Lugo v. The City of Troy, New York

22-3043
Lugo v. The City of Troy, New York
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2023
A RGUED: MARCH 4, 2024
D ECIDED: A UGUST 27, 2024
Docket No. 22-3043
MOSES L UGO AND CHERYL S EATON,
Plaintiffs–Appellants,
v.
T HE C ITY OF TROY , NEW Y ORK,
Defendant–Appellee.
________
Appeal from the United States District Court
for the Northern District of New York.
________
Before: WALKER , NARDINI, AND MENASHI, Circuit Judges.
________
Plaintiffs–Appellants Moses Lugo and Cheryl Seaton sued
Defendant–Appellee City of Troy, New York under the Americans
with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973
(“RA”). Plaintiffs, who use motorized wheelchairs, allege that Troy
has failed to maintain pedestrian pathways that are accessible to
them. After the parties completed discovery, Plaintiffs moved for

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summary judgment, and Troy moved to dismiss Plaintiffs’ complaint
for lack of standing or, alternatively, for summary judgment. The
district court (Sharpe, J.) dismissed the complaint, finding the factual
allegations therein inadequate to establish Plaintiffs’ standing. The
district court did not consider, however, whether either party was
entitled to summary judgment on the issue of standing based on the
full summary-judgment record.
On appeal, Plaintiffs argue that the district court erred in
resolving the issue of standing based on the pleadings rather than the
full summary-judgment record. For the reasons explained below, we
agree. We thus VACATE the judgment of the district court and
REMAND for further proceedings consistent with this opinion.
________
CHRISTINA A SBEE , Disability Rights New York,
Albany, NY (Jessica Richwalder, Jessica Scholes, on
the brief), for Plaintiffs–Appellants Moses Lugo and
Cheryl Seaton.
THOMAS J. O’C ONNOR , Napierski, VanDenburgh,
Napierski & O’Connor, LLP, Albany, NY, for
Defendant–Appellee The City of Troy, New York.
________
JOHN M. WALKER , JR ., Circuit Judge:
Plaintiffs–Appellants Moses Lugo and Cheryl Seaton sued
Defendant–Appellee City of Troy, New York under the Americans
with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973
(“RA”). Plaintiffs, who use motorized wheelchairs, allege that Troy

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has failed to maintain pedestrian pathways that are accessible to
them. After the parties completed discovery, Plaintiffs moved for
summary judgment, and Troy moved to dismiss Plaintiffs’ complaint
for lack of standing or, alternatively, for summary judgment. The
district court (Sharpe, J.) dismissed the complaint, finding the factual
allegations therein inadequate to establish Plaintiffs’ standing. The
district court did not consider, however, whether either party was
entitled to summary judgment on the issue of standing based on the
full summary-judgment record.
On appeal, Plaintiffs argue that the district court erred in
resolving the issue of standing based on the pleadings rather than the
full summary-judgment record. For the reasons explained below, we
agree. We thus VACATE the judgment of the district court and
REMAND for further proceedings consistent with this opinion.
BACKGROUND
Plaintiffs–Appellants Moses Lugo and Cheryl Seaton reside in
Troy, New York. Due to mobility disabilities, Plaintiffs use motorized
wheelchairs to navigate throughout Troy. Plaintiffs brought this
action against Defendant–Appellee City of Troy for alleged violations
of Title II of the ADA and § 504 of the RA. Plaintiffs claim that Troy
has discriminated against them by failing to keep Troy’s sidewalks
and crosswalks accessible.
In their complaint, Plaintiffs allege that they sustained damages
in two separate incidents while using their wheelchairs. On
December 16, 2017, Mr. Lugo was traveling on Federal Street when
his wheelchair slid into a large pothole in a crosswalk, causing him to
be ejected from the wheelchair. During the winter of 2017–18, Ms.

