Patricia Kennedy v. Floridian Hotel, Inc.

         USCA11 Case: 20-10648       Date Filed: 05/27/2021   Page: 1 of 29



                                                                       [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 20-10648
                           ________________________

                       D.C. Docket No. 0:18-cv-62486-UU



PATRICIA KENNEDY,

                                                                Plaintiff-Appellant,

                                       versus

FLORIDIAN HOTEL, INC.,

                                                               Defendant-Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (May 27, 2021)

Before LAGOA, HULL and MARCUS, Circuit Judges.

HULL, Circuit Judge:

      Patricia Kennedy (“Kennedy”) appeals the district court’s dismissal of her

complaint against Floridian Hotel, Inc. (“Floridian”), a hotel owner and operator.
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Kennedy, who has a disability, alleged Floridian violated Title III of the Americans

with Disabilities Act (“ADA”) based on barriers to access she encountered at the

hotel property (Count I) and deficiencies in its online reservation system (Count

II). This is Kennedy’s second ADA lawsuit against Floridian as to its online

reservation system.

       Early in this second lawsuit, the district court dismissed Count II for

improper claim splitting, given that Kennedy had made a claim in her first lawsuit

about Floridian’s online reservation system. Later, after some discovery, the

district court dismissed Count I with prejudice for lack of subject matter

jurisdiction, concluding Kennedy did not have standing to seek injunctive relief.

After careful review and with the benefit of oral argument, we affirm both

dismissals by the district court, but remand for the sole purpose of the district

court’s revising the dismissal of Count I to be without prejudice.

                                 I. PRIOR LAWSUIT

       In March 2018, Kennedy filed her first ADA action against Floridian

(hereinafter Floridian I). 1 In her amended complaint in Floridian I, Kennedy

alleged that Floridian’s online reservation system, operated through the

floridianhotel.com website, was not in compliance with the ADA and guidelines



       1
       See Kennedy v. Floridian Hotel, Inc., No. 1:18-cv-20839-UU, ECF No. 1 (S.D. Fla.
March 5, 2018).


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covering hotel reservation systems in 

28 C.F.R. § 36.302

(e)(1), because it failed to

indicate whether hotel guest rooms, common areas, and amenities were accessible

to individuals with disabilities.2 Kennedy sought declaratory and injunctive relief

as well as attorney’s fees and costs.

       In December 2018, the district court dismissed Floridian I for lack of

jurisdiction. The district court concluded Kennedy lacked standing to pursue

injunctive relief under the ADA because she had failed to demonstrate a real and

immediate threat of future injury. Kennedy appealed the Floridian I dismissal

order, but she later voluntarily dismissed her appeal.

                                 II. INSTANT LAWSUIT

       While the first lawsuit was pending, Kennedy filed the instant lawsuit in

October 2018. The record in the instant lawsuit includes Kennedy’s 2018

deposition testimony from her prior action in Floridian I and her 2019 deposition

testimony and her three declarations filed in this action.

A.     Parties

       Kennedy is an individual with a disability within the meaning of the ADA.



       2
         These guidelines require places of lodging to: (1) ensure individuals with disabilities can
make reservations for accessible rooms in the same manner as persons who do not need such
rooms; (2) identify and describe accessible features so that individuals with disabilities can
assess whether their accessibility needs are met; (3) ensure accessible guest rooms are held for
use by individuals with disabilities until all other guest rooms are full; (4) reserve accessible
guest rooms upon request; and (5) guarantee that an accessible guest room that has been reserved
is held for the reserving customer. 

28 C.F.R. § 36.302

(e)(1).


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As the result of a spinal injury, she cannot walk more than a few steps or stand

without assistance. She must use a wheelchair, cane, or other support. Kennedy is

an ADA advocate and a “tester” who visits places of public accommodation to

monitor their compliance with the ADA. The district court took judicial notice of

her filing more than 250 ADA cases in the Southern District of Florida since this

lawsuit was filed in October 2018.

      Floridian owns and operates the Floridian Hotel (the “Hotel”) in Homestead,

Florida, which is a place of public accommodation under the ADA. Through its

website, floridianhotel.com, and third-party websites, Floridian operates an online

reservation system (“ORS”) that allows individuals to book rooms and obtain

information about the Hotel. Kennedy resides in Tamarac, Florida, which is about

50 to 60 miles from the Hotel.

B.    Hotel and Website Visits

      Prior to filing Floridian I, Kennedy visited Floridian’s website because she

“needed to go down to Miami” to visit a friend “in the Keys” and was searching

for a place to stay. At her deposition in Floridian I, she could not recall the

friend’s name or when she was planning to visit, and she could not provide his

exact location. Kennedy cancelled the trip and did not make firm plans to

reschedule it.

      On October 8–9, 2018—just before filing this lawsuit—Kennedy visited the



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Hotel in person for the first time. Kennedy spent approximately two to three hours

at the Hotel. Kennedy testified that she visited the Hotel because it was in

Homestead, and that she had been trying to go to the Redlands Blues and Barbecue

Festival (the “blues festival”) in Homestead—which is held in April—for several

years. When asked why she visited the Hotel in October if the blues festival was in

April, Kennedy testified she did not recall.

