The opinion of the court was delivered by: Wolfson, United States District Judge
Presently before the Court is a motion filed by Defendant, City of Trenton, New Jersey ("Defendant"), to dismiss all claims of plaintiffs Bonnie Kramer and Disabled Patriots of America, Inc. (collectively "Plaintiffs") pursuant to Fed. R. Civ. P. 12(b)(6) because Plaintiffs lack standing. Plaintiffs filed suit under Title III of the Americans with Disabilities Act, 42 U.S.C. § 22101 ("ADA"), alleging that Defendant's public accommodations fail to comply with ADA standards. The Court has considered the parties' moving, opposition and reply papers. For the reasons that follow, the Court denies Defendant's Motion to Dismiss for failure to state a claim, without prejudice. Plaintiffs shall have 10 days from the date of the Order to file an amended complaint and submit an affidavit, regarding Kramer's individual standing, consistent with this Opinion. Defendant may seek discovery limited to the information set forth in Kramer's affidavit or re-file its motion within 30 days of Plaintiffs filing the foregoing pleadings.
I. Procedural History and Background
Since Defendant moves to dismiss Plaintiffs' claims pursuant to Fed. R. Civ. P. 12(b)(6), the following version of events assumes Plaintiffs' allegations to be true.
Plaintiff Bonnie Kramer ("Kramer") "uses a wheelchair for mobility purposes" and is "disabled" as defined by the ADA. Amended Complaint ("Complaint") ¶ 2. She is an Ohio resident who "is substantially limited in performing one or more major life activities, including but not limited to walking, standing, grabbing, grasping and pinching." Id. Plaintiff Disabled Patriots of America, Inc. ("Disabled Patriots") is a non-profit corporation that seeks to ensure that disabled individuals have full access to and use of places of public accommodation. Id. ¶ 3. The organization represents the interests of its members and other persons with disabilities, including Kramer. Id.
Kramer claims to have a "personal desire to have access to the place[s] of public accommodation free of illegal barriers to access" identified in the Complaint. Id. ¶ 4. She also acts as a "tester" for the "purpose of discovering, encountering, and engaging discrimination against the disabled in public places." Id. As a "tester," Kramer employs a routine practice, where she personally visits the public accommodation and tests the barriers to access to determine whether and to what extent they are illegal. Id. Kramer then proceeds with legal action to enjoin such discrimination and subsequently returns to the tested premises to verify compliance or non-compliance with removal of illegal barriers to access. Id.
Kramer allegedly visited public places in Trenton, New Jersey, as both a visitor and a "tester." Id. Specifically, she visited Cadwalader Park, Ike Williams Recreational Center, North Clinton Community Center, Robert Clemente Pool, Sonny Vereen Memorial Park, Trenton City Hall, Trenton Police Department, and Trenton Public Library, collectively referred to as the "Facility" of which Defendant, City of Trenton, New Jersey, is the owner, lessor, lessee, and/or operator. Id. ¶ 5. Kramer encountered barriers to access at the Facility, she engaged and tested these barriers, and discovered illegal barriers to access at these public accommodations. Id. ¶ 4. Kramer asserts that ramps, access aisles, urinals, mirrors, exposed pipes, "grab-bars in the toilet room stalls" at these locations fail to comply with ADA standards. Id. ¶ 11. "Independent of other subsequent visits," Kramer "intends to visit the premises annually" to monitor ADA compliance and maintenance of the accessibility features. Id. ¶ 4. Plaintiffs seek a permanent injunction to compel Defendant to remove all alleged physical barriers to access and comply with ADA requirements. Id. ¶¶ 2, 13. Plaintiffs also request an award for damages and attorneys fees, costs, and litigation expenses incurred in this action. Id. ¶ 16.
When reviewing a motion to dismiss on the pleadings, courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal citation and quotations omitted). Recently, in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), the Supreme Court clarified the 12(b)(6) standard. Specifically, the Court "retired" the language contained in Conley v. Gibson, 355 U.S. 41 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 127 S.Ct. at 1968 (quoting Conley, 355 U.S. at 45-46). Instead, the factual allegations set forth in a complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965. The Third Circuit has summed up the Supreme Court's Twombly formulation of the pleading standard as: "'stating... a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This'does not impose a probability requirement at the pleading stage,' but instead'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 S.Ct. at 1965).
Title III of the ADA prohibits discrimination against disabled individuals in places of public accommodation. 42 U.S.C. § 12182(a). Discrimination includes "a failure to remove architectural barriers... that are structural in nature, in existing facilities...." 42 U.S.C. § 12182(b)(2)(A)(iv). The ADA provides a private cause of action for injunctive relief to "any person who is being subject to discrimination on the basis of disability." 42 U.S.C. § 12188(a)(1).
Defendant argues that Plaintiffs lack standing to bring an ADA claim. In order to set forth a viable claim in federal court, a plaintiff is required to satisfy both the Article III constitutional minimum of a "case or controversy" and any prudential considerations set by the courts. See Clark v. Burger King Corp., 255 F. Supp. 2d 334, 341 (D.N.J. 2003). To satisfy Article III standing, a plaintiff must demonstrate he/she has (1) suffered an injury in fact that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of, that the injury has to be fairly traceable to the defendant's challenged action; and (3) it must be likely as opposed to merely speculative, that the injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotations omitted).
In addition to the Article III "case or controversy" requirement, prudential limitations stand as judicially imposed limitations on a court's power to hear and decide a case. See Warth v. Seldin, 422 U.S. 490, 498 (1975). In Warth, the Supreme Court elaborated on the prudential standing considerations that must be satisfied in addition to the constitutional minimum. Id. Prudential considerations include a prohibition on a plaintiff's ability to bring a "generalized grievance" that is shared equally with a large class of citizens and that a plaintiff must assert his own legal rights and interests and not rely on the claims of others. Id. at 499-500. Plaintiffs, as the party invoking federal jurisdiction, bear the burden of establishing the elements of standing.*fn1
Standing is "not mere [a] pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff ...