MAHONEY v. WALDAMEER PARK, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN MAHONEY, on behalf of himself and

others similarly situated,

Plaintiff, CIVIL ACTION

NO. 20-3960

v.

WALDAMEER PARK, INC.,

Defendant.

PAPPERT, J. March 30, 2021

MEMORANDUM

John Mahoney is a “blind, visually-impaired handicapped person.” He sued

Waldameer Park individually and on behalf of others similarly situated alleging

Waldameer violated the Americans with Disabilities Act because its website is

incompatible with screen-reading software he and others require to read website

content using their computers. Waldameer moves to dismiss Mahoney’s Amended

Complaint and the Court grants the Motion because Mahoney lacks standing to sue.

I

A

Waldameer Park is a family owned and operated amusement and water park in

Erie, Pennsylvania. See (Am. Compl. ¶¶ 15, 23, ECF 8); (Mot. to Dismiss 7, ECF 10-1).

It owns and operates the website www.waldameer.com. (Am. Compl. ¶¶ 8, 15, 23.)

Mahoney lives in Bucks County, Pennsylvania and he requires screen-reading software

to read webpage content. (Id. at ¶¶ 5, 14, 18, 26). He has tried “at least once in the

past” to use Waldameer’s website, and when he tried, he was “denied the benefit of[]

much of [its] content and services” because the website is not compatible with screen

reader programs. (Id. at ¶ 27).

According to Mahoney, the website contains “information necessary to access and

visit” Waldameer Park, such as the park’s phone number and operating hours,

directions to the park and information about attractions and ticket and season pass

booking. (Id. at ¶ 25.) He claims the website’s access barriers have deterred him from

attempting to use it or visit the park. (Id. at ¶ 29.)

B

On August 13, 2020, Mahoney filed an initial Complaint claiming Waldameer

violated Title III of the ADA, 42 U.S.C. § 12101 et seq., by failing to make its website

available in a manner compatible with screen reader programs. (Compl. ¶¶ 7–8, 51–58

ECF 1.) He sought injunctive and declaratory relief on behalf of himself and others

similarly situated. (Id. at ¶¶ 44, 59–67.) Mahoney did not state in his initial pleading

that he intended to visit Waldameer Park. Rather, he alleged he intended to access

Waldameer’s website in the future, (id. at ¶ 28), and that the website and the goods and

services on it were public accommodations under Title III of the ADA, (id. at ¶ 17).

On October 19, 2020, Waldameer moved to dismiss the initial Complaint,

arguing, inter alia, Mahoney lacked standing because he failed to establish that he

intends to visit the park or that the website’s access barriers have deterred him from

doing so. (First Mot. to Dismiss 13–15, ECF 6-1.) Waldameer asserted that absent

such allegations, Mahoney lacked standing for his ADA claim, in part because the park,

and not its website, is considered in this Circuit to be the public accommodation under

Title III of the ADA. (Id.)

Mahoney then filed an Amended Complaint in which he now alleges the park,

not Waldameer’s website, is the place of public accommodation under Title III. (Am.

Compl. ¶¶ 16, 24, 47.) He also modified his allegations to indicate he intends to visit

Waldameer Park, albeit if and when the website becomes accessible to him. Mahoney

initially claimed he “attempted to use Defendant’s Website at least once in the past.”

(Compl. ¶ 26). He now says he “attempted to use Defendant’s Website at least once in

the past in order to access the Information and services presented thereon in order to

access and visit the Physical Location.” (Am. Compl. ¶ 27) (emphasis added).

Previously, Mahoney stated he “would like to, and intends to, attempt to access

Waldameer Park, Inc.’s Website in the future to research the services the Website

offers, or to test the Website for compliance with the ADA.” (Compl. ¶ 28.) His

Amended Complaint claims he “would like to, and intends to, access the Website to

gather the Information and access the content and services presented thereon in order to

visit the Physical Location as soon as the Website is made accessible to the visually

impaired, or to test the Website for compliance with the ADA.” (Am. Compl. ¶¶ 29–30

(emphasis added).)

Waldameer argues Mahoney still lacks standing notwithstanding his new

allegations and, even if he has standing, he fails to state a claim upon which relief can

be granted. See generally (Second Mot. to Dismiss, ECF 10-1).

