COTTRELL et al v. NORMAN et al
OPINION FILED. Signed by Judge Noel L. Hillman on 2/9/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARYANN COTTRELL and RICHARD
Civil No. 12-1986 (NLH/JS)
Maryann Cottrell and Richard G. Holland
31 South Academy Street
Glassboro, New Jersey 08028
Pro Se Plaintiffs
Law Offices of Stephen Guice, P.C.
413 Clements Bridge Road
Barrington, NJ 08007
Attorney for Defendant
HILLMAN, District Judge
Presently before the Court is Defendant Keyshonna Norman’s
Motion to Dismiss Plaintiffs’ Second Amended Complaint.
reasons that follow, Norman’s motion will be granted and
Plaintiffs’ Second Amended Complaint will be dismissed in its
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case concerns events which took place on April 1, 2010
on the Rowan University campus.
On that date, Plaintiffs
Maryann Cottrell and Richard Holland1 noticed Norman’s car parked
in a handicap parking space with an expired handicap placard.
This led to a verbal altercation between Cottrell and Norman.
Norman alleges that during this altercation Cottrell took the
handicap placard from inside her car.
Both parties filed
criminal complaints against each other in municipal court but
eventually all charges were withdrawn.
On April 2, 2012, Plaintiffs filed a complaint against
Norman and various Rowan individuals.
Defendants filed motions to dismiss.
Both Norman and the Rowan
[Doc. Nos. 41, 49.]
light of Magistrate Judge Schneider’s Order granting Plaintiffs’
motion to amend on December 4, 2013 [Doc. No. 59], the Court
denied the Defendants’ motions to dismiss without prejudice.
(See Dec. 6, 2013 Order [Doc. No. 60].)
Judge Schneider further
ordered that all Defendants were required to respond to
Plaintiffs’ Second Amended Complaint by January 6, 2014.
On December 24, 2013, the Rowan Defendants filed a renewed
motion to dismiss [Doc. No. 61] which was granted.
25, 2014 Op. and Order [Doc. Nos. 66, 67].)
Norman did not
Plaintiff Maryann Cottrell is the mother of a severely disabled
daughter, and she and Plaintiff Richard Holland share the
responsibility of her care. Plaintiffs are advocates for the
disabled, and they inform local authorities about businesses
that fail to maintain handicap accessible parking and fail to
discourage unauthorized use of handicapped parking spaces.
Plaintiffs have filed numerous cases throughout this District
against businesses for conduct they allege violates the ADA.
renew her motion or otherwise respond to Plaintiffs’ Second
On April 20, 2015, Plaintiffs requested
default judgment be entered against Norman for failing to
respond to Plaintiffs’ Second Amended Complaint by January 6,
2014 per Judge Schneider’s Order.
[Doc. No. 69].
entered default the following day.
On May 11, 2015, Norman
moved to set aside default judgment, which the Court granted.
(See Oct. 1, 2015 Op. and Order [Doc. Nos. 77, 78].)
Subsequently, Norman filed the instant motion to dismiss.
Plaintiffs have brought their claims under federal law, as
well as under New Jersey state law.
This Court has jurisdiction
over Plaintiffs' federal claims under 28 U.S.C. § 1331, and
supplemental jurisdiction over Plaintiffs' state law claims
under 28 U.S.C. § 1367.
III. STANDARDS OF LAW
A. FED. R. CIV. P. 12(b)(1)
Norman argues that Plaintiffs lack standing to bring
discrimination claims under the ADA and NJLAD.
Lack of standing
is a challenge to this Court’s subject matter jurisdiction and,
therefore, is determined pursuant to Fed. R. Civ. P. 12(b)(1).
In re Schering Plough Corp. Intron/Temodar Consumer Class
Action, 678 F.3d 235, 243 (3d Cir. 2012) (citing Ballentine v.
United States, 486 F.3d 806, 810 (3d Cir. 2007)).
