UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION MAHALA AULT, STACIE RHEA and ) DAN WALLACE, ) ) Plaintiffs, ) ) v. ) Case No.: 6:07-CV-1785-GAP-KRS ) WALT DISNEY WORLD CO., ) ) Defendant. ) DEFENDANT S MOTION TO DISMISS AND MEMORANDUM OF LAW IN SUPPORT THEREOF Manuel Kushner Florida Bar Number: 330957 KAYE SCHOLER LLP Phillips Point, West Tower, Suite 900 777 South Flagler Drive West Palm Beach, FL 33401-6163 Telephone (561) 868-7517 Facsimile (561) 802-3217 mkushner@kayescholer.com Kerry Alan Scanlon* Jeremy White* KAYE SCHOLER, LLP 901 15th Street, NW, Suite 1100 Washington, DC 20005 Telephone (202) 682-3660 Facsimile(202) 414-0350 kscanlon@kayescholer.com jewhite@kayescholer.com Attorneys for Defendant Walt Disney World Co. * Motion to appear pro hac vice and written designation and consent to act are in process.

Defendant Walt Disney World Co. ( Worldco ) moves this Court for an order dismissing the Complaint herein with prejudice for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), and for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). The following memorandum of legal authority is submitted in support of this motion. PRELIMINARY STATEMENT This case is brought under a statute whose purpose is to ensure access for persons with disabilities but the Complaint has a fatal and glaring defect: it fails to allege that plaintiffs have been or will be excluded from or denied access to Worldco s theme parks. Title III of the Americans With Disabilities Act ( ADA ) requires a place of public accommodation to make reasonable modifications in its rules or policies if such modifications are necessary to provide access to persons with disabilities, unless doing so would fundamentally alter what is offered at the facility. For safety reasons, Worldco has a general rule prohibiting guests from using Segways or other two-wheeled devices at the Walt Disney World Resort theme parks (hereinafter theme parks or WDW ), but in no way does it exclude or deny access. Rather, as plaintiffs allege, Worldco makes wheelchairs and motorized scooters available to disabled guests, who may also bring their own wheelchairs or scooters. These three plaintiffs do not allege that they are unable to use a wheelchair or motorized scooter to navigate their way around the theme parks. Indeed, only one of them alleges that she has ever visited WDW. Instead they allege the Segway is their only mobility device, that they would have to pay a modest fee to rent a wheelchair or motorized scooter from Worldco, that Segways are safer than a wheelchair or scooter, that wheelchair and scooter rentals are not available in the parking lots at WDW, and -- gratuitously and conclusorily -- that without the use

of their Segways, they will not be able to fully enjoy the parks. Their Complaint simply can not withstand this motion. Nowhere do plaintiffs allege that permitting guests to use Segways at WDW is either reasonable under the circumstances or necessary to afford access to the theme parks, which are required elements of a claim under the reasonable modification provision of Title III, 42 U.S.C. 12182(b)(2)(A)(ii). Nor does the Complaint address any of the circumstances that would have to be considered in determining whether modifying the Segway policy would be reasonable, such as any safety risks which a two-wheeled, self balancing transportation device (Dkt. 1, Complaint 10) would pose to toddlers, elderly persons, persons with disabilities, and thousands of other guests moving through Worldco s densely populated theme parks. Nor do plaintiffs allege any facts from which it could be reasonably inferred that modifying the Segway policy is necessary to provide access to the theme parks, given the available option of using wheelchairs or motorized scooters. Even if the Court were to find that plaintiffs have stated a proper claim under Title III, the Complaint would still have to be dismissed because plaintiffs do not have standing to raise such a claim. Because plaintiffs are seeking injunctive and declaratory relief under Title III, they must allege a real and immediate threat of future injury. Plaintiffs have failed to adequately plead a specific intent to visit or return to WDW and this deficiency is fatal to their case. The Complaint also fails to allege facts sufficient to establish the other elements necessary to confer standing, including injury-in-fact, causation and redressability. Accordingly, the Court should grant Worldco s motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction. 2

