Magistrate Judge Austin Recommends Denial of Rule 12(b)(6) Dismissal of ADA Case

Kramer v. Lakehills South, LP, No. A:13-CV-00591-LY, slip op. (W.D. Tex. Jan. 7, 2014)(Austin, M.J.)

Wheelchair-bound with multiple sclerosis, Kramer lives in Ohio, but travels to Austin to visit her son. Slip op. at 1-2. In early 2013, she was in Austin and shopped at the Lake Hills Plaza, where she encountered a number of architectural barriers. Id. at 2. She filed suit under Title III of the Americans with Disabilities Act and the shopping center owner moved to dismiss under Rules 12(b)(1) and 12(b)(6). Magistrate Judge Austin recommended that the Rule 12(b)(1) motion be denied because it relied on the largely rejected “intent to return” standard, rather than the “deterrent effect” test for standing that the Fifth Circuit seemingly adopted in Frame v. City of Arlington, 657 F.3d 215, 236 (5th Cir. 2011), cert. denied, 132 S.Ct. 1561 (2012). Slip op. at 3-8. Magistrate Judge Austin recommended that the shopping center owner’s Rule 12(b)(6) motion be denied, citing the 16 property obstacles alleged in Kramer’s complaint. Id. at 9-12.