Garcia et al v. Family Dollar Stores of Colorado, Inc. et al
ORDER adopting Report and Recommendations 43 to the extent consistent with this Order; rejecting 47 APPEAL OF MAGISTRATE JUDGE DECISION to District Court; granting 10 Motion to Dismiss as set forth in this Order. To the extent plaintiffs wish to move for leave to file an amended complaint with respect to Claim Three only, they must do so on or before August 30, 2017. Should plaintiffs not do so by that date, the Court will enter Judgment and then Close this case. So Ordered by Judge Raymond P. Moore on 08/16/2017. (rmlc2)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Case No. 16-cv-02348-RM-KLM
JOHN F. GARCIA, by and through his guardian Phyllis Garcia,
FAMILY DOLLAR STORES OF COLORADO, INC.,
FAMILY DOLLAR STORES, INC.,
DOLLAR TREE, INC.,
Pending before the Court is the Report and Recommendation (“R&R”) from U.S. Magistrate
Judge Kristen L. Mix, recommending that defendants’, Family Dollar Stores of Colorado, Inc.,
Family Dollar Stores, Inc., and Dollar Tree, Inc. (collectively, “defendants”), Partial Motion to
Dismiss and Motion to Dismiss (“the motion to dismiss”) be granted, and Claims One and Two of
the Complaint be dismissed without prejudice for lack of standing and Claim Three be dismissed
without prejudice for lack of supplemental jurisdiction. (ECF No. 43.) The Magistrate Judge
advised the parties that they had 14 days in which to file specific, written objections to the R&R in
order to preserve issues for de novo review. (Id. at 15.) On the fourteenth day, plaintiffs John F.
Garcia (“Garcia”), by and through his guardian Phyllis Garcia, and Lisa Pacheco (“Pacheco,” and,
with Garcia, “plaintiffs”) filed the only objections to the R&R. (ECF No. 47.) Defendants then filed
a response. (ECF No. 49.)
Review of a Magistrate Judge’s Report and Recommendation
A district court may refer pending motions to a magistrate judge for entry of a report and
recommendation. 28 U.S.C. §636(b)(1)(B); Fed. R. Civ. P. 72(b). The court is free to accept, reject,
or modify, in whole or in part, the findings or recommendations of the magistrate judge. 28 U.S.C.
§636(b)(1); Fed. R. Civ. P. 72(b)(3). A party is entitled to a de novo review of those portions of the
report and recommendation to which specific objection is made. See Fed.R.Civ.P. 72(b)(2), (3).
“[O]bjections to the magistrate judge’s report and recommendation must be both timely and specific
to preserve an issue for de novo review by the district court or for appellate review.” United States
v. 2121 E. 30 St., 73 F.3d 1057, 1060 (10th Cir. 1996); see also See Summers v. Utah, 927 F.2d
1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the district court may review a
magistrate’s report under any standard it deems appropriate.”). Furthermore, arguments not raised
before the magistrate judge need not be considered by this Court. Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.”).
The Magistrate Judge’s Findings and Defendant’s Objections
The Magistrate Judge, first, found that Garcia lacked standing to pursue injunctive relief
through Claim One of the Complaint. (ECF No. 43 at 8-9.) The Magistrate Judge found that,
because plaintiffs alleged that Garcia refused to return to a Family Dollar store, it was clear he had
no concrete, present plan to return to any such store. (Id.) The Magistrate Judge next found that
Pacheco lacked standing to pursue injunctive relief through Claim Two of the Complaint. (Id.
at 9-12.) The Magistrate Judge found that plaintiffs failed to allege any Family Dollar stores
Pacheco might visit, when she might do so, or whether any other stores had access problems like the
problem encountered in one store. (Id. at 11-12.) Finally, the Magistrate Judge recommended
declining to exercise supplemental jurisdiction over Claim Three, as it is a state law claim and
dismissal had been recommended as to all federal claims. (Id. at 12-14.)
