John Nanni v. Aberdeen Marketplace, Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1638

JOHN NANNI,

Plaintiff – Appellant,

v.

ABERDEEN MARKETPLACE, INC.,

Defendant – Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge. (1:15-cv-02570-WMN)

Argued: September 12, 2017 Decided: December 21, 2017

Before TRAXLER and KING, Circuit Judges, and Raymond A. JACKSON, United
States District Judge for the Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge King wrote the opinion, in which
Judge Traxler and Judge Jackson joined.

ARGUED: Brian T. Ku, KU & MUSSMAN, P.A., Pembroke Pines, Florida, for
Appellant. William Nelson Sinclair, SILVERMAN, THOMPSON, SLUTKIN &
WHITE, LLC, Baltimore, Maryland, for Appellee. ON BRIEF: Robert W. King,
Hyattsville, Maryland, for Appellant.
KING, Circuit Judge:

Plaintiff John Nanni — a Delaware resident who suffers from post-polio syndrome

and generally uses a wheelchair — appeals from the dismissal of his civil action against

Aberdeen Marketplace, Inc. According to the operative amended complaint that Nanni

filed in the District of Maryland in 2015, he has encountered and will continue to

encounter unlawful barriers to access at Aberdeen’s Marketplace Shopping Center (the

“Marketplace”), which is located in northeast Maryland. See Nanni v. Aberdeen

Marketplace, Inc., No. 1:15-cv-02570 (D. Md. Nov. 5, 2015), ECF No. 5 (the

“Complaint”). Those barriers — the Complaint alleges — hinder access to the

Marketplace and discriminate against Nanni, in violation of the Americans with

Disabilities Act (the “ADA”). Aberdeen sought dismissal of the Complaint by

contending, inter alia, that Nanni’s lack of standing to sue deprives the district court of

subject matter jurisdiction. In May 2016, the court agreed with Aberdeen and dismissed

the Complaint. See Nanni v. Aberdeen Marketplace, Inc., No. 1:15-cv-02570 (D. Md.

May 4, 2016), ECF No. 12 (the “Opinion”). Nanni has appealed the standing decision,

asserting that the judgment of dismissal was erroneously awarded. As explained below,

we are satisfied that Nanni has sufficiently alleged standing to sue and is entitled to

pursue his ADA claim. We therefore vacate the judgment in favor of Aberdeen and

remand for further proceedings.

2
 I.

A.

In August 2015, Nanni initiated this civil action in the district court at Baltimore,

alleging disability discrimination in contravention of the ADA and seeking declaratory

and injunctive relief against Aberdeen. The Complaint identifies the essential relief that

Nanni seeks as the district court’s declaration that the Marketplace is in violation of the

ADA, plus an injunction requiring Aberdeen to alter the Marketplace to “make it

accessible to and usable by individuals with disabilities.” See Compl. 5.

Nanni’s ADA claim is premised on allegations that, several times each year, he

travels southwest on I-95 from his home in Delaware to Baltimore and Washington, D.C.,

where he attends sporting events, visits with relatives, and participates in events for the

disabled. See Compl. ¶ 10. 1 The Marketplace, which is located near exit 85 on I-95 in

Maryland, constitutes a place of public accommodation and provides “a perfect place” to

“stop to rest on drives and to take bathroom breaks.” Id. ¶¶ 9-10. 2 Between 2013 and

June 2015, Nanni visited the Marketplace at least three or four times, and he intends to

make additional visits on his journeys to and from Baltimore and Washington. Id. ¶¶ 10,

1
The relevant facts with respect to this appeal are largely derived from the
Complaint. We take the factual allegations made therein as true and draw reasonable
inferences in favor of Nanni. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250, 253 (4th Cir. 2009).
2
Travelling southbound on I-95 from Delaware, the Marketplace is readily
accessed off exit 85 onto Maryland Route 22. It is situated on Beards Hill Road in
Aberdeen, about forty miles from Nanni’s residence and approximately halfway to
Baltimore.

3
13. Independent of Nanni’s intention to return to the Marketplace as a customer, he plans

to return as what the Complaint calls an “ADA tester.” Id. ¶ 19.