Rule 12(b)(1) motions are either facial or factual
CNA v. United States, 535 F.3d 132, 140 (3d Cir.
A facial attack concerns the sufficiency of the
pleadings, whereas a factual attack is a dispute over the
existence of certain jurisdictional facts alleged by the
Id. (citing United States ex rel. Atkinson v. Pa.
Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007)).
In deciding a motion that attacks the complaint on its
face, the court must accept the allegations in the complaint as
Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d
884, 891 (3d Cir. 1977).
If the motion attacks the facts
supporting jurisdiction, “no presumptive truthfulness attaches
to plaintiff's allegations, and the existence of disputed
material facts will not preclude the trial court from evaluating
for itself the merits of jurisdictional claims.”
F.2d at 891.
The plaintiff has the burden to prove that
jurisdiction does in fact exist.
Here, Norman is making a facial attack that Plaintiffs lack
standing to bring discrimination claims pursuant to the ADA and
See In Re Schering Plough, 678 F.3d at 243.
the Court “must accept as true all material allegations set
forth in the complaint, and must construe those facts in favor
of the nonmoving party” as it would in reviewing a complaint
pursuant to a Rule 12(b)(6) motion.
whether a complaint adequately pleads the elements of standing,
courts apply the standard of reviewing a complaint pursuant to a
Rule 12(b)(6) motion to dismiss for failure to state a claim.”).
The three-step approach is used to evaluate whether a complaint
satisfies this standard:
First, the court must take note of the
elements a plaintiff must plead to state a
claim. Second, the court should identify
allegations that, because they are no more
than conclusions, are not entitled to the
assumption of truth. Finally, where there
are well-pleaded factual allegations, a
court should assume their veracity and then
determine whether they plausibly give rise
to an entitlement for relief.
Id. (internal quotations omitted).
Thus, although lack of standing is a subject matter
jurisdiction challenge under Rule 12(b)(1), the standard applied
is the same applied under Rule 12(b)(6).
B. FED. R. CIV. P. 12(b)(6)
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Fed. R. Civ. P. 12(b)(6), a court must accept all
well-pleaded allegations in the complaint as true and view them
in the light most favorable to the plaintiff.
Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well settled
that a pleading is sufficient if it contains “a short and plain
statement of the claim showing that the pleader is entitled to
Fed. R. Civ. P. 8(a)(2).
Under the liberal federal
pleading rules, it is not necessary to plead evidence, and it is
not necessary to plead all the facts that serve as a basis for
Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d
However, “[a]lthough the Federal Rules of Civil
Procedure do not require a claimant to set forth an intricately
detailed description of the asserted basis for relief, they do
require that the pleadings give defendant fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.”
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3
(1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1969 n.8
(2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974));
see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“Our
decision in Twombly expounded the pleading standard for ‘all
civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final
nail-in-the-coffin for the ‘no set of facts’ standard that
applied to federal complaints before Twombly.”).
As noted above in the discussion of the standard for a Rule
12(b)(1) motion mounting a facial attack based on standing, the
Third Circuit has outlined a three step approach in reviewing a
complaint under Rule 12(b)(6).
F.3d 121, 130 (3d Cir. 2010).
Santiago v. Warminster Tp., 629
“First, the court must ‘tak[e]
note of the elements a plaintiff must plead to state a claim.’”
Id. (citing Iqbal, 129 S.Ct. at 1947).
Second, the factual and
legal elements of a claim should be separated; a district court
must accept all of the complaint's well-pleaded facts as true,
but may disregard any legal conclusions.
Id.; Fowler, 578 F.3d
at 210 (citing Iqbal, 129 S. Ct. at 1950).
Finally, a district
court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a
“‘plausible claim for relief.’”
Id. (quoting Iqbal, 129 S. Ct.
A complaint must do more than allege the plaintiff's
entitlement to relief.
Id.; see also Phillips v. County of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that the
“Supreme Court's Twombly formulation of the pleading standard
can be summed up thus: ‘stating . . . a claim requires a
complaint with enough factual matter (taken as true) to suggest’
the required element.
