John Nanni v. Aberdeen Marketplace, Inc. , 878 F.3d 447 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1638
JOHN NANNI,
Plaintiff – Appellant,
v.
ABERDEEN MARKETPLACE, INC.,
Defendant – Appellee.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge. (1:15-cv-02570-WMN)
Argued: September 12, 2017 Decided: December 21, 2017
Before TRAXLER and KING, Circuit Judges, and Raymond A. JACKSON, United
States District Judge for the Eastern District of Virginia, sitting by designation.
Vacated and remanded by published opinion. Judge King wrote the opinion, in which
Judge Traxler and Judge Jackson joined.
ARGUED: Brian T. Ku, KU & MUSSMAN, P.A., Pembroke Pines, Florida, for
Appellant. William Nelson Sinclair, SILVERMAN, THOMPSON, SLUTKIN &
WHITE, LLC, Baltimore, Maryland, for Appellee. ON BRIEF: Robert W. King,
Hyattsville, Maryland, for Appellant.
KING, Circuit Judge:
Plaintiff John Nanni — a Delaware resident who suffers from post-polio syndrome
and generally uses a wheelchair — appeals from the dismissal of his civil action against
Aberdeen Marketplace, Inc. According to the operative amended complaint that Nanni
filed in the District of Maryland in 2015, he has encountered and will continue to
encounter unlawful barriers to access at Aberdeen’s Marketplace Shopping Center (the
“Marketplace”), which is located in northeast Maryland. See Nanni v. Aberdeen
Marketplace, Inc., No. 1:15-cv-02570 (D. Md. Nov. 5, 2015), ECF No. 5 (the
“Complaint”). Those barriers — the Complaint alleges — hinder access to the
Marketplace and discriminate against Nanni, in violation of the Americans with
Disabilities Act (the “ADA”). Aberdeen sought dismissal of the Complaint by
contending, inter alia, that Nanni’s lack of standing to sue deprives the district court of
subject matter jurisdiction. In May 2016, the court agreed with Aberdeen and dismissed
the Complaint. See Nanni v. Aberdeen Marketplace, Inc., No. 1:15-cv-02570 (D. Md.
May 4, 2016), ECF No. 12 (the “Opinion”). Nanni has appealed the standing decision,
asserting that the judgment of dismissal was erroneously awarded. As explained below,
we are satisfied that Nanni has sufficiently alleged standing to sue and is entitled to
pursue his ADA claim. We therefore vacate the judgment in favor of Aberdeen and
remand for further proceedings.
2
I.
A.
In August 2015, Nanni initiated this civil action in the district court at Baltimore,
alleging disability discrimination in contravention of the ADA and seeking declaratory
and injunctive relief against Aberdeen. The Complaint identifies the essential relief that
Nanni seeks as the district court’s declaration that the Marketplace is in violation of the
ADA, plus an injunction requiring Aberdeen to alter the Marketplace to “make it
accessible to and usable by individuals with disabilities.” See Compl. 5.
Nanni’s ADA claim is premised on allegations that, several times each year, he
travels southwest on I-95 from his home in Delaware to Baltimore and Washington, D.C.,
where he attends sporting events, visits with relatives, and participates in events for the
disabled. See Compl. ¶ 10. 1 The Marketplace, which is located near exit 85 on I-95 in
Maryland, constitutes a place of public accommodation and provides “a perfect place” to
“stop to rest on drives and to take bathroom breaks.” Id. ¶¶ 9-10. 2 Between 2013 and
June 2015, Nanni visited the Marketplace at least three or four times, and he intends to
make additional visits on his journeys to and from Baltimore and Washington. Id. ¶¶ 10,
1
The relevant facts with respect to this appeal are largely derived from the
Complaint. We take the factual allegations made therein as true and draw reasonable
inferences in favor of Nanni. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250, 253 (4th Cir. 2009).
2
Travelling southbound on I-95 from Delaware, the Marketplace is readily
accessed off exit 85 onto Maryland Route 22. It is situated on Beards Hill Road in
Aberdeen, about forty miles from Nanni’s residence and approximately halfway to
Baltimore.
3
13. Independent of Nanni’s intention to return to the Marketplace as a customer, he plans
to return as what the Complaint calls an “ADA tester.” Id. ¶ 19.
