Bacon v. Walgreen Co.

Filing 36

ORDER denying 16 Motion for Summary Judgment; granting 18 Motion to Dismiss. For the reasons set forth herein, defendant's motion to dismiss is granted, and plaintiff's motion for summary judgment is denied. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/20/2015. (Moe, Alison)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-419 (JFB) (ARL)
_____________________

ASA BACON,
Plaintiff,
VERSUS

WALGREEN CO.,
Defendant.
___________________
MEMORANDUM AND ORDER
March 20, 2015
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Asa Bacon (“plaintiff”) brings
this action against Walgreen Co.
(“defendant”),
asserting
claims
for
declaratory and injunctive relief under Title
III of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12181, et seq., in
addition to claims under New York law.
Specifically, plaintiff claims that he was
injured at a Walgreens1 pharmacy because
the security sensors at the store’s exit were
not wide enough to permit his wheelchair to
pass through.
Before the Court is defendant’s motion
to dismiss in part, as well as plaintiff’s
motion for partial summary judgment. For
the reasons set forth below, the motion to
dismiss is granted, and the motion for
summary judgment is denied. In sum, the
Court concludes that plaintiff’s claims under
1

Defendant Walgreen Co. operates a chain of
pharmacies named “Walgreens.” The Court will refer
to defendant and its pharmacies as “Walgreens.”

the ADA are moot, because Walgreens has
remedied the issue that allegedly interfered
with plaintiff’s access to the pharmacy. As a
result, the Court lacks subject matter
jurisdiction over plaintiff’s federal claim.
For the same reason, the Court denies
plaintiff’s motion for partial summary
judgment.
I. BACKGROUND
Plaintiff filed the complaint in this action
on January 21, 2014. Plaintiff “lives in
Hempstead in New York and is an
individual with a disability known as
paraplegia. As a result of his disability, the
plaintiff cannot walk and uses a motorized
wheelchair to assist his mobility.” (Compl. ¶
1.) The complaint avers that on October 28,
2012, plaintiff patronized a Walgreens
pharmacy located at 393 Front Street in
Hempstead, New York. (Id. ¶¶ 1, 14.) As a
security feature, the store contains two

electronic sensors on either side of the exit
door. (Id. ¶ 9.) As plaintiff attempted to pass
through the exit, “the left footrest of his
wheelchair came into contact with the sensor
to his left causing it to bend the footrest and
plaintiff’s left foot and leg to the point
where the left tibia was severely fractured.”
(Id. ¶ 14.) Plaintiff asserts that the incident
occurred because the sensors are 32 to 33
inches apart, which is wide enough for
ambulatory persons to pass through, but
which is too narrow to allow a wheelchair to
pass through. (Id. ¶¶ 11-12.) Plaintiff
contends that Walgreens must space the
sensors at least 36 inches apart in order to
comply with the ADA. (Id. ¶¶ 10-13.)

the Court requested that the parties submit
additional materials. The parties filed letters
regarding the width of the poles, and on
March 17, 2015, plaintiff filed a letter
informing the Court that he conceded that
the present placement of the poles and the
security sensors complies with the ADA.
(Pl. Letter, ECF No. 24.)
This matter is fully submitted, and the
Court has fully considered the parties’
submissions.
II. STANDARDS OF REVIEW
Before the Court are defendant’s motion
to dismiss, pursuant to Federal Rule of Civil
Procedure 12(b)(1), and plaintiff’s motion
for summary judgment, pursuant to Rule 56.
The following standards of review are
applicable to the respective motions.

On May 27, 2014 plaintiff filed a motion
for partial summary judgment, seeking
judgment on his claims for injunctive and
declaratory relief under the ADA and the
New York State Human Rights Law. On
May 28, 2014, defendant cross-moved to
dismiss plaintiff’s claims for injunctive and
declaratory relief for lack of subject matter
jurisdiction, pursuant to Fed. R. Civ. P.
12(b)(1). In support of that motion,
defendant submitted an affidavit from Gary
Normandin, the regional manager for
Walgreens, who attests that “[o]n April 29,
2014, the security sensors at the exit to the
premises were permanently relocated by
bolting them to the floor so that the distance
between them is more than 36 inches.”
(Affidavit, ECF No. 18-3.)