Plaintiffs object to the Magistrate Judge’s findings that they lack standing to pursue their
federal claims for injunctive relief. (ECF No. 47 at 7-16.) Defendant asserts that the Magistrate
Judge failed to address their “main theory for standing,” which is that they have been deterred from
returning to Family Dollar stores. (Id. at 8-16.) Plaintiffs also argue that this Court should accept
jurisdiction over their state law claim because they intend to amend their Complaint so that
jurisdiction for that claim is premised upon diversity. (Id. at 17-18.)1
In light of the arguments plaintiffs raise with respect to the standing issue, the Court will
review whether they have standing to pursue Claims One and Two of the Complaint de novo.
Plaintiffs “main” argument with respect to standing is that the actions of certain employees
at a Family Dollar store in Pueblo, Colorado have deterred them from returning to the same store or
any other Family Dollar stores. Although the Magistrate Judge found that plaintiffs failed to show
standing due to a failure to show that they had a concrete, present plan to return to any Family Dollar
store, the Court finds a different critical flaw in plaintiffs’ argument.2
Although plaintiffs set forth in their objection the facts they believe are pertinent (see ECF No. 47
at 3-6), they fail to provide any, let alone specific, objections to the Magistrate Judge’s recitation of the
pertinent facts. Therefore, the Court will use the facts set forth in the R&R (see ECF No. 43 at 2-3).
That being said, the Court agrees with the Magistrate Judge in that, at the very least, Garcia has
alleged no intention to ever return to a Family Dollar store, and, more importantly, has not alleged that he is
deterred from returning. The Complaint is clear in that respect, as it alleges that Garcia refused to go back
to Family Dollar. (See ECF No. 1 at ¶ 34.) Although an affidavit from Garcia’s sister attempts to re-write
the Complaint, even the affidavit (to the extent it can be deemed consistent with the allegations in the
Complaint) does not say that Garcia has been deterred from returning to a Family Dollar store. At most, the
In presenting their argument, plaintiffs cite a number of Circuit cases where they assert courts
have adopted a deterrence theory for standing. (ECF No. 47 at 10.) Although, as plaintiffs concede,
not one of those cases is from the Tenth Circuit Court of Appeals (see id. at 11), at this juncture, the
Court is willing to accept that a deterrence theory may be accepted by the Tenth Circuit. What then
is this theory? Plaintiffs cite a Ninth Circuit Court of Appeals case for the basic principles: “So long
as discriminatory conditions continue, and so long as a plaintiff is aware of them and remains
deterred, the injury under the ADA continues.” (Id. at 10 (citing Pickern v. Holiday Quality Foods,
Inc., 293 F.3d 1133 (9th Cir. 2002)).
The critical flaw in plaintiffs’ argument is that the Complaint fails to plausibly allege that
discriminatory conditions are continuing at any Family Dollar stores. The closest the Complaint gets
to even addressing this issue is the following paragraph:
Based on Defendants’ collective management and operation, and the callous
refusal by Defendants’ corporate office to address Plaintiffs’ complaints, Plaintiffs
believe that the discrimination they endured at Family Dollar is not a one-time event.
They fear that if they attempt to enter any of Defendants’ stores, and particularly the
Family Dollar store located at 1151-A South Prairie Avenue in South Pueblo, they
would again be refused service because of their disabilities or their association with
(ECF No. 1 at ¶ 37.)
That collection of allegations does not create a plausible sense that any discriminatory
conditions are actually continuing at any Family Dollar store, not least because the Complaint does
not allege that. Plaintiffs may be correct that their “fear” of returning to a Family Dollar store is
deterring them from doing so (see ECF No. 47 at 12-13), and, arguably, this may be sufficient
affidavit states that Garcia’s sister is deterred from returning to a Family Dollar store with her brother. (See
ECF No. 27-1 at ¶¶ 7-8.) Contrary to plaintiffs’ apparent belief, that is not the same thing as Garcia being
deterrence for the standard enunciated in Pickern. But deterrence is only one part of the standard.
There must also be continuing discrimination. While the events that transpired on September 17,
2014 may have been an act of discrimination, there is no allegation in the Complaint that, that
conduct is continuing. The only allegation is that plaintiffs fear the discrimination will occur again.
That fear, however, is not based upon any alleged reality.
