COTTRELL et al v. FAMILY PRACTICE ASSOCIATES AT WASHINGTON, PA et al

Filing 26

OPINION. Signed by Judge Noel L. Hillman on 5/26/2016. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
MARYANN COTTRELL and
RICHARD HOLLAND,
Plaintiffs,

Civil No. 15-2267 (NLH/KMW)

v.
OPINION
FAMILY PRACTICE ASSOCIATES at
WASHINGTON, PA, et al.,
Defendants.
__________________________________
APPEARANCES:
Maryann Cottrell
Richard Holland
31 S. Academy Street
Glassboro, NJ 08208
Pro Se Plaintiffs
Arnold Robert Gerst
Weiner Lesniak
P.O. Box 438
Parsippany, NJ 07054
Attorney for Defendants

HILLMAN, District Judge
Presently before the Court is a motion to dismiss [Doc. No.
11] which was converted into a motion for summary judgment by
way of the Court’s April 28, 2016 Opinion and Order [Doc. Nos.
23, 24].

For the reasons that follow, the motion will be

granted and the case will be closed.
I.

JURISDICTION
The Court exercises original jurisdiction pursuant to 28

U.S.C. § 1331 over the federal claim asserted in this case under
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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

As set forth in the Court’s prior Opinion, Plaintiff
Maryann Cottrell is the mother of a severely disabled daughter,
and Plaintiff Richard Holland serves as a secondary caregiver to
Cottrell's daughter.
Court.

Plaintiffs are frequent litigants in this

See Cottrell v. Recreation Ctr. LLC, No. 13-2847, 2016

WL 1717577, at *1 (D.N.J. Apr. 28, 2016) (citing 18 cases).
Typically, Plaintiffs “assess[] and document parking access at
public accommodations that they come into contact during their
daily services” and then bring citizen’s complaints in municipal
court followed by ADA and NJLAD complaints in federal court.
(Compl. ¶ 17.)
Plaintiffs are former patients of Family Practice
Associates, a medical office, but have not been seen as patients
for several years.

Cottrell was last seen in 2011, and Holland

was last seen in 2008.

(Robinson Cert. ¶ 6; Venuti Cert. ¶ 4.)

On February 4, 2013, Plaintiffs allege they were passing by
Family Practice Associates, located at 188 Fries Mills Road,
Washington Township, New Jersey, when they observed a van parked
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in a handicap parking space.

(Compl. ¶ 24.)

Plaintiffs

informed the manager of Family Practice Associates, Stefani
Venuti, about the violation but Venuti allegedly did not ask the
van to move.

(Compl. ¶¶ 25-32.)

On February 15, 2013 Plaintiffs made citizen’s complaints
against both the company which owned the van and Family Practice
Associates.

(Compl. ¶¶ 35-36.)

On March 21, 2013, Family

Practice Associates was found not guilty in municipal court of
any parking violation because it did not own the parking space
Plaintiffs reported; rather, it was owned and controlled by
Family Practice Associates’ condominium complex (Gerst Cert. ¶
2; Venuti Cert. ¶ 3.)
On April 2, 2013, Plaintiffs received a letter from Dr.
Michael Robinson of Family Practice Associates terminating their
patient-doctor relationship, but offering to see Plaintiffs for
emergencies for a limited period of time.

(Compl. ¶¶ 33-34;

Defs.’ Reply Br., Ex. A.)
On March 30, 2015, Plaintiffs filed the instant two-count
complaint against Defendants Family Practice Associates at
Washington, PA, Robert L. Venuti, William A. Madison, John D.
Venuti, Janine M. Pecora, Dana Zeiner, and Stefani Venuti.
Plaintiffs assert claims of retaliation in violation of the
Americans with Disabilities Act and New Jersey Law Against
Discrimination.

On December 14, 2015, Defendants moved to
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dismiss Plaintiffs’ complaint, arguing that it was frivolous and
failed to state a claim.

Because Defendants relied on

certifications outside the pleadings, on April 28, 2016, the
Court notified the parties of its intention to convert
Defendants’ motion to dismiss to a motion for summary judgment
and invited Plaintiffs to submit supplemental briefing.
Plaintiffs did not file an opposition to the summary judgment
motion.
III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the Court is
satisfied that “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,’ . . . demonstrate the absence of a genuine
issue of material fact” and that the moving party is entitled to
a judgment as a matter of law.

