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MOYER v. SHOWBOAT CASINO HOTEL

July 29, 1999

COREY MOYER, PLAINTIFF,
v.
SHOWBOAT CASINO HOTEL, ATLANTIC CITY, DEFENDANT.



The opinion of the court was delivered by: Irenas, District Judge.

OPINION

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 Discrimination ("NJLAD").

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.

BACKGROUND

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 jurisdiction.

STANDARD

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).

Unlike a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), in a motion to dismiss for lack of subject matter jurisdiction, no presumption of truthfulness attaches to the allegations in the complaint. See Mortensen v. First Federal Savings & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Additionally, the court may consider matters outside the pleadings such as affidavits and other material properly before the court. See id. "[T]he existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist." Mortensen, 549 F.2d at 891.

DISCUSSION

A.

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 ...


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