A. Subject Matter Jurisdiction
To defeat a motion to dismiss brought
under Fed. R. Civ. P. 12(b)(1), “[t]he
plaintiff bears the burden of proving subject
matter jurisdiction by a preponderance of the
evidence.” Aurecchione v. Schoolman
Transp. Sys., Inc., 426 F.3d 635, 638 (2d
Cir. 2005). In resolving this issue, the court
“must accept as true all material factual
allegations in the complaint, but [it is] not to
draw inferences from the complaint
favorable to plaintiffs.” J.S. ex rel. N.S. v.
Attica Cent. Schs., 386 F.3d 107, 110 (2d
Cir. 2004). Additionally, the court “may
refer to evidence outside the pleadings” to
resolve the jurisdictional issue. Makarova v.
United States, 201 F.3d 110, 113 (2d Cir.
2000) (citing Kamen v. Am. Tel. & Tel. Co.,
791 F.2d 1006, 1011 (2d Cir. 1986)).

On June 27, 2014, defendant opposed
the motion for summary judgment and
plaintiff opposed the motion to dismiss.
Both parties have filed reply memoranda.
Plaintiff’s memorandum in opposition
raised, for the first time, a challenge to the
width of the metal poles framing the exit
door to the pharmacy.2 To address this issue,

B. Summary Judgment
Pursuant to Federal Rule of Civil
Procedure 56(a), a court may grant a motion
for summary judgment only if “the movant

2

The complaint exclusively addresses the security
sensors in the pharmacy, and does not contain any
mention of the poles.

2

Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249-50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties alone will not defeat an otherwise
properly supported motion for summary
judgment.” Id. at 247-48 (emphasis in
original). Thus, the nonmoving party may
not rest upon mere conclusory allegations or
denials but must set forth “‘concrete
particulars’” showing that a trial is needed.
R.G. Grp., Inc. v. Horn & Hardart Co., 751
F.2d 69, 77 (2d Cir. 1984) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33
(2d Cir. 1978)). Accordingly, it is
insufficient for a party opposing summary
judgment “‘merely to assert a conclusion
without supplying supporting arguments or
facts.’” BellSouth Telecomms., Inc. v. W.R.
Grace & Co., 77 F.3d 603, 615 (2d Cir.
1996) (quoting Research Automation Corp.,
585 F.2d at 33).

shows that there is no genuine dispute as to
any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); Gonzalez v. City of Schenectady,
728 F.3d 149, 154 (2d Cir. 2013). The
moving party bears the burden of showing
that he is entitled to summary judgment. See
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

III. DISCUSSION
A. Motion to Dismiss
i.

Federal Claim

Defendant has moved to dismiss
plaintiff’s claim under the ADA for lack of
subject matter jurisdiction. Defendant argues
that plaintiff’s claim is moot, because
Walgreens has voluntarily remedied the
security sensors in the 393 Front Street
location.

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (alteration and emphasis in
original) (quoting Matsushita Elec. Indus.

Plaintiff brings his claim under Title III
of the ADA, which provides that “[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,
or accommodations of any place of public
3

the time the complaint is filed, but through
all stages of the litigation.” Id. (quotation
omitted). Accordingly, if the underlying
dispute in a lawsuit is no longer ‘live,’ the
case becomes moot, and the court will no
longer have the authority to adjudicate the
case. Id.

accommodation . . . .” 42 U.S.C. §
12182(b)(2)(A)(iv). For purposes of §
12182(a), discrimination includes “a failure
to remove architectural barriers . . . where
such removal is readily achievable . . . .” 42
U.S.C. § 12182(B)(2)(A)(iv). It is well
established that Title III of the ADA allows
only for injunctive relief, not monetary
damages. Brief v. Albert Einstein College of
Medicine, 423 F. App’x 88, 90 (2d Cir.
2011) (citing Powell v. Nat’l Bd. of Med.
Examiners, 364 F.3d 79, 86 (2d Cir. 2004)).
Therefore, under certain circumstances, a
claim under the ADA can become moot if a
defendant remedies the access barrier during
the pendency of the litigation. Oliver v.
Ralphs Grocery Co., 654 F.3d 903, 905 (9th
Cir. 2011)) (“[A] defendant’s voluntary
removal of alleged barriers prior to trial can
have the effect of mooting a plaintiff’s ADA
claim.”); Hernandez v. Berlin Newington
Assoc., LLC, No. 10 CV 1333 (DJS), 2015
U.S. Dist. LEXIS 10818, at *5 (D. Conn.
Jan. 30, 2015) (same); Brenchley v. Vill. of
Phoenix, No. 01-CV-190, 2005 U.S. Dist.
LEXIS 48212, at *12-13 (N.D.N.Y. Sept.
30, 2005) (“It is undisputed that any
apparent violation of the ADA by the
Village has been definitively remedied to the
satisfaction of the Department of Justice.
Consequently, plaintiff’s request for
declaratory relief, to the extent he is deemed
to have raised one, must be dismissed.”);
Disabled in Action of Metro N.Y. v. Trump
Int’l Hotel & Tower, No 01 Civ. 5518
(MBM), 2003 U.S. Dist. LEXIS 5145, at
*37 (S.D.N.Y. Apr. 2, 2003) (evaluating
whether modifications to property rendered
ADA claim moot).