STATEMENT OF THE CASE I. Title III of the ADA and The Department of Justice Regulations Title III of the ADA, 42 U.S.C. 12181 et seq., prohibits public accommodations from discriminating against persons because of their disabilities. The general prohibition in Title III is that: [n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C 12182(a). For purposes of this general rule, discrimination includes: a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. 12182(b)(2)(A)(ii). The United States Department of Justice has promulgated regulations under Title III which provide in relevant part: This part does not require a public accommodation to provide its customers, clients, or participants with personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; or services of a personal nature including assistance in eating, toileting, or dressing. 28 C.F.R. 36.306. The remedies available to a person who is discriminated against in violation of Title III of the ADA are the same remedies set forth in Title II of the Civil Rights Act of 1964, which outlawed discrimination and segregation in public accommodations on the basis of race, religion and national origin. 42 U.S.C. 12188(a)(1). Title II of the 1964 Act allows an aggrieved person to institute a civil action for preventative relief, including an application for a 3

permanent or temporary injunction, restraining order, or other order. 42 U.S.C. 2000a-3(a). Monetary damages are not available, and therefore are not available for a violation of Title III of the ADA. II. Plaintiffs Allegations In This Case On November 9, 2007, Mahala Ault, Stacie Rhea and Dan Wallace, residents of Illinois and Iowa who have mobility impairments, filed the Complaint in this matter, alleging that Worldco s general policy of prohibiting guests to use Segways in the theme parks violates Title III of the ADA and seeking an injunction directing Worldco to modify that policy. Plaintiffs also alleged they were bringing the case on behalf of a class of individuals who (1) suffer from a mobility disability, (2) rely on a Segway PT for assistance with their mobility, and (3) have or intend to visit one or more of the theme parks at WDW. Complaint 38. Plaintiffs allege that individuals who have mobility-related disabilities rely on Segways to enhance their mobility. Id. at 11. Each of the three plaintiffs alleges, in conclusory fashion, that as a result of Worldco s Segway policy, he or she will not be able to fully enjoy the parks. Id. at 19, 26 and 33. The Complaint also includes a conclusory allegation that the Segway policy has the effect of denying full access and enjoyment of the parks to those disabled individuals, like Plaintiffs, who rely upon the Segway for their mobility. Id. at 14. However, plaintiffs do not allege that they have been or will be prevented by Worldco s policy from visiting or experiencing any attraction or event in any of the four theme parks; they do not allege that there are locations in the parks they cannot reach because of the Segway policy; and they do not allege that they have been or will be denied access to any building, path of travel, room, outdoor facility, park, attraction, service, accommodation, or any other space or location 4

1 within the theme parks. In short, plaintiffs fail to allege that the policy modification they request is necessary to afford [them] access, PGA Tour, Inc. v. Martin, supra, 532 U.S. at 688, to the goods, services, facilities, privileges, advantages, or accommodations of WDW. 42 U.S.C. 12182(b)(2)(A)(ii). To the contrary, plaintiffs admit that Worldco offers persons with disabilities the 2 option of renting a motorized scooter or wheelchair at WDW. Complaint 34. Although plaintiffs allege that it is a long walk from the parking areas to the place where scooters and wheelchairs are rented, and that costs are incurred in renting a scooter or wheelchair, id. at 34-35, plaintiffs can bring their own wheelchairs or scooters, rent them from a location outside WDW, or make the same arrangements used by other guests who rent wheelchairs at the theme parks. If plaintiffs actually believe that Worldco rents wheelchairs and scooters to disabled guests at WDW without providing a way for them to obtain the equipment, then plaintiffs always have the option of bringing their own wheelchair or renting one from a business outside the theme parks. As noted previously, Worldco is under no obligation to provide wheelchairs to persons with mobility impairments and it certainly is not obligated to do so at no cost. 1 2 Plaintiff Stacie Rhea admits in the Complaint that her decision to take in a very small portion of the Disney theme parks was the result of not having told her children about her disability and not wanting her children to see her relying upon a wheelchair for her mobility. Complaint 23 and 25. Thus, by her own admission, Rhea was able to take in some portion of the theme parks and her decision not to see more was based solely on her own desire to conceal her disease from her children, and not because she was denied access to the parks. Plaintiffs contend that a wheelchair or scooter is more dangerous because an individual with a mobility impairment will not have as good of a visual field from a seating position as opposed to a standing position. Complaint 36. It is baffling, to say the least, that plaintiffs in a disability rights lawsuit would allege that a wheelchair, which has helped so many individuals protected by the ADA, is somehow a dangerous device. 5

