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Mosley v. Kohl's Department Stores, Inc.

United States Court of Appeals, Sixth Circuit

November 8, 2019

Daimeon Mosley, Plaintiff-Appellant,
Kohl's Department Stores, Inc., Defendant-Appellee.

          Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:18-cv-11642-Avern Cohn, District Judge.

         ON BRIEF:

          George T. Blackmore, BLACKMORE LAW PLC, Southfield, Michigan, for Appellant.

          Bonnie Keane DelGobbo, BAKER & HOSTETLER LLP, Chicago, Illinois, for Appellee.

          Before: MOORE, McKEAGUE, and GRIFFIN, Circuit Judges.



         Daimeon Mosley appeals the dismissal of his suit against Kohl's Department Stores, Inc. ("Kohl's") alleging its restrooms at two Michigan locations are inaccessible for persons who use wheelchairs. He brought this action under Title III of the Americans with Disabilities Act ("Title III") requesting declaratory and injunctive relief requiring Kohl's to bring its facilities into compliance. 42 U.S.C. §§ 12181 et seq. ("ADA"); 28 C.F.R. Part 36. Kohl's moved to dismiss on the grounds that Mosley lacked standing for prospective injunctive relief because he lives in Arizona, has visited the Michigan stores only once, and has not sufficiently alleged a plan to return to the stores or to use their restrooms. The district court agreed and dismissed the case for lack of jurisdiction. Mosley argues on appeal that the district court applied too stringent standards at the pleadings stage, and that requiring him to return to the noncompliant facilities at each store would impermissibly compel him to make a futile gesture. For the reasons that follow, we REVERSE the district court's judgment of dismissal and REMAND for further proceedings.

         I. BACKGROUND

         Mosley requests declaratory and injunctive relief to require Kohl's to make its men's restroom facilities accessible and ADA-compliant.[1] In April 2018, Mosley visited the Kohl's stores in Northville and Novi, Michigan and encountered architectural barriers to access in each of their restrooms, such as inaccessible doors; improperly spaced grab bars; and sinks, mirrors, and toilet-paper dispensers that are too high. R. 7 (Am. Compl. at 4-9, ¶ 21) (Page ID #44-49). He then brought this lawsuit under Title III of the ADA governing public accommodations, [2] claiming that Kohl's denied him "full and equal access and enjoyment of the services, goods and amenities due to barriers present at each Facility and a failure . . . to make reasonable accommodations." R. 7 (Am. Compl. at 3, ¶ 11) (Page ID #43); see also 42 U.S.C. §§ 12182(a); 12182(b)(2)(A); 12183(a). According to the district court, Mosley has filed similar lawsuits throughout the country. Mosley v. Kohl's Dep't Stores, Inc., No. 18-11642, 2019 WL 95448, at *1 (E.D. Mich. 2019).

         A resident of Arizona, Mosley "has family and friends that reside in the Detroit area whom he tries to visit at least annually in the summers." R. 7 (Am. Compl. at 3, ¶ 9) (Page ID #43). At the time of filing his amended complaint, Mosley, a career musician, had scheduled upcoming visits to "Flint, Detroit, and other areas in southeast Michigan" in September and October 2018 to perform and attend shows at Chene Park, the "BooPac Tour," and the "Grind it Out Tour," among others. R. 7 (Am. Compl. at 2-3, ¶¶ 8, 12) (Page ID #42-43). He was also planning to visit his family in Detroit on November 11, 2018. R. 7 (Am. Compl. at 3, ¶ 13) (Page ID #43). He stated that he would return to the two stores if they were modified to be ADA-compliant. Id.

         Kohl's filed a motion to dismiss for lack of subject matter jurisdiction, arguing that Mosley lacks standing because he cannot demonstrate a plausible intent to return to the Northville and Novi stores or to use their restrooms. R. 11 (Mot. to Dismiss) (Page ID #74). The district court dismissed the suit for lack of standing, finding that Mosley failed to demonstrate a real and immediate threat of future injury because he lives far away, has visited the Northville and Novi stores only once, and did not provide "a definitive plan to return" to the stores. Mosley, 2019 WL 95448, at *3.

         Mosley filed a timely appeal. We have jurisdiction to review the final judgment of the district court pursuant to 28 U.S.C. § 1291.


