# Fernandez v. Mattress Xperts Broward, Inc.

> District Court, S.D. Florida · September 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10119555

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** September 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10119555. Public record. Not legal advice.