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govinfo:USCOURTS-flsd-1_26-cv-20075-0
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:26-cv-20075-KMM
NESTOR A. PROVEYER,
Plaintiff,
v.
PRINCE ST. PIZZA LLC, a Foreign Limited
Liability Company D/B/A PRINCE STREET PIZZA,
Defendant.
/
ORDER OF DISMISSAL WITHOUT PREJUDICE
THIS CAUSE came before the Court upon a sua sponte review of the Complaint for
Declaratory and Injunctive Relief, and Jury Trial Demand filed by Plaintif f Nestor A. Proveyer
(“Plaintiff”) against Defendant Prince St. Pizza LLC D/B/A Prince Street Pizza (“Defendant”).
(“Compl.”) (ECF No. 1). As set forth below, the Complaint is DISMISSED WITHOUT
PREJUDICE.
I. FACTUAL BACKGROUND
In establishing federal jurisdiction pursuant to the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12181–89, the Complaint states that Plaintiff is a “a member of a protected
class” under the ADA, due to his visual impairment, and that “[i]n addition, Plaintiff is an advocate
of the rights of similarly situated disabled persons” and is therefore “a ‘tester’ for the purposes of
asserting his civil rights and monitoring, ensuring, and determining whether places of public
accommodation and/or their respective and associated websites are in compliance with the ADA
and any other applicable disability laws, regulations, and ordinances.” Compl. ¶¶ 12–14. Plaintiff
then alleges that “[s]ince [Defendant’s] website is open through the internet to the public as an
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extension of the retail stores, by this nexus the website is an intangible service, privilege and
advantage of Defendant’s brick and mortar locations [such that] Defendant has subjected itself and
the associated website it created and maintains to the requirements of the ADA.” Id. ¶ 23.
Plaintiff states that he “sought to, seeks to and intends to patronize, in the near future once
[Defendant’s website’s] access barriers are removed or remedied, one or more of Defendant’s
physical retail locations, check store hours and product pricing and place online orders.” Id. ¶ 25.
Further, “[i]n the alternative, Plaintiff intends to monitor [Defendant’s website] in the near future
as a tester to ascertain whether it has been remedied and updated to interact properly with screen
reader software.” Id.
Plaintiff alleges that he “attempted to purchase a meal on Defendant’s website,” but “was
not able to freely and fully use Defendant’s website because it contains access barriers that make
it inaccessible to persons with disabilities [.]” Id. ¶ 28. Further, Plaintiff alleges that he “desires
and intends, in the near future once the Website’s access barriers are removed or remedied, to
patronize one or more of Defendant’s physical stores and to use the Website, but he is presently
unable to do so as he is unable to effectively communicate with Defendant, due to his severe visual
disability and the Website’s access barriers.” Id. ¶ 32. In the Complaint, Plaintiff asserts Count I
for violation of the ADA and Count II for trespass. See id. ¶¶ 54–81.
II. LEGAL STANDARD
Federal courts are “‘empowered to hear only those cases within the judicial power of the
United States as defined by Article III of the Constitution,’ and which have been entrusted to them
by a jurisdictional grant authorized by Congress.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d
405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). The
Court is obligated to inquire into the question of its jurisdiction over cases brought before it. See
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Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (“[S]ubject-matter delineations must
be policed by the courts on their own initiative even at the highest level.”); Univ. of S. Ala., 168
F.3d at 410 (“[I]t is well settled that a federal court is obligated to inquire into subject matter
jurisdiction sua sponte whenever it may be lacking.”). As such, a “district court may act sua sponte
to address the issue of subject matter jurisdiction at any time.” Herskowitz v. Reid, 187 F. App’x
911, 912–13 (11th Cir. 2006). Further, “once a federal court determines that it is without subject
matter jurisdiction, the court is powerless to continue.” Univ. of S. Ala., 168 F.3d at 410; see Fed.
R. Civ. P. 12(h)(3).
The ADA protects against discrimination “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). As relevant to claims premised on the
inaccessibility of websites, the ADA further specifies that discrimination thereunder includes
“failure to take such steps as may be necessary to ensure that no individual with a disability is
excluded, denied services, segregated or otherwise treated differently than other individuals
because of the absence of auxiliary aids and services.” Id. § 12182(b)(2)(A)(iii). A place of public
accommodation is excused from this requirement if it “ can demonstrate that taking such steps
would fundamentally alter the nature of the good, service, facility, privilege, advantage, or
accommodation being offered or would result in an undue burden.” Id.