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Seaton was crossing 4th Avenue near 114th Street when her
wheelchair was damaged by hitting a large gap between the sidewalk
and the road.
Without identifying other specific locations, Plaintiffs further
allege in their complaint that Troy’s sidewalks and crosswalks are
generally inaccessible to them—and in violation of Title II of the ADA
and § 504 of the RA—because of poor maintenance and physical
barriers and impediments, including missing or deficient curb cuts
and abrupt changes in level and slope. As a result, Plaintiffs “cannot
safely access areas of the City of Troy, including the core downtown
area.” App’x at 15.
After Plaintiffs filed their complaint, the parties conducted
discovery for nearly two years. In depositions filed during this
period, Plaintiffs testified to having encountered other specific
accessibility obstacles around Troy. Mr. Lugo testified that he was
forced by the inaccessible pedestrian pathways to turn around on
sidewalks and to retrace his journey back to the beginning of the
sidewalks so that he could travel along the street to his destination.
Id. at 1424–25. Mr. Lugo also observed that a curb ramp in front of
City Hall was “too small” and that a sidewalk near the Samaritan
Hospital was inaccessible. Id. at 1425, 1430. Mr. Lugo noted that
“[e]verything I have is near me. I don’t really have to travel too
far . . . for my needs,” id. at 1426–27, but he also stated in an affidavit
that “if I knew I would not face barriers that leave me stuck, damage
my wheelchair, cause me physical harm, or force me to use the streets
to get from one place to the other,” then he “would use the sidewalks
and curb cuts throughout the City of Troy,” id. at 57.

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Ms. Seaton stated that accessing a restaurant and park in
downtown Troy was a “disaster” because of missing ramps, id. at
1373–74, and that a ramp leading to a boutique in the same area was
too steep, id. at 1395. She also complained of a missing ramp on
Hoosick Street near two food pantries that she has frequented. Id. at
1375–76. Ms. Seaton also testified that she faced challenges accessing
the 6th Avenue bus depot. Id. at 1387–90. Finally, she testified that
she was forced to travel on the street whenever she did not know the
state of the sidewalks on her route; otherwise, she risked having to
turn around, retrace her path, and end up taking the street anyway—
which would waste time and her wheelchair battery life. Id. at 1373,
1396–97.
On the other hand, Plaintiffs testified that the two specific
obstacles they identified in their complaint had been removed: the
pothole on Federal Street was “patched . . . up” and the large gap on
4th Avenue “clear[ed].” Id. at 1372, 1421–22.
During discovery, the parties also commissioned architectural
consultants to survey the accessibility of dozens of sites throughout
Troy. The parties and their respective experts reached competing
conclusions as to various sites, including the sites that Plaintiffs
deemed inaccessible in their complaint and deposition testimony.
Although the parties agree that certain obstacles have been remedied,
the parties dispute whether the expert reports show that these sites
are now fully accessible and in compliance with ADA standards. See,
e.g., Lugo v. City of Troy, New York, No. 19-cv-67, ECF No. 81, Attach. 1
¶¶ 5, 8, 14, 19, 21, 24–25, 28–29.
Following discovery, Plaintiffs moved for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. As

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pertinent here, Plaintiffs argued that there was “no genuine dispute”
that the evidence compiled during discovery established Plaintiffs’
Article III standing. See Fed. R. Civ. P. 56(a). According to Plaintiffs,
the summary-judgment record showed that many pedestrian
pathways in Troy remain inaccessible, that Plaintiffs are deterred
from using these pathways, and that Plaintiffs have therefore
experienced an “injury in fact” and a “real and immediate threat of
future injury.” Calcano v. Swarovski N. Am. Ltd., 36 F.4th 68, 74–75 (2d
Cir. 2022) (quoting Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1233
(11th Cir. 2021)); see also id. (noting that to establish standing, an ADA
plaintiff seeking injunctive relief must show an injury in fact,
including a threat that he will face the same injury in the future).
In response, Troy filed a cross-motion to dismiss Plaintiffs’
complaint for lack of standing under Rule 12(b)(1) of the Federal
Rules of Civil Procedure or, in the alternative, for summary judgment.
Troy argued that Plaintiffs lacked standing because the
summary-judgment record showed that most of the specific obstacles
that Plaintiffs identified in either their complaint or their depositions
had been remedied. Troy also stressed that Mr. Lugo did not
demonstrate a “threat of future injury” because he failed to show that
he frequented and wished to return to the sites he complained about.
Calcano, 36 F.4th at 75 (internal quotation marks omitted).
In a Memorandum Decision and Order dated October 27, 2022,
the district court granted Troy’s motion based solely on the Plaintiffs’
complaint. Looking only at the complaint’s factual allegations, the
district court found them inadequate to establish Plaintiffs’ standing,
with regard to both the general claims of injury from inaccessibility
and their specific claims of injury from their accidents. First, it held
that Plaintiffs lacked standing to pursue city-wide remedies because

