The opinion of the court was delivered by: Irenas, District Judge.
Defendant Atlantic City Showboat, Inc., doing business as
Showboat Casino Hotel, ("Showboat" or "defendant") owns and
operates a casino at 801 Boardwalk Ave., Atlantic City, New
Jersey. The plaintiff, Corey Moyer ("Moyer" or "plaintiff") is
confined to a wheelchair as a result of a disability. On
October 23, 1998, Moyer filed a complaint against Showboat
alleging that Showboat's failure to provide wheelchair access
to certain games of chance violates the Americans with
Disabilities Act ("ADA") and the New Jersey Law Against
On July 8, 1999, pursuant to Federal Rule of Civil Procedure
12(b)(1), Showboat filed the instant motion to dismiss for lack
of subject matter jurisdiction. Showboat argues that Title III
of the ADA requires a party to exhaust their administrative
remedies as a prerequisite to filing a civil suit, and,
therefore, the plaintiffs ADA claim should be dismissed for
failure to exhaust administrative remedies. Defendant argues
that absent jurisdiction over the plaintiff's federal cause of
action, the remaining state law claim should also be dismissed.
Because this Court finds that the plain meaning of Title III
does not require administrative exhaustion, defendant's motion
to dismiss is denied.
On September 23, 1998, the plaintiff entered the Showboat
Casino in order to participate in blackjack gambling and other
games of chance. Because of plaintiff's confinement to a
wheelchair, as a result of a disability, the plaintiff was
unable to participate in certain games of chance. The plaintiff
claims that the situation was exacerbated when Showboat closed
the blackjack table at which he was wagering since it was the
only handicapped accessible blackjack table.*fn1 After the
table was closed, the plaintiff was unable to continue
gambling. The plaintiff also argues that the Showboat's
building is not in compliance with federal regulations under
Title III of the ADA.
The defendant does not admit or deny the plaintiffs
allegations. Rather, on July 8, 1999, the defendant moved this
Court to dismiss the complaint for lack of subject matter
A district court may grant a motion to dismiss for lack of
subject matter jurisdiction based on the plaintiffs failure to
exhaust a required administrative remedy only if it undisputed
that there has been no attempt to exhaust the administrative
remedy. See Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir.
1997) ("A district court may rule on a Rule 12(b)(1) motion
when on the face of the pleadings it is clear that
administrative remedies have not been exhausted, but this rule
is `inapplicable to the resolution of disputed issues of
material fact with respect to the applicability of statutes of
limitations'") (citations omitted).
Title III of the ADA prohibits places of public accommodation
from discriminating against individuals on the basis of their
disability. This includes discrimination which obstructs a
disabled person from sharing the "full and equal enjoyment" of
the services and facilities offered at the public place.
42 U.S.C. § 12182(a).
A violation under Title III can be based on the "failure to
make reasonable modifications in policies, practices, or
procedures, when such procedures are necessary to afford such
goods, services, facilities, privileges, advantages, or
accommodations to individuals with disabilities. . . ."
42 U.S.C. § 12182(b)(2)(A)(ii). Moreover, if removal of an
architectural or structural barrier is not readily achievable,
the statute defines discrimination to include the failure to
"make such goods, services, facilities, privileges, advantages,
accommodations available through alternative methods if such
methods are readily achievable." 42 U.S.C. § 12182(b)(2)(A)(v).
The defendant's instant motion to dismiss rests on the claim
that Title III of the ADA requires exhaustion of administrative
remedies before a plaintiff may file a civil suit. The
Plaintiff contends that Title III of the ADA does not require
administrative exhaustion. This dispute stems from ...