In order to satisfy the requirements for Article III standing under the

Constitution, Plaintiff must satisfy three requirements: (1) injury-in-fact, (2) “a

causal connection between the asserted injury-in-fact and the challenged action of”

Defendants, and (3) “that the injury will be redressed by a favorable decision.”

Houston, 733 F.3d at 1328 (internal marks and citations omitted); see also Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130 (1992). The second and

third elements of standing are easily met and are not challenged on appeal. We

conclude Plaintiff has adequately shown both causation and redressability. 2




2
  In its order, the district court found Plaintiff had established the first two prongs of standing—
that of an injury-in-fact and causation. [See R. 25 at p. 4]. The district court’s analysis of the
redressability element follows our case law as set forth in Houston and other decisions. The
Houston court is clear, however, that the analysis of the threat of future harm speaks to the
question of an injury-in-fact and not redressability. See Houston, 733 F.3d at 1328; Silva, 856
F.3d at 832. This minor error in nomenclature, however, is hardly a reason to overturn the
district court’s well-reasoned analysis.
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      The hurdle Plaintiff faces, thus, is the question of whether Plaintiff suffered

an injury-in-fact. See Houston, 733 F.3d at 1328. In order to meet the

constitutional requirements for standing in a suit seeking injunctive relief, Plaintiff

must do more than show that she was injured in the past; rather, she must also

demonstrate “a sufficient likelihood that [s]he will be affected by the allegedly

unlawful conduct in the future.” Id. (internal marks and citation omitted). To do

so, Plaintiff must “show[ ] ‘a real and immediate—as opposed to a merely

conjectural or hypothetical—threat of future injury.’” Id. at 1329 (quoting Shotz v.

Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (emphasis in the original)). Thus, “to

have standing, Plaintiff [Kennedy] must show past injury and a real and immediate

threat of future injury.” Id. As this court recently noted, “[i]n the ADA context,

our standing inquiry has focused on the frequency of the plaintiff’s visits to the

defendant’s business and the definitiveness of the plaintiff’s plan to return.” Silva,

856 F.3d at 832 (citing Houston, 733 F.3d at 1337 n. 6) (“While we consider each

of the four factors [of the proximity test] in reaching our decision today, we note

that these factors are not exclusive and that no single factor is dispositive. District

courts must consider the totality of all relevant facts to determine whether a

plaintiff faces a real and immediate threat of future injury.”).

   B. Article III Standing Analysis


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       “A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack

of subject matter jurisdiction by either facial or factual attack.” Stalley ex rel. U.S.

v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). In

this case, Defendants challenged Plaintiff’s standing on the basis of extrinsic

material found outside of the amended complaint, namely in Plaintiff’s affidavit

and response to the district court’s interrogatories. See id. (“By contrast, a factual

attack on a complaint challenges the existence of subject matter jurisdiction using

material extrinsic from the pleadings, such as affidavits or testimony.”); see also

Houston, 733 F.3d at 1336. On this basis, we consider not only what Plaintiff has

alleged in her amended complaint but also the factual information she provided in

her court filings. Plaintiff, who lives approximately 175 miles away from the

Cocoa Beach area, visited Defendants’ store only once, in February 2017, before

filing her complaint in June 2017.3 Plaintiff further stated she had visited the

general area about ten times in recent months and about fifty times over the course

of her lifetime. She further claimed she “will continue to visit the area on a




3
  It is true that Plaintiff revisited the premises at Port of Call in July 2017 after the filing of her
suit and has, thus, visited at least twice. Like the district court, however, we cannot consider her
second, post-filing visit to determine standing. See Bochese v. Town of Ponce Inlet, 405 F.3d
964, 976 (11th Cir. 2005) (“However, in making the necessary preliminary determination of
what claims the plaintiff has actually raised (and therefore, what claims he must have standing to
raise), we are bound by the contents of the plaintiff’s pleadings . . . .”) (emphasis in the original).
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frequent basis” and indicated she “plan[s] to return to the property in the future” so

that she can “shop, dine, and . . . monitor its ADA conditions.” We also take note

that Port of Call has closed since Plaintiff’s filing of her initial suit, although

Defendant Beachside Commercial Properties, LLC still owns the premises.

      In taking all of the factual allegations and the totality of the circumstances

into consideration, we conclude that Plaintiff has failed to demonstrate a “real and

immediate threat of future injury” and thus cannot meet the requirements for

standing. Plaintiff’s singular documented visit to Port of Call does not weigh in

her favor. As we noted in Shotz, a plaintiff seeking injunctive relief under Title III

must “have attempted to return” or at the minimum “intend to do so in the future.”

256 F.3d at 1081. Like in Shotz, Plaintiff only visited the allegedly non-complaint

premises once before filing her complaint (and even her amended complaint) and

thus cannot claim that her singular past injury presents evidence suggesting future

injury. Compare Shotz, 256 F.3d at 1082 (concluding that a single visit to a non-

complaint building with no expressed intent to return amounted to “conjectural,

hypothetical, or contingent” rather than “real and immediate” future

discrimination”), with Houston, 733 F.3d at 1336 (determining plaintiff’s multiple

visits to the discriminating premises before he filed suit evidenced a future threat

of continued discrimination).


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      Further, Plaintiff’s generalized intent to return to the Cocoa Beach area

sometime in the future does not bolster her case. Plaintiff lives about three hours

away from the area and has no definitive plans to return to Port of Call (which, we

note, is now impossible, as the store has closed). Her vague intent to return to shop

and monitor the premises cannot pass constitutional muster. Unlike the plaintiff in

Houston who lived only thirty miles away and had both definitive plans and sound

reason to revisit the area, Plaintiff uses overly-broad and vague language as a

“catch-all” to hope that her claim will stick. While neither our court nor the

Supreme Court require detailed or concrete travel plans to revisit a place to meet

standing requirements, case law requires more immediacy than a “someday” plan.

See Houston, 733 F.3d at 1338–40. For example, in its factually-specific inquiry

into standing, this court determined Houston did have standing in part because

“Houston visits his lawyer’s offices near the [non-compliant premises] on a

frequent basis and, thus, drives by the store frequently. During these trips to his

lawyer’s office in the near future, he wants to visit the store. Unlike the plaintiffs

in Lujan, Houston has averred a concrete and realistic plan of when he would visit

the store again.” Id. at 1340. Unlike the plaintiff in Houston, Plaintiff cannot point

to anything in the record that supports a “concrete and realistic plan” to revisit

Defendants’ premises. See id.; see also Silva, 856 F.3d at 832 (concluding


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plaintiffs did have standing to seek injunctive relief for alleged ADA violations on

the basis that they visited the hospital frequently for appointments and had strong

evidence supporting the likelihood of future visits).

       In this fact-sensitive inquiry—as that of standing must be4—we conclude

Plaintiff does not have standing to seek injunctive relief against Defendants. The

totality of the circumstances surrounding her past visit to Port of Call, the store’s

subsequent closing, and the formulaic assertion of a generalized intent to return to

the premises and/or the area do not amount to a “real and immediate” threat of

future injury.

                                       IV.     CONCLUSION

       Having concluded Plaintiff lacks standing, we do not reach Plaintiff’s

remaining pettifogging arguments. For the reasons set forth above, we affirm the

district court’s judgment of dismissal for lack of subject matter jurisdiction.

AFFIRMED.




4
  We have previously noted, “determining standing for injunctive relief is often a fact-sensitive
inquiry” and that “each plaintiff must establish standing on the facts of the case before the
court.” Houston, 733 F.3d at 1340.
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