II

Article III of the United States Constitution limits the exercise of judicial power

to cases and controversies. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013);

see also Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006) (“Absent

Article III standing, a federal court does not have subject matter jurisdiction to address

a plaintiff’s claims, and they must be dismissed.”). The case-or-controversy

requirement demands that plaintiffs “establish that they have standing to sue.”

Clapper, 568 U.S. at 408 (citing Raines v. Byrd, 521 U.S. 811, 818 (1997)).

Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for lack of

standing because “[s]tanding is a jurisdictional matter.” Davis v. Wells Fargo, 824 F.3d

333, 346 (3d Cir. 2016). Generally, Rule 12(b)(1) motions fall into two categories: facial

attacks and factual attacks. Id. “[A] facial attack ‘contests the sufficiency of the

pleadings,’ . . . ‘whereas a factual attack concerns the actual failure of a [plaintiff’s]

claims to comport [factually] with jurisdictional prerequisites.” Const. Party of Pa. v.

Aichele, 757 F.3d 347, 358 (3d Cir. 2014) (quoting In re Schering Plough Corp. Intron,

678 F.3d 235, 243 (3d Cir. 2012); CNA v. United States, 535 F.3d 132, 139 (3d Cir.

2008)). In evaluating a facial attack, a court must “apply the same standard of review

it would use in considering a motion to dismiss under Rule 12(b)(6),” Aichele, 757 F.3d

at 358, and consider “only . . . the allegations of the complaint and documents

referenced therein and attached thereto, in the light most favorable to the plaintiff,” In

re Schering Plough Corp., 678 F.3d at 243 (quoting Gould Elecs. Inc. v. United States,

220 F.3d 169, 176 (3d Cir. 2000)). In evaluating a factual attack, a court “may weigh

and ‘consider evidence outside the pleadings.’” Aichele, 757 F.3d at 358 (quoting Gould

Elecs. Inc., 220 F.3d at 176).

To demonstrate Article III standing, a plaintiff must establish: (1) he suffered

injury-in-fact; (2) the injury is fairly traceable to the challenged action of the defendant;

and (3) it is likely, as opposed to speculative, that the injury will be redressed by a

favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To

establish injury-in-fact, a plaintiff must allege facts showing “an injury that is concrete,

particularized, and imminent rather than conjectural or hypothetical.” Trump v. New

York, 141 S. Ct. 530, 535 (2020) (quoting Carney v. Adams, 141 S. Ct. 493, 499 (2020));

see also Bognet v. Sec’y Commw. of Pa., 980 F.3d 336, 348 (3d Cir. 2020) (explaining a

plaintiff “must be injured . . . in a way that concretely impacts [his] own protected legal

interests”). “[A]n allegation of future injury may suffice if the threatened injury is

certainly impending, or there is a substantial risk that the harm will occur.” Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (internal quotations and citation

omitted). But “[a]llegations of ‘possible’ future injury simply aren’t enough.” Bognet

980 F.3d at 348.

III

A

The Parties dispute only whether Mahoney has established the first element of

standing, injury in fact. See (Second Mot. to Dismiss 8–14); (Resp. to Second Mot. to

Dismiss 11–15, ECF 13); (Reply 4–6, ECF 14). As an initial matter, Waldameer argues

the Court cannot look to the Amended Complaint to determine injury in fact because

subject matter jurisdiction must be determined at the time the case was initiated. See

(Second Mot. to Dismiss 7–8). It contends, as it did in its first Motion to Dismiss,

Mahoney lacked standing when he filed the initial Complaint because he did not allege

his intent to visit the park. See (id. at 8–9). Courts have found plaintiffs lacked

standing to bring claims under Title III of the ADA where they failed to allege a real

and immediate threat of future injury with respect to a physical location. (Id. (citing

Walker v. Sam’s Oyster House, LLC, No. 18-193, 2018 WL 4466076, at *3 (E.D. Pa.

Sept. 18, 2018); Hollinger v. Reading Health System, No. 15-5249, 2017 WL 429804, at

*11 (E.D. Pa. Jan. 31, 2017).)

