Colorado Cross-Disability Coalition et al v. Abercrombie & Fitch Co. et al

Filing 98

SECOND AMENDED ORDER. Ordered that Defendant's Renewed Motion to Dismiss for Lack of Standing 76 is Denied by Chief Judge Wiley Y. Daniel on 06/02/11. (jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 09-cv-02757-WYD-KMT
COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit Corporation,
ANITA HANSEN,
ROBERT SIROWITZ,
JOSHUA STAPEN,
ROBIN STEPHENS, and
BENJAMIN HERNANDEZ
Plaintiffs,
v.
ABERCROMBIE & FITCH CO.,
ABERCROMBIE & FITCH STORES, INC., and
J.M. HOLLISTER LLC, d/b/a HOLLISTER CO.
Defendants.

SECOND AMENDED ORDER

I.

INTRODUCTION
THIS MATTER is before the Court on Defendants’ Renewed Motion to Dismiss

for Lack of Standing filed September 20, 2010 [ECF No. 76]. Defendants move to
dismiss this case for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(1). A response in opposition to the motion was filed on October 25, 2010, and a
reply brief was filed on November 5, 2010. Defendants also filed supplemental authority
on December 3, 2010, and Plaintiffs filed a response to the supplemental authority on
December 8, 2010. For the reasons stated below, the motion to dismiss is denied.

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II.

BACKGROUND
Plaintiffs Anita Hansen, Robert Sirowitz, Joshua Stapen, Robin Stephens, and

Benjamin Hernandez are all wheelchair users and members of the Colorado CrossDisability Coalition (“CCDC”). Am. Compl. ¶ 9. CCDC “is a Colorado non-profit
corporation whose members are persons with disabilities and their non-disabled allies.”
Id. at ¶ 14. Plaintiffs, on behalf of themselves and all others similarly situated, allege
that they have encountered accessibility barriers at Defendants’ Hollister clothing
stores. Id. at ¶¶ 15-19, 60-62, 89, 109, 117, 140, 156, 170, 182-83. Specifically,
Plaintiffs claim that Defendants discriminate against customers in wheelchairs in
violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq., and the Colorado Civil Rights Act, Colo. Rev. Stat. § 24-34-601 et seq., by: (1)
designing stores with separate, segregated entrances for individuals who use
wheelchairs; (2) locking doors that are supposed to give individuals in wheelchairs store
access; (3) constructing service counters that are too high to be used by individuals
confined to wheelchairs; and (4) “arranging merchandise displays, furniture, plants, etc.
in their stores that . . . block access to customers who use wheelchairs throughout the
store.” Id. at ¶¶ 1, 8, 60-193
Based on these alleged violations, Plaintiffs seek prospective injunctive relief
requiring “Defendants to comply with the ADA with respect to all Hollister Co. stores
nationwide and all Abercrombie & Fitch and Abercrombie stores in Colorado.” Id. at 33.
In addition, Plaintiffs seek the certification of a Rule 23 class consisting of “all people
with disabilities who use wheelchairs for mobility who, during the two years prior to the
filing of the complaint . . ., were denied the full and equal enjoyment of the goods,

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services, facilities, privileges, advantages, or accommodations of any Hollister Co. store
in the United States on the basis of disability.” Id. at ¶ 47.
In the pending motion to dismiss, Defendants assert that the individual named
Plaintiffs do not have standing to seek nationwide injunctive relief, but rather are limited
to seeking relief vis-à-vis the store locations for which they intend to return. Defendants
further assert that CCDC lacks organizational standing to bring an ADA claim on behalf
of its members, first, because CCDC has failed to identify any members who would be
able to bring an action on their own behalf (other than those who are already named
parties to the complaint), and second, because the participation of unnamed CCDC
members would be required in the suit.
III.

ANALYSIS
A.

Standard

Motions to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)
can come in the form of either a facial attack to the allegations of the complaint or a
factual attack. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). With a
facial attack, as here, the Court must look to the factual allegations of the Complaint,
see Groundhog v. Keller, 442 F.2d 674, 677 (10th Cir. 1971), accepting Plaintiffs’
allegations of material fact as true. Riggs v. Albuquerque, 916 F.2d 582, 584 (10th Cir.
1990). In addition, where the district court dismisses an action for lack of jurisdiction,
the dismissal must be without prejudice. Brereton v. Bountiful City Corp., 434 F.3d
1213, 1216 (10th Cir. 2006) (citing Albert v. Smith's Food & Drug Ctrs., Inc., 356 F.3d
1242, 1249 (10th Cir.2004); Martinez v. Richardson, 472 F.2d 1121, 1126 (10th
Cir.1973) (“It is fundamental . . . that a dismissal for lack of jurisdiction is not an

