Fernandez v. Mattress Xperts Broward, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-80573-CIV-MARRA

NELSON FERNANDEZ,

Plaintiff,

vs.

MATTRESS XPERTS BROWARD, INC.,

a Florida for-profit corporation,

Defendant.

_____________________________/

ORDER AND OPINION DENYING MOTION TO DISMISS

THIS CAUSE is before the Court upon Defendant’s Motion to Dismiss Amended

Complaint [DE 13]. The Court has carefully considered the motion, response, reply,

and is otherwise fully advised in the premises.

Background1

Plaintiff Nelson Fernandez (“Fernandez”) is a visually impaired, disabled person

who relies on “screen-reading” software to read websites and other online content

through his computer. Amended Complaint, DE 11, ¶¶ 5-6, 9. Defendant Mattress

Xperts Broward, Inc. (“Mattress Xperts”) owns and operates a retail mattress store in

Oakland Park, Florida which is open to the public. DE 11, ¶¶ 7, 10. Mattress Xperts

also owns and operates a website. DE 11, ¶¶ 12, 16. The website provides

information about Mattress Xperts’s physical stores, provides product information,

1 This factual summary is based on the allegations contained in the Amended Complaint (DE 11) and

“in reviewing motions to dismiss we accept as true the facts stated in the complaint and all reasonable

inferences therefrom.” Jackson v. Okaloosa Cnty., 21 F.3d 1531, 1534 (11th Cir. 1994).

and allows users to order and purchase Mattress Xperts’s products. DE 11, ¶¶ 12-14.

The website is not compatible with screen-reading software. DE 11, ¶¶ 21-22.

Fernandez sues Mattress Xperts alleging that its website violates the public

accommodation provisions under Title III of the Americans with Disabilities Act, 42

U.S.C. §§ 12181-12189 (“ADA”) as well as Section 504 of the Rehabilitation Act of

1973, 29 U.S.C. § 794a, et seq. (“Rehab Act”).2 Fernandez seeks declaratory

judgment and injunctive relief. Mattress Xperts moves to dismiss Fernandez's claims

arguing that the Eleventh Circuit’s recent decision in Gil v. Winn-Dixie Stores, Inc.,

993 F.3d 1266 (11th Cir. 2021) (“Gil”) holds that, as a matter of law, the ADA and

Rehab Act do not apply to websites that do not act as an intangible barrier to a

physical store location.

Legal Standard

In ruling on a motion to dismiss, the Court must view the complaint in the light

most favorable to the plaintiff, see, e.g., Jackson v. Okaloosa Cnty., 21 F.3d 1531,

1534 (11th Cir. 1994), and must limit its consideration to the pleadings and any

exhibits attached thereto. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th

Cir. 2000) citing GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993). The

Court will liberally construe the complaint's allegations in the Plaintiff's favor. Brown

v. City of Fort Lauderdale, 923 F.2d 1474, 1475 (11th Cir. 1991). However,

2 The Rehab Act requires all programs or activities operated by federally funded entities be readily

accessible to persons with disabilities. “Discrimination claims under the Rehabilitation Act are

governed by the same standards used in ADA cases, see 29 U.S.C. § 794(d) . . . Cases decided under the

Rehabilitation Act are precedent for cases under the ADA, and vise-versa.” Cash v. Smith, 231 F.3d

1301, 1305 (11th Cir. 2000) (citation omitted). Thus, the ADA claim and the Rehab Act claim are

decided under the same precedent.

“conclusory allegations, unwarranted factual deductions or legal conclusions

masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326

F.3d 1183, 1185 (11th Cir. 2003).

In reviewing a complaint on a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), “courts must be mindful that the Federal Rules require only that

the complaint contain ‘a short and plain statement of the claim showing that the

pleader is entitled to relief.’” United States v. Baxter Int'l, Inc., 345 F.3d 866, 880

(11th Cir. 2003) (citing Fed. R. Civ. P. 8(a)). This is a liberal pleading requirement,

one that does not require a plaintiff to plead with particularity every element of a

cause of action. Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th

Cir. 2001). However, a plaintiff's obligation to provide the grounds for his or her

entitlement to relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do. Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 554–555 (2007). The complaint's factual allegations “must be

enough to raise a right to relief above the speculative level,” id. at 555, and cross

“the line from conceivable to plausible.” Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009).

The Declaratory Judgment Act “confer[s] on federal courts unique and

substantial discretion in deciding whether to declare the rights of litigants.” Wilton

v. Seven Falls Co., 515 U.S. 277, 286 (1995); 28 U.S.C. § 2201. “[I]Injunctive relief . .

. is the only form of relief available to plaintiffs suing under Title III of the ADA.”

Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1329 (11th Cir. 2013) citing 42

U.S.C. § 12188(a) and Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968) .

Discussion

Mattress Xperts moves to dismiss the Complaint under Federal Rule of Civil

Procedure 12(b)(6) for failing to state a claim, asserting that the ADA and Rehab Act

do not apply to its website because not having “screen-reading” software is not, as a

matter of law, an “intangible barrier” to its physical store locations. DE 13 at 2. This

premise is based entirely on the Eleventh Circuit’s recent ruling in Gil v. Winn-Dixie

Stores, Inc., 993 F.3d 1266 (11th Cir. 2021) (“Gil”).

Gil addresses an issue of first impression for this Circuit: whether “public

accommodations” under Title III of the ADA are limited to actual, physical places, or

whether it includes a limited-use website which operates as an “intangible barrier” to

accessing the goods, services, privileges, or advantages of its physical stores. Gil, 993

F.3d at 1266, 1278-80.

Notably, two days after the panel opinion in Gil was issued, the Court entered

an order withholding the mandate. Thus, at this time, the mandate has not issued

from the appellate court, and there is a motion for rehearing pending. In general,

the mandate in any case functions to end the jurisdiction of the appellate court and

to return full jurisdiction of the case to the trial court. See Zaklama v. Mount Sinai

Med. Ctr., 906 F.2d 645, 649 (11th Cir.1990) (“[A] district court ... is without

jurisdiction to rule in a case that is on appeal, despite a decision by this court, until

the mandate has issued.”); U.S. v. Bell, 501 F. App’x 946, 947, (11th Cir. 2012) (“the

first dismissal was entered when the district court lacked jurisdiction because it was

entered before the mandate issued”). Furthermore, until the Eleventh Circuit rules

on the motion for rehearing, the authority of Gil will be questionable. Until those

matters are resolved, this Court cannot definitively rely on Gil.

Moreover, even if Gil becomes the binding law in the Eleventh Circuit, when

reviewing the four corners of the complaint, the Court cannot determine, as a matter

of law, whether the website in this case operates as an “intangible barrier” to

accessing the goods, services, privileges, or advantages of Defendant’s physical

stores. The court in Gil relied heavily on the fact that a prospective customer of

Winn Dixie could not purchase goods through its website, and all goods had to be

purchased at the physical stores. Gil, 993 F.3d at 1279. Here, Plaintiff has alleged

that Defendant does sell goods through its website. [DE 11 at 1.12]. Additionally, the

court in Gil noted that there were no allegations that the absence of the auxiliary

aides prevented Gil from effectively accessing the services of Winn Dixie’s physical

stores. Id. at 1280. Here, Plaintiff has made those allegations. [DE 11 at 4] 50, 55,

66].

Accordingly, it is hereby

ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss Amended

Complaint [DE 13] is denied.

DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,

Florida, this 1%* day of September, 2021.

KENNETH A. MARRA

United States District Judge

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