Patricia Kennedy v. Floridian Hotel, Inc.

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10648
________________________
D.C. Docket No. 0:18-cv-62486-UU
PATRICIA KENNEDY,
Plaintiff-Appellant,
versus
FLORIDIAN HOTEL, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 27, 2021)
Before LAGOA, HULL and MARCUS, Circuit Judges.
HULL, Circuit Judge:
Patricia Kennedy (“Kennedy”) appeals the district court’s dismissal of her
complaint against Floridian Hotel, Inc. (“Floridian”), a hotel owner and operator.
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Kennedy, who has a disability, alleged Floridian violated Title III of the Americans
with Disabilities Act (“ADA”) based on barriers to access she encountered at the
hotel property (Count I) and deficiencies in its online reservation system (Count
II). This is Kennedy’s second ADA lawsuit against Floridian as to its online
reservation system.
Early in this second lawsuit, the district court dismissed Count II for
improper claim splitting, given that Kennedy had made a claim in her first lawsuit
about Floridian’s online reservation system. Later, after some discovery, the
district court dismissed Count I with prejudice for lack of subject matter
jurisdiction, concluding Kennedy did not have standing to seek injunctive relief.
After careful review and with the benefit of oral argument, we affirm both
dismissals by the district court, but remand for the sole purpose of the district
court’s revising the dismissal of Count I to be without prejudice.
I. PRIOR LAWSUIT
In March 2018, Kennedy filed her first ADA action against Floridian
(hereinafter Floridian I). 1 In her amended complaint in Floridian I, Kennedy
alleged that Floridian’s online reservation system, operated through the
floridianhotel.com website, was not in compliance with the ADA and guidelines
1
See Kennedy v. Floridian Hotel, Inc., No. 1:18-cv-20839-UU, ECF No. 1 (S.D. Fla.
March 5, 2018).
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covering hotel reservation systems in 28 C.F.R. § 36.302(e)(1), because it failed to
indicate whether hotel guest rooms, common areas, and amenities were accessible
to individuals with disabilities.2 Kennedy sought declaratory and injunctive relief
as well as attorney’s fees and costs.
In December 2018, the district court dismissed Floridian I for lack of
jurisdiction. The district court concluded Kennedy lacked standing to pursue
injunctive relief under the ADA because she had failed to demonstrate a real and
immediate threat of future injury. Kennedy appealed the Floridian I dismissal
order, but she later voluntarily dismissed her appeal.
II. INSTANT LAWSUIT
While the first lawsuit was pending, Kennedy filed the instant lawsuit in
October 2018. The record in the instant lawsuit includes Kennedy’s 2018
deposition testimony from her prior action in Floridian I and her 2019 deposition
testimony and her three declarations filed in this action.
A. Parties
Kennedy is an individual with a disability within the meaning of the ADA.
2
These guidelines require places of lodging to: (1) ensure individuals with disabilities can
make reservations for accessible rooms in the same manner as persons who do not need such
rooms; (2) identify and describe accessible features so that individuals with disabilities can
assess whether their accessibility needs are met; (3) ensure accessible guest rooms are held for
use by individuals with disabilities until all other guest rooms are full; (4) reserve accessible
guest rooms upon request; and (5) guarantee that an accessible guest room that has been reserved
is held for the reserving customer. 28 C.F.R. § 36.302(e)(1).
3
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As the result of a spinal injury, she cannot walk more than a few steps or stand
without assistance. She must use a wheelchair, cane, or other support. Kennedy is
an ADA advocate and a “tester” who visits places of public accommodation to
monitor their compliance with the ADA. The district court took judicial notice of
her filing more than 250 ADA cases in the Southern District of Florida since this
lawsuit was filed in October 2018.
Floridian owns and operates the Floridian Hotel (the “Hotel”) in Homestead,
Florida, which is a place of public accommodation under the ADA. Through its
website, floridianhotel.com, and third-party websites, Floridian operates an online
reservation system (“ORS”) that allows individuals to book rooms and obtain
information about the Hotel. Kennedy resides in Tamarac, Florida, which is about
50 to 60 miles from the Hotel.
B. Hotel and Website Visits
Prior to filing Floridian I, Kennedy visited Floridian’s website because she
“needed to go down to Miami” to visit a friend “in the Keys” and was searching
for a place to stay. At her deposition in Floridian I, she could not recall the
friend’s name or when she was planning to visit, and she could not provide his
exact location. Kennedy cancelled the trip and did not make firm plans to
reschedule it.
On October 8–9, 2018—just before filing this lawsuit—Kennedy visited the
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Hotel in person for the first time. Kennedy spent approximately two to three hours
at the Hotel. Kennedy testified that she visited the Hotel because it was in
Homestead, and that she had been trying to go to the Redlands Blues and Barbecue
Festival (the “blues festival”) in Homestead—which is held in April—for several
years. When asked why she visited the Hotel in October if the blues festival was in
April, Kennedy testified she did not recall.
