By Lee Dryden
BridgeTower Media Newswires
DETROIT — An Arizona man who sued over allegedly inaccessible restrooms at two Kohl’s locations in Michigan had his case revived by a split U.S. Sixth Circuit of Appeals panel.
In Mosley v. Kohl’s Department Stores, the appeals panel reversed the U.S. District Court for the Eastern District of Michigan at Detroit, which dismissed the case for lack of jurisdiction.
The plaintiff “sufficiently alleged a plausible intent to return” to the stores in Northville and Novi, and established injury-in-fact for purposes of pleading, the appeals panel majority ruled.
Judge Karen Nelson Moore wrote the majority opinion, joined by Judge Richard Allen Griffin. Senior Judge David W. McKeague dissented.
Plaintiff Daimeon Mosley, who uses a wheelchair, is requesting declaratory and injunctive relief to require Kohl’s to make its men’s restroom facilities accessible and Americans with Disabilities Act-compliant.
He sued under Title III of the ADA governing public accommodations — and has filed similar suits throughout the country, according to the opinion.
When visiting the two metro Detroit locations in April 2018, the plaintiff 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,” the opinion stated.
The plaintiff, a musician, has family and friends in the area whom he tries to visit annually in the summer. He also scheduled visits to Flint, Detroit and other areas of southeast Michigan to perform at and attend shows. He stated that he would return to the two stores in question if they were modified to be ADA-compliant.
“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 store,” the opinion stated.
Mosley filed an appeal.
Kohl’s denied the plaintiff “full and equal enjoyment” of the restrooms “due to the barriers and violations,” the opinion stated.
“Taking his allegations as true, as we must at this stage, we find that Mosley has sufficiently alleged a concrete and particularized past injury,” the panel’s majority stated.
The majority also agreed that Mosley has sufficiently alleged a real and immediate threat of future injury.
“Because Mosley states that he would return to the stores if the restrooms were modified, 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,” the opinion stated.
The majority added that it will not “consider his ADA tester status in evaluating the plausibility of his intent to return to the stores because he has not alleged that he will visit the Kohl’s stores as an ADA tester.”
“While the plaintiff must show more than a ‘some day’ intent to return to the accommodation, frequent visits and concrete plans to return to the geographic area support a plausible inference of intent to return to the accommodation,” the opinion stated, adding that plaintiffs are not required to “provide a definitive plan for returning to the accommodation itself to establish a threat of future injury.”
“Taking Mosley’s allegations as true, we can infer a plausible intent to return to the Northville and Novi stores based on his regular travel to the Detroit area, his concrete plans to visit again to see family and perform, and his interest in visiting the Kohl’s stores during his travel,” the opinion stated. “Accordingly, Mosley has established injury-in-fact for purposes of pleading and has standing to proceed with his claims.”
McKeague noted that the district court dismissed Mosley’s suit by finding it implausible that he would return to the stores and suffer any future injury.
“In other words, the district court held Mosley lacked standing — the constitutional lock on all federal courthouse doors,” the dissenting judge wrote. “If the stores’ bathrooms truly aren’t ADA-compliant, Kohl’s needs to fix that. That goes without saying. But the majority, in reversing the district court’s decision, lets too many things go without saying.
“The majority nearly effaces the constitutional mandate of standing for ADA plaintiffs, who can now plead almost nothing about future injury yet still invoke a federal court’s jurisdiction. It’s discount standing. And while 20% off works for Kohl’s, it doesn’t work for the Constitution. I would instead affirm the district court.”
McKeague wrote, “We expect parties to be honest with us, whether it’s argument, briefing, or pleading. When parties hide the ball, it only arouses our suspicions. Mosley’s threadbare complaint should at least raise doubts — doubts about why he would come back to Novi and Northville just to go to Kohl’s.
“Mosley could have cleared up these doubts by levelling with us: he’s apparently an ADA tester, a person with a disability who tests public accommodations for their ADA compliance. According to Kohl’s, Mosley has filed over one hundred eighty ADA lawsuits, most of them in Arizona, but a handful in Colorado and four in Michigan.”
Plaintiff’s counsel George T. Blackmore of Blackmore Law PLC in Southfield said he is satisfied with how the court was “able to understand the posture of this case.”
“Although not a unanimous opinion, it solidifies the intent that the ADA be a broad and remedial statute,” he said.
As a published decision, Blackmore said the case will “certainly be cited for authority in cases where standing is challenged at the pleading stage.”
“It should be extremely influential in cases brought under Title III of the ADA not only in the Sixth Circuit, but across the country where defendants attempt to short-circuit these types of cases on a 12(b)(1) theory,” he said.
Blackmore added, “The ADA is close to 30 years old. It would be prudent for all places of public accommodation to take a proactive approach to achieve maximum accessibility in their businesses.”
Defense counsel Bonnie Keane DelGobbo did not respond to requests for comment.
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