During his visits to the Marketplace, Nanni has “experienced serious difficulty

accessing the goods and utilizing the services therein,” due to defendant Aberdeen’s

failure to comply with the ADA. See Compl. ¶ 11. Nanni has encountered major

obstacles at the Marketplace, that is, barriers to access that pose serious difficulties for

disabled individuals who rely on wheelchairs for mobility, including the following:

• Parking designated for use by persons with disabilities is
inaccessible “due to excessive slopes, pavement in disrepair and lack
of proper access aisles”;

• Curb ramps for use by persons with disabilities are inaccessible “due
to excessive slopes, steep side flares, failure to provide smooth
transitions, and pavement in disrepair”;

• One of the sidewalk ramps causes problems for the disabled because
it has “excessive running slopes”; and

• Various routes of travel about the Marketplace are inaccessible to
disabled persons “due to excessive slopes and pavement in
disrepair.”

Id. ¶ 14.

Each of those major obstacles and barriers to access have caused serious

difficulties for Nanni. For example, the noncompliant parking spaces caused problems

with entering and exiting Nanni’s vehicle and required him to use extra care to avoid

falling. See Compl. ¶ 14. The noncompliant curb ramps, sidewalk ramp, and routes of

travel caused him serious difficulties in safely navigating and accessing the Marketplace.

Id. Aberdeen’s failure to comply with the accessibility requirements of the ADA have

4
thus deprived Nanni of his right to full and equal enjoyment of the Marketplace and his

right to be free from discrimination on the basis of disability. Id. ¶ 15. As the Complaint

specifies, those noncompliant barriers to access remain in place. Id. ¶ 16. As a result,

Aberdeen

continues to discriminate against [Nanni] by failing to make reasonable
modifications in policies, practices or procedures, when such modifications
are necessary to provide [him] an equal opportunity to participate in, or
benefit from, the goods, services, facilities, privileges, advantages, and
accommodations which [the Marketplace] offers to the general public.

Id. ¶ 15.

Notably, each of the specified barriers to access is readily removable, and removal

would not impose an undue burden on Aberdeen. See Compl. ¶ 17. As the Complaint

explains, a court ruling in Nanni’s favor — i.e., a declaration of unlawfulness plus an

injunction requiring Aberdeen to remove or modify the unlawful barriers to access and

comply with the ADA — would resolve the equal access problems that have caused and

otherwise will continue to cause Nanni’s injuries. Id. ¶¶ 16-18.

B.

In response to the Complaint, Aberdeen sought its dismissal on two grounds.

Aberdeen argued under Rule 12(b)(6) of the Federal Rules of Civil Procedure that the

Complaint fails to state a claim upon which relief can be granted. Of relevance,

Aberdeen also asserted under Rule 12(b)(1) that the district court is without subject

matter jurisdiction because Nanni lacks standing to sue. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992) (explaining that, to possess Article III

constitutional standing to sue, three elements must be satisfied, that is, (1) the plaintiff

5
“must have suffered an injury in fact”; (2) “there must be a causal connection between

the injury and the [defendant’s] conduct”; and (3) the injury will likely “be redressed by a

favorable decision”). Aberdeen specifically challenged the sufficiency of the Complaint

with respect to Lujan’s injury-in-fact element.

By its Opinion of May 4, 2016, the district court dismissed Nanni’s Complaint for

lack of standing to sue. The Opinion recognized that, to satisfy the constitutional

standing mandate, the Complaint must sufficiently allege the essential elements of

standing. See Op. 4. Explaining the injury-in-fact element, the Opinion related that the

Complaint must demonstrate “a concrete and particularized, actual or imminent invasion

of a legally protected interest.” Id. Additionally, because Nanni is seeking declaratory

and injunctive relief, the Opinion recognized that the Complaint must establish “a real

and immediate threat that [Nanni] will be wronged again.” Id. (internal quotation marks

omitted). Relying on a recent decision of the same district court, the Opinion specified

that, in order to show a “real and immediate threat” of future injury, the Complaint had to

allege and describe Nanni’s “concrete, specific plans to return to the locus of the injury”

and “indicate that [he] is likely to suffer the same injuries upon return.” Id. at 5 (internal

quotation marks omitted). 3

3
Although the Opinion’s analysis of the injury-in-fact element references the
Supreme Court’s Lujan decision, the standard applied by the district court was drawn
from a decision rendered in the District of Maryland. See Nat’l All. for Accessibility, Inc.
v. Millbank Hotel Partners, No. 1:12-cv-03223 (D. Md. Feb. 20, 2013), ECF No. 22.

