Opinion

Mortland v. Montage Mountain Hospitality, LLC

Court: District Court, M.D. Pennsylvania
Filed: Jul 21, 2025
Cited by: 0 cases
Authority: More cited than 38.1%

“[a]s the defendants had not answered and the parties had not engaged in discovery, the first motion to dismiss was [a] facial [attack].”

How later courts described this case

“[a]s the defendants had not answered and the parties had not engaged in discovery, the first motion to dismiss was [a] facial [attack].”
rejecting arguments relying on Mortensen that Jurisdictional allegations in a complaint cannot be disputed until after an answer is served
indicating that 42 U.S.C. § 2000a-3(a) does not authorize monetary damages

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DEREK MORTLAND, : No. 3:24cv1290

Plaintiff :

: (Judge Munley)

V. :

DND SCRANTON HOSPITALITY, LLC : FILED

and DND SCRANTON REAL : SCRANTON

ESTATE, LLC, :

Defendants JUL 21 2025

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DEPUTY CLERK

MEMORANDUM

Plaintiff Derek Mortland alleges that the Comfort Suites in Scranton, □

Pennsylvania violated Title II! of the Americans with Disabilities Act (“ADA”), 42

U.S.C. §§ 12181-12189, because architectural barriers at the hotel denied him

full and equal access to the property, a place of public accommodation. Mortland

seeks injunctive relief in this action against the current operators of the hotel,

Defendants DND Scranton Hospitality, LLC (“DND Hospitality”) and DND

Scranton Real Estate, LLC (“DND Real Estate”). According to Mortland’s

amended complaint, there has been a change of ownership of the hotel since the

time of his stay at the property.

In response to being named as defendants in Mortland’s amended

complaint, DND Hospitality and DND Real Estate filed motions to dismiss

pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7).

These motions are ripe for disposition.

Background

Mortland alleges that he travels to New England multiple times per year for

business and leisure and stays at hotels along the way. (See Doc. 14, Am.

Compl. J 26). The plaintiff is paralyzed as a result of an earlier accident and

requires the use of a wheelchair for mobility. Id. J 13.

In February 2023, perhaps on one of his trips to New England, Mortland

stayed at the Comfort Suites, which is located near Interstate 81. See id. Jf 6,

15, 26. Mortland alleges that he encountered access barriers at the hotel in,

among other areas of the property: the parking lot, the front desk area, and a

guest room. Id. Jf] 16-17. Plaintiff alleges that his inability to fully and equally

access the property caused him physical injury, embarrassment, and

humiliation.’ Id. | 2. Mortland seeks injunctive relief to remedy these violations

of the ADA. Id., Prayer for Relief, {{] 1-3. Plaintiff also seeks attorneys’ fees if

he prevails. Id.

1 Mortland’s pleading also indicates that he “will return to the Comfort Suites hotel to obtain

lodging (1) due to the hotel’s proximity to the highway..., (2) if the business [is] made fully

accessible to a disabled person in a wheelchair, and (3) to avail himself of the business’

services.” (Doc. 14. J 26). Per the amended complaint, Mortland intends to return to the

Comfort Suites in 2025 to ascertain whether the access barriers were removed. ld.

Mortland initiated this action on July 31, 2024, against Montage Mountain

Hospitality, LLC (“MMH”). (Doc. 1). The initial complaint alleged that MMH was

responsible for the ADA violations that Mortland observed and experienced in

February 2023. Id. On November 5, 2024, with the consent of MMH, Mortland

filed a motion to amend his complaint. (Doc. 12). The motion sought leave to

drop MMH from this lawsuit and add DND Hospitality and DND Real Estate as

defendants. (Id.) The court granted the motion, dismissed MMH from this action

without prejudice, and directed the Clerk of Court to docket the proposed

amended complaint against DND Hospitality and DND Real Estate as of

November 7, 2024. (Doc. 13).

