COTTRELL v. WAWA, INC. et al

Filing 7

OPINION. Signed by Judge Noel L. Hillman on 9/10/2015. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARYANN COTTRELL on behalf of
the matter, in the interest
of BRITTANY JANE SLOOP,

Civ. A. No. 14-7159 (NLH/KMW)

OPINION
Plaintiff,
v.
WAWA, INC., et al.,
Defendants.

APPEARANCES:
Maryann Cottrell
31 South Academy Street
Glassboro, New Jersey 08028
Pro Se Plaintiff
HILLMAN, District Judge:
Plaintiff Maryann Cottrell initially filed this civil
action “on behalf of the matter, in the interest of” her
daughter, Brittany Sloop.

(Compl. 1.)

Ms. Cottrell and Ms.

Sloop also filed applications to proceed in forma pauperis, and
the Court therefore screened the complaint sua sponte under 28
U.S.C. § 1915(e)(2)(B).

The Court dismissed the complaint

without prejudice, denied the in forma pauperis applications
without prejudice, and ordered Ms. Cottrell and Ms. Sloop to
file an amended complaint and applications to proceed in forma

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pauperis.

Subsequently, Ms. Cottrell filed a renewed

application to proceed in forma pauperis, as well as an amended
complaint in which she names only herself as a plaintiff.

In

addition, Ms. Sloop, through Ms. Cottrell, filed a motion for an
extension of time for Ms. Sloop to obtain counsel.

For the

reasons that follow, Ms. Cottrell’s application to proceed in
forma pauperis will be granted, but the amended complaint will
be dismissed for lack of standing.

Ms. Sloop’s motion for an

extension of time to file an amended complaint will be granted.
I.

JURISDICTION
As noted in the March 20, 2015 Opinion, the Court exercises

original jurisdiction pursuant to 28 U.S.C. § 1331 over the
federal claim asserted in this case under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.

The Court

has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over
the state law claim based on an alleged violation of the New
Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. §
10:6-1 et seq.
II.

BACKGROUND
This case involves access to a handicap spot at a Wawa

store located at 109 North Delsea Drive, Glassboro, New Jersey.
(Am. Compl. ¶ 4.)

According to the allegations in the amended

complaint, Ms. Cottrell has a hearing impairment and is

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classified as disabled under the Americans with Disabilities Act
and New Jersey Law.

(Id. ¶ 12.)

In addition, Ms. Sloop is

“severely disabled” and possesses a handicap placard from the
State of New Jersey.

(Id. ¶¶ 16-17.)

On November 15, 2012,

Richard Holland, a caregiver for Ms. Sloop, stopped at the Wawa
store to buy a treat for Ms. Sloop.

(Id. ¶¶ 20, 25-26.)

Although Mr. Holland is purportedly permitted to park in a
designated handicap parking space while transporting Ms.
Cottrell and Ms. Sloop, he was unable to park in a handicap spot
at the Wawa store on November 15, 2012 because a Wawa delivery
truck was parked across the “one and only designated handicap
parking space” on the premises.

(Id. ¶¶ 18, 25.)

The Court previously dismissed Ms. Sloop’s claims because
they were asserted by Ms. Cottrell, and Ms. Cottrell is not
authorized to assert claims on Ms. Sloop’s behalf.

In addition,

the Court dismissed Ms. Cottrell’s claims, finding that she
lacked standing to the extent she sought prospective injunctive
and declaratory relief because she failed to assert facts
demonstrating that she had a likelihood of future injury.

In

particular, the Court noted that the complaint alleged only one
past instance when access to the handicap space at Wawa was
precluded, and that there were no facts to suggest that Ms.
Cottrell would be precluded access to the handicap spot at Wawa
in the future.

Although Ms. Cottrell alleged that there was a

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pattern and practice of Wawa allowing its drivers and vendors to
park in or block the handicap spot, there were no facts to
support this conclusory assertion.
Ms. Cottrell has now filed an amended complaint in which
she attempts to cure the defects in her prior pleading.

