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Bowman v. Kisan, LLC

United States District Court, M.D. Tennessee, Nashville Division

November 19, 2014

DANA BOWMAN, Plaintiff,
KISAN, LLC, Defendant,


ALETA A. TRAUGER, District Judge.

Defendant Kisan, LLC ("Kisan") has filed a Motion to Dismiss and, In the Alternative, Motion for More Definite Statement (Docket No. 32), to which the plaintiff has filed a Response in opposition (Docket No. 37), and Kisan has filed a Reply (Docket No. 38). For the reasons stated herein, the motion will be granted and the case will be dismissed.


Kisan operates the Drake Hotel in Nashville, Tennessee. The plaintiff, Dana Bowman, is a legally disabled American veteran and a Texas resident. On June 27, 2013, plaintiff Bowman filed a Complaint (Docket No. 1) against Kisan under Title III of the Americans with Disabilities Act ("ADA"), alleging that Kisan had violated the ADA because its pool did not have a lift or other means of access for disabled persons.[1] Bowman has filed numerous Title III complaints in this district and apparently across the country against businesses that allegedly operate in violation of the ADA. Of the seven cases filed in this district, most have settled.[2]

In his original Complaint, Bowman alleged that, at some unspecified time, he had a "speaking engagement" in the Nashville area, called the Drake Hotel to "inquire[] whether Defendant's hotel pool had a lift or other means of access for disabled persons such as Plaintiff, " and was told by an unspecified hotel representative that the hotel pool did not have a lift or other means of access. Bowman alleged that he "independently verified the absence of pool lifts[, ]" but the original Complaint provided no information as to when or how this purported verification took place. Bowman alleged that he decided not to stay at the Drake Hotel because it lacked a pool lift and that, upon information and belief, other disabled persons were deterred from staying there for the same reason. Bowman also alleged that he or his agent "intends to return and/or has returned to Defendant's Hotel to ascertain whether it remains in violation of the ADA, " and that he personally "expects to return to Nashville on business and seeks to use Defendant's hotel."

On March 7, 2014, Bowman filed an Amended Complaint, which is now the operative pleading in the case. (Docket No. 22.) In the Amended Complaint, Bowman re-asserts essentially the same allegations as the original Complaint with respect to Kisan's purported lack of a pool lift.[3] However, Bowman's Amended Complaint also asserts numerous additional violations against Kisan, alleging that the Drake Hotel violated the ADA by, among other things, failing to have an accessible route from its parking lot to the lobby, failing to have a designated handicap parking spot, and failing to have a handicapped accessible sales and service counter in its lobby. Bowman does not allege that he personally encountered these additional alleged violations or that he called the hotel about them in advance, as he did with respect to the pool lift at some point before filing his original Complaint on June 27, 2013.


Among other things, Kisan has moved under Rule 12(b)(1) to challenge the existence of subject matter jurisdiction in this case.[4] Kisan argues that Bowman lacks standing because he did not suffer particularized injury and has not alleged a sufficient threat of future harm, or, alternatively, that Bowman's claims are moot because Kisan fixed the pool lift on July 12, 2013 pursuant to a purchase and installation order that predates Bowman's Complaint. As it relates to standing, Kisan's 12(b)(1) challenge encompasses both "facial" and "factual" attacks on the court's subject matter jurisdiction, placing the burden on Bowman to show jurisdiction as to both forms of attack. Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005); see also Gentek Bldg. Prods, Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007) (describing standard for facial and factual attacks).[5] By contrast, when a party asserts that the other party's claims (for which that party had standing at the time of suit) have since become moot, the burden is on the party claiming mootness to show that the claims are, in fact, moot. Cleveland Branch, N.A.A.C.P. v. City of Parma, Ohio, 263 F.3d 513, 524 (6th Cir. 2001).

In support of its motion, Kisan has filed the Declaration of Bhavesh Patel, Kisan's Manager, which attaches certain evidentiary materials relating to Kisan's closure of the pool and its efforts to bring it into compliance with the ADA. (Docket No. 32, Ex. 1.) In support of his opposition to the motion, Bowman has filed the Declaration of Scott Hull (Docket No. 37, Ex. 1), which attaches pictures of the pool as of June 27, 2013, and the Declaration of Mary Dodson ( Id., Ex. 4), in which Dodson avers that, on January 30, 2014 (well after Bowman filed this lawsuit), she visited the Drake Hotel and observed the additional ADA violations that Bowman later stated in his Amended Complaint.


I. Standing

To establish Article III standing to seek injunctive relief, a plaintiff must satisfy three elements: (1) the plaintiff suffered an "injury in fact" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical;" (2) the injury must be "fairly traceable to the challenged action of the defendant;" and (3) "it must be likely... that the injury will be redressed by a favorable decision." Gaylor v. Hamilton Crossing CMBS, ___ F.Appx. ___, 2014 WL 4357498, at *3 (6th Cir. Sept. 4, 2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)); Klein v. United States Dep't of Energy, 753 F.3d 576, 579 (6th Cir. 2014). The two components of the first element are at issue here.

To show concrete and particularized injury in fact, a plaintiff must show an injury that "affect[s] the plaintiff in a personal and individual way." Gaylor, 2014 WL 4357498, at *3 (citing Lujan, 504 U.S. at 561 n.1). Under the ADA, a disabled individual is not required to "engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions." 42 U.S.C. ยง 12188(a)(1) (emphasis added). Here, Bowman does not allege that he personally experienced any ADA violation at the Drake Hotel (including the pool lift), but he alleges that the court should find that he nevertheless has standing under the "futile gesture" exception. The problem for Bowman is that he does not allege sufficient facts to show that he had "actual notice" that the Drake Hotel was in violation of the ADA or, more importantly, that it would be in violation of the ADA at the time Bowman sought to stay there. Bowman's alleged notice stems from his bare allegation that he called the hotel at an unspecified time, spoke to an unspecified person on the other end of the line, inquired whether the hotel's pool currently had a pool lift, sought to stay at the hotel at an unspecified time, and allegedly was told that the pool did not currently have a lift. Bowman does not allege that he spoke with a responsible person in hotel management or that he received any specific confirmation (orally or in writing) from a responsible agent of the hotel that Kisan was aware of the ADA violation and intended not to rectify it by the time Bowman arrived.

In Gaylor, the Sixth Circuit appeared to assume that any claim of particularized injury would require encountering an architectural barrier or, at a minimum, having actual knowledge of that barrier. In that case, on which Bowman relies in his Response, the plaintiff "personally observed and encountered an architectural barrier to access" in the defendant's parking lot, "causing him to experience serious difficulty and depriving him of equal access when parking his vehicle and navigating the property." 2014 WL 4357498, at *3. These allegations, combined with the common-sense inference that "the barriers to accessibility [the plaintiff] encountered would interfere with a mobility impaired individual's full and equal enjoyment of [the defendant's] property, " were sufficient to establish that the plaintiff had been personally affected by the ADA violations. Id. at *3-*4. Here, by contrast, ...

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