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Plaintiffs’ “generic allegations” of Troy’s overall inaccessibility were
too conclusory to establish standing. Special App’x at 8. Second, it
held that Plaintiffs lacked standing “and/or their claim is moot” with
regard to remedies relating to the two injury sites alleged in the
complaint because, as Plaintiffs observed in their depositions, Troy
had remedied the specific obstacles that caused their injuries. Id. at
9–10. The district court did not consider whether evidence developed
during discovery, including deposition testimony in which Plaintiffs
identified additional accessibility obstacles throughout Troy, might
otherwise establish Plaintiffs’ standing.
DISCUSSION
On appeal, Plaintiffs argue that the district court erred in
determining the issue of Article III standing based on the pleadings
rather than the full summary-judgment record. Plaintiffs further
contend that upon that record, they have standing to pursue this
action. We agree that the district court committed procedural error in
resolving Troy’s standing challenge as a pleadings motion instead of
a summary-judgment motion. As such, we do not reach the merits of
the standing issue now. Instead, we vacate the judgment of the
district court and remand for consideration of the standing issue upon
the evidentiary record under the applicable summary-judgment
standard.1
I. Legal Standards
Article III of the Constitution “confines the federal judicial
power to the resolution of ‘Cases’ and ‘Controversies.’” TransUnion
1 Plaintiffs also argue on appeal that the district court erred in determining their
claims were moot. We do not reach this issue because we remand for
reconsideration of the standing issue. Mootness is jurisdictional, see Doyle v.

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LLC v. Ramirez, 594 U.S. 413, 423 (2021) (quoting U.S. Const. art. III,
§ 2). “For there to be a case or controversy under Article III, [a]
plaintiff must have a ‘personal stake’ in the case—in other words,
standing.” Id. (quoting Raines v. Byrd, 521 U.S. 811, 819 (1997))
(cleaned up). To establish standing, the plaintiff must show that he
“has suffered, or will suffer, an injury that is ‘concrete, particularized,
and actual or imminent; fairly traceable to the challenged action; and
redressable by a favorable ruling.’” Murthy v. Missouri, 144 S. Ct.
1972, 1986 (2024) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398,
409 (2013)). Furthermore, “because the plaintiffs request forward-
looking relief, they must face ‘a real and immediate threat of repeated
injury.’” Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)).
In the ADA context, we have said that a plaintiff adequately
alleges injury when “(1) the plaintiff alleged past injury under the
ADA; (2) it was reasonable to infer that the discriminatory treatment
would continue; and (3) it was reasonable to infer, based on the past
frequency of plaintiff’s visits and the proximity of defendant[’s]
[services] to plaintiff’s home, that plaintiff intended to return to the
Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013) (“[W]hen a case becomes
moot, the federal courts lack subject matter jurisdiction over the action.”), and for
that reason it must be addressed before a court reaches the merits, see Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998) (“The requirement that
jurisdiction be established as a threshold matter ‘springs from the nature and
limits of the judicial power of the United States’ and is ‘inflexible and without
exception.’” (alteration and citation omitted)). Standing, however, is also
jurisdictional, see All. for Env’t Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82,
88 n.6 (2d Cir. 2006) (“Article III standing . . . [is] a limitation on the authority of a
federal court to exercise jurisdiction.”), and this court “can address jurisdictional
issues in any order we choose, and so have authority to resolve the standing issue,”
without addressing mootness, Acheson Hotels, LLC v. Laufer, 601 U.S. 1, 4 (2023)
(citation omitted). On remand, if the district court determines that the Plaintiffs
have standing, it would need to address all jurisdictional questions before
proceeding to the merits.

