PAVLAK et al v. SBKFC
OPINION filed. Signed by Judge Noel L. Hillman on 12/16/2015. (drw)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NICHOLAS PAVLAK and ADVOCATES
FOR DISABLED AMERICANS,
SBKFC d/b/a KFC,
ANTHONY J. BRADY, JR.
1 Rose Avenue
PO Box 129
Maple Shade, New Jersey 08052
Counsel for Plaintiffs
SCHNADER HARRISON SEGAL & LEWIS LLP
Lisa J. Rodriguez, Esq.
Monica Clarke Platt, Esq.
Woodland Falls Corporate Park
220 Lake Drive East, Suite 200
Cherry Hill, New Jersey 08002
SCHNADER HARRISON SEGAL & LEWIS LLP
Samuel W. Silver, Esq. (pro hac vice)
1600 Market Street, Suite 3600
Philadelphia, Pennsylvania 19103
Counsel for Defendant
Civil. No 15-1944 (NLH/JS)
HILLMAN, United States District Judge:
This is a disability discrimination suit that comes before the Court on Defendant’s
Motion to Dismiss and Motion for a More Definite Statement (“Def.’s Mot.”) [Dkt. No. 5] and
Plaintiffs’ Cross Motion to Dismiss (“Pls.’ Cross Mot.”) [Dkt. No. 9].1 Defendant SBKFC seeks
two different forms of relief: (1) they seek to dismiss plaintiff Advocates for Disabled
Americans (“ADFA”) for lack of standing; and (2) they seek to compel a more definite statement
as to plaintiff Nicholas Pavlak’s (“Pavlak”) claims. Plaintiff’s Cross Motion seeks to dismiss the
federal claim and remand the state law claim, while also consenting to provide a more definite
statement as to Pavlak’s claims. For the reasons that follow, Defendant’s Motion is
GRANTED-IN-PART and DENIED-IN-PART and Plaintiffs’ Cross Motion is DISMISSED
The following facts are alleged in the Complaint. Plaintiff Nicholas Pavlak is disabled
and uses a walker and/or wheelchair. Pavlak is originally from southern New Jersey and is often
in New Jersey despite now residing in Florida. On at least February 11, 2014, Pavlak patronized
defendant’s restaurant, a Kentucky Fried Chicken (“KFC”)2 located at Route 130 and High Street
in Burlington County, New Jersey.
During his visit, he found that there was improper parking and improper routes for the
disabled bathrooms. As a result of this, Pavlak sustained distress and anger. Pavlak intends to
Plaintiffs’ cross-motion [Dkt. No. 9] and opposition to Defendant’s motion [Dkt. No. 8] are
identical. The Court will accordingly treat them as one in the same.
Although the parties never spell out the meaning of “KFC” as used in the Complaint, this Court
is familiar enough with the acronym to discern its meaning.
return to defendant’s restaurant repeatedly and for many years both as a patron and as a “tester”
to determine the accessibility of defendant’s restaurant to the disabled.
Plaintiff AFDA is an organization with offices in Cherry Hill, New Jersey that purports to
advocate on behalf of individuals with disabilities.
Plaintiffs originally brought suit in the Superior Court of New Jersey, Law Division,
Burlington County, alleging violations under the Americans with Disabilities Act (“ADA”) and
the New Jersey Law Against Discrimination (“NJLAD”). Defendant removed to this Court
pursuant to 28 U.S.C. § 1446(a). Defendant then moved to dismiss, and plaintiff cross moved.
Plaintiffs raise a claim under the ADA, 42 U.S.C. § 12101, et seq., and the NJLAD,
N.J.S.A. 10:5-12, et seq. This Court has jurisdiction over Plaintiffs’ federal claim pursuant to 28
U.S.C. § 1331, and exercises its supplemental jurisdiction over the related state law claim
pursuant to 28 U.S.C. § 1367.
Standard for Motion to Dismiss
Defendant only challenges the standing of ADFA to bring suit in federal court.