During his visits to the Marketplace, Nanni has “experienced serious difficulty
accessing the goods and utilizing the services therein,” due to defendant Aberdeen’s
failure to comply with the ADA. See Compl. ¶ 11. Nanni has encountered major
obstacles at the Marketplace, that is, barriers to access that pose serious difficulties for
disabled individuals who rely on wheelchairs for mobility, including the following:
• Parking designated for use by persons with disabilities is
inaccessible “due to excessive slopes, pavement in disrepair and lack
of proper access aisles”;
• Curb ramps for use by persons with disabilities are inaccessible “due
to excessive slopes, steep side flares, failure to provide smooth
transitions, and pavement in disrepair”;
• One of the sidewalk ramps causes problems for the disabled because
it has “excessive running slopes”; and
• Various routes of travel about the Marketplace are inaccessible to
disabled persons “due to excessive slopes and pavement in
disrepair.”
Id. ¶ 14.
Each of those major obstacles and barriers to access have caused serious
difficulties for Nanni. For example, the noncompliant parking spaces caused problems
with entering and exiting Nanni’s vehicle and required him to use extra care to avoid
falling. See Compl. ¶ 14. The noncompliant curb ramps, sidewalk ramp, and routes of
travel caused him serious difficulties in safely navigating and accessing the Marketplace.
Id. Aberdeen’s failure to comply with the accessibility requirements of the ADA have
4
thus deprived Nanni of his right to full and equal enjoyment of the Marketplace and his
right to be free from discrimination on the basis of disability. Id. ¶ 15. As the Complaint
specifies, those noncompliant barriers to access remain in place. Id. ¶ 16. As a result,
Aberdeen
continues to discriminate against [Nanni] by failing to make reasonable
modifications in policies, practices or procedures, when such modifications
are necessary to provide [him] an equal opportunity to participate in, or
benefit from, the goods, services, facilities, privileges, advantages, and
accommodations which [the Marketplace] offers to the general public.
Id. ¶ 15.
Notably, each of the specified barriers to access is readily removable, and removal
would not impose an undue burden on Aberdeen. See Compl. ¶ 17. As the Complaint
explains, a court ruling in Nanni’s favor — i.e., a declaration of unlawfulness plus an
injunction requiring Aberdeen to remove or modify the unlawful barriers to access and
comply with the ADA — would resolve the equal access problems that have caused and
otherwise will continue to cause Nanni’s injuries. Id. ¶¶ 16-18.
B.
In response to the Complaint, Aberdeen sought its dismissal on two grounds.
Aberdeen argued under Rule 12(b)(6) of the Federal Rules of Civil Procedure that the
Complaint fails to state a claim upon which relief can be granted. Of relevance,
Aberdeen also asserted under Rule 12(b)(1) that the district court is without subject
matter jurisdiction because Nanni lacks standing to sue. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992) (explaining that, to possess Article III
constitutional standing to sue, three elements must be satisfied, that is, (1) the plaintiff
5
“must have suffered an injury in fact”; (2) “there must be a causal connection between
the injury and the [defendant’s] conduct”; and (3) the injury will likely “be redressed by a
favorable decision”). Aberdeen specifically challenged the sufficiency of the Complaint
with respect to Lujan’s injury-in-fact element.
By its Opinion of May 4, 2016, the district court dismissed Nanni’s Complaint for
lack of standing to sue. The Opinion recognized that, to satisfy the constitutional
standing mandate, the Complaint must sufficiently allege the essential elements of
standing. See Op. 4. Explaining the injury-in-fact element, the Opinion related that the
Complaint must demonstrate “a concrete and particularized, actual or imminent invasion
of a legally protected interest.” Id. Additionally, because Nanni is seeking declaratory
and injunctive relief, the Opinion recognized that the Complaint must establish “a real
and immediate threat that [Nanni] will be wronged again.” Id. (internal quotation marks
omitted). Relying on a recent decision of the same district court, the Opinion specified
that, in order to show a “real and immediate threat” of future injury, the Complaint had to
allege and describe Nanni’s “concrete, specific plans to return to the locus of the injury”
and “indicate that [he] is likely to suffer the same injuries upon return.” Id. at 5 (internal
quotation marks omitted). 3
3
Although the Opinion’s analysis of the injury-in-fact element references the
Supreme Court’s Lujan decision, the standard applied by the district court was drawn
from a decision rendered in the District of Maryland. See Nat’l All. for Accessibility, Inc.
v. Millbank Hotel Partners, No. 1:12-cv-03223 (D. Md. Feb. 20, 2013), ECF No. 22.