The amended complaint asserts that defendants are “the owners and

operators, lessors and/or lessees, or agents of the owner, lessor and/or lessee,

franchisor and/or franchisee” of the Comfort Suites hotel building and are subject

to the requirements of Title II of the ADA as a public accommodation. (Doc. 14

W116, 8). Per the allegations, Defendant DND Real Estate purchased the hotel on

or about May 21, 2024, and in doing so, “acquired all the right, title, interest,

property, claim and demand whatsoever” of MMH. Id. {| 7.

Defendants DND Hospitality and DND Real Estate filed the instant motions

to dismiss under Rules 12(b)(1), 12(b)(6), and 12(b)(7) on February 14, 2025.

(Doc. 24). On March 4, 2025, Mortland filed a brief in opposition, bringing this

case to its present posture. (Doc. 25).

Jurisdiction

Based on the alleged violations of Title II] of the ADA, this court has

jurisdiction pursuant to 28 U.S.C. § 1331. (“The district courts shall have original

jurisdiction of all civil actions arising under the Constitution, laws, or treaties of

the United States.”).

Analysis

Defendants move to dismiss Mortland’s amended complaint pursuant to

Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7). The court will

address defendants’ arguments associated with these rules in turn.

1. DND Hospitality’s Rule 12(b)(1) Motion

First, Defendant DND Hospitality moves for its dismissal from this action

pursuant to Federal Rule of Civil Procedure 12(b)(1). Rule 12(b)(1) authorizes a

court to dismiss an action for lack of subject matter jurisdiction. FED. R. Civ. P.

12(b)(1). Motions brought under Rule 12(b)(1) may present either a facial or

factual challenge to the court's subject matter jurisdiction. Davis v. Wells Fargo,

824 F.3d 333, 346 (3d Cir. 2016). In short, “a facial attack contests the

sufficiency of the pleadings, whereas a factual attack concerns the actual failure

of a plaintiffs claims to comport factually with the jurisdictional prerequisites.”

Const. Party of Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014)

(cleaned up). With a facial attack, a court may consider only the facts of the

complaint, viewing them in a light most favorable to the plaintiff. See Long v. Se.

Pennsylvania Transportation Auth., 903 F.3d 312, 320 (3d Cir. 2018) (citation

omitted). With a factual attack on subject matter jurisdiction, a district court may

look beyond the pleadings to resolve the dispute. See Const. Party of

Pennsylvania, 757 F.3d at 358. The court, however, must first determine

“whether a Rule 12(b)(1) motion presents a facial attack or a factual attack on the

claim at issue, because that distinction determines how the pleading must be

reviewed.” Id. at 357 (internal quotation marks omitted).

Here, DND Hospitality’s arguments advance a factual attack on the court’s

subject matter jurisdiction. (Doc. 24-1, Def. Br. in Supp. at 6—7). Specifically,

defendants argue that the allegations regarding DND Hospitality’s interests in the

hotel property are incorrect. Id. Per defendants, DND Hospitality “is a single-

purpose entity formed for the sole and exclusive purpose of applying for a license

for the sale of beer and liquor at the [p]roperty from the Pennsylvania Liquor

Control Board (‘PLCB’).” Id. at 7 (formatting modified). According to the

defendants, the PLCB has not granted DND Hospitality a license and, without

that license, DND Hospitality has no possessory right or interest in the property

or improvements. Id. In further support, defendants attach correspondence from

the PLCB dated August 23, 2024, reflecting some delay in processing the

application for a liquor license. (Doc. 24-2).

The law sends some mixed signals regarding whether factual attacks may

be considered prior to the filing of an answer. Compare Const. Party of

Pennsylvania, 757 F.3d at 358 (quoting Mortensen v. First Fed. Sav. & Loan

Ass'n, 549 F.2d 884, 889-92 (3d Cir. 1977) (noting that factual attacks “may

occur at any stage of the proceedings, from the time the answer has been served

until after the trial has been completed.”) with Berardi v. Swanson Mem'| Lodge

No. 48 of the Fraternal Ord. of Police, 920 F.2d 198, 200 (3d Cir. 1990) (rejecting

arguments relying on Mortensen that Jurisdictional allegations in a complaint

cannot be disputed until after an answer is served).