Accordingly, for ADFA’s claims to survive, they must show that they have standing to pursue
the claims alleged. See, e.g., Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013); Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). To satisfy the standing requirement of
Article III, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000).
The elements of standing “are not mere pleading requirements, but rather an
indispensable part of the plaintiff’s case” and as such “must be supported in the same way as any
other matter on which the plaintiff bears the burden of proof.” Defenders of Wildlife, 504 U.S. at
561. “At the pleading stage, general factual allegations of injury resulting from the defendant’s
conduct may suffice . . . .” Id.
“A motion to dismiss for want of standing is properly brought pursuant to Rule 12(b)(1),
because standing is a jurisdictional matter.” In re Schering Plough Corp. Intron/Temodar
Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012) (quoting Ballentine v. United States,
486 F.3d 806, 810 (3d Cir. 2007)) (internal quotations and alterations omitted). The standard for
evaluating a motion under Rule 12(b)(1) is the same as that for a motion brought under Rule
12(b)(6)—the Court must accept as true all material allegations set forth in the complaint an
construe the facts in favor of the non-moving party. Id.; see also Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007); Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
With respect to suits by organizations, federal courts recognize standing in two instances:
(1) where the organization itself suffered an injury and wants to vindicate its own rights; and (2)
as a representative of its individual members when the individual members themselves have
standing to bring the same claims. Pa. Prison Soc’y v. Cortes, 508 F.3d 156, 162–63 (3d Cir.
2007) (citations omitted). Here, AFDA does not satisfy the standing test under either theory.3
This is not the first time this Court has been called upon to address the standing of AFDA in a
suit brought in conjunction with a named plaintiff to enforce the ADA and the NJLAD. See
Vandeusen v. Mabel Realty of Bordentown, LLC, Civ. No. 12-0330 (JEI/AMD), 2012 WL
The only allegations made in the complaint with respect to AFDA are that “Plaintiff
[AFDA] . . . and its members have suffered and will continue to suffer direct and indirect injury
as a result of this discrimination.” (Compl. at ¶ 12.) The complaint itself does not make entirely
clear whether AFDA is claiming it is suing in its own right, but the certification in support of the
cross-motion makes clear that they are alleging that they have standing in this respect. (Brady
Cert. at ¶ 7.)
With respect to standing to sue in its own right, AFDA has pleaded no facts to support
such a finding. A mere recitation that AFDA has suffered injury is insufficient to satisfy the
standing requirements of Article III for itself. Accordingly, there can be no standing for AFDA
to sue to vindicate its own rights.
AFDA has also failed to prove that it has standing to sue in a representative capacity. In
order to have standing as a representative, an organization must show (1) its members would
otherwise have standing to sue in their own right; (2) the interests the suit seeks to protect are
germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested
requires the participation in the lawsuit of each of the individual members in the lawsuit. Hunt v.
Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).
With respect to the first prong of the Hunt test, the Third Circuit has explained, “the
plaintiff organization must ‘make specific allegations establishing that at least one identified
member had suffered or would suffer harm.’” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247,
1664116, at *2 (D.N.J. May 11, 2012) (dismissing AFDA for lack of individual and associational
standing); Vandeusen v. Bordentown Investors, LLC, Civ. No. 08-3207 (NLH), 2009 WL
235551, *4–*5 (D.N.J. Jan. 29, 2009) (same); see also Abbott v. Tacconelli’s Pizzeria, LLC, Civ.
No. 10-1901 (JBS/AMD), 2010 WL 3359533, *5–*7 (D.N.J. Aug. 24, 2010) (dismissing AFDA
for lack of standing based on lack of capacity to bring suit due to not then existing as a juridical
280 (3d Cir. 2014) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009)). AFDA
has not provided this Court with the identity of any members or alleged in the complaint that any
of its members has suffered an injury as a result of Defendant’s actions. Failure to do so is fatal
to AFDA’s standing.
Further undermining AFDA’s representative standing is the request in the Complaint for
damages on behalf of AFDA. (See Compl. at ¶ 12.) “It is almost a bright-line rule . . . [that]
‘damages claims usually require significant individual participation, which fatally undercuts a
request for associational standing.’” Clark v. McDonald’s Corp., 213 F.R.D. 198, 207 (D.N.J.
