Bracken v. McDonald's Corporation

Filing 21

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/13/15. (mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
COREY BRACI<EN,
Plaintiff,
v.

Civ.Ko.14-920-LPS

MCDONALD'S CORPORATIOK,
Defendant.

Corey Bracken, Greenwood, Indiana, Pro Se Plaintiff.

William R. Adams, Esquire, Dickie McCamey & Chilcote, P.c., Wilmington, Delaware. Counsel for
Defendant.

MEMORANDUM OPINION

March 13,2015
Wilmington, Delaware

I.

INTRODUCTION
Plaintiff Corey Bracken ("Plaintiff'), who resides in Lake Havasu City, Arizona, ftled this

action raising claims under the Americans with Disabilities Act with regard to service animals in a
public place.' He appears pro se and has been granted leave to proceed inJorma pauperis. (D.L 12)
The Court proceeds to review and screen the Complaint pursuant to 28 U.S.c. § 1915. 2 (See D.I. 2)

II.

BACKGROUND
Plaintiff ftled the instant lawsuit on July 11, 2014, alleging Defendant McDonald's

Corporation ("McDonald's") violated the Americans with Disabilities Act ("ADA"). The
Complaint does not reference a particular section of the ADA but, in reading the Complaint, it
appears that Plaintiff refers to Title III of the ADA, 42 V.S.c. § 12181, et seq. which prohibits
discrimination against the disabled in the full and equal enjoyment of public accommodations. 3 Id
at § 12182(a).
Concurrent with the filing of the Complaint, Plaintiff flIed a DVD multi-media document
relating to an incident that occurred at a McDonald's in Salem, Oregon, on July 4, 2012. (D.I. 3)
The recording shows that on July 4, 2012, Plaintiff went with his dog to the McDonald's. While he

'Plaintiff resided in Indianapolis, Indiana at the time he ftled the Complaint.
2McDonald's flIed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on November 21,
2014, opposed by Plaintiff. (See D.L 18, 19) As will be discussed, the Complaint is time-barred.
Iberefore, the motion to dismiss will be denied as moot.

30n December 26, 2012, plaintiff ftled a complaint in the U.S. District Court for the
Southern District of Indiana, alleging that the events that transpired on July 4, 2012 violated his
rights. See Bracken 1). MtDona/d's Corp., Civ. No. 12-1883-WIL-DML (S.D. Ind.). On April 25, 2013,
Plaintiffs case was transferred to U.S. District Court for the District of Oregon. See Bracken 1).
AfcDonald's Corp., Civ. No. 13-697-AA (D. Or.). McDonald's moved to dismiss the action and, on
July 2, 2013, the Complaint was dismissed without prejudice for failure to state a claim upon which
relief may be granted. (Id. at D.L 35) Plaintiff did not appeal the dismissal.
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was eating, a franchise employee approached Plaintiff and asked him to provide certification from
the State of Oregon to verify that the dog was a service animal. Plaintiff responded that the dog was
a service animal and that no state certification was requited. Plaintiff then quoted from the
Department of Human Services website, which specifies that it is illegal under the ADA to deny an
individual public accommodation on the basis that an alleged service animal lacks documentation.
The franchise employee explained that she was not asking Plaintiff, but only his dog, to leave the
restaurant, due to potential health code violations. The franchise employee ultimately apologized to
Plaintiff and offered to refund his money or prepare a fresh meal for him. Plaintiff refused these
offers and left the restaurant after recording this entire exchange via a camera on his laptop.
The Complaint alleges that Plaintiff has evidence of McDonald's franchise partners
continuing discrimination and not correcting the matter after it was brought to McDonald's
attention. The Complaint does not specifically articulate dates or circumstances of the other alleged
acts of discrimination. For relief, Plaintiff requests $5,750,000 in damages and revisions to
McDonald's policies concerning service animals, as well as the initiation of a non-profit service
animal advocacy program.

III.

LEGAL STANDARDS
A federal court may properly dismiss an action sua Jponte under the screening provisions of

28 U.S.c. § 1915(e)(2)(B) if "the action is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant who is immune from such relief."