This Circuit applies a two-part test to
determine whether a defendant’s voluntary
cessation has rendered a case moot. The
defendant must demonstrate: “(1) there is no
reasonable expectation that the alleged
violation will recur and (2) interim relief or
events have completely and irrevocably
eradicated the effects of the alleged
violation.” Clear Channel Outdoor, Inc. v.
City of New York, 594 F.3d 94, 110 (2d Cir.
2010); see also Gropper v. Fine Arts House.,
Inc., 12 F. Supp. 3d 664, 670 (S.D.N.Y.
2014) (evaluating mootness challenge to
ADA claim). As the Supreme Court has
recently emphasized, “a defendant claiming
that its voluntary compliance moots a case
bears the formidable burden of showing that
it is absolutely clear the allegedly wrongful
behavior could not reasonably be expected
to recur.” Already, 133 S. Ct. at 727
(quoting Friends of the Earth, Inc. v.
Laidlaw Environmental Services, Inc., 528
U.S. 167, 190 (2000)).
Here, defendant argues that plaintiff’s
claim under the ADA is moot because that
claim challenges only the distance between
the security sensors, and Walgreens has
remedied that alleged defect.3 (Def. Mem. at
2, ECF No. 19.) Defendant has proffered
affidavits from a Walgreens manager,
attesting that the company: (1) relocated the
sensors so that the distance between them is
greater than 36 inches, and (2) bolted the
sensors to the floor in their new position.
(ECF Nos. 18, 28.) Plaintiff does not contest

The mootness doctrine stems from
Article III of the Constitution, which grants
the Judicial Branch authority over “Cases”
and “Controversies.” See Already, LLC v.
Nike, Inc., 133 S. Ct. 721, 727 (2013). As
the Supreme Court has made clear, an
“actual controversy must exist not only at

3

For purposes of this motion, the Court assumes,
without deciding, that the ADA requires Walgreens
to position the security sensors 36 inches apart.

4

that Walgreens has remedied the access
barrier.4 (Pl. Letter, ECF No. 34.) Instead,
plaintiff argues that the access barrier is
likely to recur. In support of this argument,
plaintiff has submitted an affidavit from an
architect named Steven Zalben, who
observes that security sensors are typically
moved when flooring is updated, or when
industrial carpeting is installed. (Affidavit of
Steven Zalben, ECF No. 23 at 3.) Zalben
attests that industrial carpeting is typically
replaced every five years. (Id.) Based upon
this information, plaintiff argues that
defendant may move the sensors in five
years, and that plaintiff has no present
assurance that defendant will maintain the
36 inch width of the sensors if they are
moved. In response, defendant submits a
second affidavit from a Walgreens manager,
who attests that during the entire ten-year
period of his tenure, “the security sensors
inside the premises were bolted to the
concrete floor and they were not moved for
carpet cleaning, repair or replacement or for
any other purpose until they were moved
and again bolted to the floor on April 29,
2014,” the date defendant took remedial
action in response to plaintiff’s complaint.
(Affidavit of Gary Normandin, ECF No.
28.)