On October 11, 2018, Kennedy attempted to make an online reservation at
the Hotel for April 6–7, 2019. She was unable to do so and called the Hotel, which
advised her that she could not book a room online that far in advance. Kennedy
acknowledges that this October reservation attempt was not connected to her
decision to attend the blues festival.
C. Blues Festival and Travel to Homestead
Kennedy never purchased tickets for the 2019 blues festival and could not
remember when she first heard of it or exactly where it was held. Kennedy did not
attend the 2019 blues festival due to illness. Kennedy testified that she intended to
go back to the Hotel “[f]or that Blues and Barbecue thing for sure” and wanted to
go in 2020, but it would depend on how she was feeling.
As of September 2018, Kennedy had not stayed at any hotel in Homestead
within the past year and was unsure if she had ever stayed before at a hotel in
Homestead. In her 2019 deposition, Kennedy testified that: (1) she did not visit
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Homestead often because it was “a ways” from her home; (2) she had not returned
to the Hotel or the Homestead area since October 2018; and (3) since filing
Floridian I, she had never visited her friend in the Keys, whose name she could still
not remember.
In a declaration, however, Kennedy stated that she “frequently travel[s]
throughout Florida including Miami-Dade County and Homestead,” and that she
has “been to Homestead approximately 100 times.” She also stated that when she
travels any distance she will “normally spend the night in local hotels.”
D. Hotel and Website Revisits as ADA Tester
At her deposition in this lawsuit, Kennedy testified that she keeps a list on
her computer of all lawsuits in the Southern District of Florida that she has been
involved in, and that the list includes an approximation of when she returned to
each subject property or website. She knows to go back and check websites based
on settlement agreements stored on her computer, but she has no calendar system
in place reminding her to revisit. She will revisit a property when she “need[s] to.”
In her declarations, Kennedy stated that as an ADA tester, she will
“subsequently revisit each property or website to ascertain whether the ADA
violations have been fixed.” In her third declaration, Kennedy further explained
that in 2019, she implemented an improved system for tracking her cases, which
included the case name and number, the “name and address of the property, [the]
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date the suit was commenced and closed,” and the fact of her return. Under this
system, Kennedy stated, she was confident of her ability to ensure she returns “to
absolutely every property” she sues. Also in her third declaration, Kennedy stated
that although visiting the Hotel would be a futile gesture unless she was willing to
suffer discrimination again, she nevertheless was planning to do so. “I will be
revisiting the hotel in the near future because I said I would and because I have a
system in place that ensures I will,” she stated.
III. PROCEDURAL HISTORY
A. Complaint
On October 17, 2018, Kennedy filed the current two-count complaint,
seeking declaratory and injunctive relief. In Count I, she alleged Floridian violated
the ADA, 42 U.S.C. §§ 12182 and 12183, based on barriers to access she
encountered at the Hotel. She alleged Floridian failed to make the Hotel property
accessible to individuals with disabilities by, inter alia, failing to provide sufficient
accessible parking spaces, an accessible route from disabled parking spaces to the
Hotel, sufficient accessible guest rooms, and a pool lift. Kennedy alleged that she
planned to return to the Hotel within eight months.
In Count II, Kennedy again challenged Floridian’s ORS under the ADA and
28 C.F.R. § 36.302(e)(1). She alleged that Floridian’s ORS through
floridianhotel.com failed to identify accessible guest rooms or provide information
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about accessible features at the Hotel, and additionally, did not allow for the
booking of accessible rooms. Kennedy further alleged that Floridian’s ORS,
operated through third-party websites such as expedia.com and kayak.com, also
did not comply with the ADA. Some of these third-party websites failed to
identify accessible guest rooms or allow for their booking. While other websites
claimed certain guest rooms were accessible, they omitted information about non-
compliant features of the rooms, other barriers to access at the Hotel—such as a
step blocking pool access—and the accessibility of amenities at the Hotel.
In subsequent declarations, Kennedy stated that Floridian “revised” its own
website sometime after Floridian I was filed and “made various claims of
accessibility” that were false and misleading. Kennedy reviewed the ORS several
times but does not state when she did so. She attempted to reserve a room only on
October 11, 2018, but does not state what website she used. Her complaint and
declarations do not indicate when she first encountered the allegedly deficient
information on floridianhotel.com or the third-party websites. Kennedy alleged
that she planned to revisit Floridian’s websites in the “near future” to test them for
ADA compliance or reserve a guest room, but again does not specify which ones.