         Mosley appeals the district court's dismissal of his Title III suit for lack of standing. We review the district court's dismissal for lack of standing de novo. See Gaylor v. Hamilton Crossing CMBS, 582 Fed.Appx. 576, 579 (6th Cir. 2014). Where there is a facial attack on the pleadings for lack of standing, as there is here, "we must accept the allegations set forth in the complaint as true, drawing all inferences in favor of the plaintiff." See id.; Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007) ("When reviewing a facial attack, a district court takes the allegations in the complaint as true."). Additionally, "'general factual allegations of injury resulting from the defendant's conduct may suffice' because in considering a motion to dismiss, 'we presume that general allegations embrace those specific facts that are necessary to support the claim.'" Gaylor, 582 Fed.Appx. at 579 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

         To satisfy Article III standing, the plaintiff must demonstrate that (1) he or she "suffered an 'injury in fact' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical'"; (2) the injury is "'fairly traceable to the challenged action of the defendant'"; and (3) it is likely "'that the injury will be redressed by a favorable decision.'" Id. (quoting Lujan, 504 U.S. at 560-61). The injury inquiry is thus twofold where a plaintiff requests injunctive relief, as it requires plaintiff to show both "past injury and a real and immediate threat of future injury." Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1329 (11th Cir. 2013); see also Gaylor, 582 Fed.Appx. at 579 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102-03 (1983)) ("The 'threat' of a prospective injury must be real and immediate and not premised upon the existence of past injuries alone."). In this case, the district court held that Mosley lacked standing because he could not prove a real and immediate threat of future injury. Mosley, 2019 WL 95448, at *3. Whether Mosley has established injury-in-fact for prospective injunctive relief is the only issue we must decide.[3]

         First, we determine whether Mosley alleges an injury that is concrete and particularized. An injury is "particularized" if it "affect[s] the plaintiff in a personal and individual way." Lujan, 504 U.S. at 560 n.1; Gaylor, 582 Fed.Appx. at 579. In Gaylor, we found that the alleged Title III injury was concrete and particularized where the plaintiff "alleged that he personally observed and encountered an architectural barrier to access in [the defendant's] parking lot in the form of excessive slopes, causing him to experience serious difficulty and depriving him of equal access when parking his vehicle and navigating the property." 582 Fed.Appx. at 579-80. We additionally found, based on this allegation, that it was reasonable to infer at this stage that "the barriers to accessibility Gaylor encountered would interfere with a mobility-impaired individual's full and equal enjoyment of TRU's property." Id. at 580. Here, Mosley, who is required to use a wheelchair, has alleged that he "personally encountered architectural barriers" in the men's restroom at the Northville and Novi locations. R. 7 (Am. Compl. at 4-9, ¶ 21) (Page ID #44-49). He details, among other things, that the sinks, mirrors, and toilet paper dispensers were too high to be in compliance with ADA regulations. Id. Kohl's therefore denied him "full and equal enjoyment" of the restrooms "due to the barriers and violations" at each facility. R. 7 (Am. Compl. at 9, ¶¶ 23-24) (Page ID #49). Taking his allegations as true, as we must at this stage, we find that Mosley has sufficiently alleged a concrete and particularized past injury.

         We next decide whether Mosley has sufficiently alleged a real and immediate threat of future injury. We hold that he has. Because Mosley states that he would return to the stores if the restrooms were modified, R. 7 (Am. Compl. at 3, ¶ 13) (Page ID #43), the question here is whether it is plausible that Mosley would return to the Northville and Novi Kohl's stores if not for their alleged noncompliance.

         We addressed for the first time in Gaylor the pleading requirements to demonstrate the requisite threat of future injury for a Title III claim for prospective injunctive relief. 582 Fed.Appx. at 580. In devising the test for plausibly pleading a Title III claim, we looked to the decisions of other circuits that had considered the issue and adopted their analysis. See id. (collecting cases). We accordingly stated that a plaintiff "demonstrates the requisite threat of future injury where he establishes (1) a plausible intent to return to the noncompliant accommodation or (2) that he would return, but is deterred from visiting the noncompliant accommodation because of the alleged accessibility barriers." Id. (citing Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 188 (2d Cir. 2013); Scherr v. Marriott Int'l, Inc., 703 F.3d 1069, 1074 (7th Cir. 2013); Daniels v. Arcade, L.P., 477 Fed.Appx. 125, 130 (4th Cir. 2012); Camarillo v. Carrols Corp., 518 F.3d 153, 157-58 (2d Cir. 2008); D'Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir. 2008); Tandy v. City of Wichita, 380 F.3d 1277, 1284 (10th Cir. 2004); Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000)). Applying this test, we found that Gaylor, a resident of Georgia, sufficiently alleged a plausible intent to return to the defendant's shopping center and the TRU store in Chattanooga, Tennessee in light of:

(1) his alleged history of visiting the Chattanooga, Tennessee area;
(2) his allegations that he has visited and attempted to patronize TRU's store 'numerous times,' . . .;
(3) his allegations of past injury in TRU's parking lot;
(4) his allegations setting forth reasons why he makes regular trips to Chattanooga, Tennessee, and why he particularly enjoys visiting the shopping ...

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