This ‘does not impose a probability
requirement at the pleading stage,’ but instead ‘simply calls
for enough facts to raise a reasonable expectation that
discovery will reveal evidence of’ the necessary element”).
court need not credit either “bald assertions” or “legal
conclusions” in a complaint when deciding a motion to dismiss.
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 142930 (3d Cir. 1997).
The defendant bears the burden of showing
that no claim has been presented.
Hedges v. U.S., 404 F.3d 744,
750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor,
Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
Finally, a court in reviewing a Rule 12(b)(6) motion must
only consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
Southern Cross Overseas Agencies, Inc. v. Kwong Shipping Group
Ltd., 181 F.3d 410, 426 (3d Cir. 1999).
A court may consider,
however, “an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on the document.”
Pension Benefit Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
It is unclear to the Court whether Plaintiffs assert claims
pursuant to 42 U.S.C. § 1983 against Norman. Norman, as a
private citizen not acting under color of state law, is not a
person subject to liability under § 1983. Dongon v. Banar, 363
F. App'x 153, 156 (3d Cir. 2010) (citing Will v. Mich. Dep't of
State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45
(1989)). Accordingly, to the extent Plaintiffs assert a § 1983
claim against Norman, it is dismissed for failure to state a
claim. Further, to the extent Plaintiffs assert their federal
constitutional claims under the Fourth and Fourteenth Amendment
against Norman, those claims are dismissed for failing to state
a claim for the same reasons articulated in the Court’s prior
Opinion. See Cottrell v. Norman, No. 12-1986, 2014 WL 3729215,
at *7-10 (D.N.J. July 25, 2014).
Norman argues that Plaintiffs’ second amended complaint
must be dismissed in its entirety because: (1) Plaintiffs lack
standing to assert a discrimination claim under the ADA and
NJLAD; (2) Plaintiffs lack standing to assert a retaliation
claim under the ADA and NJLAD; and (3) Plaintiffs fail to plead
facts to support their retaliation or malicious prosecution
As an initial matter, the Court has already determined in
this case that Plaintiffs lack standing to bring claims for
discrimination under the ADA and NJLAD because Plaintiffs are
Cottrell v. Norman, No. 12-1986, 2014 WL 3729215,
at *5 (D.N.J. July 25, 2014) (citing 42 U.S.C. § 12182; N.J.S.A.
According, Plaintiffs’ discrimination claims under
the ADA and NJLAD will be dismissed as to Norman, as well.
Next, the Court considers whether Plaintiffs have standing
to assert a retaliation claim under the ADA and NJLAD and
whether they have sufficiently stated a claim.
Circuit has not directly ruled on whether there may be
individual liability for retaliation under the ADA.
this district, however, have found no individual liability
P.N. v. Greco, 282 F. Supp. 2d 221, 243 (D.N.J. 2003)
(“Plaintiffs' ADA retaliation claim against Greco is not viable
because the ADA does not by itself provide for individual
liability for retaliation.”); Rich v. New Jersey, No. 14-2075,
2015 WL 2226029, at *15 (D.N.J. May 12, 2015) (same); Douris v.
Schweiker, 229 F. Supp. 2d 391, 397 (E.D. Pa. 2002) aff'd sub
nom. Douris v. Rendell, 100 F. App'x 126 (3d Cir. 2004) (the
“consensus view among district courts in this circuit is that
individual liability cannot be imposed under the ADA.”)
(citation omitted); c.f., Datto v. Harrison, 664 F.Supp.2d 472,
491–92 (E.D.Pa. 2009) (finding “individual liability may be
imposed for retaliation claims under the ADA involving either
public entities or public accommodations”).
Even if Plaintiffs could assert a retaliation claim against
an individual under the ADA, the only relief available would be
prospective injunctive relief.
See, e.g., Cottrell v. Heritages
Dairy Stores, Inc., No. 09-1743, 2010 WL 3908567, at *4 (D.N.J.