      On October 11, 2018, Kennedy attempted to make an online reservation at

the Hotel for April 6–7, 2019. She was unable to do so and called the Hotel, which

advised her that she could not book a room online that far in advance. Kennedy

acknowledges that this October reservation attempt was not connected to her

decision to attend the blues festival.

C.    Blues Festival and Travel to Homestead

      Kennedy never purchased tickets for the 2019 blues festival and could not

remember when she first heard of it or exactly where it was held. Kennedy did not

attend the 2019 blues festival due to illness. Kennedy testified that she intended to

go back to the Hotel “[f]or that Blues and Barbecue thing for sure” and wanted to

go in 2020, but it would depend on how she was feeling.

      As of September 2018, Kennedy had not stayed at any hotel in Homestead

within the past year and was unsure if she had ever stayed before at a hotel in

Homestead. In her 2019 deposition, Kennedy testified that: (1) she did not visit



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Homestead often because it was “a ways” from her home; (2) she had not returned

to the Hotel or the Homestead area since October 2018; and (3) since filing

Floridian I, she had never visited her friend in the Keys, whose name she could still

not remember.

      In a declaration, however, Kennedy stated that she “frequently travel[s]

throughout Florida including Miami-Dade County and Homestead,” and that she

has “been to Homestead approximately 100 times.” She also stated that when she

travels any distance she will “normally spend the night in local hotels.”

D.    Hotel and Website Revisits as ADA Tester

      At her deposition in this lawsuit, Kennedy testified that she keeps a list on

her computer of all lawsuits in the Southern District of Florida that she has been

involved in, and that the list includes an approximation of when she returned to

each subject property or website. She knows to go back and check websites based

on settlement agreements stored on her computer, but she has no calendar system

in place reminding her to revisit. She will revisit a property when she “need[s] to.”

      In her declarations, Kennedy stated that as an ADA tester, she will

“subsequently revisit each property or website to ascertain whether the ADA

violations have been fixed.” In her third declaration, Kennedy further explained

that in 2019, she implemented an improved system for tracking her cases, which

included the case name and number, the “name and address of the property, [the]



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date the suit was commenced and closed,” and the fact of her return. Under this

system, Kennedy stated, she was confident of her ability to ensure she returns “to

absolutely every property” she sues. Also in her third declaration, Kennedy stated

that although visiting the Hotel would be a futile gesture unless she was willing to

suffer discrimination again, she nevertheless was planning to do so. “I will be

revisiting the hotel in the near future because I said I would and because I have a

system in place that ensures I will,” she stated.

                          III. PROCEDURAL HISTORY

A.    Complaint

      On October 17, 2018, Kennedy filed the current two-count complaint,

seeking declaratory and injunctive relief. In Count I, she alleged Floridian violated

the ADA, 

42 U.S.C. §§ 12182

 and 12183, based on barriers to access she

encountered at the Hotel. She alleged Floridian failed to make the Hotel property

accessible to individuals with disabilities by, inter alia, failing to provide sufficient

accessible parking spaces, an accessible route from disabled parking spaces to the

Hotel, sufficient accessible guest rooms, and a pool lift. Kennedy alleged that she

planned to return to the Hotel within eight months.

      In Count II, Kennedy again challenged Floridian’s ORS under the ADA and

28 C.F.R. § 36.302

(e)(1). She alleged that Floridian’s ORS through

floridianhotel.com failed to identify accessible guest rooms or provide information



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about accessible features at the Hotel, and additionally, did not allow for the

booking of accessible rooms. Kennedy further alleged that Floridian’s ORS,

operated through third-party websites such as expedia.com and kayak.com, also

did not comply with the ADA. Some of these third-party websites failed to

identify accessible guest rooms or allow for their booking. While other websites

claimed certain guest rooms were accessible, they omitted information about non-

compliant features of the rooms, other barriers to access at the Hotel—such as a

step blocking pool access—and the accessibility of amenities at the Hotel.

      In subsequent declarations, Kennedy stated that Floridian “revised” its own

website sometime after Floridian I was filed and “made various claims of

accessibility” that were false and misleading. Kennedy reviewed the ORS several

times but does not state when she did so. She attempted to reserve a room only on

October 11, 2018, but does not state what website she used. Her complaint and

declarations do not indicate when she first encountered the allegedly deficient

information on floridianhotel.com or the third-party websites. Kennedy alleged

that she planned to revisit Floridian’s websites in the “near future” to test them for

ADA compliance or reserve a guest room, but again does not specify which ones.

B.    Motion to Dismiss

      In November 2018, while Floridian I was still pending, Floridian moved to

dismiss the instant complaint for failure to state a claim and on various other



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grounds. On April 3, 2019—several months after Floridian I was dismissed for

lack of standing—the district court granted in part and denied in part Floridian’s

motion to dismiss this second case.

      Relevant here, the court dismissed Count II (the ORS claim) with prejudice

for improper claim splitting because it: (1) involved the same parties as Floridian I,

and (2) arose from the same nucleus of operative facts.