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adjudication of the merits and therefore . . . must be without prejudice.”).
In regard to standing, the Supreme Court has developed a three-part test. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “First, the plaintiff must have
suffered an ‘injury in fact’ -- an invasion of a legally protected interest which is (a)
concrete and particularized, . . . and (b) ‘actual or imminent, not ‘conjectural’ or
‘hypothetical. . . .’” Id. at 560 (citations omitted). “Second, there must be a causal
connection between the injury and the conduct complained of -- the injury has to be
‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result
[of] the independent action of some third party not before the court.’” Id. (citations
omitted). “Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will
be ‘redressed by a favorable decision.’” Id. at 561 (citations omitted). “The party
invoking federal jurisdiction bears the burden of establishing these elements.” Id.
“Since they are not mere pleading requirements but rather an indispensable part
of the plaintiff’s case, each element must be supported in the same way as any other
matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree
of evidence required at the successive stages of the litigation.” Id. “At the pleading
stage, general factual allegations of injury resulting from the defendant’s conduct may
suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those
specific facts that are necessary to support the claim.’” Id. (quoting Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 889 (1990)).
B.

ADA Claim

In their motion to dismiss, Defendants argue that neither the individual Plaintiffs
nor CCDC have standing to assert a claim for nationwide injunctive relief. Def.’s Mem.

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in Supp. of Renewed Mot. to Dismiss for Lack of Standing, ECF No. 76, at 1. I will first
address whether the individual named Plaintiffs have standing to proceed in this action.
1.

Individual Named Plaintiffs

Defendants claim that Plaintiffs do not have standing to seek injunctive relief
under the ADA “unless they have alleged, inter alia, that they intend to return to stores
owned by defendants that have inaccessible conditions and thus face an imminent
threat of future injury.” Id. at 3-4. Further, Defendants argue that the individual named
plaintiffs do not have standing to assert a claim against all Hollister stores nationwide
because “they face no immediate threat of harm as to stores they have never
patronized and do not intend to patronize in the future.” Id. at 2, 4. I address both
issues below.
“[A] plaintiff seeking injunctive relief premised upon an alleged past wrong must
demonstrate a ‘real and immediate threat’ of repeated future harm to satisfy the injury in
fact prong of the standing test.” Aikins v. St. Helena Hosp., 843 F. Supp. 1329, 1333
(N.D. Cal. 1994) (quoting City of L.A. v. Lyons, 461 U.S. 95, 105 (1983)). In order to
demonstrate a ‘real and immediate’ threat of future injury in an ADA claim, a plaintiff
need only show that he has visited a public accommodation on a prior occasion,
suffered an injury on account of accessibility barriers, and is currently deterred from
visiting that accommodation on account of those barriers. Doran v. 7-Eleven, Inc., 524
F.3d 1034, 1041 (9th Cir. 2008); see Friends of the Earth, Inc. v. Laidlaw Envtl.
Services, Inc., 528 U.S. 167, 184 (2000) (Plaintiffs claim that they would “use the
nearby North Tyger River for recreation if [the defendants] were not discharging
pollutants into it” was sufficient to demonstrate injury in fact.).

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Here, the individual named Plaintiffs have satisfied the “real and immediate
threat” requirement. The named Plaintiffs have alleged that they will return to
Defendants’ stores if the ADA violations are remedied. Am. Compl. ¶¶ 60, 111, 115,
134, 148-49, 153, 165, 191-92. In the meantime, the named Plaintiffs “[w]ill continue to
be deterred and discouraged from going to Defendant’s Hollister stores,” Id. at ¶¶113,
151, 167, but will return periodically to test whether the accessibility barriers still exist.
Id. at ¶¶112, 137, 150, 166, 193. Thus, to the extent that Defendants argue that
Plaintiffs have not alleged a future injury, the motion is denied.
Defendants also assert that the individual Plaintiffs “have no standing to obtain
injunctive relief with respect to any specific store unless they allege that they
encountered inaccessible conditions at that store and intend to return to that store.”
Def.’s Mem. in Supp. of Renewed Mot. to Dismiss for Lack of Standing, ECF No. 76, at
12 (emphasis in original). In response, the individual Plaintiffs contend that they may
seek nationwide injunctive relief because the access barriers alleged in this case result
from common policies and designs. In support of this assertion, Plaintiffs rely on the
reasoning set forth in Castaneda v. Burger King Corp., 597 F. Supp. 2d 1035 (N.D. Cal.
2009). In Castaneda, the plaintiff alleged violations of the ADA at a subset of Burger
King restaurants in California. While the plaintiff had only visited two of these
restaurants, he brought an action on behalf of a putative class including all individuals
who used wheelchairs and were discriminated against at each of the restaurants within
the subset, seeking injunctive relief vis-à-vis all ninety restaurants. Id. at 1038-39. The
Castaneda Court held that, “[T]he ADA proscribes not only discrimination resulting from
a particular physical barrier at a specific location but rather discriminatory practices –