Waldameer believes Mahoney cannot “attempt[] to cure his lack of standing with

vague and speculative allegations regarding a newfound intent to visit Waldameer’s

physical location” in the Amended Complaint because these allegations seek to present

a new basis for the Court’s subject matter jurisdiction rather than correct a defective

allegation or mistake. See (id. at 9–10). The new allegations thus purportedly violate

the “time of filing rule,” which provides that “the jurisdiction of the court depends upon

the state of things at the time of the action brought,” In re Lipitor Antitrust Litig., 855

F.3d 126, 150 (3d Cir. 2017) (quoting Grupo Dataflux v. Atlas Global Grp., L.P., 541

U.S. 567, 570 (2004)), because they change the underlying facts “in an effort to create

jurisdiction.” See (Second Mot. to Dismiss 11–12).

Mahoney claims his Amended Complaint does not attempt to change the “state

of things,” but rather “further specif[ies] which services Plaintiff intended on accessing

on the Website at the time of filing and how exactly Plaintiff was harmed by his

inability to access such services, thereby curing an alleged subject matter jurisdiction

pleading deficiency.” (Resp. to Second Mot. to Dismiss 8–9.) He claims he timely

amended his Complaint as of right pursuant to Federal Rule of Civil Procedure

15(a)(1)(A)-(B), which “function[s] . . . to enable a party to assert matters that were

overlooked or were unknown at the time the party interposed the original complaint.”

(Resp. to Second Mot. to Dismiss 5); see also Garrett v. Wexford Health, 938 F.3d 69, 82

(3d Cir. 2019) (citation omitted).

Rule 15(a) allows Mahoney to attempt to cure subject matter jurisdiction defects

by amending his complaint. And because the Amended Complaint’s new allegations do

not change the case’s underlying facts or represent a “state of things” that could not

have existed at the time the initial Complaint was filed, the time of filing rule is not

implicated. See Rockwell, 549 U.S. at 473 (“The state of things and originally alleged

state of things are not synonymous.”). The Supreme Court instructs that “when a

plaintiff files a complaint in federal court and then voluntarily amends the complaint,

courts look to the amended complaint to determine jurisdiction.” Rockwell Int’l Corp. v.

United States, 549 U.S. 457, 473–74 (2007); see also In re Cmty. Bank of N. Va. & Guar.

Nat’l Bank of Tallahassee Second Mortg. Loan Litig., 418 F.3d 277, 298 (3d Cir. 2005)

(“[T]he District Court properly acquired subject matter jurisdiction by virtue of the

amended complaint.”). Mahoney’s standing is dependent on the sufficiency of the

allegations in the Amended Complaint.

B

Waldameer’s Motion is a facial attack on Mahoney’s standing to sue as it

precedes any answer or other presentation of competing facts. See Aichele, 757 F.3d at

358. Accordingly, the Court must construe the facts alleged in the Amended Complaint

in the light most favorable to Mahoney. See id. The Amended Complaint must

“clearly . . . allege facts demonstrating each element” of standing to survive the Motion.

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (internal quotations and citation

omitted).

Under Title III of the ADA, “[b]esides attorney’s fees, the only remedy available

to a private litigant is injunctive relief.” Brown v. Mt. Fuji Japanese Rest., 615 F. App’x

757, 757 (3d Cir. 2015) (citing 42 U.S.C. § 12188(a)). “To establish Article III standing

to seek an injunction, a plaintiff must demonstrate a ‘real or immediate threat that the

plaintiff will be wronged again—a likelihood of substantial and immediate irreparable

injury.’” Id. (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)); see also

Pryor v. NCAA, 288 F.3d 548, 561 (3d Cir. 2002) (“In cases where a plaintiff seeks

injunctive or declaratory relief only . . . standing will not lie if adjudication . . . rests

upon contingent future events that may not occur as anticipated or indeed may not

occur at all.’”) (internal quotations and citation omitted). “Past illegal conduct is

insufficient to warrant injunctive relief unless it is accompanied by ‘continuing, present

adverse effects.” Doe v. Nat’l Bd. of Med. Examiners, 210 F. App’x 157, 160 (3d Cir.