      The court dismissed a portion of Count I for failure to state claim but

otherwise denied Floridian’s motion to dismiss the barriers-to-access claim in

Count I.

C.    Subsequent Motions as to Count I

      As to the remaining parts of the barriers-to-access claim in Count I, the

parties filed cross-motions for summary judgment. Floridian focused solely on

Kennedy’s standing to pursue injunctive relief, arguing that she failed to

demonstrate a real and immediate threat of future injury.

      The district court construed Floridian’s summary judgment motion as a

motion to dismiss for lack of subject matter jurisdiction under Federal Rule of

Civil Procedure 12(b)(1). The court determined that Floridian’s standing challenge

was “purely jurisdictional” and separate from the merits of Kennedy’s ADA

claims. The court therefore applied the Rule 12(b)(1) standard governing factual

attacks on jurisdiction, which allows courts to weigh independently the evidence.



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Further, the court determined it was not required to hold a hearing because, among

other reasons, the record was well developed.

      As to Kennedy’s standing to pursue injunctive relief in Count I, the court

examined the totality of the circumstances and the four factors set forth in Houston

v. Marod Supermarkets, Inc., 

733 F.3d 1323

, 1337 n.6 (11th Cir. 2013), to

determine whether Kennedy had shown a real and immediate threat of future

injury. The court focused its analysis on the third factor—the definiteness of

Kennedy’s plan to return to Floridian’s Hotel in Homestead.

      First, the district court declined to credit Kennedy’s claims that she intends

to stay at the Hotel in the future when she: (1) visits her unidentified friend in the

Keys, or (2) attends the blues festival. The court noted that Kennedy had never

attended or purchased tickets for the festival and had expressed only a “some day”

intention to attend. The court recognized that Kennedy’s status as an ADA tester

could support her intent to return to Floridian’s Hotel. But it concluded that she

had not provided “any adequate assurance of immediate revisitation,”

notwithstanding her system for tracking cases.

      Because Kennedy failed to demonstrate a real and immediate threat of future

injury, the court concluded that she lacked standing to seek injunctive relief as to

her barriers-to-access claim in Count I. The Court dismissed Count I with

prejudice.



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     IV. DISMISSAL OF COUNT I FOR LACK OF SUBJECT MATTER
                JURISDICTION UNDER RULE 12(b)(1)

A.    Article III Standing Principles

      Under Article III of the Constitution, our jurisdiction is limited to “cases”

and “controversies.” U.S. Const. art. III, § 2; Christian Coal. of Fla., Inc. v. United

States, 

662 F.3d 1182, 1189

 (11th Cir. 2011). The standing doctrine “stems directly

from Article III’s ‘case or controversy’ requirement” and “implicates our subject

matter jurisdiction.” Bochese v. Town of Ponce Inlet, 

405 F.3d 964, 974

 (11th Cir.

2005) (quotation marks omitted).

      To establish standing under Article III, a plaintiff must demonstrate: (1) an

injury-in-fact; (2) a causal connection between the asserted injury-in-fact and the

defendant’s actions; and (3) that “the injury will be redressed by a favorable

decision.” Shotz v. Cates, 

256 F.3d 1077, 1081

 (11th Cir. 2001) (quoting Lujan v.

Defs. of Wildlife, 

504 U.S. 555, 561

, 

112 S. Ct. 2130, 2136

 (1992)). An injury-in-

fact is the “invasion of a legally protected interest which is (a) concrete and

particularized; and (b) actual or imminent, not conjectural or hypothetical.” Lujan,

504 U.S. at 560

, 

112 S. Ct. at 2136

 (quotation marks and citations omitted).

      Plaintiffs who seek injunctive relief must make an additional showing to

demonstrate standing. Houston, 

733 F.3d at 1328

 (“The ‘injury-in-fact’ demanded

by Article III requires an additional showing when injunctive relief is sought.”).

“Because injunctions regulate future conduct, a party has standing to seek

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injunctive relief only if the party shows ‘a real and immediate—as opposed to a

merely conjectural or hypothetical—threat of future injury.’” 

Id.

 at 1329 (quoting

Shotz, 

256 F.3d at 1081

). When a plaintiff seeks an injunction, she must

demonstrate that a future injury is imminent—that there is “a sufficient likelihood

that he [or she] will be affected by the allegedly unlawful conduct in the future.”

Koziara v. City of Casselberry, 

392 F.3d 1302, 1305

 (11th Cir. 2004) (quotation

marks omitted).

       Kennedy seeks injunctive relief, which is the only form of relief available to

plaintiffs suing under Title III of the ADA. See 

42 U.S.C. § 12188

(a)(1)

(providing that the remedies available to individuals are set forth in 42 U.S.C.

