United States District Court, E.D. Pennsylvania
January 27, 2004.
CHRISTOPHER HILL AND AMERICAN DISABILITY INSTITUTE Plaintiffs,
KEUM S. PARK, NO. 03-4677 Defendant
The opinion of the court was delivered by: MICHAEL BAYLSON, District Judge
Keum S. Park, doing business as Manoa Diner and Deli, ("Defendant")
owns and operates a diner and deli at 1305 West Chester Pike, Havertown,
Pennsylvania. Plaintiff Christopher Hill ("Hill") is confined to a
wheelchair as a result of a disability. Plaintiff American Disability
Institute ("ADI") is a nonprofit advocacy group that seeks to make public
accommodations available to all individuals by ensuring that public
property is in compliance with the Americans with Disabilities Act
("ADA"). On August 13, 2003, Plaintiffs filed a complaint against
Defendant alleging that Defendant's failure to renovate his facilities to
accommodate his disabled patrons violates the ADA.
On October 8, 2003, pursuant to Federal Rule of Civil Procedure 12(b)(1),
Defendant filed the instant motion to dismiss for lack of subject matter
jurisdiction. Defendant argues that Title III of the ADA requires a
litigant to exhaust his administrative remedies as a prerequisite to
filing a civil suit, and, Plaintiffs having failed to do so, their
ADA claim therefore should be dismissed for lack of subject matter
jurisdiction. Defendant also argues that Title III does not grant
Plaintiffs the right to a jury trial.*fn1 Lastly, Defendant has moved to
dismiss ADI as a party, as ADI allegedly lacks standing to bring this
For the reasons detailed herein, Defendant's Motion to Dismiss will be
granted in part and denied in part.
I. Standard and Jurisdiction
A court will grant a motion to dismiss a complaint under Rule 12(b) if
"it is clear that no relief could be granted under any set of facts that
could be proved consistent with the allegations." Sprague v. Am. Bar
Assoc., No. 01-382, 2001 U.S. Dist. LEXIS 18707, at *6 (E.D. Pa. Nov.
14, 2001) (quotation omitted). This Court may grant Defendant's Motion to
Dismiss for lack of subject matter jurisdiction based on Plaintiffs'
failure first to exhaust administrative remedies only if it is undisputed
that there has been no attempt to exhaust administrative remedies.
Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997). It is undisputed
that Plaintiffs undertook no effort to exhaust administrative remedies
prior to initiating suit.
This action arises from a violation of Title III of the ADA,
42 U.S.C. § 12181 et seq., Therefore, this Court may exercise
jurisdiction pursuant to 28 U.S.C. § 1331 and 1343. Venue is appropriate
under 28 U.S.C. § 1391(b).
Title III of the ADA prohibits places of public accommodation from
the basis of a disability, against an individual in the full and
equal access to goods and services. The law's general prohibition
No individual shall be discriminated against on
the basis of disability in the full and equal
enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any
place of public accommodation by any person who
owns, leases (or leases to), or operates a place
of public accommodation.
42 U.S.C. § 12182(a). A violation under Title III can be based on the
"failure to make reasonable modifications in policies, practices, or
procedures, when such procedures are necessary to afford such goods,
services, facilities, privileges, advantages, or accommodations to
individuals with disabilities. . . ." 42 U.S.C. § 12182(b)(2)(A)(ii).
A. Exhaustion Prerequisite
Defendant's Motion to Dismiss rests on his contention that Title III of
the ADA required Hill and ADI to have exhausted their administrative
remedies before initiating this suit.
Instead of drafting a separate enforcement provision for Title III,
Congress instead borrowed from Title II of the Civil Rights Act of 1964.
42 U.S.C. § 12188(a)(1) provides that the "remedies and procedures set
forth in section 204(a) of the Civil Rights Act of 1964 (
42 U.S.C. § 2000a-3(a)) are the remedies and procedures this title
provides to any person who is being subjected to discrimination on the
basis of disability in violation of this title. . . ." Section 2000a-3(a)
of Title 42 allows an aggrieved person to seek injunctive relief in order
to terminate or prevent the discrimination prohibited under Title II.
However, in the context of Title II, section 2000a-3(a) is limited by
section 2000a-3(c), which requires the plaintiff first to seek relief
from the appropriate state or local body, provided that there exists a
state or local law prohibiting the conduct actionable under federal law.