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‘policies, practices, or procedures’ that affect public accommodations . . . .” Id. at 1042.
Consequently, “[T]he specific injury under the ADA is not a specific barrier at a specific
site but instead the discriminatory policy or design or decision. If an offending policy or
design gave rise to more than one violation, then reversing the policy should eliminate
more than one barrier.” Id. at 1043.
Defendants note that in a later decision addressing whether class certification
requirements were met, “[T]he Castaneda Court . . . held that a separate certified class
would be necessary for the claims asserted against each separate [Burger King] store.”
Def.’s Reply Mem. in Supp. of Renewed Mot. to Dismiss for Lack of Standing, ECF No.
82, at 7. The Castaneda court did not, however, conclude that injunctive relief affecting
a nationwide chain of stores would not be possible when there was a common
architectural plan or policy violative of the ADA; rather when the court considered
whether class certification was appropriate it found that, “[b]ecause each location has
unique facilities, there is neither a common core of salient facts regarding what
accessibility barriers each restaurant’s patrons face nor a shared predicate legal issue
of whether each restaurant's facilities violates the ADA or California statutes.”
Castaneda v. Burger king Corp., 264 F.R.D. 557, 566 (N.D. Calif. 2009).
Here, Plaintiffs claim that Defendants’ Hollister stores nationwide share a uniform
architectural design that violates the ADA’s accessibility requirements. Am. Compl. ¶¶
11, 26, 32-35, 37. Plaintiffs also contend that Defendants utilize a uniform policy of
merchandising and/or floor plans for their Hollister stores nationwide. Id. at ¶ 4
(“According to [Defendants’] March 2009 form 10-K submitted to the federal Securities
and Exchange Commission . . . ‘Every brand displays merchandise uniformly to ensure

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a consistent store experience, regardless of location. Store managers receive detailed
plans designating fixture and merchandise placement to ensure coordinated execution
of the Company-wide merchandising strategy.’”). I find the reasoning in Castaneda,
supra, to be persuasive in this case. Plaintiffs have alleged that Defendants’ ADA
violations are the result of a uniform policy and design creating common barriers among
Defendants’ stores nationwide. At this stage of the litigation I must accept Plaintiffs
factual allegations as true. Therefore, I find the individual named Plaintiffs have
standing to bring a claim requesting nationwide injunctive relief.
2.

CCDC

I now turn to the Defendants’ assertion that CCDC lacks associational standing.
“[A]n association may have standing in its own right to seek judicial relief from injury to
itself and to vindicate whatever rights and immunities the association itself may enjoy. . .
. [or,] in the absence of injury to itself, an association may have standing solely as the
representative of its members.” Warth v. Seldin, 422 U.S. 490, 511 (1975). Here, in
response to the motion to dismiss, CCDC contends that it only asserts a claim on behalf
of its members, so I need not consider whether the organization would be able to assert
standing on its own behalf. Pl.’s Resp. to Def.’ Renewed Mot. to Dismiss for Lack of
Standing, ECF No. 81, at 9 n.6.
The Supreme Court reified the rule governing the standing of associational
plaintiffs in Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977):
[W]e have recognized that an association has standing to
bring suit on behalf of its members when: (a) its members
would otherwise have standing to sue in their own right; (b)
the interests it seeks to protect are germane to the
organization's purpose; and (c) neither the claim asserted

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nor the relief requested requires the participation of individual
members in the lawsuit.
Since Defendants do not challenge the second prong of the test, I will address
only the first and third prongs of the associational standing test.
i.