B. Motion to Dismiss
In November 2018, while Floridian I was still pending, Floridian moved to
dismiss the instant complaint for failure to state a claim and on various other
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grounds. On April 3, 2019—several months after Floridian I was dismissed for
lack of standing—the district court granted in part and denied in part Floridian’s
motion to dismiss this second case.
Relevant here, the court dismissed Count II (the ORS claim) with prejudice
for improper claim splitting because it: (1) involved the same parties as Floridian I,
and (2) arose from the same nucleus of operative facts.
The court dismissed a portion of Count I for failure to state claim but
otherwise denied Floridian’s motion to dismiss the barriers-to-access claim in
Count I.
C. Subsequent Motions as to Count I
As to the remaining parts of the barriers-to-access claim in Count I, the
parties filed cross-motions for summary judgment. Floridian focused solely on
Kennedy’s standing to pursue injunctive relief, arguing that she failed to
demonstrate a real and immediate threat of future injury.
The district court construed Floridian’s summary judgment motion as a
motion to dismiss for lack of subject matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1). The court determined that Floridian’s standing challenge
was “purely jurisdictional” and separate from the merits of Kennedy’s ADA
claims. The court therefore applied the Rule 12(b)(1) standard governing factual
attacks on jurisdiction, which allows courts to weigh independently the evidence.
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Further, the court determined it was not required to hold a hearing because, among
other reasons, the record was well developed.
As to Kennedy’s standing to pursue injunctive relief in Count I, the court
examined the totality of the circumstances and the four factors set forth in Houston
v. Marod Supermarkets, Inc., 733 F.3d 1323, 1337 n.6 (11th Cir. 2013), to
determine whether Kennedy had shown a real and immediate threat of future
injury. The court focused its analysis on the third factor—the definiteness of
Kennedy’s plan to return to Floridian’s Hotel in Homestead.
First, the district court declined to credit Kennedy’s claims that she intends
to stay at the Hotel in the future when she: (1) visits her unidentified friend in the
Keys, or (2) attends the blues festival. The court noted that Kennedy had never
attended or purchased tickets for the festival and had expressed only a “some day”
intention to attend. The court recognized that Kennedy’s status as an ADA tester
could support her intent to return to Floridian’s Hotel. But it concluded that she
had not provided “any adequate assurance of immediate revisitation,”
notwithstanding her system for tracking cases.
Because Kennedy failed to demonstrate a real and immediate threat of future
injury, the court concluded that she lacked standing to seek injunctive relief as to
her barriers-to-access claim in Count I. The Court dismissed Count I with
prejudice.
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IV. DISMISSAL OF COUNT I FOR LACK OF SUBJECT MATTER
JURISDICTION UNDER RULE 12(b)(1)
A. Article III Standing Principles
Under Article III of the Constitution, our jurisdiction is limited to “cases”
and “controversies.” U.S. Const. art. III, § 2; Christian Coal. of Fla., Inc. v. United
States, 662 F.3d 1182, 1189 (11th Cir. 2011). The standing doctrine “stems directly
from Article III’s ‘case or controversy’ requirement” and “implicates our subject
matter jurisdiction.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir.
2005) (quotation marks omitted).
To establish standing under Article III, a plaintiff must demonstrate: (1) an
injury-in-fact; (2) a causal connection between the asserted injury-in-fact and the
defendant’s actions; and (3) that “the injury will be redressed by a favorable
decision.” Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (quoting Lujan v.
Defs. of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2136 (1992)). An injury-in-
fact is the “invasion of a legally protected interest which is (a) concrete and
particularized; and (b) actual or imminent, not conjectural or hypothetical.” Lujan,
504 U.S. at 560, 112 S. Ct. at 2136 (quotation marks and citations omitted).
Plaintiffs who seek injunctive relief must make an additional showing to
demonstrate standing. Houston, 733 F.3d at 1328 (“The ‘injury-in-fact’ demanded
by Article III requires an additional showing when injunctive relief is sought.”).
“Because injunctions regulate future conduct, a party has standing to seek
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injunctive relief only if the party shows ‘a real and immediate—as opposed to a
merely conjectural or hypothetical—threat of future injury.’” Id. at 1329 (quoting
Shotz, 256 F.3d at 1081). When a plaintiff seeks an injunction, she must
demonstrate that a future injury is imminent—that there is “a sufficient likelihood
that he [or she] will be affected by the allegedly unlawful conduct in the future.”
Koziara v. City of Casselberry, 392 F.3d 1302, 1305 (11th Cir. 2004) (quotation
marks omitted).
Kennedy seeks injunctive relief, which is the only form of relief available to
plaintiffs suing under Title III of the ADA. See 42 U.S.C. § 12188(a)(1)
(providing that the remedies available to individuals are set forth in 42 U.S.C.