§ 2000a-3(a), which allows a private right of action only for injunctive relief for

violations of Title II of the Civil Rights Act of 1964). She must therefore

demonstrate a real and immediate threat of future injury to establish standing. 3

B.     Rule 12(b)(1) Motion

       Attacks on subject matter jurisdiction, which are governed by Rule 12(b)(1),

come in two forms: facial or factual attack. Lawrence v. Dunbar, 

919 F.2d 1525

,

1528–29 (11th Cir. 1990). A “facial attack” challenges whether a plaintiff “has



       3
         For completeness, we note that our recent decision in Sierra v. City of Hallandale Beach,
Florida, ___ F.3d ___, No. 19-13694, 

2021 WL 1799848

 (11th Cir. May 6, 2021), involved a
different inquiry regarding past harm and standing to seek compensatory damages under Title II
of the ADA. Although Sierra did not concern injunctive relief, it illustrates how the standing
inquiry differs based on the remedy sought. See 

id.

 at *2–3.


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sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his

complaint are taken as true for the purposes of the motion.” 

Id. at 1529

 (quotation

marks omitted). A “factual attack,” in contrast, challenges the existence of subject

matter jurisdiction irrespective of the pleadings, and extrinsic evidence may be

considered. 

Id.

 A district court evaluating a factual attack on subject matter

jurisdiction “may proceed as it never could” at summary judgment and “is free to

weigh the evidence and satisfy itself as to the existence of its power to hear the

case.” 

Id.

 (quotation marks omitted).

      Here, Floridian’s motion focused exclusively on Kennedy’s standing to seek

injunctive relief, relied on her deposition testimony and declarations, and

challenged “the existence of subject matter jurisdiction in fact, irrespective of the

pleadings.” See 

id. at 1529

 (quotation marks omitted). The district court

reasonably construed Floridian’s motion for summary judgment as a factual attack

on subject matter jurisdiction under Rule 12(b)(1).

      Kennedy argues that the district court erred in proceeding under Rule

12(b)(1) because (1) her intent to return to the Hotel in the future was inextricably

intertwined with the merits of her ADA claim, and (2) therefore the proper course

was for the district court to find that jurisdiction exists and deal with Floridian’s

motion as a direct attack on the merits of her case. See Morrison v. Amway Corp.,

323 F.3d 920, 925

 (11th Cir. 2003) (stating a district court is permitted to rely on



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the Rule 12(b)(1) standard when addressing a jurisdictional challenge that does not

implicate the merits of a plaintiff’s cause of action).

      We first compare the nature of Kennedy’s ADA claim and Floridian’s

jurisdictional challenge. Kennedy’s cause of action is an ADA statutory claim.

Kennedy’s Count I alleged violations of Title III of the ADA, which “prohibits

discrimination by private entities in places of public accommodation.” Gathright–

Dietrich v. Atlanta Landmarks, Inc., 

452 F.3d 1269, 1272

 (11th Cir. 2006); 

42 U.S.C. § 12182

(a). Section 12182 governs the removal of architectural barriers in

facilities constructed prior to the enactment of the ADA, and § 12183 governs new

construction and alterations after this date. See Gathright–Dietrich, 452 F.3d at

1272–73; 

42 U.S.C. §§ 12182

(b)(2)(A)(iv), 12183(a). The elements of Kennedy’s

ADA discrimination claim are: (1) she is an individual with a disability under the

ADA; (2) Floridian owns or operates a place of public accommodation within the

meaning of the ADA; and (3) Floridian discriminated against her. See 

42 U.S.C. § 12182

(a). Kennedy visited the Hotel once, albeit briefly, encountered alleged

barriers in the past, and sufficiently alleged an ADA claim.

      In contrast, Floridian’s jurisdictional challenge involves standing, a doctrine

that stems from Article III’s case or controversy requirement and thus affects our

(and the district court’s) subject matter jurisdiction. Bochese, 

405 F.3d at 974

.

Kennedy’s standing to pursue injunctive relief requires a separate showing of a real



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and immediate threat of future injury. See Houston, 

733 F.3d at 1329

. That

showing of future injury does not relate to the merits of her underlying ADA claim.

The facts necessary to establish Kennedy’s standing—which relate to her intent to

return to Floridian’s Hotel in the future—thus do not implicate the merits of her

cause of action under the ADA. See Morrison, 323 F.3d at 924–25.

       This is not a case in which the district court concluded it lacked federal

question jurisdiction over Kennedy’s ADA action because she failed to allege a

prima facie violation of the statute or because the ADA was inapplicable. See id.

at 926 (“In order to determine if a defendant qualifies as an ‘employer’ and,

consequently, whether [the Age Discrimination in Employment Act (“ADEA”)]

will even apply, we must turn to ADEA’s definitions’ section.” (emphasis added)

(quoting Garcia v. Copenhaver, Bell & Assocs., 

104 F.3d 1256

, 1262–63 (11th Cir.

1997))). There has never been any contention that the ADA was inapplicable to

Floridian. And, as the district court noted, there has never been any real dispute as

to whether Kennedy’s complaint states a prima facie claim for a violation of the

ADA.