Plaintiffs allegations regarding their future plans to visit WDW are hypothetical and highly speculative. Plaintiff Rhea alleges that she will not be able to fully enjoy the theme parks during any future visit, but makes no allegation that she will actually visit WDW in the future. Id. at 25. Similarly, plaintiff Mahala Ault planned to take a family vacation to WDW in December 2007, but did not seek emergency relief when the Complaint in this case was filed in November 2007, and has failed to plead that she intends to visit the theme parks in the future. Id. at 17. Plaintiff Dan Wallace does not allege that he has visited WDW in the past but alleges that 3 he intends to travel [to WDW], in the near future. Id. at 32. As discussed in Section II below, these conclusory allegations do not establish a real and immediate threat of future injury sufficient to confer standing in this case. ARGUMENT I. THE COMPLAINT SHOULD BE DISMISSED UNDER FED. R. CIV. P. 12(B)(6) BECAUSE PLAINTIFFS FAIL TO ALLEGE FACTS SUFFICIENT TO ESTABLISH A VIOLATION OF 42 U.S.C. 12182(b)(2)(A)(ii) When considering a motion to dismiss for failure to state a claim upon which relief can be granted, the court should accept the facts stated in [the] complaint and all reasonable inferences therefrom are taken as true. Stephens v. Dep t of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990). Equally important, however, [i]n evaluating motions to dismiss, statutory claims are to be properly dismissed for failing to allege the statutory elements of a claim." A. D. v. Nelson, No. 07-116, 2007 U.S. Dist. LEXIS 62444, at *6 (N.D. Ind. Aug. 20, 2007); see also Breitfeller v. Playboy Entm't Group, Inc., No. 05-405, 2006 U.S. Dist. LEXIS 3 Plaintiff Wallace makes boilerplate allegations, some of which are nearly identical to the allegations he made in another Segway lawsuit in which he was represented by one of plaintiffs attorneys in this case. Wallace v. Simon Property Group, Inc., No. 3:07-CV- 03123-RM-BGC (C.D. Ill. May 7, 2007). 6

26672, at *6 (M.D. Fla. May 4, 2006) (granting defendants' motion to dismiss because plaintiffs failed to plead "all of the necessary elements to state a claim" under the statute). Just last year the Supreme Court strengthened the requirement a plaintiff must meet to avoid dismissal under Rule 12(b)(6) and retired the language from Conley v. Gibson that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Bell Atl. Corp. v. Twombly, supra, 127 S. Ct. at 1969. The Court held in Twombly that a plaintiff s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... 127 S. Ct. at 1964-65. In Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1263 (11th Cir. 2004), the Eleventh Circuit also stated, To survive a motion to dismiss, plaintiffs must do more than merely state legal conclusions; they are required to allege some specific factual bases for those conclusions or face dismissal of their claims. Therefore, to make out a claim under the reasonable modification provision of Title III, 42 U.S.C. 12182(b)(2)(A)(ii), plaintiffs here must plead that the modification of Worldco s Segway policy is both reasonable and necessary to afford access to plaintiffs and other persons with mobility impairments. Plaintiffs have done neither of these things and, for the reasons set forth below, the Complaint must be dismissed because it fails to allege the required 4 elements of a claim under 42 U.S.C. 12182(b)(2)(A)(ii). 4 Plaintiffs Ault and Wallace have also failed to allege that they requested a modification of defendant s Segway policy. Their claims should be dismissed for the additional reason that Title III requires a person with a disability to request a reasonable and necessary modification, thereby informing the operator of a public accommodation about the disability. Dudley v. Hannaford Bros. Co., supra, 333 F.3d at 309; see also Hawkins v. Hamlet, Ltd., No. 06-80754, 2007 U.S. Dist. LEXIS 53350, at *7 (S.D.Fla. July 24, 2007) (continued...) 7

