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Williams v. Potomac Family Dining Group Operating Company, LLC

United States District Court, D. Maryland, Southern Division

October 21, 2019

TY WILLIAMS, individually and on behalf of all others similarly situated, Plaintiff,



         Plaintiff Ty Williams (“Plaintiff”) brings this action under the Americans with Disabilities Act (“ADA”) against Defendant Potomac Family Dining Group Operating Company, LLC (“Defendant”), which owns and operates a number of Applebee's Grill & Bar restaurants. ECF No. 1. Plaintiff alleges that the parking facilities at several of Defendant's restaurants do not comply with the ADA and accordingly seeks declaratory and injunctive relief personally and as the representative of a class. Defendant has moved to dismiss the complaint and to strike Plaintiff's class allegations. ECF No. 8. A hearing is not necessary. See Loc. R. 105.6 (D. Md.). For the following reasons, Defendant's motion will be granted in part and denied in part and Plaintiff will be granted leave to amend the Complaint.

         I. BACKGROUND[1]

         Plaintiff is a resident of Gaithersburg, Maryland who uses a wheelchair for mobility as a result of a 2015 spinal injury. ECF No. 1 ¶ 20. Defendant is a limited liability company that owns 69 Applebee's Grill & Bars throughout Maryland, Virginia, Pennsylvania, West Virginia, and North Carolina. Id. ¶ 21. Plaintiff alleges that, within the last year, he visited Defendant's facility located at 21048 Frederick Road in Germantown, Maryland, “where he experienced unnecessary difficulty and risk due to excessive slopes in a purportedly accessible parking area and other ADA accessibility violations.” Id. ¶ 23. Specifically, “[t]he surfaces of one or more purportedly accessible curb ramps had slopes exceeding 8.33%.” Id. ¶ 31. “Despite this difficulty and risk, ” Plaintiff asserts that he “plans to return to Defendant's facilities, at least six times a year.” Id. ¶ 24. Plaintiff states that “[i]t is convenient for him to stop by regularly to continue to test Defendant's facilities' compliance with the ADA because [he] regularly dines at Applebee's when he is shopping at the nearby Walmart or Target”; that he “likes to order whatever the half price appetizers are that day”; and that he “intends to return to Defendant's facilities to ascertain whether those facilities remain in violation of the ADA.” Id.

         The slope of the curb ramps at Defendant's Germantown facility was identified by investigators acting on Plaintiff's behalf. Id. ¶ 31. The investigators also visited and inspected six other facilities “owned, controlled, and/or operated by Defendant” in Maryland, Virginia, and Pennsylvania, and found additional ADA violations among “purportedly accessible” features of the parking facilities at those locations. Id. Specifically, curb ramps at two facilities in addition to the Germantown location had slopes exceeding 8.33 percent; accessible parking spaces at four facilities had slopes exceeding 2.1 percent; and two facilities had “access aisles” with slopes exceeding 2.1 percent.[2] Id. Though Plaintiff does not intend to visit any of these other facilities, he states that “[t]he fact that individuals with mobility-related disabilities are denied full and equal access to numerous of Defendant's facilities, and the fact that each of these facilities denies access by way of inaccessible parking facilities, is evidence that the inaccessibility Plaintiff experienced is not isolated, but rather, is caused by Defendant's systemic disregard for the rights of individuals with disabilities.” Id. ¶ 32. In general, Plaintiff claims that “Defendant's systemic access violations demonstrate that Defendant either employ[s] policies and practices that fail to design, construct, and alter their facilities so that they are readily accessible and usable and/or that Defendant employs maintenance and operational policies and practices that are unable to maintain accessibility.” Id. ¶ 33. Plaintiff also asserts that Defendants' “policies, practices, and procedures with regard to the design, construction, alteration, maintenance, and operation of its facilities” are “centralized” and the product of “centralized decision making.” Id. ¶¶ 5, 29-30.

         To remedy these violations, “Plaintiff seeks an injunction to remove the [access] barriers currently present at Defendant's facilities and an injunction to modify the policies and practices that have created or allowed, and will create or allow, inaccessibility to affect Defendant's network of facilities.” Id. ¶ 35. Plaintiff also brings claims and seeks relief as the representative of a class pursuant to Federal Rule of Civil Procedure 23(b)(2). Id. ¶ 36. Plaintiff maintains that “Defendant has discriminated against Plaintiff and the class in that Defendant has [failed] to make its facilities fully accessible to, and independently usable by, individuals who use wheelchairs” in violation of the ADA. Id. ¶ 52. “Unless Defendant is restrained from continuing its ongoing and continuous course of conduct, ” Plaintiff concludes, “Defendant will continue to violate the ADA and will continue to inflict injury upon Plaintiff and the class.” Id. ¶ 54.