Whether CCDC Members Would Otherwise Have Standing

Defendants claim that in order for CCDC’s members to have associational
standing it must first identify “unnamed” members who would have standing in their own
right. Def.’s Mem. in Supp. of Renewed Mot. to Dismiss for Lack of Standing, ECF No.
76, at 10. As noted above, Hunt requires an organization to identify members who
would be able to assert standing on their own behalf, but the Hunt Court never stated
that these members could not also be individual named plaintiffs in the suit. Hunt, 432
U.S. at 343. The Tenth Circuit clarified this issue in Roe No. 2 v. Ogden, 253 F.3d 1225
(10th Cir. 2002), holding that the first prong of the Hunt test was satisfied when the
single named plaintiff was a member of the associational plaintiff’s organization.
Ogden, 253 F.3d at 1230 (citing Warth, 422 U.S. at 511). Here, there are five named
plaintiffs who are each members of CCDC and, as set forth above, each of the
individual named Plaintiffs have standing to bring a claim requesting nationwide
injunctive relief. Thus the first prong of the Hunt test has been satisfied.
In addition, I find that Defendants reliance on Equal Rights Ctr. v. Hilton Hotels
Corp., No. 07-1528, 2009 WL 6067336 (D.D.C. March 25, 2009), is misplaced. In that
case, the district court rejected an organization’s attempt to establishing standing on
behalf of its members because it neglected to list who the effected members were,
which hotels they had visited, what accessibility barriers they encountered at those

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hotels, and whether they planned to return. Def.’s Renewed Mot. to Dismiss for Lack of
Standing, ECF No. 76, at 11. Hilton is not binding authority and, moreover, this case is
distinguishable from Hilton in two important respects: First, CCDC has identified five of
its members who have encountered accessability barriers at Defendants’ stores, noting
the specific locations of those stores, the type of accessibility barriers encountered, and
the intention of the members to return to the stores in the future. Second, unlike Hilton,
the Plaintiffs in this case have alleged a uniform store design that has created
accessibility barriers at all of Defendants’ store locations.
ii.

Whether Participation of CCDC Members is Required

Finally, Defendants argue that CCDC cannot satisfy the third prong of the Hunt
test because “CCDC cannot possibly prove that defendants’ alleged violations of the
ADA caused injury to its unnamed members unless they testify.” Def.’s Mem. in Supp.
of Renewed Mot. to Dismiss for Lack of Standing, ECF No. 76, at 11.
As a general rule, “[A]n association may assert a claim that requires participation
by some members.” Hosp. Council of W. Pa. v. City of Pittsburgh, 949 F.2d 83, 89 (3d
Cir. 1991). The Supreme Court clarified the scope of this requirement in Warth: “[S]o
long as the nature of the claim and of the relief sought does not make the individual
participation of each injured party indispensable to proper resolution of the cause, the
association may be an appropriate representative of its members . . . .” 422 U.S. at 511
(emphasis added). As the Seventh Circuit observed, “We can discern no indication in
Warth . . . [or] Hunt . . . that the Supreme Court intended to limit representational
standing to cases in which it would not be necessary to take any evidence from
individual members of an association. . . . Rather, the third prong of Hunt is more
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plausibly read as dealing with situations in which it is necessary to establish
‘individualized proof’ . . . for litigants not before the court in order to support the cause of
action.” Retired Chi. Police Ass’n v. City of Chi., 7 F.3d 584, 601-02 (7th Cir. 1993).
I note that in Kan. Health Care Ass'n, Inc. v. Kan. Dept. of Soc. and Rehab.
Services, 958 F.2d 1018 (10th Cir. 1992), the Tenth Circuit determined that two
organizations representing nursing homes lacked standing to challenge state laws
regulating Medicaid reimbursement schedules because the suit would “unavoidably
require individual participation of their members.” Id. at 1023. In that case, however,
the Court distinguished between claims that could be adjudicated with “a cursory
review” by the Court or “with minimal participation from individual [plaintiffs]” from those
requiring intensive analysis of the injuries sustained by individual members of the
organization. See id. at 1022. Given the nature of the claims in that particular case, the
Court found that it would have to “undertake a detailed evaluation of individual health
care providers,” and this would not be compatible with the third prong of Hunt. Id. at 23.
Here, while some participation of CCDC members may be required in the course
of this suit, there is no indication at this stage in the proceeding that individualized proof
would be required. Moreover, the level of participation required in this case would fall
well short of the individual participation required of the plaintiffs in Kansas Health Care
Ass'n, supra, therefore I conclude that the third prong of the Hunt test has been
satisfied.
For the reasons set forth above, Defendants’ motion to dismiss Plaintiffs’ ADA
claim for lack of standing is denied.

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C.

Colorado Civil Rights Act Claim

Finally, having determined that Plaintiffs have standing to assert a federal ADA
claim, I need not address Defendants’ request that I decline to exercise supplemental
jurisdiction over Plaintiffs’ claim brought under the Colorado Civil Rights Act (Colo. Rev.
Stat. § 24-34-601 et seq.). Thus, Defendants’ motion to dismiss Plaintiff’s state law
claim is denied.
IV.

CONCLUSION
Based upon the foregoing, it is
ORDERED that Defendants’ Renewed Motion to Dismiss for Lack of Standing

filed September 20, 2010 [ECF No. 76], is DENIED.
Dated: June 2, 2011
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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