Myers v. Affton Diner, LLC

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT GLEN MYERS, 	)
)
Plaintiff, 	)
)
vs. 	) 	Case No. 4:25-cv-0815-MTS
)
AFFTON DINER, LLC, 	)
)
Defendant. 	)
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Affton Diner, LLC’s Motion to
Dismiss, which seeks dismissal of this action for, among other reasons, Plaintiff’s lack of
standing. 	Doc. [9]; see also Fed. R. Civ. P. 12(b)(1). 	After a complete review of the
filings and Plaintiff’s Complaint, the Court concludes that Plaintiff has not plausibly
alleged that he has suffered an Article III injury in fact. 	For this reason, the Court must
grant the Motion and dismiss this action without prejudice.
*
Robert Glen Myers, a blind man living in Caldwell County, Missouri, is a serial
litigant who has filed numerous civil actions against various entities in multiple federal
district courts under the Americans with Disabilities Act (“ADA”). 	In this action, he
sued Defendant Affton Diner, LLC, which—as one might guess—operates a diner in
Affton, Missouri. 	Defendant has moved the Court to dismiss this action against it for
multiple reasons, one being that Plaintiff, according to Defendant, lacks Article III
standing. 	To survive Defendant’s Motion to Dismiss for lack of standing, Plaintiff
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needed only to have “allege[d] sufficient factual matter, accepted as true, to support a
reasonable and plausible inference that []he satisfies the elements of Article III standing.”
Johnson v. Griffin, 69 F.4th 506, 510 (8th Cir. 2023). 	While this burden is “relatively
modest,” see id., Plaintiff did not meet it.
The United States Court of Appeals for the Eighth Circuit has consistently
explained that, while plaintiffs need not engage in the “futile gesture” of visiting a place
of public accommodation that contains known barriers that the owner has no intention of
remedying, see 42 U.S.C. § 12188(a)(1), plaintiffs must at least establish knowledge of
the barriers and that they would visit the place of public accommodation in the imminent
future but for those barriers. 	Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000);
Dalton v. NPC Int’l, Inc., 932 F.3d 693, 695 (8th Cir. 2019). 	While Plaintiff has visited
Defendant’s website, he has never visited Defendant’s diner. 	The place of public
accommodation—contrary to Plaintiff’s position—is Defendant’s diner, not its website.
See 42 U.S.C. § 12181(7)(B) (listing “a restaurant, bar, or other establishment serving
food or drink” as a public accommodation); see also Parker v. Metro. Life Ins. Co., 121
F.3d 1006, 1010 (6th Cir. 1997) (en banc) (“[A] public accommodation is a physical
place.”).
To be sure, Plaintiff says that he intends to visit Defendant’s diner. 	But a mere
“some day” intention, even if plausible, is “insufficient.” 	Steger, 228 F.3d at 893
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992)); see also Kennedy v.
Floridian Hotel, Inc., 998 F.3d 1221, 1234–35 (11th Cir. 2021) (concluding the “totality
of relevant facts simply d[id] not support the conclusion” that plaintiff faced a real and
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immediate threat of future discrimination at defendant’s hotel because she “had no
credible or concrete plan to return” to the hotel or even the city in which it was located).
In any event, even his “some day” intention simply is implausible since he has not
pleaded facts that show he has any real intention to visit or to partake in the goods and
services available at Defendant’s diner.
This diner is around 250 miles away from Plaintiff’s residence—roughly four-
hours away by car. 	Plaintiff is blind, Doc. [1] ¶ 9, and, quite understandably, he finds
“traveling 	outside 	of 	his 	home” 	to 	be 	an 	“often 	difficult, 	hazardous, 	frightening,
frustrating, and confusing experience,” id. ¶ 24. So, when is he going to visit Affton and
dine at this diner? 	Though his Complaint is twenty-four pages in length, it contains no
allegations that Plaintiff has any specific plans to do so. 	He points to no future travel to
Affton. 	Indeed, he does not even allege that he has specific plans to be anywhere in the
greater St. Louis region. 	He does not allege that he has been in the area recently. 	Nor
does he discuss how he would travel to the area. And he does not allege any reason why
he might do so—e.g., friends, family, or business in the area. 	All Rule 11(b) apparently
allowed him to muster is that he is “interested in patronizing, and intends to patronize
[Defendant’s diner] in the near future.” 	Doc. [1] ¶ 21. 	But “[c]onclusory allegations do
not satisfy the requirements of Article III.” 	Binno v. Am. Bar Ass’n, 826 F.3d 338, 344
(6th Cir. 2016) (citing Warth v. Seldin, 422 U.S. 490, 508 (1975)).