Celotex Corp. v. Catrett, 477

U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)
(citing Fed. R. Civ. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

A fact is

“material” if, under the governing substantive law, a dispute
about the fact might affect the outcome of the suit.

Id.

“In

considering a motion for summary judgment, a district court may
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not make credibility determinations or engage in any weighing of
the evidence; instead, the non-moving party’s evidence ‘is to be
believed and all justifiable inferences are to be drawn in his
favor.’”

Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d

Cir. 2004) (citing Anderson, 477 U.S. at 255, 106 S. Ct. 2505).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323, 106 S. Ct. 2548 (“[A] party seeking
summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”); see also
Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 192 n.2 (3d Cir.
2001) (“Although the initial burden is on the summary judgment
movant to show the absence of a genuine issue of material fact,
‘the burden on the moving party may be discharged by ‘showing’ - that is, pointing out to the district court -- that there is
an absence of evidence to support the nonmoving party’s case’
when the nonmoving party bears the ultimate burden of proof.”)
(citing Celotex, 477 U.S. at 325, 106 S. Ct. 2548).

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Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
U.S. at 324, 106 S. Ct. 2548.

Celotex, 477

A “party opposing summary

judgment ‘may not rest upon the mere allegations or denials of
the . . . pleading[s.]’”
232 (3d Cir. 2001).

Saldana v. Kmart Corp., 260 F.3d 228,

For “the non-moving party[ ] to prevail,

[that party] must ‘make a showing sufficient to establish the
existence of [every] element essential to that party’s case, and
on which that party will bear the burden of proof at trial.’”
Cooper v. Sniezek, 418 F. App’x 56, 58 (3d Cir. 2011) (citing
Celotex, 477 U.S. at 322, 106 S. Ct. 2548).

Thus, to withstand

a properly supported motion for summary judgment, the nonmoving
party must identify specific facts and affirmative evidence that
contradict those offered by the moving party.

Anderson, 477

U.S. at 257.
IV.

DISCUSSION

As an initial matter, the individual Defendants cannot be
held liable for retaliation under the ADA.

While the Third

Circuit has not directly ruled on this issue, courts in this
district have found no individual liability exists.

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
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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”).

Therefore, summary

judgment on the ADA claims will be granted in favor of the
individual Defendants.
As to the remaining ADA and NJLAD claims against Family
Practice Associates and NJLAD claims against the individual
Defendants, summary judgment will also be granted in Defendants’
favor.

To state a claim for retaliation under the ADA or NJLAD

a plaintiff must establish (1) s/he was engaged in protected
conduct; (2) an adverse action was taken; and (3) there is a
causal link between the protected conduct and the adverse
action.

Cottrell v. Good Wheels, 458 F. App'x 98, 100 (3d Cir.

2012).

The Court finds Plaintiffs have not established a prima

facie claim for retaliation because they failed to establish the
first two requirements, that they were engaged in protected
activity and suffered an adverse action.
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Plaintiffs allege they were retaliated against for bringing
a complaint against Family Practice Associates in municipal
court.

(Compl. ¶ 43.)

Previously, courts have found that the

filing of citizen’s complaints against business owners for ADAbased parking violations is protected activity.

Cottrell v.

Zagami, LLC, 537 F. App'x 46, 48 (3d Cir. 2013) (“Cottrell
engaged in protected activity when she filed citizen’s
complaints against patrons of Landmark for handicapped parking
violations.”); Cottrell v. J&D Disc. Liquor Gallery, Inc., No.
08-5418, 2010 WL 3906786, at *4 (D.N.J. Sept. 30, 2010)
(Plaintiffs’ filing of a citizen’s complaints was protected
activity even where the complaints were dismissed in municipal
court).
In prior cases, even though Plaintiffs have brought
citizen’s complaints against business owners who were found not
liable for parking violations (presumably, as here, because they
did not own the parking spaces in front of their stores) the
Court has assumed Plaintiffs had a good faith basis for filing
these complaints.