§ 2000a-3(a), which allows a private right of action only for injunctive relief for
violations of Title II of the Civil Rights Act of 1964). She must therefore
demonstrate a real and immediate threat of future injury to establish standing. 3
B. Rule 12(b)(1) Motion
Attacks on subject matter jurisdiction, which are governed by Rule 12(b)(1),
come in two forms: facial or factual attack. Lawrence v. Dunbar, 919 F.2d 1525,
1528–29 (11th Cir. 1990). A “facial attack” challenges whether a plaintiff “has
3
For completeness, we note that our recent decision in Sierra v. City of Hallandale Beach,
Florida, ___ F.3d ___, No. 19-13694, 2021 WL 1799848 (11th Cir. May 6, 2021), involved a
different inquiry regarding past harm and standing to seek compensatory damages under Title II
of the ADA. Although Sierra did not concern injunctive relief, it illustrates how the standing
inquiry differs based on the remedy sought. See id. at *2–3.
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sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his
complaint are taken as true for the purposes of the motion.” Id. at 1529 (quotation
marks omitted). A “factual attack,” in contrast, challenges the existence of subject
matter jurisdiction irrespective of the pleadings, and extrinsic evidence may be
considered. Id. A district court evaluating a factual attack on subject matter
jurisdiction “may proceed as it never could” at summary judgment and “is free to
weigh the evidence and satisfy itself as to the existence of its power to hear the
case.” Id. (quotation marks omitted).
Here, Floridian’s motion focused exclusively on Kennedy’s standing to seek
injunctive relief, relied on her deposition testimony and declarations, and
challenged “the existence of subject matter jurisdiction in fact, irrespective of the
pleadings.” See id. at 1529 (quotation marks omitted). The district court
reasonably construed Floridian’s motion for summary judgment as a factual attack
on subject matter jurisdiction under Rule 12(b)(1).
Kennedy argues that the district court erred in proceeding under Rule
12(b)(1) because (1) her intent to return to the Hotel in the future was inextricably
intertwined with the merits of her ADA claim, and (2) therefore the proper course
was for the district court to find that jurisdiction exists and deal with Floridian’s
motion as a direct attack on the merits of her case. See Morrison v. Amway Corp.,
323 F.3d 920, 925 (11th Cir. 2003) (stating a district court is permitted to rely on
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the Rule 12(b)(1) standard when addressing a jurisdictional challenge that does not
implicate the merits of a plaintiff’s cause of action).
We first compare the nature of Kennedy’s ADA claim and Floridian’s
jurisdictional challenge. Kennedy’s cause of action is an ADA statutory claim.
Kennedy’s Count I alleged violations of Title III of the ADA, which “prohibits
discrimination by private entities in places of public accommodation.” Gathright–
Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1272 (11th Cir. 2006); 42
U.S.C. § 12182(a). Section 12182 governs the removal of architectural barriers in
facilities constructed prior to the enactment of the ADA, and § 12183 governs new
construction and alterations after this date. See Gathright–Dietrich, 452 F.3d at1272–73; 42 U.S.C. §§ 12182(b)(2)(A)(iv), 12183(a). The elements of Kennedy’s
ADA discrimination claim are: (1) she is an individual with a disability under the
ADA; (2) Floridian owns or operates a place of public accommodation within the
meaning of the ADA; and (3) Floridian discriminated against her. See 42 U.S.C.
§ 12182(a). Kennedy visited the Hotel once, albeit briefly, encountered alleged
barriers in the past, and sufficiently alleged an ADA claim.
In contrast, Floridian’s jurisdictional challenge involves standing, a doctrine
that stems from Article III’s case or controversy requirement and thus affects our
(and the district court’s) subject matter jurisdiction. Bochese, 405 F.3d at 974.
Kennedy’s standing to pursue injunctive relief requires a separate showing of a real
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and immediate threat of future injury. See Houston, 733 F.3d at 1329. That
showing of future injury does not relate to the merits of her underlying ADA claim.
The facts necessary to establish Kennedy’s standing—which relate to her intent to
return to Floridian’s Hotel in the future—thus do not implicate the merits of her
cause of action under the ADA. See Morrison, 323 F.3d at 924–25.
This is not a case in which the district court concluded it lacked federal
question jurisdiction over Kennedy’s ADA action because she failed to allege a
prima facie violation of the statute or because the ADA was inapplicable. See id.
at 926 (“In order to determine if a defendant qualifies as an ‘employer’ and,
consequently, whether [the Age Discrimination in Employment Act (“ADEA”)]
will even apply, we must turn to ADEA’s definitions’ section.” (emphasis added)
(quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1262–63 (11th Cir.
1997))). There has never been any contention that the ADA was inapplicable to
Floridian. And, as the district court noted, there has never been any real dispute as
to whether Kennedy’s complaint states a prima facie claim for a violation of the
ADA.