Although Berardi has not been expressly overruled, more recent Third

Circuit decisions stand for the proposition that it is improper to consider the type

of factual attack lodged by DND Hospitality prior to an answer being filed or facts

being controverted. See Long, 903 F.3d at 320; Const. Party of Pennsylvania,

757 F.3d at 358; Askew v. Trs. of Gen. Assembly of Church of the Lord Jesus

Christ of the Apostolic Faith Inc., 684 F.3d 413, 417 (3d Cir. 2012) (“[a]s the

defendants had not answered and the parties had not engaged in discovery, the

first motion to dismiss was [a] facial [attack].”).

At this juncture, Defendant DND Hospitality seeks to controvert facts

through the arguments of counsel and with a letter from the PLCB. There are no

affidavits or declarations from duly authorized members of the defendant entities

attempting to controvert any facts alleged in the amended complaint. Based on

the above case law, the court will not entertain Defendant DND Hospitality’s

factual attack on subject matter jurisdiction prior to an answer being filed.

Thus, the court can only treat Defendant DND Hospitality’s Rule 12(b)(1)

motion as a facial attack on the court’s subject matter jurisdiction. That facial

attack falls short against the allegations of the amended complaint. Mortland

sufficiently alleges DND Hospitality’s requisite connection to the property as a

place of public accommodation for the purposes of liability under the ADA and

the court’s subject matter jurisdiction. (Doc. 14, Am. Compl. 9] 6, 9-11, 14, 19,

23-25, 34-35). Accordingly, DND Hospitality’s Rule 12(b)(1) motion will be

denied.

2. Defendants’ Rule 12(b)(6) Motion

Defendants also move to dismiss the amended complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which

relief can be granted. The court tests the sufficiency of the complaint’s

allegations when considering a Rule 12(b)(6) motion.

To survive a motion to dismiss, “a complaint must provide ‘a short and plain

statement of the claim showing that the pleader is entitled to relief.’ ” Doe v.

Princeton Univ., 30 F.4th 335, 341-42 (3d Cir. 2022) (quoting FED. R. Civ. P.

8(a)(2)). That means, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). Acclaim has facial plausibility when factual content Is pled that

allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged. Id. (citing Twombly, 550 U.S. at 570). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).

On a motion to dismiss for failure to state a claim, district 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. See Phillips v. Cnty. of Allegheny,

515 F.3d 224, 233 (3d Cir. 2008) (citations omitted).

In advancing their motion under Rule 12(b)(6), defendants argue that

Mortland lacks standing under Article III of the United States Constitution.? (Doc.

2 “Article IIl confines the federal judicial power to the resolution of “Cases” and “Controversies.”

TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). A plaintiff must demonstrate a

24-1, Defs. Br. in Supp. at 3-4, 7-9). To establish standing to invoke the

jurisdiction of a federal court, a plaintiff must show: 1) that he has “suffered an

‘injury in fact’ which is ‘concrete and particularized’ and ‘actual or imminent’ ”; 2)

that the “injury is ‘fairly traceable to the challenged action of the defendant’ ”; and

3) that “tt is likely ‘that the injury will be redressed by a favorable decision.’ ”

Potter v. Cozen & O'Connor, 46 F.4th 148, 154 (3d Cir. 2022) (quoting Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (alterations and quotations

omitted)). These elements are the “irreducible constitutional minimum” that must

be alleged. Id.

After review, Mortland’s amended complaint sets forth facts supporting all

three standing elements. Per his allegations, Mortland stayed at the Comfort

Suites in February 2023 and encountered architectural barriers across the

property when using his wheelchair, including in his guest room and in the areas

where various amenities were offered during his hotel stay, including the pool

area, fitness area, and breakfast room. (Doc. 14, Am. Compl. {ff 2, 5, 13, 16-17).

He alleges that he was physically injured, embarrassed, and humiliated during

his stay. Id. Jf 2.

personal stake in the action for there to be a case or controversy under Article III. Id. (citation

omitted).