Like its federal counterpart, Pennsylvania law
prohibits places of public accommodation from discriminating against an
individual in the full and equal access to goods and services on the
basis of a disability. 43 PA. CONS. STAT. § 953 (2003). Therefore,
Defendant argues that 42 U.S.C. § 2000a-3(c) required Plaintiffs first to
have sought relief from the appropriate state agency before initiating
suit against Defendant. Plaintiffs respond that since
42 U.S.C. § 12188(a)(1) explicitly adopts § 2000a-3(a) only, the
administrative exhaustion provision contained within § 2000a-3(c) is
inapplicable to Title III cases.
Only one Court of Appeals has decided this question. The Ninth Circuit
has held that the plain language of 42 U.S.C. § 12188 does not require a
plaintiff in a private Title III action to exhaust administrative remedies
before filing his federal lawsuit. Botosan v. Paul McNally Realty,
216 F.3d 827 (9th Cir. 2000).*fn2 The Ninth Circuit in Paul McNally
Realty wrote, in pertinent part:
The plain language of § 12188(a)(1) is clear and
unambiguous, and it can be understood without
reference to any other statutory provision. Section
12188(a)(1) is devoid of any reference to §
2000a-3(c). Yet, Congress explicitly incorporated
subsection (a) of § 2000a-3 into § 12188(a)(1). The
incorporation of one statutory provision to the
exclusion of another must be presumed intentional
under the statutory canon of espressio unius. Surely,
"Congress obviously knew how to adopt provisions of
Title VII because it expressly adopted subsection (a)
. . .[and it is] unlikely that Congress would
absentmindedly forget to adopt a provision that
appears a mere two paragraphs below the subsection it
Id. at 832 (quoting Botosan v. Fitzhugh, 13 F. Supp.2d 1047, 1050 (S.D.
Cal. 1998)). "The canon of expressio unius est exclusio alterius means
that explicit mention of one thing in a statute implies a congressional
intent to exclude similar things that were not specifically mentioned."
Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 232 (3d Cir. 1998).
The Third Circuit has not precedentially decided whether the language
of 42 U.S.C. § 12188 requires a plaintiff in a private Title III action
to exhaust his administrative remedies before filing a federal
lawsuit.*fn3 In a non-precedential opinion,*fn4 Burkhardt v.
Widener Univ., Inc., No. 01-2305, 2003 U.S. App. LEXIS 9004 (3d Cir.
Apr. 21, 2003), when confronted with the very same issue, the Third
Circuit, aware of the Ninth Circuit's opinion in Paul McNally Realty,
accepted its rationale and holding. "The [Ninth Circuit] concluded
that § 12188(a)(1) does not implicitly incorporate § 2000a-3(c).
The District Court here adopted the same reasoning, and we will do so
as well." 2003 U.S. App. EEXIS 9004, at
Following the Third Circuit's example, this Court, having considered
Paul McNally Realty and the canon of expressio unius, will adopt the
reasoning contained within the Ninth Circuit's decision. Defendant argues
that because the Third Circuit's opinion in Burkhardt is unpublished and
nonprecedential, this Court conceivably could deviate from its holding.
Assuming arguendo that Burkhardt has no automatic precedential control
over the Court's
deliberations in the instant case, this Court still is permitted, at the
least, to assess the Third Circuit's reasoning and to adopt it
independently, should this Court concur. See., e.g., Blue Mountain
Mushroom Co. v. Monterey Mushroom. Inc., 246 F. Supp.2d 394, 399 n.1
(E.D. Pa. 2002) (non-precedential Third Circuit decisions are to be used
merely as persuasive authority and do not represent binding case law per
se). Section 12188(a)(1) is clear and unambiguous, and this Court should
give the statute its plain meaning. The statute specifies § 2000a-3(a)
for incorporation, and to conclude that Congress actually intended the
incorporation of any additional subsection would render superfluous
Congress's explicit reference to § 2000a-3(a). See generally Idahoan
Fresh v. Advantage Produce. Inc., 157 F.3d 197, 202 (3d Cir. 1998) ("In
interpreting a statute, courts should endeavor to give meaning to every
word which Congress used and therefore should avoid an interpretation
which renders an element of the language superfluous."). But see Adam A.