       Instead, this is a case where the district court concluded it was without

jurisdiction over Kennedy’s claim because she lacks standing to pursue the

requested (and only available) relief, and therefore no Article III case or

controversy exists. This case is thus readily distinguishable from Morrison and the



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other cases on which Kennedy relies. Her standing to pursue injunctive relief—

unlike, say, whether a defendant company qualifies as an “employer” under a

particular statute—has nothing to do with whether Floridian is subject to the ADA

or has violated it. See 

id.

 at 927–28.

      We recognize that injunctive relief is the only remedy available under 

42 U.S.C. § 12188

. And Kennedy stresses that no plaintiff can prevail in an ADA

case unless they prove a real and immediate threat of future injury. This still does

not make intent to return to the Hotel in the future an element of her cause of

action. An injunction is a type of relief or remedy rather than an independent

cause of action.

      At base, Kennedy’s argument is that any plaintiff must show they have

standing to pursue the relief requested, but that is true in every case. The fact that

the statute limits the remedy for an ADA violation to injunctive relief does not

transform this threshold standing inquiry into an impermissible merits

determination. Kennedy is of course correct that her intent to return is an

important part of proving she is entitled to injunctive relief (the remedy prescribed

by the statute), but that showing is required not by the statute, but by the

Constitution. See Houston, 733 F.3d at 1328–29.

      Because Kennedy’s standing to seek injunctive relief was not inextricably

intertwined with the merits of her ADA discrimination claim, the district court did



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not err in construing Floridian’s motion for summary judgment as a factual attack

on its subject matter jurisdiction under Rule 12(b)(1). See Morrison, 323 F.3d at

924–25. The court was therefore permitted to make credibility determinations and

weigh the evidence. See Lawrence, 

919 F.2d at 1529

.

C.    Evidentiary Hearing

      Even if the district court properly proceeded under Rule 12(b)(1), Kennedy

argues that she was entitled to an evidentiary hearing because a factual issue

concerning her standing—namely, whether she intended to return to the Hotel in

the future—was in dispute.

      In ruling on a Rule 12(b)(1) motion to dismiss for lack of jurisdiction, it is

within the district court’s discretion “to devise a method for making a

determination with regard to the jurisdictional issue.” See Odyssey Marine Expl.,

Inc. v. Unidentified Shipwrecked Vessel, 

657 F.3d 1159, 1170

 (11th Cir. 2011)

(quoting Moran v. Kingdom of Saudi Arabia, 

27 F.3d 169, 172

 (5th Cir. 1994)). In

Rule 12(b)(1) dismissal cases, “a plaintiff must have ample opportunity to present

evidence bearing on the existence of jurisdiction.” Colonial Pipeline Co. v.

Collins, 

921 F.2d 1237, 1243

 (11th Cir. 1991).

      Although the court may consider both oral and written evidence in the

record, an evidentiary hearing is not required. Odyssey Marine, 

657 F.3d at 1170

.

In Odyssey Marine, we held the district court did not abuse its discretion in



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declining to hold an evidentiary hearing on a Rule 12(b)(1) motion where the

record before the district court was extensive and “[e]ach party had a full

opportunity to present evidence,” including affidavits, counter-affidavits,

documents, and photographs. Id.; see also 5B Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1350 (3d ed.) (stating that “[a]lthough a

formal hearing on the matter is not required, the district court should not dismiss

the complaint on a Rule 12(b)(1) motion without giving the nonmoving party the

opportunity to be heard”).

       In the specific context of this case, the district court did not abuse its

discretion in declining to hold an evidentiary hearing.4 The record was well

developed, and Kennedy had ample opportunity to present facts and evidence to

support her standing. Notably, Kennedy submitted three declarations in which she

presented facts concerning standing, and the district court had before it her two

complete deposition transcripts.

       Kennedy relies on this Court’s decision in Bischoff v. Osceola County, 

222 F.3d 874

 (11th Cir. 2000). However, in that case, the district court: (1) was faced

with two “warring affidavits on issues essential to standing” and no deposition or

oral testimony; (2) credited defendants’ version of events; and (3) sua sponte



       4
         We review a district court’s decision not to hold an evidentiary hearing for an abuse of
discretion. Odyssey Marine, 

657 F.3d at 1169

.


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dismissed the case for lack of standing without a hearing. See 

id.

 at 878–79, 885.

On appeal, this Court held that where “the evidence relating to standing is squarely

in contradiction as to central matters and requires credibility findings, a district

court cannot make those findings simply by relying on the paper record but must

conduct a hearing at which it may evaluate the live testimony of the witnesses.”

Id. at 881.

        This case is nothing like Bischoff. Kennedy had more than ample

opportunity to present her evidence. Indeed, Kennedy does not dispute many of

the critical underlying facts—such as that Kennedy never attended the blues

festival, went to the Hotel only once for a few hours, and, other than that one visit,

had not stayed in a Homestead hotel in several years (if ever). The district court

did make some credibility findings, but the main dispute is over the legal

conclusion as to whether Kennedy’s evidence is sufficient to establish the required

standing for injunctive relief. On the well-developed record of this case, we find

no abuse of discretion in the district court’s decision to evaluate Floridian’s motion

under Rule 12(b)(1) and not hold a hearing. See Odyssey Marine, 

657 F.3d at 1170

.