Sept. 30, 2010) (“The only relief available to a plaintiff for a
retaliation claim under the ADA is injunctive relief.”) (citing
42 U.S.C. §§ 12203(c), 12188).
Therefore, to have standing for
the purposes of obtaining prospective injunctive relief,
Plaintiffs must “establish a real and immediate threat” that
they will suffer a future injury.
Brown v. Fauver, 819 F.2d
395, 400 (E.D. Pa. 1987) (citing City of Los Angeles v. Lyons,
461 U.S. 95, 105 (1983)).
“Past exposure to illegal conduct
does not in itself show a present case or controversy regarding
injunctive relief ... if unaccompanied by any continuing,
present adverse effects.”
Lyons, 461 U.S. at 95-96 (citing
O'Shea v. Littleton, 414 U.S. 488, 195-96, 94 S.Ct. 669, 38
L.Ed.2d 674 (1974)).
Plaintiffs have failed to make this
Here, Plaintiffs allege no facts to suggest that they will
ever come into contact with Norman again.
have failed to establish a real and immediate threat that they
will suffer a future injury.
Assuming Norman’s conduct was
illegal, past conduct “is insufficient to warrant injunctive
relief unless it is accompanied by continuing, present adverse
Doe v. Nat'l Bd. of Med. Examiners, 210 F. App'x 157,
159-60 (3d Cir. 2006) (citation omitted).
cannot show cannot show a likelihood of a future injury,
Plaintiffs lack standing to seek prospective injunctive relief.
See also Nat'l Bd. of Med. Examiners, 210 F. App'x at 159-60
(affirming district court determination that plaintiff lacked
standing to bring action for injunctive relief under the ADA
where plaintiff could not show a likelihood of future injury).3
In light of the Court's determination that Plaintiffs lack
Article III standing on their ADA claim, the Court will decline
to exercise jurisdiction over Plaintiffs’ NJLAD claim under 28
U.S.C. § 1367. Additionally, the Court need not evaluate
whether Plaintiffs have failed to state a claim upon which
relief can be granted under Fed. R. Civ. P. 12(b)(6). See
Danvers Motor Co., Inc. v. Ford Motor Co., 186 F. Supp. 2d 530,
538 (D.N.J. 2002) (citing ACLU–N.J. v. Township of Wall, 246
F.3d 258, 261 (3d Cir. 2001)) (“If Plaintiffs do not possess
Article III standing, both the District Court and the Court of
Appeals lack subject matter jurisdiction to address the merits
of plaintiffs’ case.”).
Accordingly, Plaintiffs’ ADA retaliation claim against Norman
will be dismissed.
Lastly, the Court considers whether Plaintiffs have
sufficiently pled their malicious prosecution claim.
to establish a claim for malicious prosecution, plaintiff must
prove: (1) that the criminal action was instituted by the
defendant against the plaintiff, (2) that it was actuated by
malice, (3) that there was an absence of probable cause for the
proceeding, and (4) that it was terminated favorably to the
Helmy v. City of Jersey City, 178 N.J. 183, 190,
836 A.2d 802, 806 (2003).
Norman argues that Plaintiffs fail to
plead each of the four elements because: (1) both parties filed
criminal complaints; (2) the criminal action was not actuated by
malice; (3) Norman had probable cause to file the criminal
complaint against Cottrell; and (4) the criminal proceeding was
not terminated in favor of Plaintiffs, but the charges were
The Court has already determined in this case that
Plaintiffs have failed to allege facts that could show the
absence of probable cause for Cottrell’s disorderly conduct
Cottrell v. Norman, No. 12-1986, 2014 WL 3729215, at *8
(D.N.J. July 25, 2014).
Accordingly, Plaintiffs have failed to
plead a malicious prosecution claim.
For the reasons set forth above, Plaintiffs’ Second Amended
Complaint will be dismissed in its entirety.
consistent with this Opinion will be entered.
Dated: February 9, 2016
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
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