A. Plaintiffs Have Failed To Plead Facts Sufficient To Establish That The Requested Modification Is Reasonable Or Necessary To Afford Access To WDW To establish a violation of the reasonable modification provision, 42 U.S.C. 12182(b)(2)(A)(ii), one of the things plaintiffs must prove is that the requested modification is reasonable. As noted above, plaintiffs fail to allege any facts that could establish that eliminating Worldco s policy prohibiting guests from using Segways is a reasonable modification. Indeed, there is not one allegation in the Complaint that even attempts to address the circumstances that would have to be considered in determining whether elimination of the policy would be reasonable. For instance, plaintiffs chose in their Complaint to ignore completely any safety issues related to this two-wheeled, self balancing device, including those associated with speed control; risks posed to others in maneuvering the device in densely populated areas; discomfort, irritation and fear that other guests may feel due to the speed, height and sudden movements of this device; verification that users are properly trained and possess the skills and ability to safely operate a Segway in the theme parks; and numerous other factors that would have to be considered in determining whether changing the policy would be reasonable. Plaintiffs failure to address this issue in the Complaint requires dismissal of the case under the Supreme Court s recent decision in Twombly and the Eleventh Circuit s ruling in Jackson v. BellSouth Telecomms., supra. Plaintiffs have similarly failed to allege facts sufficient to establish that the requested modification is necessary. In PGA Tour, Inc. v. Martin, supra, the Supreme Court 4 (...continued) (dismissing plaintiff s ADA claim under Fed. R. Civ. P. 12(b)(6) because he failed to plead that Defendant knew of Plaintiff s disability and that he made a specific demand for a reasonable accommodation ). 8

stated that a requested modification is not required under Title III of the ADA unless it is necessary to afford access to defendant s facilities. 532 U.S. at 688. This conclusion is also clear from the plain language of the statute. Proof that the modification is necessary is a separate and distinct element of a claim under 12182(b)(2)(A)(ii). Id. at 682. Notably, the Supreme Court explained in Martin that a modification is not necessary even where access to the public accommodation may be uncomfortable or difficult without it. Id. Instead, plaintiffs are required to prove that unless the modification is made, access to the public accommodation is beyond their capacity. Id. Plaintiffs Complaint is devoid of any allegation that allowing guests to use Segways at WDW is necessary within the meaning of Martin. Plaintiffs do not use the word necessary or any similar word or concept in their Complaint, and they have not alleged any facts from which it could be reasonably inferred that they are incapable of using scooters or wheelchairs as a mobility device at WDW. As a result, plaintiffs have failed to plead facts sufficient to establish an essential element of their claim, and the Complaint should be dismissed. Throughout the Complaint, plaintiffs allege in conclusory fashion that they will not be able to fully enjoy the theme parks at WDW if they are not able to use their Segways. See, e.g., Complaint 19, 26, 33. They also allege that Worldco s Segway policy has the effect of denying full access and enjoyment of the parks. Id. at 14. These allegations are nothing more than labels and conclusions which merely repeat the general prohibition of discrimination in Title III. They are the equivalent of pleading that plaintiffs have been discriminated against by Worldco s Segway policy. This is exactly the type of formulaic recitation of the elements of a claim, unsupported by any facts, which the Supreme Court has held cannot survive a motion to dismiss. Twombly, supra, 127 S. Ct. at 1964-65. 9

B. Lower Courts Have Applied The Martin Rule In A Variety Of Title III Cases And Denied The Requested Modification As Not Necessary As the Supreme Court stated in PGA Tour, Inc. v. Martin, a requested modification is not necessary if achieving access without it is uncomfortable or difficult for the plaintiffs but not beyond their capacity. 532 U.S. at 682. The lower courts have applied the Martin rule in a variety of Title III cases and found that the requested modification was not required. For example, in Logan v. Am. Contract Bridge League, No. 04-4428, 2006 U.S. App. LEXIS 5914, at *2 (3d Cir. Mar. 9, 2006), a person with a vision impairment sought to modify a bridge league s policy of prohibiting him from using a special deck of playing cards. Plaintiff alleged that he could see the special cards better and that it improved his playing, but the district court ruled for defendant after finding that plaintiff was able to see the normal playing cards with alternate accommodations. Id. at *4. The Third Circuit affirmed the district court s decision after finding that plaintiff s contention that he can t play to the maximum of [his] potential without the requested modification failed to set forth a meritorious claim under Title III. Id. at **8-9. In doing so, the court applied the Martin rule and concluded that although the special cards enhanced his ability to play bridge, the requested modification was not necessary to afford access to the bridge games and tournaments in light of the alternate accommodations. Id. Similarly here, plaintiffs requested modification of the Segway policy is not necessary to give them access to the theme parks because alternate mobility devices may be used. Other courts have also found that a requested modification is not necessary if there are alternate accommodations. In Murphy v. Bowl, No. 04-35273, 2005 U.S. App. LEXIS 21788, at *5 (9th Cir. Oct. 5, 2005), plaintiff had a cognitive disability and sought a modification of a ski 10