Ball/J. ramiglio, 726 F.3d 448, 452 (3d Cir. 2013). The Court must accept all factual allegations in a
complaint as true and take them in the light most favorable to a pro se plaintiff. See Phil/ips ll. Counry rif

Al/eglJe1!J, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89,93 (2007). Because
Plaintiff is proceeding pro se, his pleading is liberally construed and his Complaint, "however

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inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardils, 551 U.S. at 94 (citations omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke

1J.

Williams, 490 U.S. 319,325 (1989). Under 28 U.S.c. § 1915(e)(2)(B)(i) and § 1915A(b)(1), a court
may dismiss a complaint as frivolous if it is "based on an indisputably meritless legal theory" or a
"clearly baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 at 327 -28; Wilson

I'.

Rackmill, 878 F.2d 772, 774 (3d Cit. 1989); see, e.g., Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d
Cit. 1995) (holding frivolous a suit alleging that prison officials took an inmate's pen and refused to
give it back). A court that considers whether an action is malicious must determine whether the
action 1S an attempt to vex, injure, or harass the defendant. See Deutsch v. United States, 67 F.3d 1080,
1086 (3d Cit. 1995). Repetitive litigation is some evidence of a litigant's motivation to vex or harass
a defendant where it serves no legitimate purpose. See Horani v. Hewlett Packard Cop., 547 F. App'x
103, 105 (3d Cit. Sept. 26, 2013).
The legal standard for dismissing a complaint for failure to state a claim pursuant to

,§ 1915(e)(2)(B)(ii) and § 1915A(b)(1) is identical to the legal standard used when ruling on Rule
12(b)(6) motions. See Toumher v. MJ:Cullough, 184 F.3d 236, 240 (3d Cit. 1999) (applying Fed. R. Civ.
P. 12(b)(6) standard to dismissal for failure to state a claim under § 1915(e)(2)(B». However, before
dismissing a complaint or claims for failure to state a claim upon which relief may be granted
pursuant to the screening provisions of 28 USc. §§ 1915 and 1915A, the Court must grant Plaintiff
leave to amend his Complaint unless amendment would be inequitable or futile. See Grqyson v.

Mqyview State Hosp., 293 F.3d 103, 114 (3d Cit. 2002).
A complaint may be dismissed only if, accepting the well-pleaded allegations in the
complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes

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that those allegations "could not raise a claim of entidement to relief." BellAtL Corp.

1).

Twomb!y, 550

U.S. 544, 558 (2007). Though "detailed factual allegations" are not required, a complaint must do
more than simply provide "labels and conclusions" or "a formulaic recitation of the elements of a
cause of action." Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting TwomblY,
550 U.S. at 555). In addition, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. See Williams 1). BASF CatalYsts U-,C, 765 F.3d 306,
315 (3d Cir. 2014) (citing Ashcroft1). Iqbal, 556 U.S. 662,678 (2009) and Twombfy, 550 Il.S. at 570).
To determine whether a complaint meets the pleading standard as set forth in Twombfy and

Iqbal, the court must: (1) outline the elements a plaintiff must plead to a state a claim for relief;
(2) peel away those allegations that are no more than conclusions and thus not entided to the
assumption of truth; and (3) look for well-pled factual allegations, assume their veracity, and then
"determine whether they plausibly give rise to an entitlement to relief." Bistnan

1).

Levi, 696 F.3d 352,

365 (3d Cir. 2012) (internal citations omitted) (citing Iqbal, 556 U.S. at 679; Atglieta v. United States

Immigration and GlStoms Enforcement, 643 F.3d 60, 73 (3d Cir. 2011). The last step is "a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense." Iqbal, 556 U.S. at 679.

IV.

DISCUSSION
A.

Statute of Limitations

Because the ADA does not contain a statute of limitations, the Court applies the most
appropriate or analogous state statute of limitations. See Burkhart v. Widener Univ., Inc., 70 F. App'x
52,53 (3d Cir. Apr. 21,2004) (citing Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987) (applying

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state statute of limitations for personal injury claims to race discrimination under 42 U.S.c. § 1981».

Oregon's statute of limitations for personal injury claims is two years. 4 See Or. Rev. Stat.

§ 12.110. The Court, therefore, applies a two-year statute of limitations to Plaintiffs ADA claims.