Milani, Go Ahead. Make My 90 Days: Should Plaintiffs Be Required to
Provide Notice to Defendants Before Filing Suit Under Title III of the
Americans with Disabilities Act?, 2002 Wis. L. REV. 107 (2001)
(interpreting Section 12188(a)(1) as requiring a would-be Title III
plaintiff to give notice to the proper state or local agency). This Court
concludes that it is not its prerogative to rewrite a Congressional
statute that is plain on its face, as is the case with § 12188(a)(1),
even where expansive judicial construction might better effect the law's
B. ADI's Standing
Defendant argues that ADI lacks standing to sue him. ADI contends that
it has both standing in its own right, i.e., "independent standing," and
standing on behalf of its members, i.e., "associational standing." As a
preliminary matter, standing "is a threshold jurisdictional
requirement, derived from the `case or controversy' language of Article
III of the Constitution." Pub. Interest Research Group of N.J., Inc. v.
Magnesium Elektron. Inc., 123 F.3d 111, 117 (3d Cir. 1997). First, ADI
must be able to demonstrate an injury in fact, which is "an invasion of a
legally protected interest which is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical." Luian v.
Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351
(1992) (citations omitted). The injury in fact must be causally connected
to the conduct complained of. Id. Moreover, the injury in fact must be
fairly traceable to the defendant's challenged conduct, and not
attributable to a third party not before the Court. Id. Lastly, it must
be likely, and not merely speculative, that ADI's injury will be
redressed by a favorable decision. Id. at 561. As it has invoked federal
jurisdiction, ADI bears the burden of establishing standing "in the same
way as any other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required at the
successive stages of the litigation." Id.
1. Independent Standing
"An organization has standing to sue on its own behalf if the
organization itself can satisfy the irreducible constitutional minimum
requirements and prudential concerns do not point to the need for
judicial restraint." Pa. Prot. & Advocacy. Inc. v. Houston,
136 F. Supp.2d 353, 361 (E.D. Pa. 2001). The Court concludes that ADI has
failed to plead satisfactory information demonstrating that the advocacy
group has suffered an injury sufficiently tangible to satisfy its burden
at this point. ADI, as an organization, clearly is not a disabled
individual, and could not have suffered an injury in the sense that Hill
has. In the Complaint, the following allegations regarding ADI are made:
Plaintiff, the American Disability Institute, is a
non-profit advocacy group that seeks to make public
accommodations available to all individuals by
ensuring that public properly is in compliance with
42 U.S.C. § 12182 and 28 C.F.R. § 36.201(a). The
American Disability Institute's purpose is to educate
persons and business on accessibility issues and to
ensure full participation of all people with all types
of disabilities in every community. As part of that
purpose, it seeks to ensure that people with
disabilities have access to, and do not encounter
discrimination in, places of public accommodation. As
a result, the American Disability Institute seeks to
assure that public spaces and commercial premises are
accessible to, and useable by, its members, and to
assure that its members are not excluded from the
enjoyment and use of the benefits, services,
programs, and activities of public accommodations.
Plaintiffs have retained the undersigned counsel and
are obligated to pay a reasonable attorney's fee,
including costs and expenses incurred in this action.
Plaintiffs are entitled to recover these attorneys'
fees, costs and expenses from the Defendant pursuant
to 42 U.S.C. § 12205 and 28 C.F.R. § 36.505.
(Compl. ¶¶ 7 & 22.) The Court only can conclude that the only damages
suffered by ADI, as alleged within the Complaint, are (1) abstract,
ideological injuries and (2) litigation expenses. "An organization does
not possess standing simply because it has an ideological or abstract
social interest that is adversely affected by the challenged action."
Kessler Inst. for Rehab, v. Mayor of Essex Fells, 876 F. Supp. 641, 656
(D.N.J. 1995) (citation and quotation omitted). Third Circuit precedent
holds that litigation expenses alone cannot confer standing. Fair Hous.
Council of Suburban Phila. v. Montgomery Newspapers, 141 F.3d 71
, 79 (3d
In its reply brief, ADI fleshes out the damages beyond its allegedly
affected ideological interests and its increased litigation costs. Its
reply brief states, in pertinent part, "ADI has been forced to divert
time, energy, effort, and other resources from educational,
counseling purposes to combat the discrimination faced by its members and
other disabled persons at the Defendant's place of public accommodation."
(Pis.'Reply Br. at 12.) Generally, an organization has standing "to
challenge conduct that impedes its ability to attract members, to raise
revenues, or to fulfill its purposes." Kessler, 876 F. Supp. at 656.