6
Although the Opinion recognized that the Complaint “clearly state[s] [Nanni’s]
intent to return” to the Marketplace, the district court dismissed on the premise that the
Complaint fails to establish Nanni’s likelihood of suffering future harm there. See Op. 6.
In so ruling, the Opinion first determined that the Complaint inadequately describes
Nanni’s past injuries, leaving the court “to speculate as to the type of harm [Nanni] is
likely to face on his return to the [Marketplace].” Id. at 6-7. Next, the Opinion related
that the Complaint’s lack of specificity left the court “to wonder which business within
the [Marketplace] is ‘the perfect place’ for [Nanni] to stop and rest.” Id. at 7. That is, the
Opinion deemed the Complaint to be insufficiently specific regarding Nanni’s alleged
future injuries, explaining that the court was
unable to find more than a mere possibility of future harm without any
indication of the specific goods and services at [the Marketplace] that
[Nanni] seeks out in his travels, or a particular convenience at this center
that is more advantageous to [him] than that available at other centers along
his route.
Id. at 8. The court considered Nanni’s connection to the Marketplace to be “tenuous at
best,” explaining that Nanni could easily stop at any number of other places while driving
up and down I-95 in order to rest or use the bathroom. Id.
Finally, the Opinion addressed the Complaint’s allegation that Nanni would return
to the Marketplace as an “ADA tester.” See Op. 8. The Opinion accepted that Nanni
would return to the Marketplace “to confirm its ADA-compliance,” but recognized that
Nanni “cannot use his status as a tester to satisfy the standing requirements where [he]
would not have standing otherwise.” Id. (internal quotation marks omitted). The
Opinion further recognized that acting as a tester “is not improper,” but observed that
7
Nanni’s litigation history undermined “the plausibility of [Nanni’s] threat of future injury
at [the Marketplace].” Id. at 9. 4 Specifically, the Opinion invoked “substantially similar
complaints” filed by Nanni in the District of Maryland against “defendant properties in
the vicinity of Interstate 95,” indicating that the Marketplace is not Nanni’s sole choice of
rest stop. Id. According to the Opinion, Nanni’s litigation history also “heighten[ed] the
appearance” that he planned to return to the Marketplace as an opportunistic litigant,
rather than as a “bona fide patron[].” Id. at 10.
By its Order accompanying the Opinion, the court then dismissed the Complaint
for lack of standing. See Nanni v. Aberdeen Marketplace, Inc., No. 1:15-cv-02570 (D.
Md. May 4, 2016), ECF No. 13. Nanni timely noted this appeal from the judgment,
challenging the dismissal of his Complaint. We possess jurisdiction pursuant to 28
U.S.C. § 1291.
II.
We review issues of subject matter jurisdiction de novo. See Columbia Gas
Transmission Corp. v. Drain, 237 F.3d 366, 369 (4th Cir. 2001). It is established that “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We have recognized
4
Nanni’s litigation history is not apparent in this record, but some aspects thereof
were apparently brought to the district court’s attention by way of written submissions
made with respect to Aberdeen’s dismissal request.
8
that “facial plausibility is established once . . . the complaint’s factual allegations produce
an inference . . . strong enough to nudge the plaintiff’s claims ‘across the line from
conceivable to plausible.’” See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591
F.3d 250, 256 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 570). In assessing the
sufficiency of a complaint, we assume as true all its well-pleaded facts and draw all
reasonable inferences in favor of the plaintiff. Id. at 253. Thus, to satisfy the plausibility
standard, a plaintiff is not required to plead factual allegations in great detail, but the
allegations must contain sufficient factual heft “to allow a court, drawing on ‘judicial
experience and common sense,’ to infer ‘more than the mere possibility’” of that which is
alleged. Id. at 256 (quoting Iqbal, 556 U.S. at 679).
III.
A.
