COTTRELL v. UNITED PARCEL SERVICE et al
OPINION. Signed by Judge Noel L. Hillman on 4/11/2017. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil No. 16-1689 (NLH/KMW)
UNITED PARCEL SERVICE, et al.,
31 S. Academy Street
Glassboro, New Jersey 08208
Pro Se Plaintiff
JACKSON LEWIS, P.C.
By: Joseph C. DeBlasio, Esq.
Benjamin L. Rouder, Esq.
766 Shrewsbury Avenue, Suite 101
Tinton Falls, New Jersey 07724
Counsel for Defendants
HILLMAN, District Judge
Pro se Plaintiff Maryann Cottrell is self-proclaimed advocate
for the disabled.
Plaintiff alleges that on a single day in 2014,
she attempted to park in a handicapped parking spot at the Vineland
SPCA but was prevented from doing so because a delivery truck
operated by Defendant United Parcel Service (“UPS”) was blocking
Both the Complaint and Proposed Amended Complaint
assert two claims; one under the Americans with Disabilities Act,
42 U.S.C. § 12101 et seq. (“ADA”), and one under the New Jersey Law
Against Discrimination, N.J.S.A. 10:6-1 et seq. (“NJLAD). 1
Presently before the Court is Defendants’ Motion to Dismiss
and Plaintiff’s Motion for Leave to Amend.
For the reasons set
forth below, the Court holds that Plaintiff has failed to state an
ADA claim and amendment of the claim would be futile.
will decline to exercise supplemental jurisdiction over the
remaining NJLAD claim.
Accordingly, Defendants’ Motion to Dismiss
will be granted as to the ADA claim, and denied as moot as to the
Plaintiff’s Motion for Leave to Amend will be denied
as to the ADA claim, and denied as moot as to the NJLAD claim.
Both the Complaint and the Proposed Amended Complaint allege
On March 25, 2014 Plaintiff “encountered a denial
of access to Cumberland County SPCA.” (Compl. ¶ 23; Prop. Amend.
Compl. ¶ 23)
A “UPS truck . . . was parked blocking access to the
two remaining designated handicap parking spaces in [the] parking
lot.” (Compl. ¶ 24; Prop. Amend. Compl. ¶ 24)
is disabled (Compl. ¶ 13-14; Prop. Amend. Compl. ¶ 13-18), and “was
at the Vineland SPCA to get a cat spayed.” (Compl. ¶ 27; Prop.
Amend. Compl. ¶ 27)
The Court has subject matter jurisdiction pursuant to 28 U.S.C. §
1331 and supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
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.”).
In the context of a Motion to Amend, the Court applies the
same analysis in determining whether amendment would be futile.
Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.
‘futility,’ the District Court applies the same standard of legal
sufficiency as applies under Rule 12(b)(6).”).
Both motions raise the same issue: whether Defendant UPS can
be liable under the ADA based on the facts pled.
The answer is
The ADA provides, “[n]o individual shall be discriminated
against on the basis of disability in the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person
who owns, leases (or leases to), or operates a place of public
accommodation.” 42 U.S.C. § 12182(a)(emphasis added).
The statute defines a place of public accommodation as:
The Court does not reach Defendant’s independent argument that
Plaintiff has not sufficiently pled her Article III standing to
(A) an inn, hotel, motel, or other place of lodging,
except for an establishment located within a building
that contains not more than five rooms for rent or hire
and that is actually occupied by the proprietor of such
establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving
food or drink;
(C) a motion picture house, theater, concert hall,
stadium, or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or
other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware
store, shopping center, or other sales or rental
(F) a laundromat, dry-cleaner, bank, barber shop, beauty
shop, travel service, shoe repair service, funeral
parlor, gas station, office of an accountant or lawyer,
pharmacy, insurance office, professional office of a
health care provider, hospital, or other service
(G) a terminal, depot, or other
specified public transportation;
(H) a museum, library, gallery, or other place of public
display or collection;
(I) a park, zoo, amusement park, or other place of
(J) a nursery, elementary, secondary, undergraduate, or
(K) a day care center, senior citizen center, homeless
shelter, food bank, adoption agency, or other social
service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course,
or other place of exercise or recreation.
42 U.S.C. § 12181(7).
The UPS delivery truck does not fall within the statutory
definition of place of public accommodation; therefore Defendant
UPS cannot be a “person who operates” a place of public
Here, the place of public accommodation allegedly
is the Vineland SPCA.
Accordingly, Plaintiff has failed to state an ADA claim
against Defendant UPS, and amendment would be futile.
The Third Circuit has repeatedly stated, “‘where the claim
over which the district court has original jurisdiction is
dismissed before trial, the district court must decline to decide
the pendent state law claims unless considerations of judicial
economy, convenience, and fairness to the parties provide an
affirmative justification for doing so.’” Hedges v. Musco, 204 F.3d
109, 123 (3d Cir. 2000)(citing 28 U.S.C. § 1367(c)(3), and quoting
Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.
1995))(emphasis added); cf. Sarpolis v. Tereshko, 625 F. App’x 594,
600 (3d Cir. 2016)(affirming district court’s retention and
exercise of supplemental jurisdiction under § 1367(c)(3) because
the district court had “an affirmative justification for exercising
supplemental jurisdiction.”)(quoting Hedges).
The Court finds no sufficient affirmative justification for
retaining supplemental jurisdiction of the remaining NJLAD claim.
That claim will be dismissed without prejudice to Plaintiff’s right
to refile in the appropriate state forum.
For the reasons stated above, Defendants’ Motion to Dismiss
will be granted as to the ADA claim, and denied as moot as to the
Plaintiff’s Motion to Amend will be denied as to the
ADA claim, and denied as moot as to the NJLAD claim.
appropriate order accompanies this opinion.
Dated: April 11, 2017
At Camden, New Jersey
___s/ Noel L. Hillman____
NOEL L. HILLMAN, U.S.D.J.
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