Argued: September 12, 2017
from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
T. Ku, KU & MUSSMAN, P.A., Pembroke Pines, Florida, for
William Nelson Sinclair, SILVERMAN, THOMPSON, SLUTKIN &
WHITE, LLC, Baltimore, Maryland, for Appellee.
W. King, Hyattsville, Maryland, for Appellant.
TRAXLER and KING, Circuit Judges, and Raymond A. JACKSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
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.
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.
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. 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. 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, 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.
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
• One of the sidewalk ramps causes problems for the
disabled because it has "excessive running slopes";
• Various routes of travel about the Marketplace are
inaccessible to disabled persons "due to excessive
slopes and pavement in disrepair."
Id. ¶ 14.
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 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,