WATSON

v.

LEMONGRASS HOLDINGS LLC

Defendant’s main objections are that, in the Report, Judge Reid failed to consider Defendant’s factual challenge to subject matter jurisdiction and the finding that there is facial standing is erroneous; and that Judge Reid failed to consider that “there is no testimony from the Plaintiff that the Plaintiff has ever tried to access the website since the one time Plaintiff did so well before suit was filed.” (DE 43.) Additionally, Defendant argues that Judge Reid erroneously relied on the Amended Complaint when the initial Complaint controls for a standing analysis. (Id.) Even to the extent that Defendant’s objections may have some merit, the Court’s conclusion is the same as Judge Reid’s: Defendant’s Motion to Dismiss should be denied. “A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction by either facial or factual attack.” Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F. 3d 1229, 1232 (11th Cir. 2008) (citation omitted). “A facial attack on the complaint requires the court merely to look and see if the plaintiff has 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 1232–33 (citation omitted). “By contrast, a factual attack on a complaint challenges the existence of subject matter jurisdiction using material extrinsic from the pleadings, such as affidavits or testimony.” Id. at 1233 (citation omitted). “In the face of a factual challenge to subject matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists” by a preponderance of the evidence. OSI, Inc. v. United States, 285 F. 3d 947, 951 (11th Cir. 2002); Eldridge v. Pet Supermarket Inc., 446 F. Supp. 3d 1063, 1067 (S.D. Fla. 2020).

When subject matter jurisdiction is predicated on factual attack, “the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Lawrence v. Dunbar, 919 F. 2d 1525, 1529 (11th Cir. 1990) (quoting Williamson v. Tucker, 645 F. 2d 404, 412–13 (5th Cir. 1981)).

Judge Reid was correct in her conclusion that “Plaintiff has sufficiently established standing to seek injunctive relief.” (DE 40 at 6.) As explained in the Report, Plaintiff alleges “(1) an ‘injury in fact’ that is both ‘concrete and particularized’ and ‘actual or imminent,’2 (2) a ‘casual connection between the injury and the conduct complained of,’ and (3) an injury that is ‘likely’ to be “redressed by a favorable decision.” (DE 40 at 4–5 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citation omitted)).) Additionally,

Plaintiff sufficiently satisfies the factors for standing set forth in Houston v. Marod Supermarkets. (DE 40 at 5–10.)

Nevertheless, the Court does not believe this development divests Plaintiff of standing or invalidates the Report. In the Report, Judge Reid specifically states that “Laufer is . . . distinguishable” and that “while Laufer provides some guidance, this Court must consider other factors in determining whether Plaintiff has shown future injury.” (DE 40 at 7.) Moreover, Sierra v. City of Hallandale Beach, 996 F. 3d 1110 (11th Cir. 2021), Houston v. Marod Supermarkets, Inc., 733 F. 3d 1323 (11th Cir. 2013), Gomez v. Miami Int’l Univ. of Art & Design, Inc., 2022 WL 1773883, at *1 (S.D. Fla. June 1, 2022), and other decisions cited in the Report remain good law within this Circuit. Defendant’s objections to these findings are unpersuasive.

First, Defendant seemingly ignores binding and persuasive case law within this Circuit, and instead relies on case law from other jurisdictions. (DE 43 at 6.) Additionally, Defendant erroneously contends that Judge Reid “misapplied” the Houston factors. (Id. at 7.) Rather, it is

