Faircloth v. McDonald's Corporation et al

Filing 27

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 11/13/18.Mailed notice(ca, )

Case: 1:18-cv-01831 Document #: 27 Filed: 11/13/18 Page 1 of 9 PageID #:134

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHRISTOPHER W. FAIRCLOTH,
Plaintiff,
v.
MCDONALD’S CORPORATION &
MCDONALD’S USA LLC,
Defendants.

)
)
)
)
)
)
)
)
)
)

18 C 1831
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiff Christopher Faircloth has filed this suit against McDonald’s
Corporation and McDonald’s USA LLC (collectively, “McDonald’s”), alleging
violations of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12181 et seq.

McDonald’s moves to dismiss Plaintiff’s complaint for lack of

standing pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and for failure
to state a claim pursuant to Rule 12(b)(6). For the reasons stated herein, McDonald’s’
motion to dismiss for lack of standing [14] is granted.
Factual Background1
Faircloth, purporting to bring this action on behalf of a nationwide class of
McDonald’s consumers, alleges that McDonald’s fails to offer equal access to visually-

The following facts are taken from Faircloth’s complaint. See Tamayo v. Blagojevich,
526 F.3d 1074, 1081 (7th Cir. 2008) (stating that, at the motion-to-dismiss stage, the court
“accept[s] as true all well-pleaded facts alleged”).
1

Case: 1:18-cv-01831 Document #: 27 Filed: 11/13/18 Page 2 of 9 PageID #:135

impaired customers during its “late-night” hours. Compl. ¶¶ 1–2, ECF No. 1. During
those hours, “patrons are not allowed to physically enter McDonald’s restaurants;
and McDonald’s only offers its products and services via ‘drive-thru’ windows
attached to its restaurants.

The drive-thru is the exclusive means by which a

customer can purchase McDonald’s products” late at night.

Id. ¶¶ 2, 26, 32.

McDonald’s does not, however, allow pedestrians to walk up to its drive-thru
windows, and in any event, it is not safe to do so. Id. ¶¶ 3, 33–36. Accordingly,
Faircloth alleges, because “the blind are unable to drive at night,” they are “totally
precluded from accessing Defendants’ products during late night hours.” Id. ¶¶ 3, 37.
Faircloth

contends

that

McDonald’s

could

make

“a

variety

of

modest

accommodations” to allow “blind people to access . . . McDonald’s late-night
restaurant services.” Id. ¶ 39.
Faircloth is visually-impaired and suffers from a condition known as
“nystagmus,” which renders him “unable to operate a motor vehicle during nighttime
hours.” Id. ¶ 9. He contends that he “has visited” a McDonald’s located at 1700
Trawick Road in Raleigh, North Carolina (“the Raleigh McDonald’s”) “multiple times”
and that he “periodically desires to obtain food from McDonald’s restaurants during
the late evening hours.” Id. ¶¶ 40–43. In particular, he “wanted to obtain food” from
the Raleigh McDonald’s in “late 2017.” Id. ¶ 41. He is familiar, however, with
McDonald’s’ “late-night policy” that prohibits pedestrian access, and thus he
“sometimes avoids going to McDonald’s during its late-night hours.” Id. ¶¶ 44–45.
Still, Faircloth “reasonably expects to visit [the Raleigh McDonald’s] again in the

2

Case: 1:18-cv-01831 Document #: 27 Filed: 11/13/18 Page 3 of 9 PageID #:136

future.” Id. ¶ 43. Faircloth does not allege that he has ever attempted to access
McDonald’s during the late-night hours and been turned away.
Legal Standard
Under Rule 12(b)(1), a defendant may move to dismiss claims over which the
federal court lacks subject-matter jurisdiction, including claims for which the parties
lack standing. See Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th
Cir. 2009); Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999). In
ruling on a Rule 12(b)(1) motion, the Court must accept as true all well-pleaded facts
and may look beyond the jurisdictional allegations to evidence submitted on the issue
of subject-matter jurisdiction. St. John’s United Church of Christ v. City of Chi., 502
F.3d 616, 625 (7th Cir. 2007). The Court must also draw all reasonable inferences in
the plaintiff's favor. Id.
Article III standing requires the plaintiff to show a “personal injury fairly
traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by
the requested relief.” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 678 (2016)
(quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). Article III “injury-in-fact” is a
concrete and particularized, actual or imminent invasion of a legally protected
interest. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish an “injuryin-fact” for purposes of Title III of the ADA, which authorizes only prospective
injunctive relief, a plaintiff must allege that a “real and immediate” threat of future
violations exists. Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1074–75 (7th Cir. 2013).
To meet this standard, a litigant must “allege past injury under the ADA; show that