6
 Although the Opinion recognized that the Complaint “clearly state[s] [Nanni’s]

intent to return” to the Marketplace, the district court dismissed on the premise that the

Complaint fails to establish Nanni’s likelihood of suffering future harm there. See Op. 6.

In so ruling, the Opinion first determined that the Complaint inadequately describes

Nanni’s past injuries, leaving the court “to speculate as to the type of harm [Nanni] is

likely to face on his return to the [Marketplace].” Id. at 6-7. Next, the Opinion related

that the Complaint’s lack of specificity left the court “to wonder which business within

the [Marketplace] is ‘the perfect place’ for [Nanni] to stop and rest.” Id. at 7. That is, the

Opinion deemed the Complaint to be insufficiently specific regarding Nanni’s alleged

future injuries, explaining that the court was

unable to find more than a mere possibility of future harm without any
indication of the specific goods and services at [the Marketplace] that
[Nanni] seeks out in his travels, or a particular convenience at this center
that is more advantageous to [him] than that available at other centers along
his route.

Id. at 8. The court considered Nanni’s connection to the Marketplace to be “tenuous at

best,” explaining that Nanni could easily stop at any number of other places while driving

up and down I-95 in order to rest or use the bathroom. Id.

Finally, the Opinion addressed the Complaint’s allegation that Nanni would return

to the Marketplace as an “ADA tester.” See Op. 8. The Opinion accepted that Nanni

would return to the Marketplace “to confirm its ADA-compliance,” but recognized that

Nanni “cannot use his status as a tester to satisfy the standing requirements where [he]

would not have standing otherwise.” Id. (internal quotation marks omitted). The

Opinion further recognized that acting as a tester “is not improper,” but observed that

7
Nanni’s litigation history undermined “the plausibility of [Nanni’s] threat of future injury

at [the Marketplace].” Id. at 9. 4 Specifically, the Opinion invoked “substantially similar

complaints” filed by Nanni in the District of Maryland against “defendant properties in

the vicinity of Interstate 95,” indicating that the Marketplace is not Nanni’s sole choice of

rest stop. Id. According to the Opinion, Nanni’s litigation history also “heighten[ed] the

appearance” that he planned to return to the Marketplace as an opportunistic litigant,

rather than as a “bona fide patron[].” Id. at 10.

By its Order accompanying the Opinion, the court then dismissed the Complaint

for lack of standing. See Nanni v. Aberdeen Marketplace, Inc., No. 1:15-cv-02570 (D.

Md. May 4, 2016), ECF No. 13. Nanni timely noted this appeal from the judgment,

challenging the dismissal of his Complaint. We possess jurisdiction pursuant to 28

U.S.C. § 1291.

II.

We review issues of subject matter jurisdiction de novo. See Columbia Gas

Transmission Corp. v. Drain, 237 F.3d 366, 369 (4th Cir. 2001). It is established that “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We have recognized

4
Nanni’s litigation history is not apparent in this record, but some aspects thereof
were apparently brought to the district court’s attention by way of written submissions
made with respect to Aberdeen’s dismissal request.

8
that “facial plausibility is established once . . . the complaint’s factual allegations produce

an inference . . . strong enough to nudge the plaintiff’s claims ‘across the line from

conceivable to plausible.’” See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591

F.3d 250, 256 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 570). In assessing the

sufficiency of a complaint, we assume as true all its well-pleaded facts and draw all

reasonable inferences in favor of the plaintiff. Id. at 253. Thus, to satisfy the plausibility

standard, a plaintiff is not required to plead factual allegations in great detail, but the

allegations must contain sufficient factual heft “to allow a court, drawing on ‘judicial

experience and common sense,’ to infer ‘more than the mere possibility’” of that which is

alleged. Id. at 256 (quoting Iqbal, 556 U.S. at 679).

III.

A.