2006) (quoting Lyons, 461 U.S. at 102)). Additionally, “[a] plaintiff’s ‘some day’

intentions to return to the source of the illegal conduct, without any description of

concrete plans, does not support a finding of ‘actual or imminent’ injury.” Louisiana

Counseling and Family Services Inc. v. Mt. Fuji Japanese Rest., No. 08-6143, 2014 WL

941353, at *7 (D.N.J. Mar. 11, 2014), aff’d sub nom. Brown v. Mt. Fuji Japanese Rest.,

615 F. App’x 757 (3d Cir. 2015) (citing Lujan, 504 U.S. at 564).

While the Third Circuit Court of Appeals “has not directly addressed the

contours of the injury in fact requirement in ADA cases. . . . district courts within this

Circuit have used two methods to determine whether a plaintiff has suffered an injury

in fact: (1) the intent to return method or (2) the deterrent effect method.” Walker, 2018

WL 4466067, at *3 (internal quotations and citation omitted).

i

There are two formulations of the intent to return method. One examines “(1)

the proximity of the defendant’s business to plaintiff’s residence; (2) plaintiff’s past

patronage of defendant’s business; (3) the definitiveness of plaintiff’s plans to return;

and (4) plaintiff’s frequency of travel near the defendant’s business.” Brown, 615 F.

App’x at 758; see also Harty v. Burlington Coat Factory of Pennsylvania, LLC, No. 11-

01923, 2011 WL 2415169, at *4 (E.D. Pa. June 16, 2011); Reviello v. Phila. Fed. Credit

Union, No. 12-508, 2012 WL 2196320, at *4 (E.D. Pa. June 14, 2012). The other tests

whether a plaintiff has established (1) the defendant engaged in past discriminatory

conduct violating the ADA; (2) support for a reasonable inference the discriminatory

conduct will continue; and (3) support for a reasonable inference that “based on past

patronage, proximity of the public accommodation to the plaintiff’s home, business, or

personal connections to the area” he intends to return to the public accommodation in

the future. See Hollinger, 2017 WL 429804, at *4; Garner v. VIST Bank, No. 12-5258,

2013 WL 6731903, at *5 (E.D. Pa. Dec. 20, 2013); Walker, 2018 WL 4466067 at *3.

“[T]he gist of the [intent to return] test under both formulations is the same. Both tests

require consideration of a plaintiff’s intent to return to the place of accommodation, as

well as his proximity and patronage to the place of accommodation.” Hollinger, 2017

WL 429804, at *4 n.3.

Mahoney now contends that Waldameer Park, not its website, is the relevant

public accommodation. See, e.g. (Am. Compl. ¶¶ 16, 24, 47). This aligns with Third

Circuit precedent limiting “public accommodations” to physical places. See, e.g., Ford v.

Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir. 1998). It is also consistent with

opinions in this District, including from other cases brought by Mahoney, finding

websites are not by themselves public accommodations under the ADA. See, e.g.,

Mahoney v. Herr Foods, Inc., No. 19-5759, 2020 WL1979153, at *3 (E.D. Pa. Apr. 24,

2020); Mahoney v. Bittrex, Inc., No. 19-3836, 2020 WL 212010, at *2 (E.D. Pa. Jan. 14,

2020); Walker, 2018 WL 4466076, at *2; Tawam v. APCI Fed. Credit Union, No. 18-122,

2018 WL 3723367, at *6 (E.D. Pa. Aug. 6, 2018).1 Mahoney’s alleged intent to return to

Waldameer Park is therefore pertinent to the Court’s injury in fact analysis. See

Walker, 2018 WL 4466076, at *3 (plaintiff’s alleged intent to browse defendant

restaurant’s website insufficient to establish standing because “the ‘place of public

accommodation’ is defendant’s restaurant, not the Website.”) (internal quotations and

citation omitted).

1

Mahoney’s Amended Complaint flunks parts one, two and four of the four-part

intent to return test. His failure to allege that he has previously been to Waldameer

Park “weigh[s] heavily in favor of finding no immediate threat of future harm.”

Hollinger, 2017 WL 429804, at *5; cf. Anderson v. Macy’s Inc., 943 F. Supp. 2d 531, 540

(W.D. Pa. 2013) (“When a plaintiff visits a public accommodation only once, the lack of

a history of past patronage seems to negate the possibility of future injury at [that]

1 The Western District of Pennsylvania has declined to apply the Third Circuit Court of

Appeals’ decision in Ford, and found websites to be places of public accommodation under the ADA,

in cases where a defendant owns and operates its website. See Gniewkowski v. Lettuce Entertain

You Enterprises, Inc., 251 F. Supp. 3d 908, 917–18 (W.D. Pa. 2017); West v. DocuSign, Inc., No. 19-

501, 2019 WL 3843054, at *4 (W.D. Pa. Aug. 15, 2019); Suchenko v. ECCO USA, Inc., No. 18-0562,