resort policy allowing only one person on a ski bike. The Ninth Circuit cited Martin and held that the requested modification of allowing a companion to accompany plaintiff on a ski bike was not necessary to improve her skills because there were alternative strategies available to help her learn. Id. Because plaintiff was able to improve her skills using alternative methods, the court concluded that she could not prevail on her Title III claim because she could not show that the requested modification was necessary. Id. at **5-6. This available alternatives rule was also applied to a requested modification claim in Dryer v. Flower Hosp., 383 F. Supp. 2d 934 (N.D.Ohio 2005). In Dryer, plaintiff was a visitor in the hospital who needed oxygen to assist with her breathing, and she sought to use the oxygen ports in the hospital. The hospital declined to modify its policy of prohibiting nonpatients from using its oxygen ports, but it did allow her to bring her own oxygen into the hospital. 383 F. Supp. 2d at 936, 941. Even though it would have been far easier for plaintiff to use the hospital s oxygen ports, the court held she was not entitled to a modification of the rule because she was not denied access to oxygen and the modification was therefore not necessary under Martin. Like the requested modifications in Logan, Murphy, and Dryer, plaintiffs requested modification of the Segway policy in this case is not necessary as a matter of law because alternative mobility devices may be used by plaintiffs to secure access to Worldco s theme parks. C. As Long As Access Is Provided, Plaintiffs Are Not Entitled To Their Choice Of Accommodation In their Complaint, plaintiffs allege that individuals who have mobility related disabilities rely upon a Segway to enhance their mobility and that motorized scooters and wheelchairs do not provide the same access. Complaint 11 and 36. Plaintiffs do not explain these allegations; at most the allegations express a personal preference for Segways. Plaintiffs are 11

5 not entitled to the accommodation of their choice, as long as they have access to the theme parks. Stated plainly, under the ADA a qualified individual with a disability is not entitled to the accommodation of her choice, but only to a reasonable accommodation. Stewart v. Happy Herman s Cheshire Bridge, 117 F.3d 1278, 1286 (11th Cir. 1997). In Stewart, plaintiff alleged that her employer s 15-minute lunch break policy violated her rights under the ADA. Id. at 1285-86. The Eleventh Circuit held that defendant accommodated plaintiff s disability because they offered several alternative work options and was not required to accommodate an employee in any manner in which that employee desires. Id. at 1285; see also Moore v. Accenture, LLP, No. 06-15650, 2007 U.S. App. LEXIS 26275, at *11 (11th Cir. Nov. 9, 2007) (dismissing plaintiff s ADA claim under Rule 12(b)(6) because defendant has no duty under the ADA to provide Plaintiff with his choice of a different 6 accommodation. ) In the same way, wheelchairs and motorized scooters provide a reasonable means of accessing the theme parks at WDW and, pursuant to the established law in this Circuit, plaintiffs are not entitled to choose their accommodation. 5 6 Plaintiffs do not allege they will be prevented from reaching any particular site in the theme parks, from seeing any attraction that could be seen on a Segway, or from experiencing any part of the magic and entertainment offered at WDW. These are the things that define access. Because plaintiffs can move throughout the theme parks in a safe, efficient and reasonably comfortable manner -- by virtue of a wheelchair or scooter -- they have access. Although Stewart and Moore involve Title I claims, the Eleventh Circuit s analysis is applicable here because there appears to be little, if any, substantive difference between the reasonable accommodation which title I requires and the reasonable modification which title III mandates. Dahlberg v. Avis Rent a Car Sys., 92 F. Supp. 2d 1091, 1105 (D. Colo. 2000). 12