On appeal, Nanni urges us to vacate the district court’s decision on standing as

fatally erroneous and to reinstate his Complaint. Put succinctly, Nanni maintains that the

court erred in its Opinion by failing to recognize that the Complaint demonstrates that he

suffered a concrete and particularized injury when he encountered the noncompliant

parking spaces, curb ramps, sidewalk ramp, and routes throughout the Marketplace. See

Br. of Appellant 12-19. Because the Complaint alleges that those “architectural barriers

have not been removed and still exist,” the court should have concluded that Nanni will

“encounter the same barriers and suffer the same harm” on his future visits to the

Marketplace. Id. at 19. Nanni relies on, inter alia, our unpublished decision in Daniels v.

9
Arcade, L.P., 477 F. App’x 125, 129-30 (4th Cir. 2012), a similar ADA case in which we

concluded that the complaint sufficiently pleaded the injury-in-fact element of standing

by alleging that the plaintiff, who used a wheelchair, lived near and regularly visited the

defendant property; that he had encountered structural deficiencies there, including

inaccessible entry routes, ramps, restrooms, and other amenities; that those structural

deficiencies had excluded the plaintiff from, or denied him the benefits of, the goods and

services offered by the defendant property; and that the plaintiff planned to continue to

visit the defendant property to shop.

Additionally, Nanni takes umbrage with the Opinion’s determination that the

Complaint is insufficiently specific as to the particular goods and services at the

Marketplace that Nanni seeks out in his travels, and as to the reasons why Nanni chooses

the Marketplace over other available rest stops. See Br. of Appellant 19-22. According

to Nanni, once the district court acknowledged — as it properly did — that the Complaint

plausibly alleges Nanni’s intent to return to the Marketplace, that should have ended the

court’s inquiry on the likelihood of future harm. Instead, however, the Opinion deemed

the Complaint inadequate and questioned Nanni’s credibility and motives in returning to

the Marketplace and pursuing his ADA claim against Aberdeen. Nanni contends that his

motivations are “irrelevant to [his] right to be free from discrimination,” id. at 21, and

that the court inappropriately used merits-based criteria to dismiss the Complaint.

Aberdeen, on the other hand, maintains on appeal that the district court correctly

dismissed the Complaint for lack of Nanni’s standing to sue. As Aberdeen would have it,

more than even the Opinion required is necessary to demonstrate the likelihood of future

10
injury. See Br. of Appellee 12-17. More specifically, the Complaint fatally fails to allege

“a planned date of [Nanni’s] return” to the Marketplace, as well as “any arrangements

made for return, a reason why he would return, specific establishments [at the

Marketplace] that he intends to return to, or information about what he intends to do on

his return.” Id. at 16. Aberdeen also distinguishes Nanni’s ADA claim from the ADA

claim in our Daniels decision, arguing that the likelihood of future injury was more

plausible in Daniels because the plaintiff lived just twenty miles from the defendant

property, whereas there are forty miles between Nanni’s residence and the Marketplace.

Id. at 18-21. Premised on Daniels, Aberdeen advocates the adoption of a “close

proximity” test to determine the plausibility of a future injury allegation. Id.

As for the Opinion’s reliance on Nanni’s credibility and motives, Aberdeen

defends it on the ground that matters such as Nanni’s “tenuous at best” connection with

the Marketplace and his litigation history go to the plausibility of the Complaint’s

allegation that Nanni is likely to suffer future injuries. See Br. of Appellee 21-23.

Aberdeen also agrees with the district court that Nanni’s intention of returning to the

Marketplace as an “ADA tester” is — standing alone — insufficient to establish Nanni’s

standing to sue. Id. at 24-27. Finally, Aberdeen characterizes the Complaint as merely

alleging “fears” of re-encountering barriers that cannot be substantiated without details

about Nanni’s plans for his return to the Marketplace. Id. at 27-29.

11
 B.

1.

Turning to our analysis of Nanni’s standing to sue, Title III of the ADA bars

discrimination against individuals on the basis of disability in places of public

accommodation. See 42 U.S.C. § 12182. In enacting the ADA, Congress recognized that

we live in a “society [that] has tended to isolate and segregate individuals with

disabilities.” Id. § 12101. Such individuals “continually encounter various forms of

discrimination, including outright intentional exclusion” as a result of various barriers to

access, including those of an architectural nature. Id. The ADA applies to privately

operated places of public accommodation, such as the Marketplace. Id. § 12182(a). 5

Furthermore, discrimination under the ADA includes the “failure to remove architectural

barriers . . . in existing facilities . . . where such removal is readily achievable.”