See, e.g., Cottrell v. J&D Disc. Liquor

Gallery, Inc., No. 08-5418, 2010 WL 3906786, at *5 n.7 (D.N.J.
Sept. 30, 2010) (“Alternatively, even if the unlawful use of, or
inability to curb the unlawful use of, handicap parking and
access areas does not violate the ADA, plaintiffs reasonably,
and in good faith, believed that defendants’ actions contravened
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the ADA”).

Here, however, there is no evidence that Plaintiffs

made any reasonable investigation of parking lot ownership
before bringing a complaint against Family Practice Associates.
Thus, Plaintiffs have not carried their burden of pointing to
evidence showing that they had a good faith basis to file the
citizen’s complaint.

There is no legal or factual dispute that

Family Practice Associates does not own the handicap parking
space Plaintiffs reported.

Plaintiffs, who are very familiar

with the ADA and the filing of citizen’s complaints and federal
lawsuits, have not demonstrated that they made any reasonable
attempt to investigate whether or not Family Practice Associates
owned the parking space before they brought the citizen’s
complaint.1

C.f., Carmona v. Resorts Int'l Hotel, Inc., 189 N.J.

354, 373, 915 A.2d 518, 530 (2007) (“a case in which a plaintiff
alleges retaliation under the LAD, N.J.S.A. 10:5–12d, the
plaintiff bears the burden of proving that his or her original
complaint — the one that allegedly triggered his or her
employer's retaliation — was made reasonably and in good faith.

1

In at least one other case, Plaintiffs brought citizen’s
complaints against a small business for parking violations in
parking spots the business did not own.
Cottrell v. J&D Disc.
Liquor Gallery, Inc., No. 08-5418, 2010 WL 3906786, at *1
(D.N.J. Sept. 30, 2010) ("Of the five municipal summonses issued
to defendants as a result of Cottrell's complaints, the
Municipal Court dismissed four of them and there was a finding
of not guilty as to the fifth.").

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The obverse also holds true: an unreasonable, frivolous, badfaith, or unfounded complaint cannot satisfy the statutory
prerequisite necessary to establish liability for retaliation
under the LAD.”).

Accordingly, because Plaintiffs have not

demonstrated they had a good faith basis to bring a citizen’s
complaint against Family Practice Associates, they have not
established they were engaged in protected activity.
Further, even if Plaintiffs were engaged in protected
activity, Plaintiffs have not met their burden of demonstrating
that Dr. Robinson’s termination letter was an adverse action.
Plaintiffs argue in a sur-reply that Defendants violated
N.J.A.C. 13:6.22(d)(1) by terminating the doctor-patient
relationship for a “discriminatory purpose.”

However, the

record does not show that a patient-doctor relationship even
existed before Dr. Robinson sent the termination letter.
Pursuant to the New Jersey Administrative Code, a doctorpatient relationship exists where the doctor has provided
services within the past year, “or in such other circumstances
where a patient has indicated to the licensee that the patient
anticipates that the licensee will provide continued
professional services to the patient.”
13:35-6.22.

N.J. Admin. Code §

Here, a representative of Family Practice

Associates certified that Plaintiffs had not been patients for
several years (two years for Cottrell and five years for
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Holland), and Plaintiffs have not submitted any evidence to show
they anticipated that Family Practice Associates would provide
continued professional services.

(Robinson Cert. ¶ 6.)

Additionally, Plaintiffs waited almost two years after receiving
Dr. Robinson’s letter before filing suit, at which point
Cottrell had not been a patient at the practice for four years,
and Holland had not been a patient for eight years.

Unlike

other cases, Plaintiffs were not banned from the premises, and
they submitted no evidence that the termination of this
relationship caused them any injury.

Accordingly, because the

record shows that no doctor-patient relationship existed and the
letter resulted in a nullity Plaintiffs have not demonstrated an
adverse action.

For these reasons, Plaintiffs have not

demonstrated a prima facie case of retaliation under the ADA or
NJLAD and summary judgment will be granted in favor of
Defendants on both counts.
V.

CONCLUSION

For the reasons described above, Defendants’ motion for
summary judgment will be granted.

Dated: May 26, 2016

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

At Camden, New Jersey

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