In the

amended complaint, Ms. Cottrell alleges that in addition to the
incident on November 15, 2012, she has “signed many summonses
against WAWA for failure to provide access to their one and only
handicap parking space” and has “brought the denials of access
and parking issues to Defendant WAWA’s attention many times.”
(Am. Compl. ¶¶ 38, 47.)

Ms. Cottrell also alleges that she has

“documented and signed many summonses against customers, vendors
and service companies for parking illegally in the one and only
handicap parking space located at WAWA.”

(Id. ¶ 49.)

She

contends that she and Mr. Holland “continue to return to the
property to avail themselves to the goods and services offered
to the public at the property.”

(Id. ¶ 20.)

III. DISCUSSION
A.

Standing

The Court incorporates by reference its discussion of
standing set forth in the March 20, 2015 Opinion.

In addition,

the issue of standing has been addressed in other cases in which
Ms. Cottrell is a plaintiff on claims asserted under the ADA.

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See, e.g., Cottrell v. Nicholson Properties, LLC, Civ. A. No.
12-2128, 2014 WL 5390671, at *4 (D.N.J. Oct. 22, 2014); Cottrell
v. Heritages Dairy Stores, Inc., Civ. A. No. 09-1743, 2010 WL
3908567, at *2 (D.N.J. Sept. 30, 2010); Cottrell v. Bobs Little
Sport Shop., Inc., Civ. A. No. 09-1987, 2010 WL 936212, at *1
(D.N.J. March 11, 2010); Cottrell v. Zagami, LLC, Civ. A. No.
08-3340, 2009 WL 1416044, at *1 (D.N.J. May 20, 2009).
As noted in Cottrell v. Nicholson, where a plaintiff seeks
prospective injunctive relief, she must demonstrate a “‘real and
immediate threat’ of injury in order to satisfy the ‘injury in
fact’ requirement” of standing.

2014 WL 5390671, at *3 (citing

Cottrell v. Zagami, 2009 WL 1416044, at *3).

“[I]njunctive

relief is only appropriate when the plaintiff establishes a
sufficient likelihood that he will be wronged again in a similar
fashion.”

Id.

“An intention to return to the source of the

illegal conduct ‘some day,’ without any description of concrete
plans or any indication beyond mere speculation as to when some
day will occur, does not support a finding of ‘actual or
imminent’ injury.”

Id. (quoting Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351
(1992)).
In assessing standing in ADA cases, several New Jersey
District Courts have applied a four-factor test to determine the
likelihood that a plaintiff will return to the defendant's place

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of public accommodation.

Brown v. Showboat Atl. City Propco,

LLC, No. Civ. A. 08–5145, 2010 WL 5237855, at *8 (D.N.J. Dec.
16, 2010).

The four factors include: (1) the plaintiff's

proximity to the defendant's place of public accommodation; (2)
the plaintiff's past patronage; (3) the definitiveness of the
plaintiff's plan to return; and (4) the plaintiff's frequency of
nearby travel.

Id.

Here, it appears that Ms. Cottrell is in close proximity to
the Wawa premises, as both her residence and the Wawa facility
are located in Glassboro, New Jersey, and it is likely that she
will frequently travel nearby.

Accordingly, the first and

fourth factors support a finding of standing.
With respect to the second factor, Ms. Cottrell alleges
that she has visited the property in the past, but the only
allegation in the complaint concerning her prior patronage of
Wawa is the instance on November 15, 2012 in which she and Mr.
Holland stopped at Wawa to purchase a treat for Ms. Sloop.1

It

is not clear from the allegations in the amended complaint that
any other visits to the Wawa premises were for purposes of

1

There is no allegation that the purpose of the visit to the
Wawa premises on November 15, 2012 was on behalf of Ms.
Cottrell. This raises another issue of standing as Ms. Cottrell
may not have been harmed by the alleged lack of access to a
handicap parking spot. See Cottrell v. Murphy’s Auto Care, 2015
WL 3604085, at *6 (“‘[T]he proper analysis of standing focuses
on whether the plaintiff suffered an actual injury, not on
whether a statute was violated.’”) (internal citation omitted).
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patronage or, rather, were for purposes of documenting ADA
violations.

Ms. Cottrell even alleges in the amended complaint

that in July 2010 she was at the Wawa premises documenting a
violation of a Rowan University vehicle parked in the access
aisle of the handicap spot.