Id. § 12182(b)(2)(A)(iv).

In order for Nanni to pursue his ADA claim, he must satisfy “the irreducible

constitutional minimum of standing” that is required in order to invoke jurisdiction in the

5
The ADA’s prohibition against discrimination in public accommodations, which
is in part codified in section 12182(a) of Title 42 of the United States Code, proscribes
private entities from discriminating on the basis of disability:

No 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.

See 42 U.S.C. § 12182(a).

12
federal courts. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The doctrine of

standing is concerned with the constitutional limitation on federal court jurisdiction to the

tribunal’s resolution of “cases” and “controversies” that are appropriately justiciable. See

U.S. Const. art. III § 2, cl. 1. We have recognized that “[d]octrines like standing,

mootness, and ripeness are simply subsets of [the Constitution’s] command that the

courts resolve disputes, rather than emit random advice.” See Bryant v. Cheney, 924 F.2d

525, 529 (4th Cir. 1991). In assessing a question of standing to sue, we are not concerned

with the merits of the plaintiff’s claim. See White Tail Park, Inc. v. Stroube, 413 F.3d

451, 460 (4th Cir. 2005). Instead, our only aim is to assess “whether [the] plaintiff has a

sufficiently personal stake in the lawsuit to justify the invocation of federal court

jurisdiction.” Id. at 461 (internal quotation marks omitted).

In order to possess standing to sue in this proceeding, Nanni must satisfy the

elements of standing enunciated by the Supreme Court in its Lujan decision. And only

one of those elements — the “injury-in-fact” element — is being litigated here. To

satisfy that specific element, the Complaint must show that Nanni “suffered an injury in

fact — an invasion of a legally protected interest which is (a) concrete and particularized,

and (b) actual or imminent, not conjectural or hypothetical.” See Lujan, 504 U.S. at 560

(footnote, citation, and internal quotation marks omitted). As further mandated by Lujan,

because Nanni is seeking prospective declaratory and injunctive relief rather than

damages, the allegations in the Complaint of past injuries “do[] not in [themselves] show

13
a present case or controversy . . . if unaccompanied by any continuing, present adverse

effects.” Id. at 564 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). 6

2.

The issue we face in this appeal is therefore simple and focused. Does Nanni’s

Complaint sufficiently allege standing to sue under Lujan’s injury-in-fact element?

a.

First of all, we reject the district court’s determination in its Opinion that the

Complaint does not sufficiently allege past injuries that are concrete and particularized,

as well as actual or imminent. To satisfy that standard, a plaintiff may demonstrate an

“actual” “invasion of a legally protected interest” that “affect[s] the plaintiff in a personal

and individual way.” See Lujan, 504 U.S. at 560 & n.1. As illustrated by our recent

unpublished decision in Daniels, a past injury is sufficiently pleaded for purposes of an

ADA claim where a disabled individual who requires a wheelchair for mobility alleges

that he has personally encountered noncompliant architectural barriers and describes how

those barriers caused him harm. See 477 F. App’x at 129-30.

6
The second and third elements of standing to sue, as identified by the Supreme
Court in Lujan, are the following: “there must be a causal connection between the injury
and the conduct complained of — the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the independent action of some third party
not before the court”; and “it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” See 504 U.S. at 560-61 (alterations and
internal quotation marks omitted). Neither of those Lujan elements are disputed in these
proceedings.

14
 According to the Complaint, Nanni — who relies on a wheelchair for mobility —

visited the Marketplace at least three or four times between 2013 and 2015. See Compl.

¶ 10. During those visits, Nanni encountered noncompliant parking spaces that “caused

him difficulty exiting and entering his vehicle because of the extra care needed to avoid a

fall.” Id. ¶ 14. Nanni also encountered other barriers to access throughout the

Marketplace, including curb ramps and a sidewalk ramp, which required him to exercise

“extra care.” Id. Those barriers placed Nanni at risk of physical harm and denied him

equal access to the goods and services located at the Marketplace. Id. ¶¶ 14-15.

