MAURER v. HMS ASSOCIATES OF NEW JERSEY, A LIMITED PARTNERSHIP
Filing
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MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 2/15/2018. (rtm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DENNIS MAURER,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 17-3560 (JBS/JS)
v.
HMS ASSOCIATES OF NEW JERSEY,
A LIMITED PARTNERSHIP
MEMORANDUM OPINION
Defendant.
SIMANDLE, District Judge:
In this action, Plaintiff Dennis Maurer, a New Jersey
resident who has multiple sclerosis and is confined to a
wheelchair, alleges that Defendant HMS Associates of New Jersey,
a Limited Partnership (“HMS Associates”) discriminated against
him in violation of Title III of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12181 et seq., and the New Jersey Law
Against Discrimination (“NJLAD”), N.J.S.A. § 10:5-1 et seq.
[Docket Item 1.] Pending before the Court is Defendant’s motion
to dismiss the Complaint for lack of standing pursuant to
Federal Rule of Civil Procedure 12(b)(1). [Docket Item 4.]
Plaintiff opposes this motion. [Docket Item 8.] For the reasons
discussed below, the Court will deny Defendant’s motion to
dismiss. The Court finds as follows:
1.
Factual and Procedural Background.1 Plaintiff resides
in Egg Harbor Township, New Jersey, has multiple sclerosis, and
uses a wheel chair for mobility. [Docket Item 1 at ¶¶ 1, 6.]
Defendant owns, leases, and/or operates the Sav-A-Lot, Family
Dollar, Modern Liquors, and Rent-A-Center stores located at
3937-3949 Federal Street in Pennsauken, New Jersey. [Id. at ¶¶
2, 3, 7, 10.] According to Plaintiff, Defendant has
discriminated and continues to discriminate against Plaintiff by
“denying him access to full and equal enjoyment of the goods,
services, facilities, privileges, advantages and/or
accommodations of its place of public accommodation or
commercial facility” at these stores, in violation of the ADA
and NJLAD. [Id. at ¶ 13.]
2.
Specifically, Plaintiff alleges, inter alia, that he
“personally encountered or observed” certain ADA and NJLAD
violations at Defendant’s property, including: (1) failure to
properly maintain parking spaces and curb ramps to access the
stores; (2) failure to provide a safe accessible route to the
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The facts alleged are primarily drawn from the Complaint
[Docket Item 1], which the Court must accept as true for
purposes of this motion. To the extent Defendant is making a
factual attack on Plaintiff’s claim of standing, as discussed
infra, the Court will also consider Plaintiff’s certification
filed in support of his opposition. [Ex. A to Docket Item 8.]
The Court notes that Defendant did not file reply papers in
response to Plaintiff’s opposition, nor has Defendant attempted
to rebut any facts alleged in Plaintiff’s sworn certification
pertaining to his standing to sue.
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adjacent bus stop, street, or sidewalk; (3) the payment counters
are mounted out of reach to individuals in wheelchairs; and (4)
the restrooms are unsafe and inaccessible to individuals in
wheelchairs.2 [Id. at ¶ 10.]
3.
Plaintiff asks this Court for a declaratory judgment
finding that Defendant is in violation of the ADA, injunctive
relief against Defendant, including an Order requiring Defendant
to comply with the ADA, and an award of attorney’s fees, costs,
and litigation expenses. [Id. at 7-8.]
4.
Defendant timely filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1). [Docket Item 4.]
Defendant argues that Plaintiff lacks standing because he
resides nearly 60 miles from the subject property and he “has
failed to state when he visited the Property, the specific
barriers that he encountered as opposed to those that he
allegedly ‘observed,’ what store(s) he visited, the nature of
Plaintiff’s visit to the Property or that he has tangible plans
to visit the Property in the future.” [Docket Item 4-1 at 2.]
For these reasons, among others, Defendant maintains that the
Complaint fails to establish the existence of a “concrete and
particularized” injury or a “real and immediate threat” of
2
Plaintiff notes that this is not an exclusive list of
Defendant’s ADA violations at these buildings and requests an
inspection of these locations to determine all of the areas of
non-compliance with the ADA. [Docket Item 1 at ¶ 11.]
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future injury, and argues that the Court should dismiss
Plaintiff’s claims with prejudice. [Id. at 4-9.]
5.
