Harty v. West Point Realty, Inc.

Harty v. West Point Realty, Inc.

Opinion

 [*439]  Plaintiff Owen Harty, who uses a wheelchair and is disabled, appeals from a judgment of the United States District Court for the Southern District of New York (Briccetti, J.) dismissing his complaint against Defendant West Point Realty, Inc., for alleged violations of regulations promulgated pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the "ADA"). In his complaint, Harty did not assert that he visited West Point Realty's website with the intention of visiting the hotel run by West Point Realty; rather, he alleged that he frequently visits hotel websites to determine whether those websites comply with ADA regulations. Considering only the allegations in Harty's complaint, and not an affidavit filed by Harty in support of his opposition to West Point Realty's motion [**2]  to dismiss for lack of subject matter jurisdiction, the district court dismissed Harty's claims for lack of standing due to Harty's failure to allege a concrete injury in fact.

We agree with the district court that Harty failed to allege a concrete injury in fact and therefore lacked standing to assert a claim under the ADA; we also conclude that the district court did not abuse its discretion by considering only the allegations in Harty's complaint when deciding West Point Realty's motion to dismiss. Accordingly, we AFFIRM the district court's dismissal of Harty's complaint.

Affirmed

Richard J. Sullivan, Circuit Judge:

Plaintiff Owen Harty appeals a judgment of the district court (Briccetti, J.) dismissing his complaint for lack of subject matter jurisdiction. According to the complaint, Harty, who uses a wheelchair and is disabled, visits booking websites used by hotels to advertise their rooms so that he can determine whether the websites comply with regulations promulgated pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the "ADA"). Specifically, Harty alleges that Defendant West Point Realty, Inc.'s website does not comply with 28 C.F.R. § 36.302(e)(1)(ii), which, among other things, requires places of public accommodation that own or operate [**3]  a place of lodging to "[i]dentify and describe accessible features in the hotels and guest rooms offered through [their] reservations service[s] in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs." In this case, Harty does not allege that he viewed West Point Realty's website with the intention of visiting the Holiday  [*440]  Inn run by West Point Realty; he merely contends that the website itself was not in compliance with the ADA when he viewed it. West Point Realty filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss the complaint, arguing that Harty had not alleged a concrete injury in fact and therefore lacked standing. The district court, considering only the allegations in Harty's complaint, and not an affidavit Harty filed in support of his opposition to West Point Realty's motion, granted dismissal. C.F.R.

On appeal, we are tasked with deciding whether (i) the district court erred by limiting its review to the facts alleged in Harty's complaint; (ii) Harty has properly alleged a concrete injury in fact based on the website's alleged noncompliance with the ADA; and (iii) the district [**4]  court dismissed Harty's complaint with prejudice, which would have been improper pursuant to the long-established rule that dismissals for lack of jurisdiction must be without prejudice. We conclude that the district court did not abuse its discretion in considering only the facts of Harty's complaint when deciding the Rule 12(b)(1) motion, that Harty lacks standing because he has not alleged a concrete injury in fact, and that the district court did not dismiss Harty's complaint with prejudice. As a result, we AFFIRM the judgment of the district court.

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