Nevada Lawsuit Mentions ABC15 Report

Case 2:17-cv-00306-GMN-GWF Document 21 Filed 06/05/17 Page 1 of 12
1 Michael J. Nuñez, Esq.

Nevada Bar No. 10703
2 Bradley T. Wibicki, Esq.
Nevada Bar No. 11321
3 MURCHISON & CUMMING, LLP
6900 Westcliff Drive, Suite 605
4 Las Vegas, Nevada 89145
Telephone: (702) 360-3956
5 Facsimile: (702) 360-3957
E-Mail: bwibicki@murchisonlaw.com
6
7 Attorneys for Defendant, MRG-RC5, LLC
9 UNITED STATES DISTRICT COURT
10 DISTRICT OF NEVADA
11
12 KEVIN ZIMMERMAN, an individual, CASE NO. 2:17-cv-00306-GMN-GWF
13 Plaintiff, DEFENDANT MRG-RC5, LLC’S MOTION

TO DISMISS OR IN THE ALTERNATIVE
14 v. MOTION FOR A MORE DEFINITE
STATEMENT
15 MRG-RC5, LLC,
16 Defendant.
17
18 Defendant, MRG-RC5, LLC (“Defendant”), by and through its counsel of record,

19 Michael J. Nuñez, Esq. and Bradley T. Wibicki, Esq. of Murchison & Cumming, LLP
20 respectfully submits this Motion to Dismiss pursuant to Fed. R. Civ. Pro. 12(b)(1) and (6) or in
21 the alternative Motion for a More Definite Statement pursuant to FRCP 12(e).
22 DATED: June 5, 2017