D. Charging A Modest Rental Fee For Wheelchairs And Motorized Scooters Is Fully Consistent With The ADA Plaintiffs allege that the wheelchairs and motorized scooters which are made available in the theme parks do not provide an accommodation because Worldco charges a modest fee to rent them. Complaint 34. This position is plainly wrong because it assumes Worldco has an obligation to provide a free accommodation. As a public accommodation, Worldco is not required to provide wheelchairs at all. The regulations adopted under the ADA explicitly state that the law does not require a public accommodation to provide its customers, clients, or participants with personal devices, such as wheelchairs... 28 C.F.R. 36.306. Because Worldco permits the use of wheelchairs and scooters -- whether rented in the theme parks or elsewhere, or personally owned -- it provides access within the meaning of the ADA and plaintiffs fail to state a claim upon which relief can be granted. II. PLAINTIFFS LACK STANDING TO PURSUE INJUNCTIVE AND DECLARATORY RELIEF To establish standing under Article III, plaintiffs must allege facts sufficient to establish that: (1) there is an injury-in-fact which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical ; (2) the injury was caused by the defendant s conduct; and (3) the injury is capable of being redressed by a favorable ruling. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). However, a fourth element is also required in cases seeking prospective injunctive relief. Because injunctions regulate future conduct, a party has standing to seek injunctive relief only if the party alleges... a real and immediate as opposed to a merely conjectural or hypothetical threat of future injury. Shotz v. 13

7 Cates, 256 F.3d 1077, 1081 (11th Cir. 2001). The standing requirements constitute an irreducible minimum and therefore the failure to plead facts sufficient to establish any one of these four elements requires that the complaint be dismissed for lack of standing. See Access Now, Inc. v. S. Fla. Stadium Corp, 161 F. Supp. 2d 1357, 1364 (S.D. Fla. 2001). Worldco is challenging plaintiffs standing based on the allegations of the Complaint. In ruling upon such challenges, courts should only consider facts alleged in the complaint and should not speculate concerning the existence of standing or piece together support for the plaintiff. Cone Corp. v. Florida Dept. of Transp., 921 F.2d 1190, 1210 (11th Cir. 1991). Here, plaintiffs have failed to sufficiently plead a specific intent to visit or return to the theme parks in order to establish a real and immediate threat of future injury. In addition, plaintiffs purported injuries of not being able to fully enjoy the parks are hypothetical and not causally connected with any unlawful act by Worldco. Because prospective relief is the only remedy available in this case, plaintiffs failure to plead these requisite elements requires that their Complaint be dismissed for lack of standing. A. Plaintiff Stacie Rhea Lacks Standing Because She Only Alleges Past Incidents Of Discrimination [T]o have standing to obtain forward-looking relief, a plaintiff must show a sufficient likelihood that he will be affected by the allegedly unlawful conduct in the future. Johnson v. Bd. of Regents of the Univ. of Ga., 263 F.3d 1234, 1265 (11th Cir. 2001). Plaintiff Rhea s discrimination claim focuses on allegations that she previously visited Worldco s theme 7 The fact that declaratory relief is sought in this case does not change this analysis. See Access for Am., Inc. v. Associated Out-Door Clubs, Inc., No. 05-13856, 2006 U.S. App. LEXIS 16364, at *2 (11th Cir. June 27, 2006) (where plaintiffs lack standing to seek injunctive relief because of a failure to allege a threat of future injury, they also lack standing to seek declaratory relief). 14