2018 WL 3933514, at *3 (W.D. Pa. Aug. 16, 2018). Our Court, however, has found the language in

Ford, as well as the Third Circuit’s non-precedential opinion in Peoples v. Discover Fin. Servs., Inc.,

387 F. App’x 179, 183 (3d Cir. 2010), “unmistakabl[y] . . . compels the conclusion that Defendant’s

website, on its own, is not a public accommodation under the ADA.” Herr Foods, 2020 WL1979153,

at *3.

particular location.”) (internal quotations and citation omitted). He also does not allege

any history or frequency of travel to Erie or any familial, business or other personal

connections to the area. See Walker, 2018 WL 4466076, at *3 (facts alleged did not

“permit an inference that plaintiff intends to return” where plaintiff lived over 100

miles from public accommodation in Philadelphia and “[p]laintiff has not averred past

patronage of defendant’s restaurant or any other restaurant in Philadelphia, nor has he

stated in the Amended Complaint any personal connection to the Philadelphia area.”).

Mahoney lives in Bucks County and Waldameer Park is in Erie, which is over 350 miles

from his home.2 See Harty, 2011 WL 2415169, at *7 (“[C]ourts have consistently

maintained that a distance over 100 miles weighs against finding a reasonable

likelihood of future harm.”) (quoting Disabled Patriots of America, Inc. v. City of

Trenton, No. 07-CV-3165, 2008 WL 4416459, at *4 (D.N.J. Sept. 24, 2008)); see also

Macy’s, 943 F. Supp. 2d at 539 (“as the distance between a plaintiff’s residence and a

public accommodation increases, the potential for the occurrence of future harms

decreases”) (citation omitted).

Mahoney’s best shot at establishing standing is the Amended Complaint’s

allegation that he “would like to, and intends to, access the Website to gather the

Information and access the content and services presented thereon in order to visit the

Physical Location as soon as the Website is made accessible to the visually impaired.”

(Am. Compl. ¶¶ 29–30.) But his alleged intent to visit the park lacks the requisite

definitiveness. A vague, brief, unsupported assertion of intent to visit a public

2 See, e.g., Driving Directions from Bucks County, PA to 1 Waldameer Park Road, Erie, PA,

GOOGLE MAPS, http://maps.google.com (follow “Directions” hyperlink; then search starting point field

for “Bucks County, PA” and search destination field for “1 Waldameer Park Road, Erie, PA”).

accommodation once access barriers are removed is still akin to a “some day” plan. See,

e.g., Brown, 615 F. App’x at 758 (“Brown argues generally that she would like to return

once the barriers are removed. We find this argument tantamount to saying she plans

to return ‘some day’—an argument the Supreme Court has found insufficient to support

standing.”); Dempsey v. Pistol Pete’s Beef N Beer, LLC, No. 08-5454, 2009 WL 3584597,

at *5 (D.N.J. Oct. 26, 2009) (“To be sure, Plaintiff alleges that he ‘desires’ to return once

the architectural barriers are removed, but mere desire is insufficient to show a real

and immediate threat of a concrete and particularized injury.”). Mahoney does not

allege any concrete plans to actually visit the park or be in or near Erie. See Dempsey,

2009 WL 3584597, at *4 (“[I]ntentions to return to the source of the illegal conduct

‘‘some day’ . . . —without any description of concrete plans, or indeed even any

specification of when the some day will be—do not support a finding of the’ requisite

actual or imminent injury.”) (quoting Lujan, 504 U.S. at 564); cf. Harty, 2011 WL

2415169, at *8 (definitiveness of plan demonstrated where plaintiff alleged he traveled

to city of public accommodation for business and “that he will be in the nearby vicinity

in September for professional reasons, that he would like to revisit the Property in

September, and that he will revisit the Property in September if it has been made ADA

compliant”). Mahoney’s lack of any alleged ties to the Erie area further cuts against the

definitiveness of his purported plans. See, e.g., Harty, 2011 WL 2415169, at *8

(“Whether a plaintiff has familial ties or business connections to the area where the

accommodation is situated provides insight into whether the plaintiff actually intends

to return.”).