Defendant who misapplied the factors. As conceded in the Report, “the Houston factors . . . do not fit comfortably with cases involving inaccessible websites . . . and courts must consider the totality of the circumstances.” (DE 40 at 9 (citing Gomez, 2022 WL 1773883, at *3.) Consequently, Judge Reid considered multiple factors, including Plaintiff’s allegations that he will return to the website monthly, Plaintiff’s stated purpose for accessing the website, the effect on Plaintiff considering his inability to access the website, and the distance from Plaintiff’s home to the Defendant restaurant. (Id. at 8–10.) Thus, viewing the totality of the circumstances, Judge Reid concluded that Plaintiff adequately alleged standing at this stage of the proceeding.³ (Id. at 10.) Next, Defendant argues that Judge Reid improperly conducted a facial analysis of standing where a factual analysis of standing was appropriate. (DE 43 at 4.) Defendant contends that had Judge Reid considered Defendant’s factual attack on standing she would have concluded that the “suit is moot, because there are no current sections of the website that are noncompliant.” (Id.) The Court disagrees. Defendant’s assertion that its website is compliant conflicts with Defendant’s previous statements regarding compliance and Plaintiff’s evidence in opposition. A review of the “material extrinsic from the

Likewise, parties are able to cure standing deficiencies through an amended complaint. See Sierra Club v. Morton, 405 U.S. 727, 735 n.8 (1972) (inviting the party to amend its complaint to better plead standing); see also Miccosukee Tribe Of Indians Of Fla v. United States, 574 F. Supp. 2d 1360, 1367 (S.D. Fla. 2008).

Thus, to the extent that Defendant is arguing that standing cannot be assessed based on the Amended Complaint, the Court disagrees. Cunningham, describing barriers that exist at the Defendant’s website that prevent access to Defendant’s public accommodation. On November 10, 2022, I did a review of Defendant’s website to check whether, the issues found on the initial audit that prevent access to Defendant’s public accommodation, have been fixed, and found that all five issues from the first audit were still present.”).) Because of the discrepancy between Defendant’s own allegations and Plaintiff’s and Defendant’s positions, the Court agrees with Judge Reid’s ultimate conclusion that the Amended Complaint should not be dismissed. Cf. Kennedy v. T Old Town, LLC, 2018 WL 11222904, at *3 (M.D. Fla. June 1, 2018) (weighing, in mootness analysis, the fact that plaintiff’s “response does not allege that the Website is currently noncompliant”) (emphasis added).

Finally, even if Defendant has fixed the noncompliant sections on its website, Plaintiff is seeking an injunction remedying past and future noncompliance. (See DE 12 (“Plaintiff . . . requests the following injunctive and declaratory relief: . . . The Court enter an Order directing Defendant to continually update and maintain the mobile website to ensure that it remains fully accessible to and usable by visually impaired individuals.”).) Because “amending the website to fix ADA violations does not moot the injunction to the extent it seeks to require a party to maintain its website in compliance with the ADA,” there still exists a live controversy. Kennedy v. Floridian Hotel, Inc., 2018 WL 10601977, at *3 n. 3 (S.D. Fla. Dec. 7, 2018) (citation omitted); Haynes v. Hooters of Am., LLC, 893 F. 3d 781, 784 (11th Cir. 2018) (“[E]ven if Hooters’ website becomes ADA compliant, Haynes seeks injunctive relief requiring Hooters to maintain the website in a compliant condition.

Thus, notwithstanding the fact . . . that the Gomez Settlement Agreement supplies Haynes with much of the relief he requested, there is still a live controversy about whether Haynes can receive an injunction to force Hooters to make its website ADA compliant or to maintain it as such.

Therefore, this case is not moot.”). This conclusion is not disturbed by the fact that Defendant allegedly entered into a contract with a third party to keep its website compliant. (See DE 43 at 3); Haynes, 893 F. 3d at 784 (“Hooters’ assurance to an unrelated third party to remediate its website does not alone moot Haynes’ claims for relief.”). lll.

CONCLUSION

Accordingly, upon an independent review of the Report, the record, and applicable law, itis ORDERED AND ADJUDGED that: 1. The Report (DE 40) is AFFIRMED AND ADOPTED.

2. Defendant's Motion (DE 20) is DENIED.

3. Defendant shall file its answer to the Amended Complaint within fourteen (14) days of the date of this Order. See Fed. R. Civ. P.

12.

DONE AND ORDERED in Chambers in Miami, Florida, this 16th day of August, 2023.

[...] ane,

UNITED STATES DISTRICT JUDGE