Instead, this is a case where the district court concluded it was without
jurisdiction over Kennedy’s claim because she lacks standing to pursue the
requested (and only available) relief, and therefore no Article III case or
controversy exists. This case is thus readily distinguishable from Morrison and the
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other cases on which Kennedy relies. Her standing to pursue injunctive relief—
unlike, say, whether a defendant company qualifies as an “employer” under a
particular statute—has nothing to do with whether Floridian is subject to the ADA
or has violated it. See id. at 927–28.
We recognize that injunctive relief is the only remedy available under 42
U.S.C. § 12188. And Kennedy stresses that no plaintiff can prevail in an ADA
case unless they prove a real and immediate threat of future injury. This still does
not make intent to return to the Hotel in the future an element of her cause of
action. An injunction is a type of relief or remedy rather than an independent
cause of action.
At base, Kennedy’s argument is that any plaintiff must show they have
standing to pursue the relief requested, but that is true in every case. The fact that
the statute limits the remedy for an ADA violation to injunctive relief does not
transform this threshold standing inquiry into an impermissible merits
determination. Kennedy is of course correct that her intent to return is an
important part of proving she is entitled to injunctive relief (the remedy prescribed
by the statute), but that showing is required not by the statute, but by the
Constitution. See Houston, 733 F.3d at 1328–29.
Because Kennedy’s standing to seek injunctive relief was not inextricably
intertwined with the merits of her ADA discrimination claim, the district court did
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not err in construing Floridian’s motion for summary judgment as a factual attack
on its subject matter jurisdiction under Rule 12(b)(1). See Morrison, 323 F.3d at924–25. The court was therefore permitted to make credibility determinations and
weigh the evidence. See Lawrence, 919 F.2d at 1529.
C. Evidentiary Hearing
Even if the district court properly proceeded under Rule 12(b)(1), Kennedy
argues that she was entitled to an evidentiary hearing because a factual issue
concerning her standing—namely, whether she intended to return to the Hotel in
the future—was in dispute.
In ruling on a Rule 12(b)(1) motion to dismiss for lack of jurisdiction, it is
within the district court’s discretion “to devise a method for making a
determination with regard to the jurisdictional issue.” See Odyssey Marine Expl.,
Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1170 (11th Cir. 2011)
(quoting Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994)). In
Rule 12(b)(1) dismissal cases, “a plaintiff must have ample opportunity to present
evidence bearing on the existence of jurisdiction.” Colonial Pipeline Co. v.
Collins, 921 F.2d 1237, 1243 (11th Cir. 1991).
Although the court may consider both oral and written evidence in the
record, an evidentiary hearing is not required. Odyssey Marine, 657 F.3d at 1170.
In Odyssey Marine, we held the district court did not abuse its discretion in
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declining to hold an evidentiary hearing on a Rule 12(b)(1) motion where the
record before the district court was extensive and “[e]ach party had a full
opportunity to present evidence,” including affidavits, counter-affidavits,
documents, and photographs. Id.; see also 5B Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1350 (3d ed.) (stating that “[a]lthough a
formal hearing on the matter is not required, the district court should not dismiss
the complaint on a Rule 12(b)(1) motion without giving the nonmoving party the
opportunity to be heard”).
In the specific context of this case, the district court did not abuse its
discretion in declining to hold an evidentiary hearing.4 The record was well
developed, and Kennedy had ample opportunity to present facts and evidence to
support her standing. Notably, Kennedy submitted three declarations in which she
presented facts concerning standing, and the district court had before it her two
complete deposition transcripts.
Kennedy relies on this Court’s decision in Bischoff v. Osceola County, 222
F.3d 874 (11th Cir. 2000). However, in that case, the district court: (1) was faced
with two “warring affidavits on issues essential to standing” and no deposition or
oral testimony; (2) credited defendants’ version of events; and (3) sua sponte
4
We review a district court’s decision not to hold an evidentiary hearing for an abuse of
discretion. Odyssey Marine, 657 F.3d at 1169.
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dismissed the case for lack of standing without a hearing. See id. at 878–79, 885.
On appeal, this Court held that where “the evidence relating to standing is squarely
in contradiction as to central matters and requires credibility findings, a district
court cannot make those findings simply by relying on the paper record but must
conduct a hearing at which it may evaluate the live testimony of the witnesses.”
Id. at 881.
This case is nothing like Bischoff. Kennedy had more than ample
opportunity to present her evidence. Indeed, Kennedy does not dispute many of
the critical underlying facts—such as that Kennedy never attended the blues
festival, went to the Hotel only once for a few hours, and, other than that one visit,
had not stayed in a Homestead hotel in several years (if ever). The district court
did make some credibility findings, but the main dispute is over the legal
conclusion as to whether Kennedy’s evidence is sufficient to establish the required
standing for injunctive relief. On the well-developed record of this case, we find
no abuse of discretion in the district court’s decision to evaluate Floridian’s motion
under Rule 12(b)(1) and not hold a hearing. See Odyssey Marine, 657 F.3d at
1170.