         Defendant filed a Motion to Dismiss Plaintiff's Complaint and Motion to Strike Class Claims, ECF No. 8, and an accompanying Memorandum in Support, ECF No. 8-1, on August 12, 2019. Defendant maintains that Plaintiff lacks standing to bring his individual claims and that his class claims should be stricken because his proposed class cannot meet the requirements of Federal Rule of Civil Procedure 23. ECF No. 8-1 at 1-2.[3] Plaintiff filed an Opposition to Defendant's Motion on August 26, 2019, ECF No. 10, and Defendant filed a Reply Brief on September 9, 2019, ECF No. 11.


         Defendants have moved to dismiss Plaintiff's individual claims pursuant to Rule 12(b)(1), asserting that the Court lacks subject matter jurisdiction because Plaintiff lacks standing. “A district court should grant a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) ‘only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.'” Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 645 (4th Cir. 2018) (quoting Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999)). “The burden of establishing subject matter jurisdiction rests with the plaintiff.” Demetres v. East West Constr., 776 F.3d 271, 272 (4th Cir. 2015). “When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), ‘the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.'” Evans, 166 F.3d at 647 (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)). Defendant has also moved to strike Plaintiff's class claims on the grounds that Plaintiff lacks standing to serve as a class representative and that the class as proposed cannot meet the requirements of Rule 23. The proper standard of review to apply in evaluating Defendant's motion is a matter of dispute among the parties that necessitates examination of applicable case law and secondary authorities. The Court will address both issues of individual and class standing before turning to the requirements of class certification pursuant to Rule 23.


         A. Individual Standing

         Defendant argues that Plaintiff lacks an injury in fact sufficient for standing to pursue claims as an individual because he “suffered no injury and is at no risk of any future injury.” ECF No. 8-1 at 7. To establish a case or controversy necessary to invoke federal jurisdiction, a plaintiff “bears the burden of establishing the three ‘irreducible minimum requirements' of Article III standing: (1) an injury-in-fact (i.e., a concrete and particularized invasion of a legally protected interest); (2) causation (i.e., a fairly traceable connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is likely and not merely speculative that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit).” Beck v. McDonald, 848 F.3d 262, 269 (4th Cir. 2017) (quoting David v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013)). When a plaintiff seeks prospective declaratory and injunctive relief, allegations of past injury alone cannot establish a present case or controversy; the plaintiff must also “plausibly alleg[e] ‘a real and immediate threat of repeated injury'” in the future. Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 455 (4th Cir. 2017) (quoting Bryant v. Cheney, 924 F.2d 525, 529 (4th Cir. 1991)). This burden is not particularly demanding in ADA cases. “[W]hen 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” required to seek prospective relief. Id. at 455.

         In Nanni v. Aberdeen Marketplace, the Fourth Circuit found that a plaintiff who uses a wheelchair had established sufficient injury in fact to seek an injunction against a highway rest stop shopping center for its alleged violations of the ADA. See Id. at 448-49. The plaintiff alleged that he had visited the facility three to four times in the past three years because it was an ideal place to rest during trips from his home in Delaware to Baltimore and Washington, D.C. Id. at 449. During those visits, however, the plaintiff “encountered noncompliant parking spaces that caused him difficulty exiting and entering his vehicle because of the extra care needed to avoid a fall, ” as well as “other barriers to access” that included “curb ramps and a sidewalk ramp, which required him to exercise extra care.” Id. at 455 (internal quotation marks omitted). The court found that those injuries were sufficiently “concrete, particularized, and actual” to qualify as past injury and explained that “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.” Id. As for future injury, the court found that the plaintiff's allegation that he intended “to make additional visits” to the facility “on his journeys to and from Baltimore and Washington” was sufficiently plausible to confer standing for injunctive relief. Id. at 449, 456. The plaintiff was not required to state the precise dates of future trips, to identify his reasons for returning to the facility, or to identify by name the stores he intended to visit. Id. at 456.

         Plaintiff here has likewise alleged an injury in fact sufficient to support his request for prospective relief. Describing his past injury, Plaintiff asserts that within the last year, he visited Defendant's restaurant at 21048 Frederick Road in Germantown, Maryland, where he “experienced unnecessary difficulty and risk due to excessive slopes in a purportedly accessible parking area, ” among other alleged ADA violations. ECF No. 1 ¶ 23. The excessive slopes that Defendant was forced to navigate in his wheelchair “significantly impeded” his “ability to access and safely use Defendant's facilities.” Id. ¶ 25. Under Nanni, Plaintiff need not allege more to make out a past injury. The “architectural barriers” that he allegedly encountered are “precisely the types of systemic discrimination the ADA seeks to erase.” Nanni, 878 F.3d at 455 (citing 42 U.S.C. § 12182(a)). “By alleging that [Plaintiff] visited [Defendant's facility] and personally encountered architectural barriers to access, the Complaint pleads past injuries that are concrete, particularized, and actual.” Id. Plaintiff has also made sufficient allegations to demonstrate future injury. Plaintiff alleges that he plans to return to the restaurant “at least six times a year” and that he “regularly dines” there “when he is shopping at the nearby Walmart or Target.” ECF No. 1 ¶ 24.[4] He specifically ...

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