While the alleged architectural barriers and plaintiff's injuries are not

detailed, “determining whether a complaint states a plausible claim is context

specific, requiring the reviewing court to draw on its...common sense[.]” Iqbal,

556 U.S. at 663-64 (citing Twombly, 550 U.S. at 556). Reasonable inferences

may be made from the above allegations that Mortiand sustained injury as he

used his wheelchair to traverse the property whereas others around him did not

experience the same navigational difficulties based on their abilities.

Based on these same allegations, Mortland’s injuries are traceable to these

architectural barriers. As for the different ownership issues highlighted by the

defendants, Mortland’s amended complaint posits that defendants are

responsible for these access barriers at the present time and moving forward.

(Doc. 14, Am. Compl. Jf 6-7, 21-26).

Finally, Mortland cannot seek damages under Title III of the ADA.* Rather,

in this action, he seeks forward-looking injunctive relief, i.e., an order compelling

the defendants to make the hotel fully accessible to individuals with disabilities

and to adopt practices affording full access to the goods and services being

offered at the hotel. (Doc. 14, Am. Compl., Prayer for Relief, 1). Since the

3 Under Title Ill of the ADA, private plaintiffs may only obtain “preventative relief’ in the form of

“a permanent or temporary injunction, restraining order, or other order[.]” See 42 U.S.C. §

12188(a)(1)(referring to 42 U.S.C. § 2000a-3(a); Newman v. Piggie Park Enters., Inc., 390

U.S. 400, 402 & n. 2 (1968) (indicating that 42 U.S.C. § 2000a-3(a) does not authorize

monetary damages).

: 10

proposed order would make the hotel more accessible in a physical sense and in

a policy-based sense, Mortland’s alleged injuries would be redressed by a

decision in his favor against the entities responsible for the hotel’s operation. +

Mortland claims to have suffered an injury that the defendants are

responsible for, and the court can remedy. Accordingly, defendants’ Rule

12(b)(6) standing challenge is rejected.

3. Defendants’ Rule 12(b)(7) Motion

Finally, defendants move to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(7) for the failure to join a party under Rule 19. In making their

motion under Rule 12(b)(7), defendants bear the burden of showing why an

absent party should be joined. See Disabled in Action of Pennsylvania v. Se.

Pennsylvania Transp. Auth., 635 F.3d 87, 97 (3d Cir. 2011) (citation omitted).

The court may consider relevant evidence outside the pleadings in resolving a

Rule 12(b)(7) motion regarding joinder. Reschenthaler v. Schmidt, No. 1:24-CV-

1671,--- F. Supp. 3d. ----, 2024 WL 4608582, at *5 (M.D. Pa. Oct. 29, 2024)

(Conner, J.) (citations omitted); Scottsdale Ins. Co. v. RSE Inc., 303 F.R.D. 234,

4 As for whether Mortland’s injury is also “imminent,” traceable to the defendants, and

redressable, plaintiff alleges that he intends to continue patronizing the Comfort Suites on his

trips to New England if the business is made fully accessible to a person in a wheelchair. He

also alleges an intent to return to the business this year to ascertain whether the barriers to

access are still present. (Doc. 14, Am. Compl. §[ 26).

236 (E.D. Pa. 2014) (citing Jurimex Kommerz Transit G.m.b.H. v. Case Corp.,

201 F.R.D. 337, 339 (D.Del. 2001)).

The Rule 19 joinder analysis is a three-step process. Epsilon Energy USA,

Inc. v. Chesapeake Appalachia, LLC, 80 F.4th 223, 232 (3d Cir. 2023)(citations

omitted). The first question asks whether the absent party should be joined, that

is, by rule, the absent party is a required party. Id.; FED. R. Civ. P. 19(a)(1)(A),

(a)(1)(B). Second, if the party is required within the meaning of Rule 19(a)(1),

the court must determine whether the party can be joined without depriving the

court of the ability to hear the case. Epsilon Energy USA, Inc., 80 F.4th at 232

(citations omitted). Third, “[i]f joining the party is not feasible,” then the court

asks, “should the action continue in the party's absence or be dismissed?” ld.: