COTTRELL et al v. NICHOLSON PROPERTIES LLC. et al
OPINION. Signed by Judge Noel L. Hillman on 2/21/2017. (dmr)(n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARYANN COTTRELL and
Civil No. 12-2128 (NLH/KMW)
NICHOLSON PROPERTIES, LLC, et al.,
31 S. Academy Street
Glassboro, New Jersey 08208
Pro Se Plaintiffs
LAW OFFICE OF LEWIS ADLER
By: Lewis G. Adler, Esq.
26 Newton Avenue
Woodbury, New Jersey 08096
Counsel for Defendants
HILLMAN, District Judge
Pro se Plaintiffs are self-proclaimed advocates for the
Plaintiffs allege that Defendants retaliated against
them for their disability advocacy activities in violation of the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the
New Jersey Law Against Discrimination, N.J.S.A. 10:6-1 et seq.
Presently before the Court is Defendants’ “Motion to Dismiss,”
which, as discussed below, is functionally half Motion to Dismiss
and half Motion for Reconsideration.
For the reasons set forth
below, the Motion will be denied. 1
The factual allegations of this suit are set forth in two
previous opinions, see Cottrell v. Nicholson Props., LLC, 2014 U.S.
Dist. LEXIS 151050 (D.N.J. Oct. 22, 2014); Cottrell v. Nicholson
Props., LLC, 2013 U.S. Dist. LEXIS 179750 (D.N.J. Dec. 23, 2013),
and are not directly relevant to the issues presented by the
Plaintiffs filed this suit in April, 2012.
2012, Defendants moved to dismiss the Complaint.
responded by moving to amend their complaint.
Williams granted the Motion to Amend, and the Motion to Dismiss was
denied as moot.
Plaintiffs filed their First Amended Complaint on November 20,
Defendants again moved to dismiss, arguing that the First
Amended Complaint failed to allege facts plausibly supporting a
finding that Plaintiffs had standing to pursue their claims.
Court agreed and dismissed the First Amended Complaint, but allowed
Plaintiffs to file a Motion to Amend the First Amended Complaint in
an attempt to cure the pleading deficiency as to standing.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. §
1331 and supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
Plaintiffs filed their Motion to Amend on April 22, 2014.
opposition was filed, apparently because Defendants were unaware
that the motion had been filed.
October 22, 2014.
The Court granted the Motion on
In a 15-page opinion, the Court explained that
amendment would not be futile because the Second Amended Complaint
sufficiently alleges facts plausibly supporting Plaintiffs’ Article
III standing. See Cottrell v. Nicholson Props., LLC, 2014 U.S.
Dist. LEXIS 151050 (D.N.J. Oct. 22, 2014).
Summonses for the Second Amended Complaint were returned
executed on June 30, 2016.
The instant Motion to Dismiss was
timely filed by Defendants’ new counsel on July 19, 2016.
“The scope of a motion for reconsideration . . . is extremely
limited.” Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011). “The
purpose of a motion for reconsideration is ‘to correct manifest
errors of law or fact or to present newly discovered evidence.’”
Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (citing Max’s
Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677
(3d Cir. 1999)).
A motion for reconsideration “must rely on one of
three grounds: (1) an intervening change in controlling law; (2)
the availability of new evidence; or (3) the need to correct clear
error of law or prevent manifest injustice.” Id. (citing N. River
Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.
When considering a motion to dismiss a complaint for failure
to state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 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. Evancho v. 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 relief.”
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 the claim. Bogosian v. Gulf Oil Corp.,
562 F.2d 434, 446 (3d Cir. 1977).
However, “the Federal Rules of
Civil Procedure . . . do require that the pleadings give defendant
fair notice of what the plaintiff’s claim is and the grounds upon
which it rests.” Baldwin Cnty. 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 claim.’” Bell
Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting Scheuer
v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal,
556 U.S. 662, 684 (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.”).
Defendants assert two arguments in support of their instant
motion to dismiss: (1) “Plaintiffs have failed to plead standing
pursuant to the requirements of Article III of the U.S.
Constitution”; and (2) “[e]ven if the Plaintiffs establish a prima
facie case of retaliation, their claims cannot withstand the burden
shifting framework or mixed motive framework that requires the
Plaintiffs to prove that the Defendants’ reason for banning the
Plaintiffs [from the property at issue] was pretextual and/or the
sole reason for the ban.” (Moving Brief, p. i)
Defendants’ current counsel is apparently unaware that the
Court has already ruled, in the context of Plaintiffs’ Motion to
Amend, that Plaintiffs have sufficiently pled Article III standing.
Cottrell v. Nicholson Props., LLC, 2014 U.S. Dist. LEXIS 151050
(D.N.J. Oct. 22, 2014).
Nothing in Defendants’ instant motion suggests that the Court
clearly erred in its previous ruling, nor do the authorities cited
by Defendants demonstrate an intervening change in the law.
Defendants assert that Plaintiffs cannot withstand a burdenshifting analysis because they were unable to do so in Cottrell v.
Good Wheels, 458 Fed. Appx. 98 (3d Cir. 2012).
Good Wheels was an
appeal from an order granting summary judgment to the defendants.
The procedural posture of this case is different.
cannot address this issue on a motion to dismiss.
For the reasons stated above, Defendant’s Motion to Dismiss
will be denied.
An appropriate order accompanies this opinion.
Dated: February 21, 2017
At Camden, New Jersey
__s/ Noel L. Hillman ___
NOEL L. HILLMAN, U.S.D.J.
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