On appeal, Nanni urges us to vacate the district court’s decision on standing as
fatally erroneous and to reinstate his Complaint. Put succinctly, Nanni maintains that the
court erred in its Opinion by failing to recognize that the Complaint demonstrates that he
suffered a concrete and particularized injury when he encountered the noncompliant
parking spaces, curb ramps, sidewalk ramp, and routes throughout the Marketplace. See
Br. of Appellant 12-19. Because the Complaint alleges that those “architectural barriers
have not been removed and still exist,” the court should have concluded that Nanni will
“encounter the same barriers and suffer the same harm” on his future visits to the
Marketplace. Id. at 19. Nanni relies on, inter alia, our unpublished decision in Daniels v.
9
Arcade, L.P., 477 F. App’x 125, 129-30 (4th Cir. 2012), a similar ADA case in which we
concluded that the complaint sufficiently pleaded the injury-in-fact element of standing
by alleging that the plaintiff, who used a wheelchair, lived near and regularly visited the
defendant property; that he had encountered structural deficiencies there, including
inaccessible entry routes, ramps, restrooms, and other amenities; that those structural
deficiencies had excluded the plaintiff from, or denied him the benefits of, the goods and
services offered by the defendant property; and that the plaintiff planned to continue to
visit the defendant property to shop.
Additionally, Nanni takes umbrage with the Opinion’s determination that the
Complaint is insufficiently specific as to the particular goods and services at the
Marketplace that Nanni seeks out in his travels, and as to the reasons why Nanni chooses
the Marketplace over other available rest stops. See Br. of Appellant 19-22. According
to Nanni, once the district court acknowledged — as it properly did — that the Complaint
plausibly alleges Nanni’s intent to return to the Marketplace, that should have ended the
court’s inquiry on the likelihood of future harm. Instead, however, the Opinion deemed
the Complaint inadequate and questioned Nanni’s credibility and motives in returning to
the Marketplace and pursuing his ADA claim against Aberdeen. Nanni contends that his
motivations are “irrelevant to [his] right to be free from discrimination,” id. at 21, and
that the court inappropriately used merits-based criteria to dismiss the Complaint.
Aberdeen, on the other hand, maintains on appeal that the district court correctly
dismissed the Complaint for lack of Nanni’s standing to sue. As Aberdeen would have it,
more than even the Opinion required is necessary to demonstrate the likelihood of future
10
injury. See Br. of Appellee 12-17. More specifically, the Complaint fatally fails to allege
“a planned date of [Nanni’s] return” to the Marketplace, as well as “any arrangements
made for return, a reason why he would return, specific establishments [at the
Marketplace] that he intends to return to, or information about what he intends to do on
his return.” Id. at 16. Aberdeen also distinguishes Nanni’s ADA claim from the ADA
claim in our Daniels decision, arguing that the likelihood of future injury was more
plausible in Daniels because the plaintiff lived just twenty miles from the defendant
property, whereas there are forty miles between Nanni’s residence and the Marketplace.
Id. at 18-21. Premised on Daniels, Aberdeen advocates the adoption of a “close
proximity” test to determine the plausibility of a future injury allegation. Id.
As for the Opinion’s reliance on Nanni’s credibility and motives, Aberdeen
defends it on the ground that matters such as Nanni’s “tenuous at best” connection with
the Marketplace and his litigation history go to the plausibility of the Complaint’s
allegation that Nanni is likely to suffer future injuries. See Br. of Appellee 21-23.
Aberdeen also agrees with the district court that Nanni’s intention of returning to the
Marketplace as an “ADA tester” is — standing alone — insufficient to establish Nanni’s
standing to sue. Id. at 24-27. Finally, Aberdeen characterizes the Complaint as merely
alleging “fears” of re-encountering barriers that cannot be substantiated without details
about Nanni’s plans for his return to the Marketplace. Id. at 27-29.
11
Barb.
1.
Turning to our analysis of Nanni’s standing to sue, Title III of the ADA bars
discrimination against individuals on the basis of disability in places of public
accommodation. See 42 U.S.C. § 12182. In enacting the ADA, Congress recognized that
we live in a “society [that] has tended to isolate and segregate individuals with
disabilities.” Id. § 12101. Such individuals “continually encounter various forms of
discrimination, including outright intentional exclusion” as a result of various barriers to
access, including those of an architectural nature. Id. The ADA applies to privately
operated places of public accommodation, such as the Marketplace. Id. § 12182(a). 5
Furthermore, discrimination under the ADA includes the “failure to remove architectural
barriers . . . in existing facilities . . . where such removal is readily achievable.”
