Access 123 v. Markey's Lobster Pool CV-00-382-JD 08/14/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Access 123, Inc. and Michael J. Muehe

v. Civil No. 00-382-JD Opinion No.

Markey's Lobster Pool, Inc. D/B/A Markev's Lobster Restaurant

O R D E R

Michael J. Muehe and Access 123, Inc. bring suit under Title

III of the Americans with Disabilities Act ("ADA"),

, et seer., seeking injunctive relief, attorneys' fees, and

costs. The plaintiffs allege that Markey's Lobster Restaurant

discriminates against Muehe and the members of Access 123 by

failing to provide listed accommodations for disabled patrons.

Markey's moves to dismiss the suit, or in the alternative for

summary judgment, on the ground that subject matter jurisdiction

is lacking because the plaintiffs do not have standing to bring

their claims.

Standard of Review

Since Markey's filed materials extrinsic to the complaint in

support of its motion and the plaintiffs filed extrinsic

materials in response, the motion is treated as one for summary

judgment. See, e.g., Watterson v. Page,

(1st C i r . 1993).

Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v. Catrett,

(1986). The

record evidence is construed in the light most favorable to the

nonmoving party and all reasonable inferences are construed in

that party's favor. See Mauser v. Raytheon Co. Pension Plan for

Salaried Employees.

(1st Cir. 2001) .

Background

Access 123, Inc. is a non-profit corporation organized under

the laws of Massachusetts with its principal office in Cambridge,

Massachusetts. Its members are individuals with disabilities

protected by the ADA, including plaintiff Michael Muehe. The

purpose of Access 123 is to advocate for compliance with the ADA

on behalf of its members.

Muehe lives in Cambridge, Massachusetts. His sister lives

in Merrimac, Massachusetts, near Seabrook, New Hampshire, where

2 Markey's is located. Although an allegation may be inferred from

his membership in Access 123 that Muehe is disabled within the

meaning of the ADA, Muehe does not allege or explain in his

affidavit the nature of his disability.1 Muehe visited Markey's

on June 22, 2000, and alleges that he found the facility was not

in compliance with the ADA due to its failure to provide

accessible parking, signage, visual alarms, an accessible route

from the parking area into the restaurant, accessible routes

through the restaurant, accessible tables, accessible food

service counters, and accessible restroom facilities.2 The

plaintiffs contend that they have been and continue to be "denied

the benefits of the services, programs and activities of the

building and its facilities, and have otherwise been and continue

to be discriminated against and damaged by Defendant, because of

the Defendant's ADA violations set forth above." Compl. 5 16.

1A letter from Muehe to Markey's, which is attached to Muehe's answers to interrogatories submitted by Markey's, indicates that Muehe is physically disabled from walking.

2The letter from Muehe to Markey's also explains that Muehe was not able to enter the restaurant because it was not accessible. The plaintiffs have submitted a report prepared by William Norkunas, president of ADAhelp, Inc., who inspected the restaurant for ADA compliance and found violations both inside and outside the restaurant.

3 Discussion

The plaintiffs, Muehe and Access 123, an individual and a

non-profit corporation, respectively, seek a permanent

injunction, pursuant to

(a)(2), to compel

Markey's to alter its restaurant facilities to comply with

certain ADA requirements. Markey's has moved for summary

judgment, contending that the plaintiffs lack standing to bring

their claim. In particular, Markey's argues that the plaintiffs

cannot rely on a claim of past discrimination to show a current

threat of harm and therefore cannot satisfy the standing

requirements to obtain injunctive relief.

Standing under Article III of the Constitution raises a

jurisdictional issue.3 See Vt. Acrencv of Natural Resources v.

United States ex rel. Stevens.

(2000) . To

establish Article III standing for injunctive relief, "a

plaintiff must show (1) it has suffered an 'injury in fact' that

is (a) concrete and particularized and (b) actual or imminent,

not conjectural or hypothetical; (2) the injury is fairly

traceable to the challenged action of the defendant; and (3) it

3The parties have not suggested that the ADA imposes any additional burden on standing. The court is satisfied that standing under the ADA depends upon compliance with only the minimum Constitutional requirements. See, e.g.. Liberty Resources. Inc. v. Southeastern Pa. Transp. Auth.,

(E.D. Pa. Jan. 5, 2001).

4 is likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision." Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs (TOC), Inc.,

(2000) (quoting Lujan v. Defenders of Wildlife,

(1992)). An association has standing to sue in a

representational capacity if at least one member would have

standing to sue in his own right, if the asserted interests are

germane to the association's purposes, and if neither the claim

nor the relief requested would require individual participation

by members. See i d . at 181; United Food & Commercial Workers

Union Local 751 v. Brown Group, Inc.,

(1996);

Sea Shore Corp. v. Sullivan,

(1st Cir. 1998).

To show an injury in fact, in the context of injunctive

relief, plaintiffs must show an actual impending threat of harm.

See Citv of Los Angeles v. Lyons.

(1983) .

When the unlawful conduct alleged in the complaint is continuing,

the court must evaluate the likelihood that the conduct will harm

plaintiffs or that the plaintiffs' apprehension about harm is

reasonable. See Laidlaw,

. In the context of an

ADA claim, plaintiffs "must at least prove knowledge of the

barriers and that they would visit the building in the imminent

future but for those barriers." Steger v. Franco, Inc.,

, 892 (8th Cir. 2000); see also Dudley v. Hannaford Bros. Co.,

5

(D. Me. 2001); Blake v. Southcoast

Health S v s .,

(D. Mass. 2001).