24
25 By /s/ Michael J. Nuñez

Michael J. Nuñez, Esq.
26 Nevada Bar No. 10703
Bradley T. Wibicki, Esq.
Attorneys for Defendant, MRG-RC5, LLC
1
1 Motion to Dismiss Pursuant to Fed.R.Civ.P 12(b)(1) and 12(b)(6)
2 I.
3 INTRODUCTION
4 Plaintiff Kevin Zimmerman, who alleges that his mobility is dependent on a wheelchair,
5 claims that he visited Defendant’s establishment located at 7135 S. Rainbow BLVD, Las
6 Vegas, NV 89113 on or about December 29, 2016. Specifically, Plaintiff claims he was denied
7 access to the PPA because the location violates Title III of the ADA, 42 U.S.C. 12181 et seq.
8 by failing to "provide a clear width of walking surfaces in aisles and pathways of no less than
9 36 inches..." Plaintiff also claims that Defendant failed to provide an unobstructed high forward
10 reach to the towel dispenser no greater than 48 inches above the ground, as required by 36
11 CFR Part 1191 Appendix D, Guideline 308.2 et seq.
12 Plaintiff Zimmerman has filed approximately 220 identical suits against stores and
13 business in Clark County. (See, Docket index, attached hereto as Exhibit A.) In fact,
14 Zimmerman and his attorney appear to be connected to a network that has filed thousands of
15 such lawsuits in Arizona, Colorado, New Mexico, and Nevada. (See, Exhibit B.) A Court in
16 Arizona took the step of dismissing more than 1,000 such cases after they were remanded
17 from the United States District Court for the District of Arizona and Arizona's Attorney General
18 intervened. (See Exhibit C.) This is an ongoing and systematic abuse of a law, even if
19 Zimmerman and his claim have noble purposes.
20 Defendant asks that the Complaint be dismissed, or that more specificity be proved.
21 The Complaint does little more than recite the law and its history. It fails to allege any specific
22 facts that would establish a violation of the ADA. Further, Plaintiff failed to notify Defendant or
23 follow the proper grievance procedures as set forth by the State of Nevada Department of
24 Administration, Public Works Division ("Nevada Public Works Division") and/or the Nevada
25 Equal Rights Commission prior to filing suit.
26 Accordingly, pursuant to Fed. R. Civ, P. 12(b)(1) and (6), Defendant respectfully moves
27 this Court to dismiss the Complaint. Alternatively, if the Court determines that Plaintiff does
28
2
1 have standing or has met administrative exhaustion requirements, Plaintiff should be required
2 to amend his Complaint to provide a more definite statement.
3 II.
4 BACKGROUND
5 Defendant operates an eating establishment located 7135 S. Rainbow BLVD, Las
6 Vegas, NV 89113. Plaintiff alleges that he visited the Defendant’s establishment referenced
7 above on December 29, 2016 "to enjoy the goods and services offered" there. Complaint ¶¶ 9-
8 11. At the establishment, Plaintiff was purportedly "denied full and equal access and full and
9 equal enjoyment of the facilities, services, goods and amenities," Id. ¶¶9-11, as the result of
10 alleged barriers: “failure to provide an unobstructed high forward reach to the towel dispenser
11 no greater than 48 inches above the ground, as required by 36 CFR Part 1191 Appendix D,
12 Guideline 308.2 et seq. and failure to provide the clear width of walking surfaces in aisles and
13 pathways no less than 36 inches (915 mm) as required by 36 CFR Section 1191 App. D.
14 Guideline 403.5.1. ." Id. ¶31. According to Plaintiff, these barriers violate the ADA and its
15 accompanying Disability Guidelines.
16 To remedy the alleged violations, Plaintiff seeks both "retrospective declaratory relief
17 (that Defendant has violated and continues to violate Title III of the ADA) and prospective
18 injunctive relief." Id. ¶ 6, 15. However, Plaintiff nowhere alleges that he or anyone acting on
19 his behalf reported the alleged violations to Defendant or the Nevada Public Works Division
20 and/or Nevada Equal Rights Commission before filing suit. Because of this, Plaintiff's goals in
21 this matter appear to be self-serving, as Plaintiff insists that "injunctive relief should be issued
22 irrespective of Defendant's potential voluntary cessation" Id. ¶ 15. Furthermore, Plaintiff
23 does not state with specificity allegations that any violations of the ADA have occurred.
24 III.
25 STANDARD OF REVIEW
26 Federal Rule of Civil Procedure 8(a)(2) requires a "short and plain statement of the
27 claim showing the pleader is entitled to relief." Fed. Rule Civ. P. 8(a)(2). "[A] plaintiff's
28 obligation to provide the grounds of his entitlement to relief requires more than labels and
3
1 conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell
2 Ad. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rule 8(a)(2) "demands more than an
3 unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662,
4 678 (2009) (quoting Twombly, 550 U.S. at 555).
5 Under Fed.R.Civ.P. 12(b)(1), a claim may be dismissed for lack of subject matter
6 jurisdiction. When subject matter jurisdiction is challenged, the plaintiff has the burden of
7 proving jurisdiction to survive the motion. Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d
8 495, 499 (9th Cir. 2001). "A plaintiff suing in a federal court must show in his pleading,
