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] ...