Id. § 12182(b)(2)(A)(iv).
In order for Nanni to pursue his ADA claim, he must satisfy “the irreducible
constitutional minimum of standing” that is required in order to invoke jurisdiction in the
5
The ADA’s prohibition against discrimination in public accommodations, which
is in part codified in section 12182(a) of Title 42 of the United States Code, proscribes
private entities from discriminating on the basis of disability:
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.
See 42 U.S.C. § 12182(a).
12
federal courts. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The doctrine of
standing is concerned with the constitutional limitation on federal court jurisdiction to the
tribunal’s resolution of “cases” and “controversies” that are appropriately justiciable. See
U.S. Const. art. III § 2, cl. 1. We have recognized that “[d]octrines like standing,
mootness, and ripeness are simply subsets of [the Constitution’s] command that the
courts resolve disputes, rather than emit random advice.” See Bryant v. Cheney, 924 F.2d
525, 529 (4th Cir. 1991). In assessing a question of standing to sue, we are not concerned
with the merits of the plaintiff’s claim. See White Tail Park, Inc. v. Stroube, 413 F.3d
451, 460 (4th Cir. 2005). Instead, our only aim is to assess “whether [the] plaintiff has a
sufficiently personal stake in the lawsuit to justify the invocation of federal court
jurisdiction.” Id. at 461 (internal quotation marks omitted).
In order to possess standing to sue in this proceeding, Nanni must satisfy the
elements of standing enunciated by the Supreme Court in its Lujan decision. And only
one of those elements — the “injury-in-fact” element — is being litigated here. To
satisfy that specific element, the Complaint must show that Nanni “suffered an injury in
fact — an invasion of a legally protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical.” See Lujan, 504 U.S. at 560
(footnote, citation, and internal quotation marks omitted). As further mandated by Lujan,
because Nanni is seeking prospective declaratory and injunctive relief rather than
damages, the allegations in the Complaint of past injuries “do[] not in [themselves] show
13
a present case or controversy . . . if unaccompanied by any continuing, present adverse
effects.” Id. at 564 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). 6
2.
The issue we face in this appeal is therefore simple and focused. Does Nanni’s
Complaint sufficiently allege standing to sue under Lujan’s injury-in-fact element?
a.
First of all, we reject the district court’s determination in its Opinion that the
Complaint does not sufficiently allege past injuries that are concrete and particularized,
as well as actual or imminent. To satisfy that standard, a plaintiff may demonstrate an
“actual” “invasion of a legally protected interest” that “affect[s] the plaintiff in a personal
and individual way.” See Lujan, 504 U.S. at 560 & n.1. As illustrated by our recent
unpublished decision in Daniels, a past injury is sufficiently pleaded for purposes of an
ADA claim where a disabled individual who requires a wheelchair for mobility alleges
that he has personally encountered noncompliant architectural barriers and describes how
those barriers caused him harm. See 477 F. App’x at 129-30.
6
The second and third elements of standing to sue, as identified by the Supreme
Court in Lujan, are the following: “there must be a causal connection between the injury
and the conduct complained of — the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the independent action of some third party
not before the court”; and “it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” See 504 U.S. at 560-61 (alterations and
internal quotation marks omitted). Neither of those Lujan elements are disputed in these
proceedings.
14
According to the Complaint, Nanni — who relies on a wheelchair for mobility —
visited the Marketplace at least three or four times between 2013 and 2015. See Compl.
¶ 10. During those visits, Nanni encountered noncompliant parking spaces that “caused
him difficulty exiting and entering his vehicle because of the extra care needed to avoid a
fall.” Id. ¶ 14. Nanni also encountered other barriers to access throughout the
Marketplace, including curb ramps and a sidewalk ramp, which required him to exercise
“extra care.” Id. Those barriers placed Nanni at risk of physical harm and denied him
equal access to the goods and services located at the Marketplace. Id. ¶¶ 14-15.