Architectural barriers, such as those identified here, result in exclusion,

segregation, and other differential treatment of persons with disabilities — precisely the

types of systemic discrimination the ADA seeks to erase. See 42 U.S.C. § 12182(a). By

alleging that Nanni visited the Marketplace and personally encountered architectural

barriers to access, the Complaint pleads past injuries that are concrete, particularized, and

actual. Indeed, there is nothing conjectural or hypothetical about the injuries Nanni

suffered during his visits to the Marketplace.

b.

We therefore proceed to the question of whether the Complaint sufficiently alleges

a likelihood that Nanni will again suffer such injuries, and we conclude that it does. See

Lyons, 461 U.S. at 105 (explaining that “standing to seek the injunction requested

depended on whether [the plaintiff] was likely to suffer future injury”). That is, the

Complaint satisfies the future injury requirement by plausibly alleging “a real and

15
immediate threat of repeated injury.” See Bryant, 924 F.2d at 529 (quoting Lyons, 461

U.S. at 102).

In our Daniels decision, we addressed — in a similar context — the sufficiency of

allegations of the likelihood of future injury with respect to the ADA plaintiff’s standing

to seek equitable relief. See 477 F. App’x at 129-30. We therein recognized that the

complaint’s allegations of past injuries on the plaintiff’s earlier visits to the defendant

property (the Lexington Market in Baltimore), coupled with his alleged intent “to

continue to visit the Market in the future for his shopping needs,” were sufficient to plead

the likelihood of future injury. Id. (alteration and internal quotation marks omitted). We

also observed that the complaint’s allegation of a plan to return to the Market was

plausible, in that the plaintiff “reside[d] in relatively close proximity to the Market,” i.e.,

about twenty miles away. Id. at 127, 130.

Importantly, the Daniels principle — that when an ADA plaintiff has alleged a

past injury at a particular location, his plausible intentions to thereafter return to that

location are sufficient to demonstrate the likelihood of future injury — is entirely

consistent with the decisions of our fellow courts of appeals. See, e.g., Kreisler v. Second

Ave. Diner Corp., 731 F.3d 184, 188 (2d Cir. 2013); Gaylor v. Hamilton Crossing CMBS,

582 F. App’x 576, 580 (6th Cir. 2014); Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1074

(7th Cir. 2013); Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000); D’Lil v. Best

W. Encina Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir. 2008); Tandy v. Wichita, 380

F.3d 1277, 1284 (10th Cir. 2004); Houston v. Marod Supermarkets, Inc., 733 F.3d 1323,

16
1335 (11th Cir. 2013). 7 Put simply, we are satisfied that the Daniels decision properly

described and applied the pleading obligations for standing with respect to Lujan’s

injury-in-fact element. We therefore adopt the Daniels principle and apply it in disposing

of this appeal.

Consistent with the Daniels principle, the Complaint sufficiently pleads that Nanni

suffered past injuries on his visits to the Marketplace. Thus, contrary to the district

court’s Opinion, we are not left “to speculate as to the type of harm [Nanni] is likely to

face on his return to the [Marketplace].” See Op. 7. Rather, we know exactly the type of

future injury that Nanni faces: the denial of equal access to the Marketplace’s goods and

services by way of architectural barriers that include noncompliant parking spaces and

ramps. Significantly, the Complaint’s allegations of future injury also are plausible. That

is, it is entirely plausible that Nanni will return to the Marketplace to rest and take

bathroom breaks during his trips several times a year from his home in Delaware to

Baltimore and Washington, D.C.

In these circumstances, the district court applied an overly stringent and erroneous

requirement of specificity to its assessment of the Complaint. We reject the court’s

7
We would be remiss if we failed to mention that certain courts of appeals have
adopted a less stringent pleading requirement than the Daniels standard. At least two
courts have recognized that, once an ADA plaintiff has been injured by unlawful barriers
to access, his allegation of “actual knowledge of illegal barriers at a public
accommodation” is alone sufficient to show the likelihood of future harm for purposes of
standing to sue. See Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1135 (9th
Cir. 2002); see also Dudley v. Hannaford Bros., 333 F.3d 299, 306-307 (1st Cir. 2003)
(same).