This is an evolving area of law . In Haynes v. Dunkin’ Donuts LLC, the Eleventh Circuit
reversed a court in this District for dismissing a blind plaintiff’s complaint on the basis that there
was no nexus between the website access barriers and physical access to the store as the place of
public accommodation, reasoning that the ADA’s prohibition on discrimination “can extend to
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intangible barriers” and the plaintiff had alleged a plausible ADA claim due to his inability to
access the website to locate physical locations, purchase gift cards online, and learn information
about the physical locations. 741 F. App’x 752, 754 (11th Cir. 2018) (discussing Rendon v.
Valleycrest Prods., Ltd., 294 F.3d 1279, 1281–82 (11th Cir. 2002)).
Three years later, the Eleventh Circuit in Gil v. Winn-Dixie Stores, Inc. held that “websites
are not a place of public accommodation” under the ADA such that “inability to access and
communicate with the website itself” does not violate the statute. 993 F.3d 1266, 1277 (11th Cir.
2021), opinion vacated on mootness grounds on reh’g, 21 F.4th 775 (11th Cir. 2021).
1 There, the
Eleventh Circuit relied on the fact that the case centered around a “limited use website . . . [that]
does not function as an intangible barrier to an individual with a visual disability accessing the
goods, services, privileges, or advantages of [Defendant’s] physical stores—the operative place of
public accommodation,” because the website itself was not a point of sale. Id. at 1279–80. Courts
in this District have interpreted whether a website is a point of sale to have been a key distinction
in Gil, its subsequent vacatur notwithstanding. See, e.g., Ariza v. Broward Design Ctr., Inc., No.
22-cv-61475, 2022 WL 10262037, at *2 (S.D. Fla. Oct. 18, 2022); Fernandez v. Mattress Xperts
Broward, Inc., No. 21-cv-80573, 2021 WL 3931243, at *2 (S.D. Fla. Sept. 2, 2021).
Reviewing these authorities, then, a plaintiff seeking to state a claim under the ADA must
allege that the website is inaccessible in a manner that would prevent the plaintiff from accessing
and fully benefiting from the services, goods, privileges, or advantages of the defendant’s physical
location. As always, such pleading must satisfy Federal Rule of Civil Procedure 8(a), which
1 Although the Gil opinion has been vacated, it may still be considered if the Court finds it
persuasive. See, e.g., Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1218
(11th Cir. 2009) (“We are free to give statements in a vacated opinion persuasive value if we think
they deserve it.”).
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requires that a complaint contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). That pleading must also contain enough facts to
plausibly allege the required element of any claim. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295–
96 (11th Cir. 2007). However, a pleading that offers “[t]hreadbare recitals . . . supported by mere
conclusory statements” or “a formulaic recitation of the elements of a cause of action will not do.”
Ashcroft v. Iqbal, 556 U.S. 662, 663, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S.
544, 555 (2007)).
As to establishing standing as required under Article III, which limits federal courts to
deciding actual cases and controversies, a plaintiff must adequately allege: (1) they have suffered
an injury in fact; (2) the injury is “fairly traceable to the challenged conduct of the defendant”; and
(3) the injury is likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 578
U.S. 330, 338 (2016); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–61 (1992). Plaintiffs
suing under the ADA may only seek injunctive relief, and in that context, “[b]ecause injunctions
regulate future conduct, a party has standing to seek injunctive relief only if the party shows ‘a real
and immediate—as opposed to a merely conjectural or hypothetical — threat of future injury.’”
Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1329 (11th Cir. 2013) (quoting Shotz v.
Cates, 256 F.3d 1077, 1081 (11th Cir. 2001)) ; 42 U.S.C. § 12188(a) (limiting ADA relief to
injunctions). To adequately establish this injury, a plaintiff must demonstrate a past injury and
also an “actual or imminent injury” that is more than an intention to return “some day.” Lujan ,
504 U.S. at 564 (citation omitted). The Eleventh Circuit counsels that threat of future injury is to
be assessed under the “totality of all relevant facts,” and has identified four non-dispositive factors
to be considered: “(1) the proximity of the defendant’s business to the plaintiff’s residence; (2)
the plaintiff’s past patronage of the defendant’s business; (3) the definiteness of the plaintiff’s plan
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to return; and (4) the frequency of the plaintiff’s travel near the defendant’s business.” Kennedy
v. Floridian Hotel, Inc., 998 F.3d 1221, 1233 (11th Cir. 2021).
III. DISCUSSION
Plaintiff alleges that he “attempted on a number of occasions to utilize” Defendant’s
website to “educate himself as to the merchandise, sales, discounts, and promotions being offered,
learn about the brick -and-mortar location, check store hours, and check product pricing with the
intent to make a purchase through the [w]ebsite or in one of the physical locations and with the
intent to make a purchase through the website or at one of Defendant’s physical stores.” Compl.
¶ 27. Plaintiff also alleges he attempted to access and use the website “in his capacity as a tester.”