Markey's argues that a single past incident of

discrimination is insufficient to show a likelihood that the

discrimination will be repeated. Markey's contends that the

record shows that Muehe, who lives in Cambridge, Massachusetts,

and Access 123 and its members, also located in Cambridge, are

not likely to experience discrimination at Markey's restaurant in

Seabrook, New Hampshire. Markey's does not demonstrate or even

argue that any of the ADA violations alleged in the complaint

have been remedied.

The record demonstrates that Muehe visited Markey's

restaurant in Seabrook once, on June 22, 2000, and that he has

not returned. Because of a lack of parking spaces for the

disabled and the lack of an accessible route into the restaurant,

Muehe was not able to enter the restaurant. Muehe stated in

answers to interrogatories that he has visited Seabrook Beach

approximately three times in the past ten years and that he has

visited Merrimac, Massachusetts, where his sister lives, which is

within fifteen miles of Seabrook, numerous times. Although he

has not been to Seabrook in the past year and has no present

plans to return to Seabrook, he has visited Merrimac numerous

times and will continue to visit there. Muehe states in his

6 affidavit that he and his sister go out to eat when he visits,

although they do not make plans more than a week in advance. He

also states that he would return to Markey's if the building were

accessible to him.

Based on the present record, it is undisputed that Muehe is

aware of the barriers in accessing Markey's from the parking

area, which he experienced when he visited on June 22, 2000, and

which had not been remedied by August 9, 2000, when the complaint

was filed. In fact, Markey's does not suggest that it has or

intends to remedy any of the cited barriers at its restaurant.

It is also undisputed that Muehe visits his sister in Merrimac

and frequently goes to restaurants in the New Hampshire seacoast

area near Seabrook where Markey's is located. Muehe states he

would return to Markey's if the barriers were removed.4 The

record, therefore, demonstrates an actual injury for purposes of

Article III standing.

There is no dispute that the injury Muehe claims is

traceable to the barriers existing at Markey's restaurant. The

third element of standing, redressability, requires that the

4The ADA does not require disabled individuals to engage in a futile gesture by trying to access a building where barriers are known to exist and the owner does not intend to comply with ADA provisions. See

(a)(1); see also Steaer, 228 F.3d at 892 .

7 relief the plaintiff seeks will remedy the injury claimed. To

the extent Muehe seeks injunctive relief aimed at his own

disability, he has standing to assert his claim, but he lacks

standing to seek injunctive relief for other ADA violations. See

Steger, 228 F.3d at 893-94. Although Muehe did not enter the

restaurant, and therefore did not experience any of the alleged

barriers existing inside, he is aware of the conditions in the

restaurant and need not experience them to seek relief. See i d .

at 8 94.

Since Muehe is a member of Access 123, his standing

satisfies the first element necessary for Access 123 to have

representational standing.5 There is little evidence that any

other members of Access 123 have been injured or are immediately

threatened with injury due to the noncompliant conditions at

Markey's. None of the other members submitted affidavits. The

record shows that no other members have ever visited Markey's.

Although Muehe stated in answers to interrogatories that no

Access 123 member would enter Markey's until the ADA violations

were fixed but that they would visit the restaurant if the

barriers were remedied, that statement is hearsay.

5The analysis for representational standing is applicable to non-profit corporations, such as Access 123. See, e.g., N .Y . State Club Ass'n, Inc. v. Citv of New York,

(1988) . Access 123 bears the burden of providing a sufficient

factual basis for standing. See United States v. AVX Corp.,

(1st Cir. 1992). Access 123 has not demonstrated

that any member, other than Muehe, would have standing to bring

the same ADA claims against Markey's. Therefore, Access 1 2 3 's

representational standing is based on Muehe's injury alone. See

United Food,

.

Access 123's purpose, stated in its Articles of

Organization, is to advocate to have individuals and entities

fulfill their ADA obligations so that disabled persons will have

access to places of public accommodation. The interests asserted

in the complaint, seeking compliance with ADA access

requirements, are germane to Access 12 3 's purpose. The

injunctive relief sought will not require participation by

individual members.

Access 123 has satisfied Article III standing requirements

to assert its claims on behalf of Muehe. In addition to

constitutional requirements, however, courts consider prudential

limitations on the exercise of jurisdiction, including the

"general prohibition on a litigant's raising another person's

legal rights." Allen v. Wright,

(1984).

Courts also "limit access to the federal courts to those

litigants best suited to assert a particular claim." Gladstone,

9 Realtors v. Village of Bellwood,

(1979) .

In this case. Access 123 is merely repeating the claims

brought by Muehe, himself. Muehe appears to be the better party

to assert his own claims. Therefore, Access 123 lacks standing

to assert claims on Muehe's behalf, and lacks standing to assert

claims on behalf of its other members.

Conclusion

For the foregoing reasons, the defendant's motion for

summary judgment (document no. 20) is granted as to plaintiff

Access 123 but is denied as to plaintiff Muehe. Therefore, Muehe

is the only remaining plaintiff in this case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

August 14, 2001

cc: Stanley W. norkunas, Esquire M. Elaine Beauchesne, Esequire

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