D.      Real and Immediate Threat of Future Injury

        We now turn to Kennedy’s standing to pursue injunctive relief under the

ADA, which requires her to demonstrate a “real and immediate threat of future



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injury.” See Houston, 

733 F.3d at 1329

. To show a real and immediate threat of

future discrimination in the context of an ADA claim, a plaintiff must have

“attempted to return” to the non-compliant property or “intend to do so in the

future.” Shotz, 

256 F.3d at 1082

. In Lujan, the Supreme Court held that “‘some

day’ intentions—without any description of concrete plans, or indeed even any

specification of when the some day will be”—are insufficient to demonstrate an

injury that is “actual or imminent.” 

504 U.S. at 564

, 

112 S. Ct. at 2138

.

Immediacy in this context “means reasonably fixed and specific in time and not too

far off.” Houston, 

733 F.3d at 1340

 (quoting ACLU of Fla., Inc. v. Miami-Dade

Cnty. Sch. Bd., 

557 F.3d 1177

, 1193–94 (11th Cir. 2009)).

      Whether a plaintiff faces a real and immediate threat of future injury must be

examined under the “totality of all relevant facts.” See 

id.

 at 1337 n.6. We have

previously considered four factors relevant to this analysis: “(1) the proximity of

the defendant’s business to the plaintiff’s residence; (2) the plaintiff’s past

patronage of the defendant’s business; (3) the definiteness of the plaintiff’s plan to

return; and (4) the frequency of the plaintiff’s travel near the defendant’s

business.” 

Id.

 The factors are not dispositive, only guidelines, and our standing

determination is often a “fact-sensitive inquiry.” 

Id.

 at 1337 n.6, 1340.




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       The district court’s ruling contained certain fact or credibility findings and

then a legal conclusion, which we discuss separately.5

       The underlying facts regarding the first and second factors were undisputed.

As to proximity, Kennedy lived 50 to 60 miles from the Hotel, and her past

patronage was her one visit to the Hotel for two to three hours. As to the third

factor, the definiteness of her plan to return to the Hotel, Kennedy presented three

potential reasons why she would return in the immediate future: (1) to see her

unidentified friend in the Keys; (2) to attend the blues festival; and (3) as an ADA

tester. The district court did not credit her stated reasons for returning, and on this

record, Kennedy has shown no clear error in that credibility finding.

       First, as to her friend in the Keys, the district court correctly observed that

Kennedy never wound up seeing the friend or making plans to reschedule her trip,

could not recall the friend’s name, and did not know his address. Second, as to the

blues festival, Kennedy could not recall when she had first heard of the festival or

exactly where it was held, had never purchased tickets for the festival, did not



       5
         In reviewing the dismissal of a complaint for lack of subject matter jurisdiction under
Rule 12(b)(1), we review de novo the district court’s legal conclusions, including conclusions
concerning standing, and we review for clear error the district court’s findings of jurisdictional
facts. Houston, 

733 F.3d at 1328

. Kennedy contends the district court made improper credibility
determinations in evaluating her evidence regarding her intent to return to the Hotel, but this
argument presumes the summary judgment standard should have applied. As explained above,
the district court properly construed Floridian’s motion for summary judgment as a Rule 12(b)(1)
factual attack on jurisdiction. Thus, the court was permitted to make credibility determinations
and weigh the evidence. See Lawrence, 

919 F.2d at 1529

.


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attend the festival due to illness, and had no concrete plans to go to the festival the

next time it was held. The court also noted that Kennedy disavowed any

connection between her October 2018 reservation attempt and the April 2019

festival.

       Third, as to her status as an ADA tester, the district court considered

Kennedy’s evidence of her system for tracking her ADA cases. The court found

this evidence fell short because it did not provide any assurance of when property

revisits would occur, or if they would occur with any degree of immediacy. It also

noted that Kennedy testified that she would revisit properties only when she

“need[ed] to” and that she did not identify any specific methodology for ensuring

her return. Without such information, the court did not clearly err in finding

Kennedy’s tracking system did not give rise to sufficiently definite intent to return

to the Hotel.

       Separate from these three reasons for a return visit, Kennedy also presented

evidence regarding her travel to Homestead generally. In a declaration, Kennedy

stated that she has been to Homestead 100 times and frequently travels throughout

Florida “including Homestead.” In her earlier deposition, however, Kennedy

admitted that she did not visit Homestead often and had not stayed in a Homestead

hotel for at least several years, other than her single visit to Floridian’s Hotel for

two to three hours. The district court found Kennedy’s evidence failed to establish



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         USCA11 Case: 20-10648         Date Filed: 05/27/2021   Page: 23 of 29



regular travel to Homestead, as there was no indication of why, when, or how

recently such visits occurred, and it was contrary to her more specific deposition

testimony. Given the lack of detail in Kennedy’s declaration, and her more

specific deposition testimony, we discern no clear error in the court’s finding that

Kennedy was not a frequent traveler to Homestead.