9 affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if
10 he does not do so, the court, on having the defect called to its attention or on discovering the
11 same, must dismiss the case, unless the defect be corrected by amendment." Smith v.
12 McCullough, 270 U.S. 456, 459 (1926).
13 In moving to dismiss under Rule 12(b)(1), the challenging party may either make a
14 "facial attack," confining the inquiry to challenges in the complaint or a "factual attack"
15 challenging subject matter on a factual basis. Savage v. Glendale Union High Sch., 343 F.3d
16 1036, 1039 n. 2 (9th Cir. 2003). If the motion is a facial attack, the court assumes the
17 truthfulness of the allegations, as in a motion to dismiss under Fed.R.Civ.P. 12(b)(6).
18 Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th Cir.1987). By
19 contrast, when presented as a factual challenge, a Rule 12(b)(1) motion can be supported by
20 affidavits or other evidence outside of the pleadings. United States v. LSL Biotechs., 379 F.3d
21 672, 700 n. 14 (9th Cir. 2004) (citing St. Clair v. City of Chicago, 880 F.2d 199, 201 (9th Cir.
22 1989)).
23 To survive a 12(b)(6) motion to dismiss, the complaint must contain "enough facts to
24 state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. at 570.
25 A 12(b)(1) motion to dismiss, on the other hand, requires a court to dismiss a complaint for
26 "lack of subject matter jurisdiction. It is Plaintiff's burden to establish this Court's subject matter
27 jurisdiction over his claims. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998).
28
4
1 The factual allegations in the complaint "must be enough to raise a right to relief above the
2 speculative level." Twombly, 550 U.S. at 555 (citation omitted).
3 Rule 12(b)(6) requires a court to dismiss a complaint if, accepting the well-pleaded facts
4 as true, a plaintiff fails to plead facts sufficient to support the relief sought. See Hishon v. King
5 & Spalding, 467 U.S. 69, 73 (1984). The purpose of Rule 12(b)(6) is to "streamline litigation by
6 dispensing with needless discovery and fact-finding." Neitzke v. Williams, 490 U.S. 319, 326-
7 27 (1989). "[O]nly a complaint that states a plausible claim for relief survives a motion to
8 dismiss." lqbal, 556 U.S. at 679 (citation omitted).
9 As discussed below, Plaintiff's Complaint is deficient both on its face and factually.
10 Plaintiff has failed to allege facts sufficient to establish a violation of the ADA that rises above a
11 speculative level, and has failed to exhaust his administrative remedies. Therefore, the
12 Complaint should be dismissed.
13 IV.
14 ARGUMENT
15 A. The Complaint Should be Dismissed Because Plaintiff Lacks Standing.
16 In ADA Title III cases, a plaintiff must establish standing to pursue the claim by pleading
17 facts supporting three elements: "[1] a plaintiff must suffer an 'injury in fact' that is actual or
18 imminent; [2] the injury must be fairly traceable to the challenged action of the defendant; and
19 [3] it must be likely that the injury will be redressed by the relief requested." Chapman v. Pier I
20 Imports (US.) Inc., 631 F. 3d 939, 946 (9th Cir. 2011).
21 "Title III of [the ADA] . . provides for only injunctive relief and not compensatory
22 damages." 42 U.S.C. § 12188(a)(1). As a result, the third element of the standing analysis has
23 often been restated as requiring a showing that "plaintiff [is] suffering a continuing injury or [is]
24 under a real and immediate threat of being injured in the future." Tandy v. City of Wichita, 380
25 F.3d 1277, 1283 (10th Cir. 2004) (citation omitted); see also Chapman, 631 F.3d at 946 ("to
26 establish standing to pursue injunctive relief, which is the only relief available to private
27 plaintiffs under the ADA, he must demonstrate a 'real and immediate threat of repeated injury'
28 in the future") (citation omitted).
5
1 Standing is a jurisdictional matter. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,
2 103 (1998). Failure to establish any one of the three standing requirements deprives a court of
3 jurisdiction to hear the suit. Id. Here, as discussed below, Plaintiff has not alleged facts to
4 support any of the elements of standing. Accordingly, this Court lacks jurisdiction and the
5 Complaint must be dismissed pursuant to Fed. Rule Civ. P. 12(b)(1).
6 1. Plaintiff Has Not Alleged An "Injury in Fact" Traceable to a Non Compliant
7 Condition.
8 Plaintiffs Complaint does not satisfy the standing analysis. An ADA plaintiff may
9 establish injury-in-fact traceable to the challenged conduct of the defendant by pleading facts
10 sufficient to establish that "a barrier violating [ADA standards] relates to a plaintiff's
11 disability," thus impairing the plaintiffs full and equal access to the facility. Chapman, 631 F.
12 3d at 947 (emphasis added). A plaintiff fails to satisfy this pleading requirement where "he
13 never alleges what those barriers were and how his disability was affected by them so as to
14 deny him the 'full and equal' access that would satisfy the injury-in-fact requirement." Id. at 954.
15 Here, as noted above, Plaintiff vaguely alleges that Defendant's establishment at issue
16 contains some physical condition (the width of walking surfaces and towel dispenser) that are