She does not state that she was at

the premises for purposes of patronage.2
Ms. Cottrell has also failed to sufficiently aver her
intent to return to Wawa’s premises.

A plaintiff's “‘mere

expressed desire does not by itself imply an intent to return.’”
Cottrell v. Nicholson, 2014 WL 5390671, at *4 (citation
omitted).

A plaintiff must demonstrate a “definitive,

uncontested intent to return.”

Id.

Ms. Cottrell’s general

assertion that she will “continue to return” to the premises is
merely a “some day” intention that does not support a finding of
“actual or imminent” injury.
Moreover, because the condition at issue is transient,

2

Similarly, in Cottrell v. Murphy’s Auto Care & Performance
Ctr., No. Civ. A. 14-4831, 2015 WL 3604085, at *6 (D.N.J. June
8, 2015), Ms. Cottrell and Mr. Holland brought suit against
Murphy’s Auto Care based on lack of access to a handicap parking
spot, but they were not on the premises for purposes of
patronage. Rather, in that action, Ms. Cottrell and Mr. Holland
claimed that they were driving on Delsea Drive when they noticed
a Snap-On Tools truck parked in the handicap space, at which
point they stopped to document the violation. In light of the
advocacy efforts of Ms. Cottrell and Mr. Holland to document ADA
violations, as detailed in the opinions cited above, the Court
cannot assume that Ms. Cottrell’s past visits to Wawa were for
purposes of patronage.
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there is no indication that Ms. Cottrell’s access to handicap
parking would be precluded if she decided to visit Wawa in the
future.

Ms. Cottrell states that she has documented many

instances in which customers, vendors and service companies have
parked illegally in the handicap parking space at the Wawa
facility, but she provides no details to support that assertion.
The only two instances of parking violations specifically
identified in the amended complaint occurred in 2010 and 2012.
It is not clear that blocked access to the handicap parking spot
continues to be a problem that precludes Ms. Cottrell from
patronizing Wawa.
Accordingly, at this time, the Court will dismiss Ms.
Cottrell’s amended complaint for lack of standing.

As noted

above, the complaint is devoid of facts to support the
conclusion that a future violation of law by Defendants is
imminent.

Despite this pleading deficiency, Ms. Cottrell may be

able to allege facts concerning a continued lack of access to
the handicap spot at the Wawa store at issue in this case.

The

Court will thus allow Ms. Cottrell one final opportunity to
amend her complaint in an effort to rectify the standing issue
identified in this Opinion.

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B.

Ms. Cottrell’s IFP Application

The Court has reviewed Ms. Cottrell’s application to
proceed in forma pauperis, and notes that Plaintiff has signed
the affidavit in support of her application declaring under
penalty of perjury that she is unable to pay the costs of these
proceedings.

Based on the information contained therein, the

Court hereby grants Plaintiff’s application to proceed in forma
pauperis in this case and directs the Clerk to file the amended
complaint in this action.
C.

Ms. Sloop’s Motion to Extend Time

Also before the Court is an application for an extension of
time to obtain counsel filed by Ms. Cottrell on behalf of Ms.
Sloop.

As noted in the March 20, 2015 Opinion, Ms. Cottrell

cannot advance the claims of Ms. Sloop and, as such, cannot file
a motion on Ms. Sloop’s behalf.

Nonetheless, the Court

recognizes that it granted Ms. Sloop thirty days to file an
amended complaint, either pro se or through counsel, and Ms.
Sloop apparently required additional time to retain counsel so
that she could file an amended complaint.

Accordingly, in the

interest of justice, the Court will grant Ms. Sloop an extension
of time so as to allow her the opportunity to retain counsel,
and she will be afforded an additional thirty days to file an
amended complaint.

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IV.

CONCLUSION
For the reasons set forth above, Ms. Cottrell’s amended

complaint will be dismissed without prejudice, her application
to proceed in forma pauperis will be granted, and Ms. Sloop will
be granted an extension of time to file an amended complaint.
Any amended complaint must be filed within thirty days.
An Order consistent with this Opinion will be entered.

Date: September 10, 2015

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

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