In response, Plaintiff maintains that the Complaint
sets forth an adequate basis to state a plausible claim for
relief pursuant to both the ADA and NJLAD. [Docket Item 8 at
11.] For example, the Complaint alleges, among other things,
that Plaintiff has visited the subject property on “numerous”
occasions and “has encountered architectural barriers” which
impede his “access at the shopping center located at 3937-3949
Federal Street . . . [and] have endangered his safety.” [Docket
Item 1 at ¶¶ 6, 10.] He alleges that these barriers violate the
ADA and the NJLAD by preventing him from unloading his van
freely and safely [Id. at ¶ 10a], requiring him to navigate
unsafe and noncompliant curb ramps [Id. at ¶ 10b], forcing him
to travel in the traffic area to get to the curb ramp [Id. at ¶
10c], and so forth. [Id. ¶¶ 10d, e, f, g, h, i, & j.]
6.
Additionally, Plaintiff attached a sworn statement as
an exhibit to his opposition papers addressing Defendant’s
factual attack on his jurisdictional allegations. [Ex. A to
Docket Item 8.] In the sworn statement, Plaintiff proffered,
inter alia, that he has “been traveling through and shopping and
eating in the Pennsauken, NJ and the surrounding areas since
1970,” that he “travel[s] regularly throughout New Jersey . . .
in regard to [his] commitment to ensure that all public
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accommodations provide accessible facilities for wheelchair and
other mobility-impaired users,” and that that he “definitely
intend[s] to continue to patronize the subject shipping center,
and will be going back there in the near future.” [Id. at ¶¶ 68, 12.] He patronized this shopping center several times each
year at Family Dollar, Sav-a-Lot and Modern Liquors. [Id. at ¶
10.] He also visited the shopping center on March 28, 2017, as
well as in the two-month period prior to his July 4, 2017 sworn
statement. [Id. at ¶ 11.]
7.
Standard of Review. Because standing is a
jurisdictional matter, a motion to dismiss for lack of standing
is properly brought pursuant to Federal Rule of Procedure
12(b)(1). Ballentine v. United States, 486 F.3d 806, 810 (3d
Cir. 2007). The Third Circuit has identified two types of
jurisdictional defects subject to challenge by a Rule 12(b)(1)
motion: (1) those that challenge the subject matter jurisdiction
as sufficiently pleaded on the face of the complaint (i.e., a
facial challenge), and (2) those that attack the existence of
subject matter jurisdiction in fact (i.e., a factual challenge).
Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d
Cir. 1977); NE Hub Partners, L.P. v. CNG Transmission Corp., 239
F.3d 333, 341 n.7 (3d Cir. 2001).
8.
Here, Defendant’s 12(b)(1) motion appears to be both a
facial attack on the subject matter jurisdiction of the Court
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and a factual attack on the substance of the Complaint. On a
facial attack, the Court considers only the allegations of the
Complaint and documents referenced therein, construing them in
the light most favorable to Plaintiff. Pearson v. Chugach Gvt.
Svcs. Inc., 669 F. Supp. 2d 467, 469–70 (D. Del. 2009). On a
factual attack, “no presumptive truthfulness attaches to
plaintiff's allegations, and the existence of disputed material
facts will not preclude the trial court from evaluating for
itself the merits of jurisdictional claims. Moreover, the
plaintiff will have the burden of proof that jurisdiction does
in fact exist.” Mortensen, 549 F.2d at 891.
9.
Discussion. Defendant’s instant motion asserts that
the Complaint should be dismissed with prejudice because
Plaintiff lacks standing. For the following reasons, the Court
will deny the motion to dismiss.
10.
Federal courts are courts of limited jurisdiction and
may only consider those actions that meet the case-orcontroversy requirements of Article III, Section 2 of the U.S.
Constitution. Essential to Article III jurisdiction is the
doctrine of standing. Friends of the Earth, Inc. v. Laidlaw
Envtl Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). To meet the
minimal constitutional mandate for Article III standing a
plaintiff must show: (1) an “injury in fact;” (2) “a causal
connection between the injury and the conduct complained of;”
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and (3) that the injury will “likely” be “redressed by a
favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61 (1992). An “injury in fact” is defined as “an
invasion of a legally protected interest which is (a) concrete
and particularized . . . and (b) actual or imminent, not
conjectural or hypothetical.” Id. at 560.
11.
Additionally, where, as in the instant case, a
plaintiff seeks prospective injunctive relief, he must
demonstrate a “real and immediate threat of injury in order to
satisfy the injury in fact requirement.” Clark v. Burger King
Corp., 255 F. Supp. 2d 334, 342 (D.N.J. 2003) (citations
omitted). “Past exposure to illegal conduct does not in itself
show a present case or controversy regarding injunctive relief .
. . if unaccompanied by any continuing, present adverse effects.