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subject location.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187–
88 (2d Cir. 2013). This latter prong requires that “the plaintiff
plausibly allege[] a real and immediate threat of future injury,” if
“examined under the totality of all relevant facts.” Calcano, 36 F.4th
at 75 (internal quotation marks omitted). These “relevant facts”
include the “definiteness of the plaintiff’s plan to return and
frequency of the plaintiff’s travel near the defendant’s business.” Id.
(internal quotation marks omitted). This clarification ensures that any
“threatened injury must be certainly impending,” so that the plaintiff
does not rely on mere “allegations of possible future injury.” Id. at 74
(quoting Am. C.L. Union v. Clapper, 785 F.3d 787, 800 (2d Cir. 2015)).
“[C]onclusory allegations of intent to return and proximity are not
enough—in order to ‘satisfy the concrete-harm requirement’ and to
‘pursue forward-looking, injunctive relief,’ Plaintiffs must establish a
‘material risk of future harm’ that is ‘sufficiently imminent and
substantial.’” Id. at 72 (quoting TransUnion, 594 U.S. at 435).
A challenge to standing “may be raised by a party, or by a court
on its own initiative, at any stage in the litigation, even after trial and
the entry of judgment.” Carter v. HealthPort Techs., LLC, 822 F.3d 47,
56 (2d Cir. 2016) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 506
(2006)); see also Fed. R. Civ. P. 12(h)(3). “At each such stage, ‘the party
invoking federal jurisdiction bears the burden of establishing the
elements’ of Article III standing[,] but the stage at which, and the
manner in which, the issue is raised affect . . . the obligation of the
plaintiff to respond [and] the manner in which the district court
considers the challenge . . . .” Carter, 822 F.3d at 56 (alterations
incorporated) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992)).

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At the pleading stage, “the plaintiff must clearly allege facts [in
his complaint] demonstrating each element” of standing. Spokeo,
Inc. v. Robins, 578 U.S. 330, 338 (2016) (internal quotation marks
omitted and alteration incorporated). “If the plaintiff fails to do so,
the complaint is subject to dismissal at the outset either upon motion
by the defendant under Federal Rule of Civil Procedure 12(b)(1) or
upon the court’s own inquiry.” Jones v. L.A. Cent. Plaza LLC, 74 F.4th
1053, 1057 (9th Cir. 2023). To survive a Rule 12(b)(1) motion to
dismiss, the complaint’s factual allegations of standing must be
“plausible” and “nonconclusory.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
680 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d
Cir. 2011) (applying the pleading standards of Twombly and Iqbal to a
Rule 12(b)(1) motion to dismiss).
A Rule 12(b)(1) motion may be either facial or fact-based. See
Carter, 822 F.3d at 56. A facial motion is based solely on the
pleadings—that is, the allegations of the complaint and any exhibits
attached to it. Id. The district court must deny such a motion if the
plaintiff satisfies the applicable pleading standards discussed above.
Id. Alternatively, in a fact-based motion, the defendant can proffer
evidence outside the pleadings to challenge the plaintiff’s allegations
of standing. Id. at 57. “In opposition to such a motion, the plaintiff[]
will need to come forward with evidence . . . controvert[ing] that
presented by the defendant” if the defendant’s evidence “reveal[s] the
existence of factual problems” regarding standing. Id. (internal
quotation marks omitted). In that scenario, “the district court will
need to make findings of fact in aid of its decision as to standing.” Id.
If the plaintiff’s complaint has not been dismissed for lack of
standing at the pleading stage, “the case advances to discovery for the