17 allegedly non-compliant with ADA standards. But Plaintiff has completely failed to articulate
18 how the alleged non-compliant condition related to Plaintiff's alleged disability and impaired
19 Plaintiffs full and equal access. Although the Complaint alleges that Plaintiff uses a wheelchair
20 (Complaint ¶ 7), the Complaint does not identify how Plaintiff's mobility in a wheelchair was
21 impaired by the condition of a walking surface or where the alleged impaired condition was
22 located. Neither is there any information in the Complaint regarding Plaintiff’s actual inability
23 to access and enjoy benefits of portions of the restaurant or any towel dispenser. As a result,
24 there is no standing. See Chapman, 631 F.3d at 954-55.
25 2. There is No Threat of Future Injury.
26 To establish the third element of standing in an ADA case, a plaintiff may plead that the
27 plaintiff has definite plans to return to the facility in the future, but is deterred from doing so
28 because of specified architectural barriers. Tandy, 380 F.3d at 1284. While it is difficult to
6
1 imagine Plaintiff has immediate plans to revisit the 220 stores he has sued, because the
2 Complaint in this case fails to plead any cognizable injury-in-fact as a result of architectural
3 barriers, it also fails to allege facts that would establish future deterrence by architectural
4 barriers.
5 Plaintiff's Complaint does not plausibly allege that he has actual knowledge of the
6 noncompliant barriers, intends to return to the store in the future, and is deterred from
7 patronizing the store in the future. Allison v. Am. Mgmt. Investments, LLC, 2016 WL 4591755,
8 at *2 (D. Nev. Sept. 1, 2016). Instead, Plaintiff nakedly alleges that he "visited Defendant's
9 PPA ['place of public accommodation') ... to enjoy the goods and services offered at the PPA"
10 and nebulously alleges "Defendant offers goods and serves at its PPA..." Complaint ¶9.
11 Plaintiff further alleges "intends to visit Defendants' PPA several times per year in the near
12 future, but is deterred from doing so while Defendant's PPA violates the ADA..." (Complaint ¶
13 13). He does not allege the type of business that occurs at the "PPA," his past patronage of
14 the "PPA", the "PPA's" proximity to his residence or place of business, or why he would intend
15 to visit it again. Id. Plaintiff's allegations are merely "threadbare recitals" of the elements of an
16 ADA claim, which are insufficient to plausibly show standing under the ADA. Id., citing Iqbal,
17 556 U.S. at 663; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
18 190, (2000) (stating that "someday" intentions are insufficient for standing purposes); see also
19 Tandy (expressed desire or mere allegation is insufficient to show-standing under the ADA).
20 B. The Court Should Dismiss the Complaint Because it Contains No Factual
21 Allegations Establishing a Violation of the ADA and Because the Allegations Are
22 Too Vague
23 The vast majority of Plaintiff's Complaint is devoted to a recitation of the history of the
24 ADA and its requirements. Title III of the ADA (42 U.S.C. § 12181, et seq.) generally requires
25 places of public accommodation, including stores, to provide facilities that are "readily
26 accessible to and usable by individuals with disabilities." 42 U.S.C. § 12183(a)(1).
27 The Complaint fails to state a claim for which relief may be granted because Plaintiff
28 has not alleged facts establishing that any conditions at Defendant's store violate the ADA.
7
1 The ADA requires public accommodations to comply with certain Standards for Accessible
2 Design. 28 C.F.R. § 36.406(a) (adopting 1991 Standards for Accessible Design for new
3 construction before September 15, 2010). But to state a claim on which relief may be granted,
4 the Complaint must do more than just recite these legal standards.
5 Plaintiff contends that Defendant's establishment fails to comply with the ADA with
6 respect to an alleged “failure to provide an unobstructed high forward reach to the towel
7 dispenser no greater than 48 inches above the ground, as required by 36 CFR Part 1191
8 Appendix D, Guideline 308.2 et seq. and failure to provide the clear width of walking surfaces
9 in aisles and pathways no less than 36 inches (915 mm) as required by 36 CFR Section 1191
10 App. D. Guideline 403.5.1. ." Id. ¶31.
11 For this alleged violation, Plaintiff extracts language from the Standards for Accessible
12 Design, but that is all Plaintiff has done. These are merely "formulaic recitation of the elements
13 of a cause of action [which] will not do." Iqbal, 556 U.S. at 678.
14 For example, Plaintiff has failed to identify the location of the alleged non-compliant
15 walking surface and what the actual width of walking surface is. Under the Federal Rules,
16 Defendant (and the Court) cannot be left to speculate about what unidentified "walking surface"
17 is non-compliant.
18 The Federal Rules require factual allegations, not merely a recitation of the legal
19 standards. Because the Complaint fails to do so, it should be dismissed.
20 C. The Court Should Dismiss the Complaint Because Plaintiff Failed to Exhaust His
21 Administrative Remedies.