O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974). Thus, “[i]n
order to obtain standing for prospective relief, the plaintiff
must ‘establish a real and immediate threat that he would again
[be the victim of the allegedly unconstitutional practice.]’”
Brown v. Fauver, 819 F.2d 395, 400 (3d Cir. 1987) (quoting City
of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)).
12.
These fundamental principles apply with equal force in
the context of the ADA and NJLAD.3 See Venus v. Seville Food,
3
Because “New Jersey courts typically look to federal antidiscrimination law in construing NJLAD,” it is appropriate to
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LLC, 2017 WL 2364192 (D.N.J. May 31, 2017); W.G. Nichols, Inc.
v. Ferguson, 2002 WL 1335118, at *10 (E.D. Pa. June 7, 2002).
“ADA standing analysis should focus on whether the plaintiff
suffered an actual injury rather than whether the statute was
violated by the [d]efendants.” Louisiana Counseling & Family
Servs. Inc. v. Mt. Fuji Japanese Rest., 2011 WL 3273548, at *4
(D.N.J. July 27, 2011). To that end, courts generally consider
four factors in determining whether a Title III plaintiff has
alleged a threat of future injury under the ADA that is
sufficiently concrete and particularized: “(1) the plaintiff’s
proximity to the defendant’s place of public accommodation; (2)
the plaintiff’s past patronage; (3) the plaintiff’s frequency of
nearby travel; and (4) the definiteness of the plaintiff’s plan
to return.” Wittmann v. Island Hosp. Mgmt., 2011 WL 689613, at
*5 (D.N.J. Feb. 18, 2011).
13.
Here, Plaintiff alleges he is disabled because he has
multiple sclerosis and requires a wheelchair for mobility.
[Docket Item 1 at ¶ 6.] He further alleges that he “personally
encountered or observed” various physical barriers, which he
describes in some detail, at the stores located at 3937-3949
Federal Street. [Id. at ¶ 10.] Thus, accepting Plaintiff’s
apply analysis and principles of the ADA “equally to . . . NJLAD
claims.” Chisholm v. McManimon, 275 F.3d 315, 324 n.9 (3d Cir.
2001).
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allegations as true for purposes of the instant motion, the
Court finds Plaintiff has plausibly pled past discrimination at
Defendant’s property.
14.
With respect to future injury, Defendant argues that
Plaintiff’s allegations regarding his intent to return to the
subject property, located nearly 60 miles from Plaintiff’s
residence, amounts to nothing more than “some day intentions
without any description of concrete plans, or even any
speculation of when the some day will be.” [Docket Item 4-1 at
7-8] (citing Clark, 255 F. Supp. 2d at 342). The Court
disagrees.
15.
Plaintiff’s numerous prior visits to the stores at
3937-3949 Federal Street, alone, would be enough to support a
reasonable inference that he is likely to return to Defendant’s
property. See Clark, 255 F. Supp. 2d at 343 (finding that “past
patronage at certain Burger King restaurants supports a
reasonable likelihood of future injury at these locations”). But
Plaintiff has stated, under penalty of perjury, much more. As
noted supra, Plaintiff states that he has “been traveling
through and shopping and eating in the Pennsauken, NJ and the
surrounding areas since 1970” and that he “regularly go[es] to
Philadelphia Racetrack . . . through Pennsauken, NJ as [he]
do[es] not like to take the highways.” [Ex. A to Docket Item 8
at ¶¶ 6-7.] Plaintiff also “travel[s] regularly throughout New
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Jersey . . . in regard to [his] commitment to ensure that all
public accommodations provide accessible facilities for
wheelchair and other mobility-impaired users.” [Id. at ¶ 8.] As
noted, he is in the habit of visiting Defendant’s Pennsauken
shopping center every few months. And Plaintiff proffered that
he “definitely intend[s] to continue to patronize the subject
shipping center, and will be going back there in the near
future.” [Id. at ¶ 12.]
16.
Based on Plaintiff’s continuing pattern of patronage
at the stores located at 3937-3949 Federal Street, frequency of
travel to the Pennsauken area, and stated intent to return to
the subject location, the Court finds that Plaintiff has
plausibly pled a real and immediate threat of future injury,
notwithstanding that he resides nearly 60 miles from Pennsauken.
Thus, Plaintiff has satisfied the injury-in-fact requirement.
17.
Conclusion. For the foregoing reasons, Plaintiff has
standing to assert ADA and NJLAD claims against Defendant with
respect to the stores located at 3937-3949 Federal Street.
Accordingly, the Court will deny Defendant’s motion to dismiss
and the accompanying Order will be entered.
February 15, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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