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parties to marshal evidence supporting their claims and defenses.”
Dupree v. Younger, 598 U.S. 729, 731 (2023). “During or after that
process, either party can move for summary judgment under Rule 56,
which requires a district court to enter judgment on a claim or
defense,” including on standing, “if there is ‘no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter
of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).
At the summary-judgment stage, the plaintiff “can no longer
rest on [the complaint’s] allegations” of standing. Lujan, 504 U.S. at
561 (cleaned up). Instead, to demonstrate his entitlement to summary
judgment on this issue, the plaintiff must “set forth by affidavit or
other evidence specific facts” showing that there is no genuine
dispute as to facts that attest to his standing. Id. (internal quotation
marks omitted); see also Fed. R. Civ. P. 56(c). Conversely, to defeat a
defendant’s motion for summary judgment on the same issue, the
plaintiff must produce evidence showing the presence of a genuine
issue regarding standing that would warrant resolution by trial. See
Fed. R. Civ. P. 56(c).
II. Analysis
Plaintiffs challenge the procedure used by the district court in
determining Article III standing in this case. In Plaintiffs’ view,
because the parties relied on matters beyond the pleadings to argue
their standing motions, the district court should have decided
whether Plaintiffs had standing by examining the full
summary-judgment record, and not by confining its evaluation to the
factual allegations in Plaintiffs’ complaint.

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“We review district court ‘determinations undertaken to
manage the litigation before the court’ for abuse of discretion.” U.S.
Sec. & Exch. Comm’n v. Aronson, 665 F. App’x 78, 80 (2d Cir. 2016)
(summary order) (alteration incorporated) (quoting In re World Trade
Ctr. Disaster Site Litig., 722 F.3d 483, 487 (2d Cir. 2013) (per curiam)).
This includes the district court’s decision in this case to apply a
pleading standard instead of a summary-judgment standard,
notwithstanding the completion of discovery, to resolve the issue of
standing. For the reasons set forth below, we think that the district
court overstepped its discretion.
The Federal Rules of Civil Procedure guide litigants and federal
courts toward “the just, speedy, and inexpensive determination of
every action and proceeding.” Fed. R. Civ. P. 1. To that end, the Rules
allow the district court, in certain situations, “to convert the form of
the motion that a party has chosen to present to the court.” Jones, 74
F.4th at 1058. For example, under Rule 12(d), if a party presents
“matters outside the pleadings” to the district court on a Rule 12(b)(6)
motion to dismiss for failure to state a claim, the district court can
choose either to exclude such matters and resolve the motion based
on the pleadings, or else to consider such matters and thus convert
the motion into “one for summary judgment under Rule 56.” Fed. R.
Civ. P. 12(d). The choice to convert a motion “generally turns on
whether doing so ‘is likely to facilitate the disposition of the action’
on the merits.” Jones, 74 F.4th at 1059 (quoting 5C Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1366, at 165
(3d ed. 2004)).
The district court’s actions here, however, most resemble a
reverse Rule 12(d) conversion. To explain, we briefly summarize the
procedural history discussed above. Troy styled its attack on

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standing as both a fact-based Rule 12(b)(1) motion to dismiss and a
Rule 56 motion for summary judgment. As to the former, Troy sought
to impugn Plaintiffs’ complaint allegations concerning the two injury
sites with evidence outside the pleadings, namely, Plaintiffs’
observations during their depositions that the obstacles at those sites
had been removed. And regarding the latter, Troy argued it was
entitled to summary judgment because nothing in the summary-
judgment record—including Plaintiffs’ deposition testimony
identifying additional accessibility obstacles throughout Troy—
otherwise established Plaintiffs’ standing. But in resolving Troy’s
challenge, the district court largely ignored the summary-judgment
record. It considered only whether the allegations of standing in
Plaintiffs’ complaint satisfied the pleading standards set forth in
Twombly and Iqbal. It declined to credit the alleged obstacles in the
complaint either because they were too generic or because Plaintiffs’
deposition testimony showed that they had been remedied. It failed
to consider, however, whether other evidence outside the pleadings
might suffice to establish Plaintiffs’ standing.
This was procedural error. As two of our sister circuits have
observed, the Federal Rules of Civil Procedure “offer no support” for
the sort of reverse Rule 12(d) conversion that the district court
undertook here. See Jones, 74 F.4th at 1059 (quoting Ríos-Campbell v.
U.S. Dep't of Com., 927 F.3d 21, 25 (1st Cir. 2019)). There are good
reasons for this. When a district court resolves a summary-judgment
motion as a pleadings motion, it “disregard[s] the more robust
procedural device the parties have invoked to frame the issue” and
thus “unjustifiably ignores the fuller evidentiary record assembled by
the parties.” Id. And in practice, a reverse Rule 12(d) conversion “will