2

For the same reasons, Mahoney has not satisfied the third part of the three-part

intent to return test.3 Mahoney’s nebulous allegation that he will, contingent on the

website becoming accessible, eventually visit the park fails on its own to demonstrate

actual intent to return in the future or risk of imminent injury. And the absence of any

allegations showing past patronage of the park, proximity of the park to his home or

business or any personal connections to Erie do not support a reasonable inference that

he actually intends to go to the park at some point in the future.

ii

Under the deterrent effect analysis, “a plaintiff is considered to have suffered an

actual injury when he or she is deterred from patronizing a public accommodation

because of accessibility barriers.” Anderson v. Franklin Inst., 185 F. Supp. 3d 628, 640

(E.D. Pa. 2016) (quoting Garner, 2013 WL 6731903, at *6). The deterrent effect test

requires a plaintiff to establish (1) actual knowledge of barriers preventing equal access

and (2) a reasonable likelihood he would use the facility but-for the barriers. See

Garner, 2013 WL 6731903, at *6; Walker, 2018 WL 4466067 at *4. “Even under the

deterrent effect test, a plaintiff must still show that he or she has an intent to return to

the place of alleged discrimination.” Hollinger, 2017 WL 429804, at *4.4

3 The Court need not address the first and second parts of this test because Mahoney must

satisfy all three to establish standing under the intent to return method.

4 The Third Circuit Court of Appeals has addressed a standing analysis for claims under Title

III of the ADA only once and in a non-precedential opinion. See Brown v. Mt. Fuji Japanese Rest.,

615 F. App’x 757 (3d Cir. 2015). There, the court addressed only the intent to return test. While it

remains unclear whether the Third Circuit recognizes the deterrent effect test, the intent to return

test or both, see Hollinger, 2017 WL 429804, at *4 n.2, district courts in this Circuit have analyzed

standing applying both.

Mahoney cannot establish standing under the deterrent effect test because his

alleged intent to visit the park does not demonstrate a reasonable likelihood he would

use it but for any accessibility barriers. Moreover, while he has alleged actual

knowledge of access barriers on the website, he has not alleged actual knowledge of

barriers preventing equal access to Waldameer Park itself. See, e.g., Franklin Inst., 185

F. Supp. at 640–41 (deterrent effect test met where plaintiff experienced actual barrier

at facility he supported and visited for years during a visit); Garner, 2013 WL 6731903,

at *7 (plaintiff had actual knowledge ATM was inaccessible based on his attempt to use

it and alleged the ATM “is conveniently located in an area where he frequently travels

and he wants to use accessible ATMs that are convenient”); Heinzl v. Starbucks Corp.,

No. 14-1316, 2015 WL 1021125, at *8 (W.D. Pa. Mar. 9, 2015) (plaintiff who

“encountered architectural barriers at the Subject Locations, which are closest to her

home and/or which she has visited frequently, and she has expressed an intent to

return even though the barriers remain” had standing to sue); cf. Clark v. McDonald’s

Corp., 213 F.R.D. 198, 230 (D.N.J. 2003) (to the extent a plaintiff has standing to assert

Title III claims as to a location he has never visited, he must have “‘actual notice’ of an

ADA violation existing at the location he has not yet visited”) (emphasis added).

Mahoney does not state how any website access barriers prevent him from accessing or

enjoying the park the same way as someone who can currently read the website. Nor

does he allege there exists any good, service or information on Waldameer’s website he

cannot access at the park. Indeed, no one can enjoy an amusement park’s goods and

services without physically going to the park. Mahoney does not allege facts suggesting

Waldameer Park’s website provides access to goods and services that can be enjoyed

entirely online—without ever setting foot in the park. Moreover, Waldameer Park has

only one physical location, the address for which Mahoney alleged in his Amended

Complaint. See (Am. Compl. ¶ 15).

C

Waldameer refers to Mahoney as an ADA “tester,” (Mot. to Dismiss 3), but

Mahoney, notwithstanding a passing reference to a desire to “test” Waldameer’s

website in the future, see (Am. Compl. ¶ 29), does not claim to be one, see generally

(Resp. to Second Mot. to Dismiss). To the contrary, he asserts numerous times he has

been personally affected by the purported access barrier’s on Waldameer’s website and

no one suggests Mahoney has standing because he is a tester. The Court will

nonetheless address “tester standing” in the event the Amended Complaint can be

liberally construed to raise the issue.5

An ADA tester “personally visits the public accommodation and tests the

barriers to access to determine whether and to what extent they are illegal, takes legal

action to enjoin defendants and then returns to the location to ensure compliance with

the injunction.” Reviello, 2012 WL 2196320, at *4 n.5 (internal quotations and citation

omitted). The Third Circuit Court of Appeals has not yet addressed whether a plaintiff

can establish standing under Title III of the ADA merely because he intends to test a

public accommodation in the future. See, e.g., Macy’s, 943 F. Supp. 2d at 541 n.12;