Id. Plaintiff states that he intends to revisit Defendant’s website and patronize one or more of its
physical futures “in the near future once the Website’s access barriers are removed or remedied.”
Id. ¶ 32. Further, Plaintiff “travels within close proximity to Defendant’s location on a regular
basis and would immediately return to both the [w]ebsite and the physical location but for the
accessibility barriers described herein.” Id. In sum, Plaintiff alleges that he “desires and intends,
in the near future once the [w]ebsite’s access barriers are removed or remedied, to patronize one
or more of Defendant’s physical stores and to use the [w]ebsite, but he is presently unable to do
so as he is unable to effe ctively communicate with Defendant, due to his severe visual disability
and the [w]ebsite’s access barriers. Alternatively, as a tester using screen reader software, Plaintiff
is unable to effectively access, navigate, and communicate with Defendant throu gh the [w]ebsite
due to his severe visual disability and the [w]ebsite’s access barriers.” Id. ¶ 33.
These allegations are insufficient for several reasons. First, the allegations are
overwhelmingly conclusory. Plaintiff fails to provide any details regarding past attempts to
patronize Defendant ’s physical business, and only generically allege s that he “attempted to
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purchase a meal on Defendant ’s website.” Id. ¶ 28. Thi s generic, threadbare assertion i s
insufficient. Further, a lthough Plaintiff contends that navigating the website is necessary to
patronize Defendant’s physical locations because he needs to ascertain Defendant’s business
information prior to patronizing the store, he does not explain whether he has attempted to do this
and what the barriers to physical patronage were . See id. ¶ 33. Plaintiff’ s allegations that he
“desires and intends, in the near future once the [w] ebsite’s access barriers are removed or
remedied, to patronize one or more of Defendant’s physical stores ” are similarly conclusory and
devoid of detail. Id. ¶ 32; see also Kennedy v. Beachside Comm. Props., LLC, 732 F. App’x 817,
822 (11th Cir. 2018) (explaining that a plan must be both “concrete and realistic,” including a
showing of the motivation behind the same).
Second, throughout the Complaint Plaintiff employs the catch- all formulation of being a
tester in the alternative. See id. ¶¶ 25, 27, 32. While not inherently fatal to his claim, the specific
paragraphs in which he alternatively alleges he is a tester contain key allegations necessary to
establish his intent to patronize Defendant’s physical locations. See id. ¶ 25 (“Plaintiff sought to,
seeks to and intends to patronize, in the near future . . . one or more of Defendant’s physical retail
locations), ¶ 32 (“Plaintiff desires and intends, in the near future . . . to patronize one or more of
Defendant’s physical stores and to use the [w]ebsite”). These allegations in the alternative do not
describe patronizing Defendant’s physical store as a tester, and it is not at all clear to the Court on
what basis Plaintiff would seek to proceed as a tester while not actually having participated in the
activity which he seeks to test.
As currently alleged, the Complaint still is too close to the “some day” intentions that the
Supreme Court has rejected. See Lujan, 504 U.S. at 564. Either as an individual or as a tester,
Plaintiff has not demonstrated past patronage efforts and indeed retreats from his vague but
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nevertheless stated intention to patronize Defendant’s physical stores in asserting his status as a
tester in the alternative. If he hopes to survive dismissal in the future, he must state with both
factual and legal specificity his past injury as well as his concrete and realistic future injury, and
provide enough non-conclusory detail to allow the Court and Defendant to understand exactly how
he is being discriminated against within the meaning of the ADA.
Thus, applying the four non- dispositive factors identified by the Eleventh Circuit,
Plaintiff’s allegations as to his past and future patronage of Defendant’s physical location are
insufficient to establish future discrimination under the ADA on the basis of the inaccessibility of
Defendant’s website. See Shotz, 256 F.3d at 1081; Lujan, 504 U.S. at 564; Kennedy , 998 F.3d at
1233. As Plaintiff fails to establish injury-in-fact for purposes of Article III standing, and the ADA
is the sole basis for federal question and supplemental jurisdiction over the claims in this case, the
Court is without subject matter jurisdiction to hear this case as presently alleged.
IV. CONCLUSION
Accordingly, UPON CONSIDERATION of the Complaint, the pertinent portions of the
record, and being otherwise fully advised in the premises, it is hereby ORDERED AND
ADJUDGED the above-styled case is DISMISSED WITHOUT PREJUDICE. Plaintiff may file
an amended complaint that properly alleges the basis for invoking federal jurisdiction on or before
March 16, 2026. Failure to do so will result in this action being dismissed with prejudice.
DONE AND ORDERED in Chambers at Miami, Florida, this _______ day of February, 2026.
K. MICHAEL MOORE
UNITED STATES DISTRICT JUDGE
27th
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c: All counsel of record
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