The general rule is that the statute of limitations begins to run as soon as a right to institute
and maintain suit arises. See Haugh

fl.

Allstate Ins. CG., 322 F.3d 227 (3d Cit. 2003). In addition, a

cause of action accrues, and the statute of limitations begins to run, under Title III of the ADA
when the plaintiff knows or has reason to know of the injury that is the basis for the action. See

Burkhart, 70 F. App'x at 53. In a discrimination case, the focus is on when the discriminatory act
occurs, not when the consequences of that act become painful. See id. (citing Chardon

v.Fernande~

454 U.S. 6, 8 (1981 ».
The statute of limitations is an afftrmative defense that generally must be raised by the
defendant and is waived if not done so properly. See Benak ex reI. Alliance Premier Growth .Fund v.

Alliana] Capital Mgmt. LP., 435 F.3d 396, 400 n.14 (3d Cit. 2006); l<asJett v. Delta Kappa Epsilon, 807
F.2d 1150, 1167 (3d Cit. 1986). "[W]here the statute of limitations defense is obvious from the face
of the complaint and no development of the factual record is requited to determine whether
dismissal is appropriate, sua sponte dismissal under 28 U.S.c. § 1915 is permissible." Davis 1). Gautry,
408 F. App'x 524, 526 (3d Cit. 2010) (quoting Fogle v. Pierson, 435 F.3d 1252, 1258 (10 th Cir. 2006»).
Here, it is apparent from the face of the Complaint that the action is time-barred. The acts
in Oregon occurred on July 4, 2012, yet Plaintiff did not ftle the instant Complaint until July 11,

"The Court looks to Oregon law because Plaintiffs claim speaks to events that occurred
there. Nonetheless, the limitation period for personal injury claims in Delaware is also two years.
See 10 Del. C. § 8119.
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2014, after the expiration of the two-year limitation period. s The Court is aware that Plaintiff flIed
basically the same Complaint and that the case was dismissed without prejudice on July 2, 2013.
However, the "statute of limitations is not tolled by the filing of a complaint subsequently dismissed
without prejudice," as "the original complaint is treated as if it never existed." Cardio-Aledical ASSOCJ.
ll.

at

Crozer-Chester Med. Ctr., 721 F.2d 68, 77 (3d Cir. 1983); accord Lee Il. Aji-Yakima, 2011 WI. 2181808,
(ED. Wash. June 3, 2011).
The Complaint is time-barred and, therefore, will be dismissed as legally frivolous pursuant

to 28 U.s.c. § 1915(e)(2)(B)(i).

B.

Maliciousness

The Court has also reviewed the instant Complaint for maliciousness, based on its
relationship to the other case filed by Plaintiff. Because the Complaint is being dismissed as timebarred, it is unnecessary for the Court to make a conclusion as to maliciousness.

C.

Contact by Plaintiff

In its motion to dismiss, which the Court will deny as moot, McDonald's seeks an order to
prelude Plaintiff from contacting its representatives and employees and for all contact with it to take
place through its attorneys and by u.S. mail. McDonald's considers Plaintiff's conduct harassing
and threatening. (See D.l. 18) In turn, Plaintiff responds that he has been threatened by counsel for
McDonald's. (See D.l. 19)
Given that this matter is time-barred and, therefore, legally frivolous, the Court ",1ll deny the
motion as moot.

5Plaintiff's Complaint was signed on July 4, 2014. However, this is not a prisoner case and,
therefore, the exceptions to timing requirements as set forth in the "prison mailbox rule" are
inapplicable. See Kareem ll. F.D.I.C, 482 F. App'x 594, 595 (D.c. Cir. Sept. 28,2012) (citing McNeil v.
United States, 508 U.S. 106, 113 (1993) and Houston fl. Lack, 487 U.S. 266 (1988». See also Fed. R. Civ.
P. 5(d)(2) (a paper is filed by "delivering it" to the Clerk).

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V.

CONCLUSION
For the above reasons, the Complaint will be dismissed as legally frivolous pursuant to 28

U.S.c. § 1915(e)(2)(B)(i). The Court finds amendment futile. The Court will deny as moot
McDonald's combined motion to dismiss and motion to preclude Plaintiff's contact except by -c.S.
mail. (OJ. 18)
An appropriate Order follows.

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