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rarely (if ever) help to ‘secure the just, speedy, and inexpensive
determination’ of the action.” Id. (quoting Fed. R. Civ. P. 1).
The different standards generally applicable to motions to
dismiss and for summary judgment serve distinct purposes, each
tailored to addressing the unique considerations that arise at
successive stages of the litigation. The pleading standards of Twombly
and Iqbal require a plaintiff’s complaint to allege sufficient facts to
“raise a reasonable expectation that discovery will reveal evidence”
of the defendant’s wrongdoing. Twombly, 550 U.S. at 545. In so doing,
the pleading standard acts as a “screening mechanism” in the early
stages of the litigation. Ríos-Campbell, 927 F.3d at 24 (internal
quotation marks omitted). It closes “the doors of discovery” to
plaintiffs “armed with nothing more than conclusions.” Iqbal, 556
U.S. at 678–79. But once the parties “have already incurred the
expense of discovery,” that objective becomes inapposite. Jones, 74
F.4th at 1059. After discovery, the summary-judgment standard
typically applies, which requires the district court to review the
evidence compiled by the parties during discovery “to determine
whether trial is actually required.” Ríos-Campbell, 927 F.3d at 25
(internal quotation marks omitted).
We think that in most cases, including the present one, the
administration of justice is best served when the district court applies
the standards that are appropriate for the pertinent motion and stage
of litigation. Indeed, as the Ninth Circuit has explained, the district
court’s failure to do so could lead to the erroneous dismissal of a case.
See Jones, 74 F.4th at 1060 (“[S]uppose that the summary judgment
record shows . . . that the plaintiff has raised sufficient evidence of
standing to allow—or even to compel—a trier of fact to find in its
favor on standing. In that situation, dismissing the case based on

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Iqbal-based pleading deficiencies in the complaint’s factual
allegations . . . seems difficult to justify. In that scenario, the fruits of
[discovery] would have revealed that the pleading deficiency is
curable . . . .”). The risk of error was compounded here because Troy,
like the defendant in Jones, did not object to the adequacy of Plaintiffs’
pleadings until the summary-judgment stage. Had Troy done so
earlier, any deficiencies in Plaintiffs’ complaint “presumably could
have been cured before the allotted time to amend the pleadings
expired.” Id. Under these circumstances, we agree with the Ninth
Circuit that “[f]or a district court to ignore the parties’ factual
presentation on summary judgment . . . seems hardly to promote the
just determination of the action.” Id.
To recap, we hold that the district court erred in resolving the
question of standing—which was raised at the summary-judgment
stage—under the standards applicable to a Rule 12 motion to dismiss
on the pleadings. And, accordingly, we vacate the district court’s
judgment. On remand, we anticipate that the district court will need
to determine (1) whether Plaintiffs have shown the absence of a
genuine dispute as to facts that would establish their standing to
pursue relief relating to both the general and specific accessibility
obstacles that Plaintiffs identified in the pleadings and the summary-
judgment record (or, conversely, whether Troy has shown the same
as to facts that would establish Plaintiffs’ lack of standing); and (2) if
summary judgment is warranted against Plaintiffs on standing,
whether Plaintiffs should be granted leave to replead.

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C ONCLUSION
For the foregoing reasons, we VACATE the judgment of the
district court and REMAND for further proceedings consistent with
this opinion.

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