United States District Court, S.D. New York
OPINION AND ORDER
L. CARTER, JR., United States District Judge
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
following facts are drawn from Plaintiffs Complaint, and are
presumed to be true for purposes of this motion to dismiss.
ECF No. 1 ("Compl.").
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.
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. ¶
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").Accordingly, the Court considers the motion
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.
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).
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).
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 ...