Based upon the submissions of the
parties and the present record, the Court
readily concludes that plaintiff’s claims
under the ADA are moot. It is undisputed
that defendant has remedied the alleged
access barrier, and the Court does not
reasonably expect that defendant will move
the security sensors to an impermissibly
narrower position. Even assuming arguendo
that the sensors will need to be moved for
re-carpeting five years hence, plaintiff’s
assertion that the access barrier will recur is
speculative at best. Notably, plaintiff offers
no reason whatsoever why defendant would
wish to position the sensors in a narrower
width, and plaintiff offers no evidence
suggesting that Walgreens intends to move
the sensors. See Nat’l Alliance for
Accessibility, Inc. v. Walgreen, No. 10-CV780, 2011 U.S. Dist. LEXIS 136171, at *9
(M.D. Fla. Nov. 28, 2011) (access barriers
were unlikely to recur because “[f]irst,
Walgreens’ violations of the ADA appear to
have been unknowing and unintentional . . .
and there is no reasons to think that
Walgreens would desire to violate the ADA
in the future. Second, although the repairs
were made in response to this lawsuit,
Walgreens appears to have genuinely
attempted to comply with the law.”).
Instead, plaintiff asks this Court to issue an
injunction based upon the mere possibility
that, five years from now, defendant may recarpet the exit passageway of the pharmacy,
and at that time, the sensors may be
positioned improperly, perhaps by accident.
These concerns are purely speculative and
conjectural. As such, they are insufficient to
rebut the defendant’s strong showing that
plaintiff’s claim is moot. Accordingly, the
motion to dismiss plaintiff’s ADA claim is
granted.

4

Although plaintiff now concedes that the exit
passageway is wider than 36 inches, plaintiff
submitted a letter on March 17, 2015 challenging the
width of the door to the pharmacy. (ECF No. 35.)
Plaintiff’s counsel claims that, by his measurements,
the door is 35.5 inches wide, and that the ADA
requires doors to be at least 36 inches wide. As an
initial matter, this claim is not within the complaint
(which exclusively challenges the placement of the
security sensors in the pharmacy), and plaintiff raised
this issue for the first time after the motion to dismiss
was fully briefed. In any event, plaintiff’s challenge
lacks merit, because the ADA only requires that
entrance doors be at least 32 inches wide. See 36
C.F.R. 1191.1, Appx. D, § 404.3.1; Wyatt v. Ralphs
Grocery Co., No. 00-CV-1260, 2002 U.S. Dist.
LEXIS 27958, at *4 (C.D. Ca. Feb. 21, 2002); Kalani
v. Castle Vill., LLC, 14 F. Supp. 3d 1359, 1365 n.15
(E.D. Ca. 2014).

ii.

State Law Claims

Defendant also moves to dismiss
plaintiff’s claim for injunctive relief under
5

New York law.5 Because the Court has
dismissed as moot plaintiff’s federal claim,
the Court need not consider, at this juncture,
defendant’s arguments regarding plaintiff’s
state law claims. “In the interest of comity,
the Second Circuit instructs that ‘absent
exceptional circumstances,’ where federal
claims can be disposed of pursuant to Rule
12(b)(6) or summary judgment grounds,
courts should ‘abstain from exercising
pendent jurisdiction.’” Birch v. Pioneer
Credit Recovery, Inc., No. 06-CV-6497T,
2007 WL 1703914, at *5 (W.D.N.Y. June 8,
2007) (quoting Walker v. Time Life Films,
Inc., 784 F.2d 44, 53 (2d Cir. 1986)).
Therefore, in the instant case, the Court, in
its discretion, declines to exercise
supplemental
jurisdiction
over
any
remaining state law claims because “it ‘has
dismissed all claims over which it has
original jurisdiction.’” Kolari v. N.Y.Presbyterian Hosp., 455 F.3d 118, 122 (2d
Cir. 2006) (quoting 28 U.S.C. § 1367(c)(3));
see also Cave v. E. Meadow Union Free
Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008)
(“We have already found that the district
court lacks subject matter jurisdiction over
appellants' federal claims. It would thus be
clearly inappropriate for the district court to
retain jurisdiction over the state law claims
when there is no basis for supplemental
jurisdiction.”); Karmel v. Claiborne, Inc.,
No. 99-CV-3608 (WK), 2002 WL 1561126,
at *4 (S.D.N.Y. July 15, 2002) (“Where a
court is reluctant to exercise supplemental
jurisdiction because of one of the reasons
put forth by § 1367(c), or when the interests
of judicial economy, convenience, comity
and fairness to litigants are not violated by
refusing to entertain matters of state law, it
should decline supplemental jurisdiction and