2003) (quoting Pa. Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d 278, 284 (3d
AFDA has failed to prove it has standing to sue under either of the theories provided for
organizations to bring suit in federal courts.4 Therefore, Defendant’s motion to dismiss AFDA
as a party for lack of standing will be granted, and accordingly Count II of the Complaint will be
Dismissal Without Prejudice
In its response to Plaintiffs’ Cross Motion, Defendant requests that this Court dismiss
AFDA with prejudice. (Def.’s Resp. [Dkt. No. 10] at 2–3.) The basis for requesting this
dismissal with prejudice appears to be that AFDA would lack standing to bring its claims in the
courts of New Jersey. (Id.) While it is appropriate for this Court to decide issues of state law, it
AFDA provides no meaningful opposition to Defendant’s motion to have AFDA dismissed for
lack of standing. The only opposition offered by AFDA is to rhetorically question Defendant’s
motives, remarking: “In regard to AFDA, it is unusual that the Defendant removed the case from
State Court to this Court. If indeed it is the Defendants [sic] position that this Court does not
have jurisdiction, then why did it remove to Federal Court?” (Brady Cert. at ¶ 5).
is inappropriate for this Court to decide the jurisdiction of the state court whose actions it has no
authority to review.
Further, the Third Circuit in other cases dismissing organizations for lack of standing has
in fact reversed the district court for dismissing the case with prejudice. See Goode v. City of
Phila., 539 F.3d 311, 313 (3d Cir. 2008) (affirming the district court’s decision, but ordering
modification to permit the plaintiff to institute a similar action in the state courts). Once this
Court has dismissed AFDA for lack of standing, which is a jurisdictional issue, this Court cannot
reach the merits of AFDA’s claims. See In re Orthopedic “Bone Screw” Prods. Liab. Litig., 132
F.3d 152, 155–56 (3d Cir. 1997) (“If a court then determines that it lacks subject matter
jurisdiction, it cannot decide the case on the merits. It has not authority to do so.”). However,
because this Court properly retains jurisdiction over the claims of Pavlak against Defendant, the
case cannot be remanded. Instead, the dismissal of AFDA will be without prejudice. Therefore,
Defendant’s motion will be denied to the extent it seeks dismissal of AFDA with prejudice.
Motion for More Definite Statement
Defendant’s Motion also seeks a more definite statement from Pavlak, arguing that the
pleading is “so vague and ambiguous that the party cannot reasonably prepare a response.”
(Def.’s Mot. at 6 (quoting Fed. R. Civ. P. 12(e)). Pavlak, through his attorney’s certification, has
offered to amend the complaint in order to provide a more definite statement. (Brady Cert. at
¶ 4). With this proffered consent, the portion of Defendant’s motion seeking a more definite
statement is granted as unopposed. Pavlak will have thirty (30) days from the date of entry of
the accompanying order to amend his complaint.
Plaintiffs’ Cross Motion to Dismiss
AFDA’s Cross Motion requests that this Court permit it to dismiss the ADA claim and
then remand the matter to state court for want of jurisdiction. Having dismissed AFDA for lack
of standing, the Cross Motion is moot.5
For the foregoing reasons, Defendant’s Motion to Dismiss AFDA for lack of standing
will be granted-in-part and denied-in-part, and the Motion for More Definite Statement as to
Plaintiff Pavlak’s claims will be granted as unopposed. Plaintiffs’ Cross Motion to Dismiss will
be dismissed as moot. An appropriate order accompanies this opinion.
Date: December 16th , 2015
s/ Noel. L. Hillman
NOEL L. HILLMAN, U.S.D.J.
The Cross Motion makes no offer to dismiss Pavlak’s ADA claim, and even if it did, this Court
would still retain jurisdiction, as Defendant removed to this Court asserting both federal question
and diversity jurisdiction. (Notice of Removal [Dkt. No. 1] at ¶¶ 4, 6–12; Def.’s Reply at 4–5).
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