from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:18-cv-11642-Avern
Cohn, District Judge.
T. Blackmore, BLACKMORE LAW PLC, Southfield, Michigan, for
Keane DelGobbo, BAKER & HOSTETLER LLP, Chicago, Illinois,
Before: MOORE, McKEAGUE, and GRIFFIN, Circuit Judges.
NELSON MOORE, CIRCUIT JUDGE.
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
requests declaratory and injunctive relief to require
Kohl's to make its men's restroom facilities
accessible and ADA-compliant. 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,  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).
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.
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.
filed a timely appeal. We have jurisdiction to review the
final judgment of the district court pursuant to 28 U.S.C.
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)).
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.
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.
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.
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
(1) his alleged history of visiting the Chattanooga,
(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 ...