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Cohan v. California Pizza Kitchen, Inc.

United States District Court, E.D. Michigan, Southern Division

September 4, 2019

HOWARD COHAN, Plaintiff,
v.
CALIFORNIA PIZZA KITCHEN, INC., Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT [ECF No. 10]

          Victoria A. Roberts United States District Judge

         I. INTRODUCTION

         California Pizza Kitchen (“CPK”) filed a Motion to Dismiss Plaintiff's First Amended Complaint. Argument on the motions was heard on May 8, 2019.

         Howard Cohan (“Cohan”), a Florida resident, visited Michigan in March 2018 and dined at CPK in Novi. Cohan says CPK denied him full and equal access to, and enjoyment of, its services because of: (1) barriers throughout the restaurant premises, and (2) CPK's failure to make reasonable accommodations for his disability.

         The Court GRANTS Defendant's motion to dismiss.

         II. BACKGROUND

         Cohan claims he is an individual with numerous disabilities that cause him to suffer from a qualified disability under subtitle A of Title III of the Americans with Disabilities Act of 1990 (“ADA”). 42 U.S.C. 12181-12189. See also 28 C.F.R. § 36.104. Cohan says he encountered architectural barriers in CPK's restroom and seating area on March 20.

         CPK moves to dismiss Cohan's First Amended Complaint for lack of subject matter jurisdiction. CPK says Cohan's First Amended Complaint not only relies on conclusory allegations, but it also fails to allege sufficient facts demonstrating that Cohan suffered concrete, particularized, or actual injury caused by Defendant's conduct.

         Defendant also states the First Amended Complaint does not allege sufficient facts demonstrating Plaintiff's intent to return to Defendant's premises to support standing.

         Finally, Defendant says the case is moot because it successfully remedied the alleged barriers.

         In response to Defendant's motion to dismiss, Cohan alleges:

         1. He is not homebound.

         2. He regularly travels.

         3. His condition is getting worse, resulting in more frequent use of various mobility aids.

         4. Architectural barriers at CPK would make it unsafe for him to use the restroom with a mobility aid.

         5. He only needs to allege that he suffered an injury traceable to CPK's conduct.

         6. While he does not always use a wheelchair, his condition has worsened so that it requires occasional use of mobility aids.

         7. The barriers at CPK affect his disability directly due to his limitations on motion and mobility.

         8. His injury is particularized because he personally and individually suffered discrimination.

         9. He personally encountered barriers.

         10. Not all mobility-related disabilities require the ...


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