22 Title III of the ADA prohibits discrimination by places of public accommodation on the
23 basis of disability. 42 U.S.C. § 12182(a). Title III's enforcement provision, 42 U.S.C. § 12188,
24 incorporates the "remedies and procedures of section 2000a-3(a)," which allows for a private
25 civil action for "preventative relief." Section 2000a-3 (c), in turn, requires that where a State
26 law prohibits the challenged practice, the plaintiff must give written notice to the State authority
27 before filing suit in Federal court. 42 U.S.C. § 2000a-3 (c). Nevada specifically prohibits
28 disability discrimination in places of public accommodation. See N. R. S. § 651.070;
8
1 Hulihan v. Circle K Stores, 462 F. App'x 751 (9th Cir. 2011). As a result, Plaintiff was required
2 to give notice to the Nevada Public Works Division and/or Nevada Equal Rights Commission
3 before filing his Complaint. See 42 U.S.C. § 2000a-3(c). His failure to do so is fatal to his claim
4 and mandates immediate dismissal.
5 Incorporating a notice requirement also serves the public policy purpose of private suits
6 under Title III of the ADA. Plaintiffs in these suits may only seek "preventative relief,
7 including… a permanent or temporary injunction, restraining order, or other order" directing the
8 defendant to remedy the violation. See 42 U.S.C. § 2000a-3(a). No monetary damages or
9 retrospective relief are allowed. See id. Therefore, since Title III suits are aimed only at
10 correcting the purported violations, a notice requirement has the practical benefit of giving the
11 alleged offender an opportunity to quickly remedy the issue. Such notice is far more efficient in
12 achieving the ADA's objectives than slow-paced, protracted and often costly litigation.
13 There is no question that Plaintiff failed to exhaust his administrative remedies prior to
14 rushing to the courthouse to file suit. His Complaint contains no allegations that he provided
15 Defendant or the Nevada Public Works Division and/or Nevada Equal Rights Commission with
16 notice of Defendant’s alleged ADA violations. Consequently, the Court should dismiss
17 Plaintiff's Complaint.
18 V.
19 IF THE COURT DETERMINES THAT THE PLAINTIFF DOES HAVE STANDING AND IS
20 NOT REQUIRED TO EXHAUST ADMINISTRATIVE REMEDIES, PLAINTIFF SHOULD BE
21 REQUIRED TO AMEND HIS COMPLAINT UNDER FRCP 12(e).
22 A. Motion for a More Definite Statement Standard
23 Pursuant to FRCP 12(e), "[a] party may move for a more definite statement of a
24 pleading to which a responsive pleading is allowed but which is so vague or ambiguous that
25 the party cannot reasonably prepare a response. The motion must be made before filing a
26 responsive pleading and must point out the defects complained of and the details desired."
27 (emphasis added). Such a motion is designed to strike at unintelligibility. Woods v. Reno
28 Commodities, Inc., 600 F. Supp. 574, 580 (D. Nev. 1984). Because 'mere vagueness or lack
9
1 of detail is not ground for a motion to dismiss, [such deficiencies] should be attacked by a
2 motion for a more definite statement.'" Harman v. Valley Nat. Bank of Ariz., 339 F.2d 564, 567
3 (9th Cir. 1964) quoting 2 Moore's Federal Practice par. 12.08, pp. 2245-46. If a plaintiff does
4 not provide "a short and plain statement of the claim" under FRCP 8(a) so that a defendant
5 does not have fair notice of the claim and the grounds upon which it rests, then a Rule 12(e)
6 motion is appropriate. Home & Nature Inc. v. Sherman Specialty Co., Inc., 322 F. Supp. 2d
7 260, 265 (E.D.N.Y. 2004); Underwood v. Archer Mgmt. Servs., Inc., 857 F. Supp. 96, 97
8 (D.D.C. 1994).
9 B. The Only Alleged Violation is Vague and Ambiguous.
10 As noted above, Plaintiff asserts only vague allegations in his Complaint and does not
11 even state or explain how these are obstacles for him, if at all: “failure to provide an
12 unobstructed high forward reach to the towel dispenser no greater than 48 inches above the
13 ground, as required by 36 CFR Part 1191 Appendix D, Guideline 308.2 et seq. and failure to
14 provide the clear width of walking surfaces in aisles and pathways no less than 36 inches (915
15 mm) as required by 36 CFR Section 1191 App. D. Guideline 403.5.1. ." Id. ¶31. Plaintiff fails
16 to state which aisle(s) or pathway(s) are less than 36 inches (for instance all or just one), or
17 whether in fact he can or cannot use the towel dispenser.
18 Defendant is not suggesting that Plaintiff must provide pin point particularity. Rather,
19 Defendant seeks only to have Plaintiff identify the nature and location of the violations
20 allegedly encountered at Defendant's store. Given the extremely vague and nebulous nature
21 of the allegations (and the related fact that such allegations, or very similar allegations, appear
22 to be repeated again and again in all 220 of Plaintiff’s cases), Plaintiff should be required to
23 provide at least some detail to put Defendant on notice and allow it to adequately respond to
24 the Complaint and assert all available affirmative defenses.
25
26 / / /
27 / / /
28 / / /
10
1 VI.
2 CONCLUSION
3 For all of the foregoing reasons, Defendant respectfully requests that its Motion to
4 Dismiss be granted, that Plaintiff's Complaint be dismissed.
5 DATED: June 5, 2017