       That leaves us with these undisputed facts. Kennedy visited the Hotel once,

for a few hours. She attempted—but failed—to make an online reservation for

April 6–7, 2019, that was not connected to the blues festival. She is an ADA tester

who has a system in place for noting property revisits, but no system for ensuring

when revisits will occur. She does not travel to Homestead frequently, and other

than her one brief visit to Floridian’s Hotel, she has not stayed in a Homestead

hotel for at least several years (if ever).

       Having considered the totality of the relevant facts and examined the

evidence under the Rule 12(b)(1) standard, we conclude Kennedy failed to

demonstrate a real and immediate threat of future injury that goes beyond the type

of vague, “some day” intention the Supreme Court found insufficient in Lujan.

See Lujan, 

504 U.S. at 564

, 

112 S. Ct. at 2138

.

       The cumulative evidence here is materially different from that in Houston,

an ADA-tester case where we concluded the plaintiff had standing to seek

injunctive relief as to architectural barriers at a supermarket. Houston, 

733 F.3d at 23

         USCA11 Case: 20-10648       Date Filed: 05/27/2021    Page: 24 of 29



1336–41. As to proximity, Houston lived 30.5 miles away from the supermarket.

Id. at 1336

. He lived in the next county, not “hundreds of miles away.” 

Id.

 More

importantly, Houston drove “right by the store on a regular basis” because it was

on the way to, and within two miles of his attorney’s office, which he visited

frequently. 

Id. at 1336, 1340

. Plus, Houston had visited the supermarket twice in

the months before he filed suit and had a receipt from his second visit. 

Id. at 1336

.

Added to all this, we noted the fact that ADA testing was “Houston’s avocation or

at least what he does on a daily basis” made it more likely that Houston would

return to the supermarket. 

Id. at 1340

. Based on these specific facts, we concluded

that Houston’s intent to return to the supermarket in the future could not be

characterized as the unspecified “some day” intention the Supreme Court found too

speculative in Lujan. 

Id.

      Although Kennedy, like Houston, is an ADA tester, she visited the Hotel

only once, for a few hours. Her singular visit does not weigh in her favor, as she

must have “attempted to return” or at a minimum “intend to do so in the future.”

Shotz, 

256 F.3d at 1082

. She did not travel frequently to Homestead or regularly

stay at Homestead hotels (if ever). She had no credible or concrete plan to return

to Homestead or the Hotel in the future. Her generalized intent to return sometime

in the future is alone insufficient. The totality of relevant facts simply do not

support the conclusion that Kennedy faced a real and immediate threat of future



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discrimination at the Hotel. 6 Cf. D’Lil v. Best W. Encina Lodge & Suites, 

538 F.3d 1031

, 1037–38 (9th Cir. 2008) (concluding ADA plaintiff demonstrated intent

to return to hotel where she had visited the area regularly for business, visited

friends in the area, and vacationed there with her children); Scherr v. Marriott Int’l,

Inc., 

703 F.3d 1069

, 1074–75 (7th Cir. 2013) (concluding ADA plaintiff had

alleged intent to return to hotel where much of her extended family lived in the

area close to the hotel and plaintiff planned to attend a then-upcoming wedding in

area). Given our fact-sensitive inquiry, the district court did not err in concluding

Kennedy lacked standing to pursue injunctive relief and dismissing Count I for

lack of subject matter jurisdiction.

       Nevertheless, the district court erred in dismissing Count I for lack of

jurisdiction with prejudice. “A dismissal for lack of subject matter jurisdiction is

not a judgment on the merits and is entered without prejudice.” Stalley ex rel.

United States v. Orlando Reg’l Healthcare Sys., Inc., 

524 F.3d 1229, 1232

 (11th

Cir. 2008); see also Betty K Agencies, Ltd. v. M/V Monada, 

432 F.3d 1333, 1341

(11th Cir. 2005) (explaining that in the absence of jurisdiction, a court lacks the

power to dismiss claims with prejudice). While we do not disturb the district



       6
         Kennedy’s proximity to the Hotel neither helps nor hurts her. Kennedy lives only 50 to
60 miles away from the Hotel. On one hand, this suggests she would not stay overnight at the
Hotel. On the other hand, she has a disability and submitted that she normally spends the night
in a hotel when she travels any distance. The problem is that Kennedy visited the Hotel only
once, did not stay overnight, and could not recall if she ever stayed in a Homestead hotel.


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         USCA11 Case: 20-10648        Date Filed: 05/27/2021    Page: 26 of 29



court’s finding that amendment would be futile, it was error to dismiss Count I

with prejudice. See MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins.

Co., 

935 F.3d 573, 581

 (7th Cir. 2019) (stating that a “dismissal for lack of

jurisdiction without leave to amend is not the same thing as a dismissal with

prejudice,” which is a ruling on the merits that carries a preclusive effect that

prevents a plaintiff from relitigating anywhere any claim encompassed by her suit).