For these reasons, it is not plausible that Plaintiff has any intent to visit the diner,
let alone a specific intent to do so. 	The circumstances here buttress this conclusion.
Plaintiff is a serial litigant. Court records show that he has filed almost fifty ADA actions
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in the Eastern District of Missouri alone. 	This tally does not include the many other
ADA actions Plaintiff has filed elsewhere against entities closer to his home.1 At bottom,
Defendant’s diner is just one of the dozens and dozens of eating establishments peppered
throughout Missouri that Plaintiff has sued and avowed a general interest and intention to
visit. 	Judicial experience and common sense point to the conclusion that, at least as to
the Affton diner, Plaintiff’s intention is not remotely plausible. Cf. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (explaining that determining plausibility is a “context-specific task
that requires the reviewing court to draw on its judicial experience and common sense”).
* 	* 	*
As this Court found in a previous ADA action Plaintiff brought, he has not shown
he can answer the “What’s it to you?” of standing. 	See Myers v. Adam’s Smokehouse,
LLC, 	4:25-cv-0860-MTS, 	2025 	WL 	2522430, 	at 	*1 	(E.D. 	Mo. 	Sept. 	2, 	2025),
reconsideration denied, 2025 WL 2538382 (E.D. Mo. Sept. 3, 2025); see also Antonin
Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17
Suffolk U. L. Rev. 881, 882 (1983). 	Defendant Afton Diner LLC’s alleged failure to
provide an accessible website “is nothing to [Myers],” because he has no “intent to visit
the [restaurant].” See Acheson Hotels, LLC v. Laufer, 601 U.S. 1, 12 (2023) (Thomas, J.
1 See, e.g., Myers v. Fun Farm Barn Co., 5:25-cv-6213-RK (W.D. Mo.); Myers v. A & G
Restaurant, Inc., 5:25-cv-6138-FJG (W.D. Mo.); Myers v. Hand Cut Steaks of Poplar Bluff, Inc.,
5:25-cv-06129-BCW (W.D. Mo.); Myers v. Pirtle Winery LLC, 5:25-cv-6116-RK (W.D. Mo.);
Myers v. Red Barn Food & Wine, LLC, 5:25-cv-6010-BCW (W.D. Mo.); Myers v. Cameron
Mitchell Restaurants, LLC, 5:24-cv-06103-SRB (W.D. Mo.).
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concurring in the judgment). 	He therefore lacks standing, which means the Court must
dismiss his action without prejudice.2
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, Doc. [9], is
GRANTED. 	The Court will enter herewith an Order of Dismissal that will dismiss this
action without prejudice.
IT IS FURTHER ORDERED that any motion for fees shall be filed no later than
Thursday, January 22, 2026. 	See 42 U.S.C. § 12205; Smith v. Bradley Pizza, Inc.,
0:17-cv-2032-ECT, 2019 WL 6650475, at *2 (D. Minn. Dec. 6, 2019).
Dated this 8th day of January 2026.
MATTHEW T. SCHELP
UNITED STATES DISTRICT JUDGE
2 Defendant also maintains that it has remediated any shortcomings of its website and that this
action therefore is moot. 	The Court ordered further briefing on the mootness issue to avoid, if
possible, reaching the standing issue. See Doc. [16], 2025 WL 3216399; cf. Acheson Hotels, 601
U.S. at 5 (declining to decide standing issue in ADA case where controversy had become moot).
Plaintiff continues to maintain that this action is not moot. See Doc. [18]. The Court chooses to
decide the standing issue and does not decide Defendant’s colorable mootness argument. 	See
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007).
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