Whether these additional assertions would be sufficient to establish the
organization's independent standing is irrelevant because the Court will
not consider these factual allegations, as they are not contained within
either the text of the Complaint or within any document implicated
therein.*fn5 Hence, the Court will dismiss ADI's claims brought on the
organization's own behalf without prejudice and give ADI, pursuant to
Rule 15(a), fourteen (14) days to amend its complaint, setting forth
particularized facts supportive of its standing to bring suit
2. Associational Standing
An association has standing to sue on behalf of its members when: (1)
one of its members otherwise would have standing to sue on his own
behalf; (2) the interests at stake are germane to the purpose of the
organization; and (3) neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit. See,
e.g., Pa. Indep. Waste Haulers Ass'n v. Waste Svs. Auth., No. 99-1782,
2000 U.S. Dist. LEXIS 2462, at *5 (E.D. Pa. Mar. 7, 2000) (citing Hunt
v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct.
2434, 53 L.Ed.2d 383 (1977)). The Supreme Court has held that the third
prong of this test is a prudential, not a constitutional, requirement.
United Food & Commercial Workers Union Local 751 v. Brown Group. Inc.,
517 U.S. 544. 557. 116S. Ct. 1529, 134 L.Ed.2d 758 (1996).
The Court concludes that ADI has failed to plead satisfactory
information indicating that the advocacy group qualifies for
associational standing. Regarding the first prong of the Hunt test,
courts within the Third Circuit are conflicted regarding how much
specificity an organizational plaintiff must plead in order to demonstrate
that its members themselves would individually have standing. Compare
Burger King Corp., 255 F. Supp.2d at 345 (finding that an ADA advocacy
group needed to identity its members, the dates on which they visited the
defendant's allegedly discriminatory facility, and their planned return
dates in order to qualify for organizational standing) with McDonald's
Corp., 2003 U.S. Dist. LEXIS 3178, at *49-50 (finding that such
specificity in the pleadings is an "exaggerated" pleading requirement).
Having suffered discrimination at Defendant's place of public
accommodation and having pled his interest in returning to Manoa Diner
but for the allegedly discriminatory accommodations, Hill has standing to
continue as a litigant. If Hill had been alleged to be an ADI member,
then this Court could conclude that ADI established the first Hunt
prong, i.e., that one of its constituent members would have standing to
sue Manoa Diner on these same charges on his own behalf. However,
Plaintiffs fail to plead that Hill is a member of the American Disability
Institute. Plaintiffs' Reply Brief argues that "[t]he Complaint alleges
that Hill is a disabled individual and a member of ADI," (Pis.' Reply
Br. at 10), but this statement inaccurately summarizes the content of
Plaintiffs' Complaint. The relevant allegations regarding Hill within the
Plaintiff, Christopher Hill, is a Pennsylvania
resident, is sui juris and qualifies as an individual
with disabilities as defined by the ADA. Christopher
Hill has visited the property which forms the basis of
this lawsuit, which is located at 1305 West Chester
Pike, Havertown, PA 19083 and plans to return to the
property to avail himself of the goods and services
offered to the public at the properly.
. . .
Plaintiff, Christopher Hill, desires to visit the
Defendant's property not only to avail himself of the
goods and services available at the properly, but also
to assure himself that this property is in full
compliance with the ADA so that he and others
similarly situated will have full and equal enjoyment
of the property without fear of discrimination.
. . .
Plaintiff, Christopher Hill, has reasonable grounds to
believe that he will continue to be subjected to
discrimination in violation of the ADA by the
(Compl. ¶¶ 6, 9, & 11.) Moreover, ADI fails to identify any single member
whose interests would confer associational standing on ADI in the instant
case. Hence, the Court will dismiss ADI's claims brought on the behalf of
its members without prejudice and give ADI, pursuant to Rule 15(a),
fourteen (14) days to amend its complaint, setting forth particularized
facts supportive of its standing to bring suit on behalf of its members.
This Court concludes that a private plaintiff is not obligated under
Title III of the ADA to exhaust administrative remedies prior to filing
his complaint in federal court. This Court further concludes that ADI has
not pled sufficient facts to establish that it has standing, whether on
an independent or associational basis, to proceed in the instant case.
ADI will be granted leave to
file an amended complaint in order to attempt to cure these
An appropriate order follows.