Architectural barriers, such as those identified here, result in exclusion,
segregation, and other differential treatment of persons with disabilities — precisely the
types of systemic discrimination the ADA seeks to erase. See 42 U.S.C. § 12182(a). By
alleging that Nanni visited the Marketplace and personally encountered architectural
barriers to access, the Complaint pleads past injuries that are concrete, particularized, and
actual. Indeed, there is nothing conjectural or hypothetical about the injuries Nanni
suffered during his visits to the Marketplace.
b.
We therefore proceed to the question of whether the Complaint sufficiently alleges
a likelihood that Nanni will again suffer such injuries, and we conclude that it does. See
Lyons, 461 U.S. at 105 (explaining that “standing to seek the injunction requested
depended on whether [the plaintiff] was likely to suffer future injury”). That is, the
Complaint satisfies the future injury requirement by plausibly alleging “a real and
15
immediate threat of repeated injury.” See Bryant, 924 F.2d at 529 (quoting Lyons, 461
U.S. at 102).
In our Daniels decision, we addressed — in a similar context — the sufficiency of
allegations of the likelihood of future injury with respect to the ADA plaintiff’s standing
to seek equitable relief. See 477 F. App’x at 129-30. We therein recognized that the
complaint’s allegations of past injuries on the plaintiff’s earlier visits to the defendant
property (the Lexington Market in Baltimore), coupled with his alleged intent “to
continue to visit the Market in the future for his shopping needs,” were sufficient to plead
the likelihood of future injury. Id. (alteration and internal quotation marks omitted). We
also observed that the complaint’s allegation of a plan to return to the Market was
plausible, in that the plaintiff “reside[d] in relatively close proximity to the Market,” i.e.,
about twenty miles away. Id. at 127, 130.
Importantly, the Daniels principle — that when an ADA plaintiff has alleged a
past injury at a particular location, his plausible intentions to thereafter return to that
location are sufficient to demonstrate the likelihood of future injury — is entirely
consistent with the decisions of our fellow courts of appeals. See, e.g., Kreisler v. Second
Ave. Diner Corp., 731 F.3d 184, 188 (2d Cir. 2013); Gaylor v. Hamilton Crossing CMBS,
582 F. App’x 576, 580 (6th Cir. 2014); Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1074
(7th Cir. 2013); Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000); D’Lil v. Best
W. Encina Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir. 2008); Tandy v. Wichita, 380
F.3d 1277, 1284 (10th Cir. 2004); Houston v. Marod Supermarkets, Inc., 733 F.3d 1323,
16
1335 (11th Cir. 2013). 7 Put simply, we are satisfied that the Daniels decision properly
described and applied the pleading obligations for standing with respect to Lujan’s
injury-in-fact element. We therefore adopt the Daniels principle and apply it in disposing
of this appeal.
Consistent with the Daniels principle, the Complaint sufficiently pleads that Nanni
suffered past injuries on his visits to the Marketplace. Thus, contrary to the district
court’s Opinion, we are not left “to speculate as to the type of harm [Nanni] is likely to
face on his return to the [Marketplace].” See Op. 7. Rather, we know exactly the type of
future injury that Nanni faces: the denial of equal access to the Marketplace’s goods and
services by way of architectural barriers that include noncompliant parking spaces and
ramps. Significantly, the Complaint’s allegations of future injury also are plausible. That
is, it is entirely plausible that Nanni will return to the Marketplace to rest and take
bathroom breaks during his trips several times a year from his home in Delaware to
Baltimore and Washington, D.C.
In these circumstances, the district court applied an overly stringent and erroneous
requirement of specificity to its assessment of the Complaint. We reject the court’s
7
We would be remiss if we failed to mention that certain courts of appeals have
adopted a less stringent pleading requirement than the Daniels standard. At least two
courts have recognized that, once an ADA plaintiff has been injured by unlawful barriers
to access, his allegation of “actual knowledge of illegal barriers at a public
accommodation” is alone sufficient to show the likelihood of future harm for purposes of
standing to sue. See Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1135 (9th
Cir. 2002); see also Dudley v. Hannaford Bros., 333 F.3d 299, 306-307 (1st Cir. 2003)
(same).