17
conclusion that the Complaint cannot sufficiently allege the likelihood of future harm

without naming specific goods, services, and conveniences that render the Marketplace a

“more advantageous” place to stop than others along his travel route. See Op. 8. We

similarly reject Aberdeen’s theory that Nanni was obliged to allege such specifics as the

precise dates and arrangements for his return to the Marketplace, his reasons for

returning, and the particular Marketplace establishments he plans to visit. As we

explained in Daniels, “we are aware of no precedent in this Circuit that requires this

degree of specificity to survive a motion to dismiss, and we decline to impose such a

requirement here.” See 477 F. App’x at 130; see also Dudley v. Hannaford Bros., 333

F.3d 299, 307 (1st Cir. 2003) (explaining that imposition of a limitation on ADA relief to

“instances in which a future violation appears certain to occur would create a standard far

more demanding than that contemplated by the congressional objectives”). Furthermore,

that other, ADA-compliant facilities may be located near the Marketplace along I-95 will

not excuse any of Aberdeen’s violations of the ADA.

We also reject Aberdeen’s invitation — premised on the facts of Daniels — to

draw an arbitrary line of geographical proximity somewhere between twenty and forty

miles for purposes of determining an ADA plaintiff’s standing to sue. Although

proximity could be a factor relevant to the plausibility of future injury, the fact that Nanni

lives forty miles from the Marketplace is not fatal to his standing, especially in view of

Nanni’s patronage of the Marketplace for rest and bathroom breaks during his regular

travels. Whereas it was plausible in Daniels that the plaintiff would shop at the Market

twenty miles from his residence, it is entirely plausible here that Nanni will stop for rest

18
and bathroom breaks at the Marketplace while travelling north and south on I-95. In

sum, the facts of each case control the plausibility analysis.

3.

A brief discussion of the district court’s reliance on Nanni’s credibility and

motives is also warranted. As explained above, the Opinion considered the Complaint’s

allegation that Nanni would return to the Marketplace as an “ADA tester,” along with his

litigation history, in assessing whether he possesses standing to sue Aberdeen. The court

observed that Nanni’s tester status alone is insufficient to confer standing upon him — a

proposition that Nanni has not, in any event, disputed. The Opinion then went on to

conclude that, although acting as a tester is not improper, Nanni’s particular litigation

history undermined the plausibility of his future injury theory. That is, the Opinion

deemed Nanni to be an opportunistic litigant, rather than a bona fide patron of the

Marketplace.

Put simply, however, neither Nanni’s status as an “ADA tester” nor his litigation

history strips him of standing to sue Aberdeen. See Houston, 733 F.3d at 1332

(explaining that a plaintiff’s “status as a tester does not deprive him of standing to

maintain his civil action for injunctive relief under . . . the ADA’s Title III”); Daniels,

477 F. App’x at 130 (rejecting district court’s reliance on plaintiff’s litigation history to

deem his future injury claim implausible). As we recognized in our Daniels decision —

and emphasize again today — a citizen’s “right to sue and defend in the courts is one of

the highest and most essential privileges of citizenship and is granted and protected by

the Federal Constitution.” See 477 F. App’x at 130 (alterations omitted) (quoting

19
Chambers v. Balt. & Ohio R.R. Co., 207 U.S. 142, 148 (1907)). Moreover, under our

system, all citizens are obliged to obey the law and to aid law enforcement efforts. In

various situations, citizens are required by law to report violators to the proper

authorities. See, e.g., 18 U.S.C. § 4 (requiring citizens to report felony offenses to judges

and other authorities). As the Supreme Court acknowledged several years ago, the

“enforcement [of civil rights laws] would prove difficult” and our country will be obliged

“to rely in part upon private litigation as a means of securing broad compliance.” See

Newman v. Piggie Park Enters., 390 U.S. 400, 401 (1968). That very principle is also

embodied in the ADA. See Dudley, 333 F.3d at 306-07 (discussing importance of private

litigation in achieving broad compliance with ADA). In the community of those citizens

who are wheelchair bound, the identification of public accommodation facilities that flout

the ADA is obviously an important activity.

At bottom, we reject the proposition that Nanni’s motivations in pursuing his

ADA claim against Aberdeen deprive him of standing to sue in these proceedings. And,

predicated on our de novo review of the Complaint, we are satisfied that Nanni’s standing

to sue is sufficiently alleged.

IV.

Pursuant to the foregoing, we vacate the judgment of the district court and remand

for such other and further proceedings as may be appropriate.

VACATED AND REMANDED

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