3

Case: 1:18-cv-01831 Document #: 27 Filed: 11/13/18 Page 4 of 9 PageID #:137

it is reasonable to infer from [his] complaint that this discriminatory treatment will
continue; and show that it is also reasonable to infer, based on the past frequency of
[his] visits and the proximity of the public accommodation to [his] home, that [he]
intends to return to the public accommodation in the future.” Id. at 1074 (internal
quotation marks and citation omitted); see also Cohan v. Bensenville Hosp. Inc., No.
15 CV 00214, 2016 WL 2733281, at *2 (N.D. Ill. May 11, 2016). “[I]f the [litigant does]
not have standing, the Court is without authority to consider the merits of the action.”
Swan v. Bd. of Educ. of City of Chi., 956 F. Supp. 2d 913, 918 (N.D. Ill. 2013) (citing
Warth v. Seldin, 422 U.S. 490, 498 (1975); Bender v. Williamsport Area Sch. Dist.,
475 U.S. 534, 541 (1986)).
Analysis
“Title III of the ADA prohibits discrimination on the basis of disability in places
of public accommodation.”

Scherr, 703 F.3d at 1076.

McDonald’s argues that

Faircloth has not suffered an injury-in-fact because he has not actually experienced
discrimination at a McDonald’s restaurant and does not allege a plausible likelihood
of future discrimination. Defs.’ Mem. Supp. Mot. Dismiss (“Defs.’ Mem. Supp.”) at 2,
ECF No. 15.
First, McDonald’s argues that Faircloth cannot establish standing because he
does not allege that he “actually went to the restaurant and attempted to obtain
service in the drive-thru on the occasion alleged or on any other occasion.” Id. at 4.
The Court agrees. In general, a plaintiff must allege “past injury” and an intent to
return to the place of public accommodation to show injury-in-fact for purposes of

4

Case: 1:18-cv-01831 Document #: 27 Filed: 11/13/18 Page 5 of 9 PageID #:138

Title III. See Scherr, 703 F.3d at 1074. Faircloth alleges only that he “periodically
desires to obtain food” from McDonald’s during times when the interior of the
restaurant is closed, and that he “sometimes avoids going to McDonald’s” during
those times. Compl. ¶¶ 40, 45. This is not enough to establish a past injury for
purposes of standing under Title III. See Scherr, 703 F.3d at 1074.
Faircloth argues that McDonald’s’ understanding of his injury is too narrow—
his suit is not about attempting to obtain service through the drive-thru, he says, but
about “accessing McDonald’s food in any way whatsoever.” Pl.’s Resp. at 5, ECF No.
19 (emphasis in original). But this argument is unavailing, because Faircloth does
not allege that he has attempted to access McDonald’s during late-night hours
through any means, drive-thru or otherwise. See Defs.’ Reply at 1, ECF No. 20. Still,
Faircloth argues that this is irrelevant because he should not “be required to
undertake the dangerous assignment of trying to obtain food, on foot, in the drivethru lane to state a claim under the ADA.” Pl.’s Resp. at 5.
To the extent Faircloth is attempting to argue that he should not have to
undertake a gesture he knows to be futile (namely, attempting to enter a restaurant
on foot when he knows restaurant policy does not allow this), there is some support
for his argument. See Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000)
(“[P]laintiffs need not engage in the ‘futile gesture’ of visiting a building containing
known barriers that the owner has no intention of remedying[.]”); Access 4 All, Inc. v.
Chicago Grande, Inc., No. 06 C 5250, 2007 WL 1438167, at *6 (N.D. Ill. May 10, 2007)
(“[T]he ‘futility’ doctrine under the ADA potentially permits a disabled plaintiff to sue

5

Case: 1:18-cv-01831 Document #: 27 Filed: 11/13/18 Page 6 of 9 PageID #:139

where he . . . actually would use or return to an inaccessible facility if alleged barriers
were removed[.]”); see also Scherr, 703 F.3d at 1075 (citing Steger, 228 F.3d at 892).
But in cases where the plaintiff has not suffered a past injury, the strength of
his claim for a possible future injury is all the more important. See Steger, 228 F.3d
at 892–93. Courts have identified four factors relevant to this inquiry: (1) the “history
of plaintiff’s patronage of a particular location”; (2) the “proximity of the place in
question to the plaintiff’s residence or location of frequent travel”; (3) the
“definiteness of the plaintiff’s plans to return”; and (4) “the plaintiff’s frequency of
travel near the defendant establishment.” Access for All, No. 06 C 5250, 2007 WL
1438167, at *6; see also Molski v. Mandarin Touch Rest., 385 F. Supp. 2d 1042, 1045
(N.D. Cal. 2005). McDonald’s argues that Faircloth’s allegations of his intent to visit
the Raleigh McDonald’s during late-night hours are too general to support his
standing to sue. Defs.’ Mem. Supp. at 6.
Concerning his history of McDonald’s patronage, Faircloth alleges that he has
visited the Raleigh McDonald’s “multiple times” and that he “sometimes avoids”
visiting during the late-night hours due to the late-night policy. Compl. ¶¶ 43, 45.
He does not specify how many times he has visited the Raleigh McDonald’s during
the day, or how many times he has been dissuaded from visiting late at night.
Similarly, although he alleges that he lives a “short distance” from the Raleigh
McDonald’s, he does not specify if he lives within a plausible late-night walking