17
conclusion that the Complaint cannot sufficiently allege the likelihood of future harm
without naming specific goods, services, and conveniences that render the Marketplace a
“more advantageous” place to stop than others along his travel route. See Op. 8. We
similarly reject Aberdeen’s theory that Nanni was obliged to allege such specifics as the
precise dates and arrangements for his return to the Marketplace, his reasons for
returning, and the particular Marketplace establishments he plans to visit. As we
explained in Daniels, “we are aware of no precedent in this Circuit that requires this
degree of specificity to survive a motion to dismiss, and we decline to impose such a
requirement here.” See 477 F. App’x at 130; see also Dudley v. Hannaford Bros., 333
F.3d 299, 307 (1st Cir. 2003) (explaining that imposition of a limitation on ADA relief to
“instances in which a future violation appears certain to occur would create a standard far
more demanding than that contemplated by the congressional objectives”). Furthermore,
that other, ADA-compliant facilities may be located near the Marketplace along I-95 will
not excuse any of Aberdeen’s violations of the ADA.
We also reject Aberdeen’s invitation — premised on the facts of Daniels — to
draw an arbitrary line of geographical proximity somewhere between twenty and forty
miles for purposes of determining an ADA plaintiff’s standing to sue. Although
proximity could be a factor relevant to the plausibility of future injury, the fact that Nanni
lives forty miles from the Marketplace is not fatal to his standing, especially in view of
Nanni’s patronage of the Marketplace for rest and bathroom breaks during his regular
travels. Whereas it was plausible in Daniels that the plaintiff would shop at the Market
twenty miles from his residence, it is entirely plausible here that Nanni will stop for rest
18
and bathroom breaks at the Marketplace while travelling north and south on I-95. In
sum, the facts of each case control the plausibility analysis.
3.
A brief discussion of the district court’s reliance on Nanni’s credibility and
motives is also warranted. As explained above, the Opinion considered the Complaint’s
allegation that Nanni would return to the Marketplace as an “ADA tester,” along with his
litigation history, in assessing whether he possesses standing to sue Aberdeen. The court
observed that Nanni’s tester status alone is insufficient to confer standing upon him — a
proposition that Nanni has not, in any event, disputed. The Opinion then went on to
conclude that, although acting as a tester is not improper, Nanni’s particular litigation
history undermined the plausibility of his future injury theory. That is, the Opinion
deemed Nanni to be an opportunistic litigant, rather than a bona fide patron of the
Marketplace.
Put simply, however, neither Nanni’s status as an “ADA tester” nor his litigation
history strips him of standing to sue Aberdeen. See Houston, 733 F.3d at 1332
(explaining that a plaintiff’s “status as a tester does not deprive him of standing to
maintain his civil action for injunctive relief under . . . the ADA’s Title III”); Daniels,
477 F. App’x at 130 (rejecting district court’s reliance on plaintiff’s litigation history to
deem his future injury claim implausible). As we recognized in our Daniels decision —
and emphasize again today — a citizen’s “right to sue and defend in the courts is one of
the highest and most essential privileges of citizenship and is granted and protected by
the Federal Constitution.” See 477 F. App’x at 130 (alterations omitted) (quoting
19
Chambers v. Balt. & Ohio R.R. Co., 207 U.S. 142, 148 (1907)). Moreover, under our
system, all citizens are obliged to obey the law and to aid law enforcement efforts. In
various situations, citizens are required by law to report violators to the proper
authorities. See, e.g., 18 U.S.C. § 4 (requiring citizens to report felony offenses to judges
and other authorities). As the Supreme Court acknowledged several years ago, the
“enforcement [of civil rights laws] would prove difficult” and our country will be obliged
“to rely in part upon private litigation as a means of securing broad compliance.” See
Newman v. Piggie Park Enters., 390 U.S. 400, 401 (1968). That very principle is also
embodied in the ADA. See Dudley, 333 F.3d at 306-07 (discussing importance of private
litigation in achieving broad compliance with ADA). In the community of those citizens
who are wheelchair bound, the identification of public accommodation facilities that flout
the ADA is obviously an important activity.
At bottom, we reject the proposition that Nanni’s motivations in pursuing his
ADA claim against Aberdeen deprive him of standing to sue in these proceedings. And,
predicated on our de novo review of the Complaint, we are satisfied that Nanni’s standing
to sue is sufficiently alleged.
IV.
Pursuant to the foregoing, we vacate the judgment of the district court and remand
for such other and further proceedings as may be appropriate.
VACATED AND REMANDED
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