7
8 By /s/ Michael J. Nuñez

Michael J. Nuñez, Esq.
Bradley T. Wibicki, Esq.
Attorneys for Defendant, MRG-RC5, LLC
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1 PROOF OF SERVICE
2 STATE OF NEVADA, COUNTY OF CLARK
3 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Clark, State of Nevada. My business address is 6900 Westcliff
4 Drive, Suite 605, Las Vegas, Nevada 89145.
5 On June 5, 2017, I served true copies of the following document(s) described as

DEFENDANT MRG-RC5, LLC’S MOTION TO DISMISS OR IN THE ALTERNATIVE MOTION
6 FOR A MORE DEFINITE STATEMENT on the interested parties in this action as follows:
7 SEE ATTACHED LIST
8 BY ELECTRONIC TRANSMISSION VIA CM/ECF: Pursuant to the E-Filing System of the

United States District Court, District of Nevada, to the parties at the e-mail addresses on the
9 Court's website.
10 I declare under penalty of perjury under the laws of the United States of America that
the foregoing is true and correct and that I am employed in the office of a member of the bar of
11 this Court at whose direction the service was made.
12 Executed on June 5, 2017, at Las Vegas, Nevada.
13
14 /s/ Nicole Garcia

Nicole Garcia
15
16
17 SERVICE LIST
18 MRG-RC5, LLC. adv. Zimmerman, Kevin
19 Whitney C. Wilcher, Esq. Attorneys for Plaintiff
THE WILCHER FIRM
20 8465 W. Sahara Ave., Ste. 111-236
Las Vegas, NV 89117
21 Tel: (702) 466-1959
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Case 2:17-cv-00306-GMN-GWF Document 21-1 Filed 06/05/17 Page 1 of 6

