United States District Court, D. Arizona
H. Russel Holland, United States District Judge.
Motion to Dismiss
Defendant has filed a combined motion to dismiss for lack of jurisdiction, for failure to state a claim, and for a more definite statement. Fed.R.Civ.P. 12(b)(1), 12(b)(6), and 12(e). The motion is opposed. Oral argument has not been requested and is not deemed necessary.
Plaintiff’s verified complaint is founded upon Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and Arizona Revised Statutes, Title 41, Chapter 9, Article 8, §§ 41-1492, et seq. Plaintiff alleges that she is disabled because she is confined to a wheelchair. She alleges that defendant operates a public accommodation that is not fully accessible to disabled persons.
Pertinent to the pending motion to dismiss, plaintiff further alleges the following.
(1) Plaintiff contacted defendant's hotel on June 18, 2015, for purposes of booking a room, inquired whether defendant's pool had a lift or other means of access for disabled persons, and was told that the hotel pool did not have such a lift. Plaintiff further alleges that an independent investigation verified the lack of a pool lift.
(2) Plaintiff alleges that based upon "personal knowledge of at least one barrier related to her disability, that is, the pool is inaccessible to her by virtue of her confinement to a wheel chair, [she] is currently deterred from visiting Defendant's accommodation by this accessibility barrier. Plaintiff alleges that "she has suffered an injury-in-fact" by reason of the foregoing.
(3) Plaintiff alleges that she "intends to travel to the Phoenix area in the future for pleasure trips and to visit medical professionals and stay at hotels in the Phoenix area."
(4) Plaintiff alleges that "[t]he existence of barriers to use the pool at Defendant's hotel deterred Plaintiff from staying or returning to seek accommodations at Defendant's hotel."
(5) Plaintiff alleges that she is “injured by Defendant’s discriminatory practices and failure to remove architectural barriers.” The injury is alleged to “include being deterred from using Defendant’s facilities due to the inaccessibility of Defendant’s pool[.]”
By way of introduction to its motion to dismiss, defendant points out that plaintiff has filed multiple, “generic” lawsuits. Defendant alleges that plaintiff is “targeting” “mom-and-pop” businesses that cannot afford to defend claims such as that brought here.
Plaintiff is the potential victim here, not the defendant. The fact that plaintiff has filed multiple suits (in excess of 50 at last count) is not relevant to the instant motion. “For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be ...