allow the plaintiff to decide whether or not
to pursue the matter in state court.”).
Accordingly, pursuant to 28 U.S.C. §
1367(c)(3), the Court declines to retain
jurisdiction over all of plaintiff's remaining
state law claims, and dismisses these claims
without prejudice.
However, plaintiff may submit a letter to
the Court within thirty days addressing
whether plaintiff seeks to invoke the Court’s
diversity jurisdiction, pursuant to 28 U.S.C.
§ 1332. The Court observes that the
complaint does not seek to invoke the
Court’s diversity jurisdiction, but in an
excess of caution, the Court will afford
plaintiff the opportunity to explain why the
Court has jurisdiction over this matter
despite the dismissal of all federal claims in
this case.
B. Motion for Summary Judgment
Plaintiff moves for summary judgment
on his federal and state law claims for
injunctive and declaratory relief. However,
as the Court has explained above, plaintiff’s
federal claim is moot, and his state law
claim for injunctive and declaratory relief
must be dismissed. Moreover, plaintiff’s
federal claim became moot over a month
before plaintiff filed the present motion. The
Court is mindful of plaintiff’s concern that a
defendant’s voluntary cessation may affect a
plaintiff’s entitlement to attorney’s fees.
However, as defendant correctly points out,
a plaintiff’s interest in attorney’s fees cannot
create a “case or controversy” where none
otherwise exists. See Epstein v. JPMorgan
Chase & Co., No. 13 Civ. 4744 (KPF), 2014
U.S. Dist. LEXIS 38628, at *23 n.6
(S.D.N.Y.) (“Plaintiff’s claims for attorney’s
fees and costs he has incurred in bringing
this claim to not establish an injury
sufficient for standing purposes.”) (citing
Lewis v. Cont’l Bank Corp., 494 U.S. 472,
480 (1990 (“This interest in attorney’s fees,

5
Defendant has not moved to dismiss plaintiff’s
claims for monetary damages under state law.
However, for the reasons discussed below, the Court
declines to exercise supplemental jurisdiction over
those claims, in the absence of any jurisdiction over a
federal claim in this case.

6

IV.

is, of course, insufficient to create an Article
III case or controversy where none exists on
the merits of the underlying claim.”)).

CONCLUSION

For the foregoing reasons, defendant’s
motion to dismiss plaintiff’s ADA claim is
granted, and plaintiff’s motion for summary
judgment is denied. The Court, in its
discretion, declines to exercise supplemental
jurisdiction over plaintiff’s state law claims.
However, within thirty days of this Order,
plaintiff shall submit a letter to the Court
indicating whether plaintiff believes the
Court has diversity jurisdiction over the state
law claims.

In any event, plaintiff does not have a
viable claim for attorney’s fees, because he
is not the prevailing party in this action.
Though the defendant has taken action to
redress plaintiff’s claims, this does not make
plaintiff the prevailing party here. In order to
be considered a prevailing party under the
ADA, a party must “secure a judgment on
the merits or a court-ordered consent
decree.” TRF Music Inc. v. Alan Ett Music
Group LLC, No. 06 Civ. 349 (PKC), 2006
U.S. Dist. LEXIS 30656, at *4 (S.D.N.Y.
May 18, 2006) (citing Buckhannon Bd. and
Care Home, Inc. v. W. Va. Dep’t of Health
& Human Res., 532 U.S. 598, 605 (2001));
see also Union of Needlestrades, Indus. &
Textile Employees v. U.S. Immigration and
Naturalization Service, 202 F. Supp. 2d 265,
273-77 (S.D.N.Y. 2002), aff’d, 336 F.3d 200
(2d Cir. 2003); Access 4 All, Inc. v.
Grandview Hotel L.P., No. 04-CV-4368
(TCP), 2006 U.S. Dist. LEXIS 29574, at *10
(E.D.N.Y. Mar. 23, 2006). As the Supreme
Court explained in Buckhannon, a defendant
who voluntarily terminates the conduct a
plaintiff has challenged might effectively
give the plaintiff all of the relief he seeks,
but the term “prevailing party” in fee
shifting statutes requires a “judicially
sanctioned change in the legal relationship
between the parties.” Buckhannon, 532 U.S.
at 605. Plaintiff has not been successful in
seeking a judgment on the merits, because
his claims are now moot. Under
Buckhannon, therefore, plaintiff is not the
prevailing party. In the absence of any legal
interest in the claims that are the subject of
the summary judgment motion, the Court
concludes that there is no legal basis for
granting judgment in the plaintiff’s favor.

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: March 20, 2015
Central Islip, NY
***
Plaintiff is represented by Martin Coleman,
Law Offices of Martin J. Coleman, 100
Crossways Park Drive West, Suite 412,
Woodbury, NY 11797. Defendant is
represented by Joel Finger and Joshua
Hurwit, Littler Mendelson, P.C., 900 Third
Avenue, New York, NY 10022.

For the foregoing reasons, the motion for
summary judgment is denied.
7