5 Some courts in this Circuit have declined to evaluate whether a plaintiff who alleges

personal motivations for visiting a public accommodation has tester standing. See, e.g., Clark, 213

F.R.D. at 227–28 (tester standing not determined where “there is no basis in the amended complaint

to assume that [plaintiff’s] sole motivation in visiting any McDonald’s restaurant, was to test the

Defendants’ ADA compliance.”); Garner, 2013 WL 6731903, at *7 (tester standing not determined

where “[a]t most, we could find that Garner visited the Subject ATM with mixed motives of

attempting to avail himself to the services provided by the ATM machine and verifying ADA

compliance.”).

Harty, 2011 WL 2415169, at *8 n.11. Courts in the Western District of Pennsylvania

have, however, conferred standing to pursue claims under Title III of the ADA on

“testers.” See, e.g., Mortland v. Omni Pittsburgh Corp., No. 18-1067, 2021 WL 101560,

at *2 (W.D. Pa. Jan. 12, 2021); see also Murphy v. Bob Cochran Motors, Inc., No. 1:19-

cv-00239, 2020 WL 6731130, at *7 (W.D. Pa. Aug. 4, 2020), report and recommendation

adopted, No. 1:19-cv-239-SPB, 2020 WL 5757200 (W.D. Pa. Sept. 28, 2020) (“[G]iven the

remedial purpose of Title III and the role assigned by Congress to private enforcement

of its provisions, the benefit of the doubt as to standing should be accorded even to the

‘tester’ plaintiff.”) (quoting Heinzl v. Cracker Barrel Old Country Stores, Inc., No. 14-

1455, 2016 WL 2347367, at *21 (W.D. Pa. Jan. 27, 2016)).

In any event, based on his allegations, Mahoney is no tester. He has not tested

or alleged any intent to test Waldameer’s place of public accommodation, the park. He

only claims he intends to test Waldameer’s website for ADA compliance. Again, the

website by itself is not a public accommodation.

IV

A district court may properly deny leave to amend where a party has repeatedly

failed to cure deficiencies in his complaint. See Forman v. Davis, 371 U.S. 178, 182

(1962). Leave to amend may also be denied where further amendment would be futile.

See id. “‘Futility’ means that the complaint, as amended, would fail to state a claim

upon which relief could be granted.” In re Burlington Coat Factory Sec. Litig., 114 F.3d

1410, 1434 (3d Cir. 1997) (citation omitted). A district court applies “the same standard

of legal sufficiency that applies under Rule 12(b)(6)” to assess futility. Id.

Mahoney has already amended his Complaint. When he did so, he failed to cure

his initial pleading’s jurisdictional deficiencies, and he cannot do so in a Second

Amended Complaint. Mahoney cannot at this point change the facts that he has never

visited Waldameer Park, lives nowhere near it and has no familial, business or personal

connection to Erie. Nor, according to Mahoney, is he capable of alleging any greater

specifics regarding when, why or how he plans to visit the park.6 Further attempts at

amendment would be futile.

An appropriate Order follows.

BY THE COURT:

/s/ Gerald J. Pappert

GERALD J. PAPPERT, J.

6 Mahoney says that to allege anything other than what he has “would be improper” because

“[u]ntil such [a]ccess [b]arriers are removed . . . Plaintiff cannot reasonably intend to visit

Defendant’s Physical Location.” (Resp. to Second Mot. to Dismiss 14.) He adds “[a]ny specific

allegations as to ‘when, why or how [Plaintiff] would visit [Defendant’s] physical location[]’ . . . would

be futile, as Plaintiff is unaware of if and when Defendant will make its Website accessible.” (Id.)

To be sure, the Court does not credit these assertions as correct justifications for Mahoney’s deficient

pleading. A plaintiff truly facing an imminent injury in fact would be able to plead more regarding

his intent and plan to visit a public accommodation, even if only in the form of demonstrating some

connection to the area in which the accommodation is located. His assertions, however, show

Mahoney has nothing else to say, and can provide no more concrete detail, with respect to his intent

to visit Waldameer Park.