parks in September 2007. See Complaint 26. Rhea lacks standing because she has failed to allege that she intends to return to WDW in the future. See Access Now, Inc. v. S. Fla. Stadium Corp, supra, 161 F. Supp. 2d at 1364 ( Absent an allegation that he intends to return to the public accommodation, an ADA plaintiff fails to demonstrate this irreducible minimum and thus lacks standing to sue for injunctive relief. ) In Shotz, the Eleventh Circuit determined that ADA plaintiffs lacked standing to seek injunctive and declaratory relief because they have not attempted to return, nor have they alleged that they intend to do so in the future. 256 F.3d at 1082. The likelihood of future discrimination therefore remained conjectural, hypothetical, or contingent and not real and immediate. Id. As a result, the court granted defendants motion to dismiss for lack of standing, finding that plaintiff only alleged past incidents of discrimination. In applying Shotz, Rhea s one isolated instance of purported discrimination at a facility over 1,000 miles away from where she lives, without any allegation of an intent to return, is not sufficient to establish a real and immediate threat of future injury. As such, Rhea s alleged exposure to past discrimination alone is insufficient to establish standing for a claim of prospective relief. Brother v. Tiger Partner, LLC, 331 F. Supp. 2d 1368, 1373 (M.D.Fla. 2004) (finding lack of standing in ADA case where plaintiff lives more than 280 miles from the subject property, traveled to the hotel s geographic area only twice a year and had previously visited the hotel but did not attempt to return except for making a reservation after filing his complaint). B. Plaintiff Mahala Ault Lacks Standing Because Her Injuries Cannot Be Redressed By This Court While plaintiff Ault alleges that she is planning a trip to Walt Disney World in December 2007, that date has now passed, and plaintiff failed to seek appropriate relief, such as a 15

preliminary injunction. Complaint 17. Under Lujan, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. 504 U.S. at 561. This redressability analysis focuses on whether the threat of injury is substantially likely to be removed by a favorable decision. Cone Corp., 921 F.2d at 1204. Because Ault alleges only plans for a trip whose date has now passed and has not sufficiently alleged an injury that can be redressed by injunctive or declaratory relief, she fails to satisfy this standing requirement. Moreover, Ault has failed to satisfy the concrete-injury requirement for standing. First, she alleges, in conclusory fashion, that she will not be able to fully enjoy the parks. Complaint 19. These allegations are insufficient to establish an injury-in-fact because plaintiff must present specific, concrete facts showing that the challenged conduct will result in a demonstrable, particularized injury to the plaintiff. Cone Corp., 921 F.2d at 1204; see also Bell Atl. Corp. v. Twombly, supra, 127 S. Ct. at 1964-65. Second, Ault s alleged injuries are hypothetical and conjectural because she failed to plead that she ever visited the theme parks. See Moyer v. Walt Disney World Co., 146 F. Supp. 2d 1249, 1254 (M.D. Fla. 2000) (holding that plaintiff lacked standing as to theme parks that he did not personally visit). Because Ault s vacation plans are no longer imminent, she has failed to plead a real and immediate threat of future injury. She resides more than 1,000 miles from Orlando, her only connection to the area is as a potential visitor, and she has no particularized plans to visit WDW in the future. Thus, Ault lacks standing to pursue injunctive and declaratory relief. See Access for the Disabled, Inc. v. Rosof, No. 05-1413, 2005 U.S. Dist. LEXIS 37853, at *8 (M.D.Fla. Dec. 28, 2005) (granting defendant s motion to dismiss because the threat of future real and immediate injury is even more speculative where the plaintiff resided in a different city and his only connection to the area was as a frequent visitor ). 16

C. Plaintiff Dan Wallace Lacks Standing Because He Has Failed To Plead A Real And Immediate Threat Of Future Injury Plaintiff Wallace alleges that he intends to travel, in the near future with his fiancé and children to the Walt Disney World Resort in Florida. Complaint 32. However, he has failed to allege any facts that would lend credence to such allegation. He does not provide any specificity as to when he plans to visit, whether he has booked any reservations, or made arrangements to visit WDW. In fact, Wallace has made similar allegations in another Title III lawsuit, and it appears that the allegations here were simply added as boilerplate. As a result, Wallace s stated intention to visit in the future is speculative and conjectural. Wallace s bald statements of purported intention to visit Worldco s theme parks do not confer standing. See Lujan, 504 U.S. at 563-64 ( Such some day intentions -- without any description of concrete plans, or indeed even any specification of when the some day will be does not support a finding of the actual or imminent injury requirement of standing); Rosenkrantz v. Markopoulos, 254 F. Supp. 2d 1250, 1253 (M.D.Fla. 2003) (finding that an ADA plaintiff lacked standing because he lived hundreds of miles away and his future travel plans are just someday intentions and lack any description of concrete plans or anything more definite than that he will travel to the Tampa Bay area in the next year or two ). Specifically, Wallace has failed to plead that he has ever visited WDW, he does not reside in Orlando, and his only connection to the area is as a potential visitor. See Access for the Disabled, Inc. v. Rosof, supra, 2005 U.S. Dist. LEXIS 37853, at *8. The threat of real and immediate future injury is even more speculative because Wallace has failed to plead how he became aware of defendant s Segway policy. See Resnick v. Magical Cruise Co., 148 F. Supp. 2d 1298, 1302 (M.D. Fla. 2001) (finding that plaintiff s review 17