6

Case: 1:18-cv-01831 Document #: 27 Filed: 11/13/18 Page 7 of 9 PageID #:140

distance.2 Id. ¶ 41. And, most relevant, Faircloth alleges only that he “reasonably
expects to visit” the Raleigh McDonald’s again—not that he intends specifically to
visit on foot during the late-night hours. Id. ¶ 44. The Court may infer from the fact
that Faircloth “sometimes avoids” visiting during late-night hours that he will
similarly avoid doing so again in the future. But this “some day intent” is not enough
to establish standing. See Steger, 228 F.3d at 893; see also Norkunas v. Park Rd.
Shopping Ctr., Inc., 777 F. Supp. 2d 998, 1002 (W.D.N.C. 2011) (explaining that a
“non-speculative intent to return” is required).
Faircloth attempts to distinguish Steger, in which the court found the plaintiffs
to lack standing, arguing that the plaintiffs in that case were differently situated
because they had “literally never encountered” the building alleged to be ADAnoncompliant and alleged no specific intent to visit the building in the future.3 Pl.’s
Resp. at 4–5. But Faircloth is more similar to the Steger plaintiffs than he admits.
See Defs.’ Reply at 3. The fact that Faircloth has visited the Raleigh McDonald’s

McDonald’s has presented evidence purporting to prove that Faircloth lives 7.2 miles
from the Raleigh McDonald’s, which it characterizes as an implausible walking distance and
inaccessible to any local public transit services. Defs.’ Mem. Supp. at 5. Although the Court
has discretion to consider this evidence, see St. John's United Church of Christ, 502 F.3d at
625, it is unnecessary to resolve the Defendants’ motion to dismiss.
2

Faircloth also argues that his allegations are similar to those in Scherr, in which the
Seventh Circuit concluded that the plaintiff had established standing because “she would use
the [hotel] but for the alleged continuing ADA violations there.” See 703 F.3d at 1074; Pl.’s
Resp. at 4. But not only were the allegations of intent to return more specific, see id. (noting
the plaintiff’s frequent travel to visit relatives in the location of the hotel and affirmative
desire to stay at the hotel for an upcoming wedding), but Faircloth also omits that the plaintiff
had actually visited and been physically injured at the defendant hotel, which added to the
non-speculative nature of her claim, see id. at 1072.
3

7

Case: 1:18-cv-01831 Document #: 27 Filed: 11/13/18 Page 8 of 9 PageID #:141

during times when there are no barriers to his entry is irrelevant to his ADA claim;
rather, just like the Steger plaintiffs, his complaint contains no allegations that he
ever encountered the building when it actually imposed barriers to entry. See Steger,
228 F.3d at 893; see also Hummel v. St. Joseph Cty. Bd. of Comm’rs, 817 F.3d 1010,
1018–19 (7th Cir. 2016) (concluding that plaintiffs lacked standing when they had
not personally encountered barriers at a public building and did not establish
concrete plans to visit the building when the barriers were likely to be present);
Novak v. Litchfield Cavo, LLP, No. 14-cv-3649, 2014 WL 7330925, at *4 (N.D. Ill. Dec.
22, 2014) (concluding that the plaintiff lacked standing because he had experienced
ADA violations caused by the defendant on only one occasion out of multiple visits to
the building and offered only an intent to return “some day”).
With no allegations of past injury or sufficiently specific allegations of future
injury, Faircloth lacks standing to sue for violations of the ADA at the Raleigh
McDonald’s.

See Scherr, 703 F.3d at 1075.

His purported status as a class

representative does not change this result, as he must have personal standing to sue
before he can seek relief on behalf of a class. Warth, 422 U.S. at 502. Furthermore,
because the Court lacks jurisdiction to hear Faircloth’s claims, it does not address
McDonald’s’ alternate motion to dismiss for failure to state a claim under Rule
12(b)(6). See Swan, 956 F. Supp. 2d at 918.
Conclusion
For the reasons stated herein, McDonald’s’ motion to dismiss Faircloth’s
complaint for lack of standing is granted [14]. Faircloth’s requests for prospective

8

Case: 1:18-cv-01831 Document #: 27 Filed: 11/13/18 Page 9 of 9 PageID #:142

injunctive and declaratory relief are hereby stricken and his complaint [1] is
dismissed without prejudice. To the extent that Plaintiff believes he can amend his
complaint in a manner consistent with this opinion, he is granted leave to do so within
twenty-one days. If no amended complaint is filed, the case will be terminated as of
that date.

IT IS SO ORDERED.

ENTERED 11/13/18

__________________________________
John Z. Lee
United States District Judge

9