      V. DISMISSAL OF COUNT II BASED ON CLAIM SPLITTING

      The claim-splitting doctrine: (1) “requires a plaintiff to assert all of its

causes of action arising from a common set of facts in one lawsuit,” and (2) applies

where a second suit has been filed before the first suit has reached a final

judgment. Vanover v. NCO Fin. Servs., Inc., 

857 F.3d 833

, 840 n.3, 841 (11th Cir.

2017) (quoting Katz v. Gerardi, 

655 F.3d 1212, 1217

 (10th Cir. 2011)). The

doctrine serves “to promote judicial economy and shield parties from vexatious

and duplicative litigation while empowering the district court to manage its

docket.” Id. at 843.

      In determining whether a party has improperly split its claims among

lawsuits, this Court examines: “(1) whether the case involves the same parties and

their privies, and (2) whether separate cases arise from the same transaction or

series of transactions.” Id. at 841–42 (quotation marks omitted). “Successive

causes of action arise from the same transaction or series of transactions when the



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           USCA11 Case: 20-10648         Date Filed: 05/27/2021      Page: 27 of 29



two actions are based on the same nucleus of operative facts.” Id. at 842. In

determining whether a particular grouping of facts constitutes a transaction, or

series of transactions, this Court has adopted the “transactional test” from the

Restatement (Second) of Judgments § 24, giving weight to considerations such as

“whether the facts are related in time, space, origin, or motivation, whether they

form a convenient trial unit, and whether their treatment as a unit conforms to the

parties’ expectations or business understanding or usage.” Id. (quoting Petro-Hunt,

L.L.C. v. United States, 

365 F.3d 385, 396

 (5th Cir. 2004)). “Under the

transactional test, a new action will be permitted only where it raises new and

independent claims, not part of the previous transaction, based on the new facts.”

Id.

 (quoting Hatch v. Boulder Town Council, 

471 F.3d 1142, 1150

 (10th Cir.

2006)).

       The district court did not abuse its discretion in dismissing Count II for

improper claim splitting because Count II and Floridian I arise from the same

transaction—Kennedy’s use of Floridian’s ORS—and are based on facts that are

sufficiently related in time, space, origin, and motivation. 7 See 

id.

 The complaint

in this action and the amended complaint in Floridian I were filed within five

months of each other. Both lawsuits allege violations of 

28 C.F.R. § 36.302

(e)(1)



       7
        We review a dismissal for improper claim splitting for an abuse of discretion. Vanover,

857 F.3d at 837

.


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based on Floridian’s ORS and are motivated by Kennedy’s desire to obtain

information about accessible rooms and amenities at the Hotel.

      To be sure, there are some additional factual allegations in Count II of the

instant lawsuit that were not in the amended complaint in Floridian I, but the cause

of action was essentially the same one about Floridian’s ORS. Floridian I was

based solely on Floridian’s ORS through floridianhotel.com, which Kennedy

alleged failed to provide accessibility information. Count II was based on

Floridian’s ORS through the floridianhotel.com website and other third-party

websites. Kennedy alleged that Floridian’s ORS through some of these third-party

websites also did not identify accessible guest rooms at the Hotel or allow for their

booking, while others omitted information about the lack of accessible features.

Kennedy maintains that Floridian revised its own website sometime after she filed

Floridian I and that it was still not ADA compliant, though it is not clear when she

first encountered the alleged deficiencies.

      These additional facts concerning how Floridian’s ORS violated 

28 C.F.R. § 36.302

(e)(1) do not give rise to new and independent claims that are part of a

separate transaction. See Hatch, 

471 F.3d at 1150

. Whether Floridian provided no

information about accessibility or omitted information, Kennedy’s claim was the

same—Floridian prevented her from obtaining the information she needed to

determine whether the Hotel was accessible.



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           USCA11 Case: 20-10648           Date Filed: 05/27/2021       Page: 29 of 29



       Kennedy raises several other arguments that are without merit, only one of

which warrants any discussion. Kennedy argues we should not apply the rule

against claim splitting because the district court dismissed Floridian I with

prejudice, concluding that further amendment could not cure the standing defect in

that ORS case. Kennedy argues this created a “[c]atch-22” that left her with no

recourse to pursue her ORS claims. This argument ignores the fact that Kennedy

was allowed leave to amend in Floridian I and had the opportunity to include her

additional factual allegations regarding Floridian’s ORS. There was no catch-22.

It was within the district court’s discretion to conclude that Count II in the second

case involved the same ADA-non-compliance claim about Floridian’s ORS and

did not state a new and independent ADA claim. 8

                                     VI. CONCLUSION

       For the reasons above, we affirm the district court’s dismissal of Count II for

claim splitting. We also affirm the district court’s dismissal of Count I for lack of

standing, except to the extent it dismissed Count I with prejudice. We remand the

case solely so that the district court may amend its judgment to dismiss Count I

without prejudice.

       AFFIRMED AND REMANDED.
       8
         Because the district court early on dismissed Count II based on claim splitting, the issue
as to standing on Count II was neither factually developed in the district court nor ruled on by
that court. While that standing issue as to Count II may be more arguable than as to Count I, we
decline to rule on that issue as to Count II without first having a fuller factual development in,
and ruling by, the district court.


                                                29