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Case 2:17-cv-00306-GMN-GWF Document 21 Filed 06/05/17 Page 1 of 12

1 Michael J. Nuñez, Esq.

7 Attorneys for Defendant, MRG-RC5, LLC

9 UNITED STATES DISTRICT COURT

12 KEVIN ZIMMERMAN, an individual, CASE NO. 2:17-cv-00306-GMN-GWF

13 Plaintiff, DEFENDANT MRG-RC5, LLC’S MOTION

18 Defendant, MRG-RC5, LLC (“Defendant”), by and through its counsel of record,

22 DATED: June 5, 2017

25 By /s/ Michael J. Nuñez

1 Motion to Dismiss Pursuant to Fed.R.Civ.P 12(b)(1) and 12(b)(6)

11 CFR Part 1191 Appendix D, Guideline 308.2 et seq.

19 Zimmerman and his claim have noble purposes.

25 Equal Rights Commission prior to filing suit.

2 to amend his Complaint to provide a more definite statement.

5 Defendant operates an eating establishment located 7135 S. Rainbow BLVD, Las

15 accompanying Disability Guidelines.

22 irrespective of Defendant's potential voluntary cessation" Id. ¶ 15. Furthermore, Plaintiff

3 unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662,

4 678 (2009) (quoting Twombly, 550 U.S. at 555).

12 McCullough, 270 U.S. 456, 459 (1926).

17 truthfulness of the allegations, as in a motion to dismiss under Fed.R.Civ.P. 12(b)(6).

2 speculative level." Twombly, 550 U.S. at 555 (citation omitted).

8 dismiss." lqbal, 556 U.S. at 679 (citation omitted).

12 Complaint should be dismissed.

15 A. The Complaint Should be Dismissed Because Plaintiff Lacks Standing.

20 Imports (US.) Inc., 631 F. 3d 939, 946 (9th Cir. 2011).

28 in the future") (citation omitted).

5 Complaint must be dismissed pursuant to Fed. Rule Civ. P. 12(b)(1).

6 1. Plaintiff Has Not Alleged An "Injury in Fact" Traceable to a Non Compliant

24 there is no standing. See Chapman, 631 F.3d at 954-55.

25 2. There is No Threat of Future Injury.

20 B. The Court Should Dismiss the Complaint Because it Contains No Factual

26 accessible to and usable by individuals with disabilities." 42 U.S.C. § 12183(a)(1).

10 App. D. Guideline 403.5.1. ." Id. ¶31.

19 standards. Because the Complaint fails to do so, it should be dismissed.

28 disability discrimination in places of public accommodation. See N. R. S. § 651.070;

4 and mandates immediate dismissal.

8 defendant to remedy the violation. See 42 U.S.C. § 2000a-3(a). No monetary damages or

20 NOT REQUIRED TO EXHAUST ADMINISTRATIVE REMEDIES, PLAINTIFF SHOULD BE

21 REQUIRED TO AMEND HIS COMPLAINT UNDER FRCP 12(e).

22 A. Motion for a More Definite Statement Standard

27 (emphasis added). Such a motion is designed to strike at unintelligibility. Woods v. Reno

9 B. The Only Alleged Violation is Vague and Ambiguous.

17 whether in fact he can or cannot use the towel dispenser.

24 the Complaint and assert all available affirmative defenses.

4 Dismiss be granted, that Plaintiff's Complaint be dismissed.

5 DATED: June 5, 2017

6 MURCHISON & CUMMING, LLP

8 By /s/ Michael J. Nuñez

2 STATE OF NEVADA, COUNTY OF CLARK

5 On June 5, 2017, I served true copies of the following document(s) described as

7 SEE ATTACHED LIST

8 BY ELECTRONIC TRANSMISSION VIA CM/ECF: Pursuant to the E-Filing System of the

12 Executed on June 5, 2017, at Las Vegas, Nevada.

14 /s/ Nicole Garcia

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