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Heard v. Statue Cruises LLC

United States District Court, S.D. New York

June 26, 2017

DAVID HEARD, Plaintiff,


          ANDREW L. CARTER, JR., United States District Judge

         Plaintiff David Heard brings this action against Defendant Statue Cruises, LLC. He alleges that Defendant discriminated against him on the basis of his disability in violation of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. Defendant moves pursuant to Rules 12(b)(1), (b)(6), and (b)(7) of the Federal Rules of Civil Procedure to dismiss the Complaint in its entirety. For the reasons that follow, Defendant's motion is denied.


          I. Factual Background

         The following facts are drawn from Plaintiffs Complaint, and are presumed to be true for purposes of this motion to dismiss. ECF No. 1 ("Compl.").

         Defendant Statue Cruises, LLC, a Delaware limited liability company, "holds the exclusive right to operate ferry boats to the Statue of Liberty and Ellis Island." Compl. ¶¶ 2, 5. The National Park Service operates the Statue of Liberty National Monument which encompasses both the Statue of Liberty on Liberty Island and the National Immigrant Museum on Ellis Island. Id. ¶ 18. The contract for ferry service between the National Park Service and Statue Cruises requires Statue Cruises to comply with all applicable laws, including the Americans with Disabilities Act. Id. ¶ 20.

         Plaintiff David Heard alleges that Statue Cruises' ferryboats are not accessible to wheelchair users like himself. Id. ¶ 2. Heard "is disabled and is dependent upon use of a wheelchair for mobility." Id. ¶ 4. On December 11, 2015, Heard purchased a round-trip ferry ticket from Battery Park in Manhattan to the Statue of Liberty. Id. ¶ 22. Over the course of the day, Heard road three different Statue Cruises ferries. Id. ¶ 28. When he first attempted to board the ferry, "the gangplank could not accommodate his motorized wheelchair, " and Statue Cruises, employees placed "additional, unstable[] plates" on the gangplank to allow Heard to board. Id. ¶ 23. Heard contends that the gangplank was not wide enough and its slope too steep, which made it "difficult, uncomfortable and potentially dangerous" for him to board. Id. ¶ 24. Moreover, as a result of the additional steps taken by Statue Cruises, Heard "was singled out for boarding while other passengers watched, " causing him to suffer "humiliation and embarrassment." Id. ¶¶ 25, 31. Heard faced "the same obstacles and difficulties" while attempting to disembark the ferry. Id. ¶ 27. Statue Cruises employees who attempted to help Heard accidentally turned off the power to his wheelchair on two occasions. Id. ¶ 29. While he was on the boat, Heard realized that the bathrooms were not wheelchair accessible. Id. ¶ 26.

         II. Procedural Background

          Heard initiated this action on February 11, 2016, alleging that Statue Cruises discriminated against him on the basis of his disability in violation of the Americans with Disabilities Act ("ADA"), the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"). See Compl. He seeks injunctive relief pursuant to the ADA and the NYCHRL and damages under the NYSHRL and NYCHRL. Id. ¶¶ 40-47. In lieu of answering the Complaint, Statue Cruises sought to move to dismiss it. ECF No. 10. However, at the pre-motion conference, the parties expressed a willingness to settle the matter, and the Court referred the case to Magistrate Judge Ronald L. Ellis for settlement. ECF No. 16. Despite numerous efforts by Judge Ellis, the parties were unable to settle, and Statue Cruises once again sought to file a motion to dismiss. ECF No. 24. On February 23, 2017, Defendant moved to dismiss the Complaint for failure to state a claim under Rule 12(b)(6), lack of subject matter jurisdiction under Rule 12(b)(1), and for failure to join a necessary party under Rule 12(b)(7). ECF Nos. 29 (Motion), 31 (Affidavit of Michael Burke ("Burke Aff.")), 32 (Affirmation of Jennifer Schmalz), 33 ("Def s Memo."). Plaintiff opposed the motion, ECF No. 34 ("Pl's Memo."), and Defendant submitted a reply brief, ECF No. 30 ("Def s Reply").[1]Accordingly, the Court considers the motion fully submitted.


          Federal Rule of Civil Procedure 12(b)(1) requires courts to dismiss a case for lack of subject matter jurisdiction "when the district court lacks the statutory or constitutional authority to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Id. The plaintiff may meet this burden by "alleg[ing] facts that affirmatively and plausibly suggest" that the court has subject matter jurisdiction over the case. Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011). In deciding a motion to dismiss for lack of subject matter jurisdiction, a court is not limited to the allegations in the complaint and can consider evidence outside the pleadings. Makarova, 201 F.3d at 113; see also In re Petition of Germain, 824 F.3d 258, 261 (2d Cir. 2016).

         Pursuant to Rule 12(b)(7), a defendant may move to dismiss the complaint for "failure to join a party under Rule 19." As relevant here, Rule 19 requires the joinder of a person if, "in that person's absence, the court cannot accord complete relief among existing parties." Fed.R.Civ.P. 19(a)(1)(A). "Federal courts are extremely reluctant to grant motions to dismiss based on nonjoinder and, in general, dismissal will be ordered only when the defect cannot be cured and serious prejudice or inefficiency will result." Am. Trucking Ass 'ns, Inc. v. N.Y. State Thruway Auth., 795 F.3d 351, 357 (2d Cir. 2015) (quoting 7 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1609 (3d ed. 2015)) (quotation marks omitted).

         To survive a motion to dismiss pursuant to Rule 12(b)(6), . "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible "when the plaintiff pleads factual content 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 556). The plaintiff must allege sufficient facts to show "more than a sheer possibility that a defendant has acted unlawfully, " and accordingly, where the plaintiff alleges facts that are '"merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

         In considering a motion to dismiss, the court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiffs favor. See Goldstein v. Pataki,516 F.3d 50, 56 (2d Cir. 2008). However, the court need not credit "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Instead, the complaint must provide factual allegations sufficient "to give the defendant fair notice of what the claim is and the grounds upon which it rests." Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. at 555). The court "may consider the facts as asserted within the four comers of the complaint together with the documents attached to the complaint as exhibits, and ...

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