D. Real and Immediate Threat of Future Injury
We now turn to Kennedy’s standing to pursue injunctive relief under the
ADA, which requires her to demonstrate a “real and immediate threat of future
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injury.” See Houston, 733 F.3d at 1329. To show a real and immediate threat of
future discrimination in the context of an ADA claim, a plaintiff must have
“attempted to return” to the non-compliant property or “intend to do so in the
future.” Shotz, 256 F.3d at 1082. In Lujan, the Supreme Court held that “‘some
day’ intentions—without any description of concrete plans, or indeed even any
specification of when the some day will be”—are insufficient to demonstrate an
injury that is “actual or imminent.” 504 U.S. at 564, 112 S. Ct. at 2138.
Immediacy in this context “means reasonably fixed and specific in time and not too
far off.” Houston, 733 F.3d at 1340 (quoting ACLU of Fla., Inc. v. Miami-Dade
Cnty. Sch. Bd., 557 F.3d 1177, 1193–94 (11th Cir. 2009)).
Whether a plaintiff faces a real and immediate threat of future injury must be
examined under the “totality of all relevant facts.” See id. at 1337 n.6. We have
previously considered four factors relevant to this analysis: “(1) the proximity of
the defendant’s business to the plaintiff’s residence; (2) the plaintiff’s past
patronage of the defendant’s business; (3) the definiteness of the plaintiff’s plan to
return; and (4) the frequency of the plaintiff’s travel near the defendant’s
business.” Id. The factors are not dispositive, only guidelines, and our standing
determination is often a “fact-sensitive inquiry.” Id. at 1337 n.6, 1340.
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The district court’s ruling contained certain fact or credibility findings and
then a legal conclusion, which we discuss separately.5
The underlying facts regarding the first and second factors were undisputed.
As to proximity, Kennedy lived 50 to 60 miles from the Hotel, and her past
patronage was her one visit to the Hotel for two to three hours. As to the third
factor, the definiteness of her plan to return to the Hotel, Kennedy presented three
potential reasons why she would return in the immediate future: (1) to see her
unidentified friend in the Keys; (2) to attend the blues festival; and (3) as an ADA
tester. The district court did not credit her stated reasons for returning, and on this
record, Kennedy has shown no clear error in that credibility finding.
First, as to her friend in the Keys, the district court correctly observed that
Kennedy never wound up seeing the friend or making plans to reschedule her trip,
could not recall the friend’s name, and did not know his address. Second, as to the
blues festival, Kennedy could not recall when she had first heard of the festival or
exactly where it was held, had never purchased tickets for the festival, did not
5
In reviewing the dismissal of a complaint for lack of subject matter jurisdiction under
Rule 12(b)(1), we review de novo the district court’s legal conclusions, including conclusions
concerning standing, and we review for clear error the district court’s findings of jurisdictional
facts. Houston, 733 F.3d at 1328. Kennedy contends the district court made improper credibility
determinations in evaluating her evidence regarding her intent to return to the Hotel, but this
argument presumes the summary judgment standard should have applied. As explained above,
the district court properly construed Floridian’s motion for summary judgment as a Rule 12(b)(1)
factual attack on jurisdiction. Thus, the court was permitted to make credibility determinations
and weigh the evidence. See Lawrence, 919 F.2d at 1529.
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attend the festival due to illness, and had no concrete plans to go to the festival the
next time it was held. The court also noted that Kennedy disavowed any
connection between her October 2018 reservation attempt and the April 2019
festival.
Third, as to her status as an ADA tester, the district court considered
Kennedy’s evidence of her system for tracking her ADA cases. The court found
this evidence fell short because it did not provide any assurance of when property
revisits would occur, or if they would occur with any degree of immediacy. It also
noted that Kennedy testified that she would revisit properties only when she
“need[ed] to” and that she did not identify any specific methodology for ensuring
her return. Without such information, the court did not clearly err in finding
Kennedy’s tracking system did not give rise to sufficiently definite intent to return
to the Hotel.
Separate from these three reasons for a return visit, Kennedy also presented
evidence regarding her travel to Homestead generally. In a declaration, Kennedy
stated that she has been to Homestead 100 times and frequently travels throughout
Florida “including Homestead.” In her earlier deposition, however, Kennedy
admitted that she did not visit Homestead often and had not stayed in a Homestead
hotel for at least several years, other than her single visit to Floridian’s Hotel for
two to three hours. The district court found Kennedy’s evidence failed to establish
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regular travel to Homestead, as there was no indication of why, when, or how
recently such visits occurred, and it was contrary to her more specific deposition
testimony. Given the lack of detail in Kennedy’s declaration, and her more
specific deposition testimony, we discern no clear error in the court’s finding that
Kennedy was not a frequent traveler to Homestead.
That leaves us with these undisputed facts. Kennedy visited the Hotel once,
for a few hours. She attempted—but failed—to make an online reservation for
April 6–7, 2019, that was not connected to the blues festival. She is an ADA tester
who has a system in place for noting property revisits, but no system for ensuring
when revisits will occur. She does not travel to Homestead frequently, and other
than her one brief visit to Floridian’s Hotel, she has not stayed in a Homestead
hotel for at least several years (if ever).
Having considered the totality of the relevant facts and examined the
evidence under the Rule 12(b)(1) standard, we conclude Kennedy failed to
demonstrate a real and immediate threat of future injury that goes beyond the type
of vague, “some day” intention the Supreme Court found insufficient in Lujan.
See Lujan, 504 U.S. at 564, 112 S. Ct. at 2138.
The cumulative evidence here is materially different from that in Houston,
an ADA-tester case where we concluded the plaintiff had standing to seek
injunctive relief as to architectural barriers at a supermarket. Houston, 733 F.3d at
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1336–41. As to proximity, Houston lived 30.5 miles away from the supermarket.
Id. at 1336. He lived in the next county, not “hundreds of miles away.” Id. More
importantly, Houston drove “right by the store on a regular basis” because it was
on the way to, and within two miles of his attorney’s office, which he visited
frequently. Id. at 1336, 1340. Plus, Houston had visited the supermarket twice in
the months before he filed suit and had a receipt from his second visit. Id. at 1336.
Added to all this, we noted the fact that ADA testing was “Houston’s avocation or
at least what he does on a daily basis” made it more likely that Houston would
return to the supermarket. Id. at 1340. Based on these specific facts, we concluded
that Houston’s intent to return to the supermarket in the future could not be
characterized as the unspecified “some day” intention the Supreme Court found too
speculative in Lujan. Id.
Although Kennedy, like Houston, is an ADA tester, she visited the Hotel
only once, for a few hours. Her singular visit does not weigh in her favor, as she
must have “attempted to return” or at a minimum “intend to do so in the future.”
Shotz, 256 F.3d at 1082. She did not travel frequently to Homestead or regularly
stay at Homestead hotels (if ever). She had no credible or concrete plan to return
to Homestead or the Hotel in the future. Her generalized intent to return sometime
in the future is alone insufficient. The totality of relevant facts simply do not
support the conclusion that Kennedy faced a real and immediate threat of future
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discrimination at the Hotel. 6 Cf. D’Lil v. Best W. Encina Lodge & Suites, 538
F.3d 1031, 1037–38 (9th Cir. 2008) (concluding ADA plaintiff demonstrated intent
to return to hotel where she had visited the area regularly for business, visited
friends in the area, and vacationed there with her children); Scherr v. Marriott Int’l,
Inc., 703 F.3d 1069, 1074–75 (7th Cir. 2013) (concluding ADA plaintiff had
alleged intent to return to hotel where much of her extended family lived in the
area close to the hotel and plaintiff planned to attend a then-upcoming wedding in
area). Given our fact-sensitive inquiry, the district court did not err in concluding
Kennedy lacked standing to pursue injunctive relief and dismissing Count I for
lack of subject matter jurisdiction.
Nevertheless, the district court erred in dismissing Count I for lack of
jurisdiction with prejudice. “A dismissal for lack of subject matter jurisdiction is
not a judgment on the merits and is entered without prejudice.” Stalley ex rel.
United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th
Cir. 2008); see also Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1341
(11th Cir. 2005) (explaining that in the absence of jurisdiction, a court lacks the
power to dismiss claims with prejudice). While we do not disturb the district
6
Kennedy’s proximity to the Hotel neither helps nor hurts her. Kennedy lives only 50 to
60 miles away from the Hotel. On one hand, this suggests she would not stay overnight at the
Hotel. On the other hand, she has a disability and submitted that she normally spends the night
in a hotel when she travels any distance. The problem is that Kennedy visited the Hotel only
once, did not stay overnight, and could not recall if she ever stayed in a Homestead hotel.
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court’s finding that amendment would be futile, it was error to dismiss Count I
with prejudice. See MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins.
Co., 935 F.3d 573, 581 (7th Cir. 2019) (stating that a “dismissal for lack of
jurisdiction without leave to amend is not the same thing as a dismissal with
prejudice,” which is a ruling on the merits that carries a preclusive effect that
prevents a plaintiff from relitigating anywhere any claim encompassed by her suit).
V. DISMISSAL OF COUNT II BASED ON CLAIM SPLITTING
The claim-splitting doctrine: (1) “requires a plaintiff to assert all of its
causes of action arising from a common set of facts in one lawsuit,” and (2) applies
where a second suit has been filed before the first suit has reached a final
judgment. Vanover v. NCO Fin. Servs., Inc., 857 F.3d 833, 840 n.3, 841 (11th Cir.
2017) (quoting Katz v. Gerardi, 655 F.3d 1212, 1217 (10th Cir. 2011)). The
doctrine serves “to promote judicial economy and shield parties from vexatious
and duplicative litigation while empowering the district court to manage its
docket.” Id. at 843.
In determining whether a party has improperly split its claims among
lawsuits, this Court examines: “(1) whether the case involves the same parties and
their privies, and (2) whether separate cases arise from the same transaction or
series of transactions.” Id. at 841–42 (quotation marks omitted). “Successive
causes of action arise from the same transaction or series of transactions when the
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two actions are based on the same nucleus of operative facts.” Id. at 842. In
determining whether a particular grouping of facts constitutes a transaction, or
series of transactions, this Court has adopted the “transactional test” from the
Restatement (Second) of Judgments § 24, giving weight to considerations such as
“whether the facts are related in time, space, origin, or motivation, whether they
form a convenient trial unit, and whether their treatment as a unit conforms to the
parties’ expectations or business understanding or usage.” Id. (quoting Petro-Hunt,
L.L.C. v. United States, 365 F.3d 385, 396 (5th Cir. 2004)). “Under the
transactional test, a new action will be permitted only where it raises new and
independent claims, not part of the previous transaction, based on the new facts.”
Id. (quoting Hatch v. Boulder Town Council, 471 F.3d 1142, 1150 (10th Cir.
2006)).
The district court did not abuse its discretion in dismissing Count II for
improper claim splitting because Count II and Floridian I arise from the same
transaction—Kennedy’s use of Floridian’s ORS—and are based on facts that are
sufficiently related in time, space, origin, and motivation. 7 See id. The complaint
in this action and the amended complaint in Floridian I were filed within five
months of each other. Both lawsuits allege violations of 28 C.F.R. § 36.302(e)(1)
7
We review a dismissal for improper claim splitting for an abuse of discretion. Vanover,
857 F.3d at 837.
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based on Floridian’s ORS and are motivated by Kennedy’s desire to obtain
information about accessible rooms and amenities at the Hotel.
To be sure, there are some additional factual allegations in Count II of the
instant lawsuit that were not in the amended complaint in Floridian I, but the cause
of action was essentially the same one about Floridian’s ORS. Floridian I was
based solely on Floridian’s ORS through floridianhotel.com, which Kennedy
alleged failed to provide accessibility information. Count II was based on
Floridian’s ORS through the floridianhotel.com website and other third-party
websites. Kennedy alleged that Floridian’s ORS through some of these third-party
websites also did not identify accessible guest rooms at the Hotel or allow for their
booking, while others omitted information about the lack of accessible features.
Kennedy maintains that Floridian revised its own website sometime after she filed
Floridian I and that it was still not ADA compliant, though it is not clear when she
first encountered the alleged deficiencies.
These additional facts concerning how Floridian’s ORS violated 28 C.F.R.
§ 36.302(e)(1) do not give rise to new and independent claims that are part of a
separate transaction. See Hatch, 471 F.3d at 1150. Whether Floridian provided no
information about accessibility or omitted information, Kennedy’s claim was the
same—Floridian prevented her from obtaining the information she needed to
determine whether the Hotel was accessible.
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Kennedy raises several other arguments that are without merit, only one of
which warrants any discussion. Kennedy argues we should not apply the rule
against claim splitting because the district court dismissed Floridian I with
prejudice, concluding that further amendment could not cure the standing defect in
that ORS case. Kennedy argues this created a “[c]atch-22” that left her with no
recourse to pursue her ORS claims. This argument ignores the fact that Kennedy
was allowed leave to amend in Floridian I and had the opportunity to include her
additional factual allegations regarding Floridian’s ORS. There was no catch-22.
It was within the district court’s discretion to conclude that Count II in the second
case involved the same ADA-non-compliance claim about Floridian’s ORS and
did not state a new and independent ADA claim. 8
VI. CONCLUSION
For the reasons above, we affirm the district court’s dismissal of Count II for
claim splitting. We also affirm the district court’s dismissal of Count I for lack of
standing, except to the extent it dismissed Count I with prejudice. We remand the
case solely so that the district court may amend its judgment to dismiss Count I
without prejudice.
AFFIRMED AND REMANDED.
8
Because the district court early on dismissed Count II based on claim splitting, the issue
as to standing on Count II was neither factually developed in the district court nor ruled on by
that court. While that standing issue as to Count II may be more arguable than as to Count I, we
decline to rule on that issue as to Count II without first having a fuller factual development in,
and ruling by, the district court.
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