of defendant s website and unspecified intent to travel on a future cruise was insufficient to confer standing). As such, Wallace lacks standing because he has failed to plead a real and immediate threat of future injury. D. Plaintiffs Complaint Is Facially Deficient Because There Is No Causal Connection Between Plaintiffs Alleged Injury And Worldco s Purported ADA Violation In order to satisfy the causation requirement to confer standing, there must be a causal connection between the injury and the conduct complained of -- the injury has to be fairly... trace[able] to the challenged action of the defendant... Lujan, 504 U.S. at 560. Plaintiffs have not alleged facts sufficient to establish this causal connection. Their alleged injury was caused, or will be caused, by their own actions in deciding not to use a wheelchair or scooter as a mobility device at WDW. For example, plaintiff Rhea refused the option to use a wheelchair in order to conceal her disease from her children. See Complaint 23 and 25. Her claim is facially deficient because she alleges that her injury occurred as a result of her own decision, and not because of any action by Worldco. See Id. at 25 ( As a result [of not wanting her children to see her in a wheelchair], Rhea was only able to take in a very small portion of the Disney theme parks. ) Similarly, the other plaintiffs claimed injuries were caused or will be caused by their own actions, and plaintiffs have the ability, all on their own, to prevent such injuries. In such circumstances, plaintiffs are directly responsible for their own injuries and have no standing to bring this action. CONCLUSION For all of the foregoing reasons, Worldco s motion to dismiss the Complaint herein with prejudice for failure to state a claim upon which relief can be granted pursuant to Fed. R. 18

Civ. P. 12(b)(6), and for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) th should be granted. See, e.g., Cato v. United States, 70 F.3d 1103, 1105, 1109-11 (9 Cir. 1995) (when failure to plead cognizable claim cannot be cured, dismissal with prejudice is required). This Court should also award Worldco its attorneys fees and other such relief as it may deem just and proper. See 42 U.S.C. 2000a-3(b) ( In any action commenced pursuant to this subchapter, the court, in its discretion, may allow the prevailing party... a reasonable attorney s fee as part of the costs ). Dated: January 22, 2008 Respectfully submitted, /s/ Manuel Kushner Manuel Kushner Florida Bar Number: 330957 KAYE SCHOLER LLP Phillips Point, West Tower, Suite 900 777 South Flagler Drive West Palm Beach, FL 33401-6163 Telephone (561) 868-7517 Facsimile (561) 802-3217 mkushner@kayescholer.com Kerry Alan Scanlon Jeremy White KAYE SCHOLER, LLP 901 15th Street, NW, Suite 1100 Washington, DC 20005 Telephone (202) 682-3660 Facsimile (202) 414-0350 kscanlon@kayescholer.com jewhite@kayescholer.com Attorneys for Defendant Walt Disney World Co. 19

CERTIFICATE OF SERVICE I hereby certify that on January 22, 2008, I electronically filed the foregoing with the Clerk of the Court for the Middle District of Florida by using the CM/ECF system. This system will send electronic notice of filing to the following individuals: John A. Baker, Esq. Bernard H. Dempsey, Jr., Esq. Nancy A. Johnson, Esq. J. Phillip Krajewski, Esq. Jason M. Medley, Esq. /s/ Manuel Kushner Manuel Kushner Florida Bar Number: 330957 KAYE SCHOLER LLP Phillips Point, West Tower, Suite 900 777 South Flagler Drive West Palm Beach, FL 33401-6163 Telephone (561) 868-7517 Facsimile (561) 802-3217 mkushner@kayescholer.com 13123930.wpd 20