This is especially so, here, where it is undisputed that the employees allegedly at fault for the
conduct on September 17, 2014—Valerie McWilliams and Barry Shelton—are no longer working
at the Family Dollar store plaintiffs attempted to enter on that day. (See ECF No. 10-1 at 1-2.)
Although plaintiffs attack the Magistrate Judge’s reliance on this fact, plaintiff does not dispute that
the employees no longer work at the store. (See ECF No. 47 at 13 n.4, 14-15.)3 Moreover, the Court
rejects plaintiffs’ argument that “it can be fairly inferred from their allegations, that Defendants have
a corporate policy of excluding groups of disabled individuals and/or corporate policies, procedures,
and/or lack of training foster the exclusion of individuals with disabilities.” (See id. at 15.)
Conveniently, plaintiffs fail to cite to any of the purported allegations in the Complaint from which
such an inference could be made. As discussed supra, the Court cannot find any either. Even in the
abstract, plaintiffs allege no policies, procedures, or lack of training in the Complaint that have led
to the exclusion of disabled individuals.
In summary, the critical aspect here is that discriminatory conditions be continuing. Because
plaintiffs have failed to allege any plausible facts, instead of speculative assertions, that would
suggest any discrimination is continuing at any Family Dollar stores, even if plaintiffs are deterred
The Court notes that merely because this Court credits undisputed evidence from the affidavit in
support of the motion to dismiss, does not mean that the Court has not credited Pacheco’s assertion that she
is deterred. (See id. at 13 n.4.) The Court has credited both matters. As explained supra, though, merely
because Pacheco is deterred is not enough to give her standing in this case.
from returning to such a store, and even if the “deterrence theory” upon which plaintiffs rely applied,
they have suffered no injury that can be redressed by injunctive relief under the Americans with
This leaves plaintiffs’ argument that the Court should exercise supplemental jurisdiction over
Claim Three because plaintiffs intend to file an amended complaint at some point alleging a basis
for jurisdiction premised upon diversity for that claim. (ECF No. 47 at 17-18.) The Court declines
to accept this invitation for the simple reason that far too many eventualities are at play in what
plaintiffs propose. Notably, plaintiffs will have to move for leave to file an amended complaint,
which, as plaintiffs appear to be aware, will require that they show, inter alia, “good cause” for the
amendment. See id. at 18; see also Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass’n, 771 F.3d
1230, 1240 (10th Cir. 2014). There is no guarantee that any such motion will be granted, and thus,
the Court could still be left with supplemental jurisdiction alone as the jurisdictional basis for Claim
As a result, as the Magistrate Judge recommended, the Court declines to exercise
supplemental jurisdiction over plaintiffs’ state law claim when all federal claims have been
dismissed. (See ECF No. 43 at 12-14.) Should plaintiffs decide to file a motion to amend, then the
dust will settle where it settles. Plaintiffs may, of course, come to the conclusion that pursuing their
state law claim in state court is a better course. What the Court will not do, though, is preempt any
such decision by exercising supplemental jurisdiction.
The Court notes that plaintiffs may only seek injunctive relief with respect to the claims they have
raised under the ADA. See 42 U.S.C. § 12188(a)(1), referencing 42 U.S.C. § 2000a-3(a) (providing for
injunctive relief when private individuals are aggrieved by a violation of the statute).
For the reasons discussed herein, the Court:
REJECTS plaintiffs’ objections (ECF No. 47) to the R&R;
GRANTS the motion to dismiss (ECF No. 10) as set forth herein;
DISMISSES the Complaint (ECF No. 1) as follows:
DISMISSES WITHOUT PREJUDICE Claims One and Two for lack of
DISMISSES WITHOUT PREJUDICE Claim Three for lack of supplemental
ADOPTS the R&R (ECF No. 43) to the extent consistent with this Order.
To the extent plaintiffs wish to move for leave to file an amended complaint with respect to
Claim Three only, they must do so on or before August 30, 2017. Should plaintiffs not do so by
that date, the Court will enter Judgment and then Close this case.
DATED this 16th day of August, 2017.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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