Inclusion, Inc. v. Barra et al
OPINION AND ORDER re: 45 MOTION to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim filed by Mary T. Barra, Robert E. Furguson, Global Ca dillac Company, 51 MOTION for Judgment on the Pleadings supplement: to Dkt 49, Notice of Motion filed by Mercedes-Benz USA, LLC, Steven Cannon, 55 MOTION to Dismiss . MOTION for Judgment on the Pleadings fil ed by Sue Silverman, Pepe Auto Group: For the foregoing reasons, the GM Defendants' motion to dismiss under Rule 12(b)(6) and the Mercedes Defendants' motion for judgment on the pleadings are granted in their entirety. In addition, the Pepe Defendants' motion for judgment on the pleadings is granted in part: the only remaining claims against them are claims that they violated Plaintiff's rights under the ADA. The Clerk of Court is directed to terminate docket entr ies 45, 51, and 55. The parties remaining in this litigation are further ORDERED to appear for a pretrial conference on Wednesday, June 22, 2016, at 4:30 p.m., in Courtroom 618 of the Thurgood Marshall U.S. Courthouse. The Court will reissue a Notice of Initial Pretrial Conference in Pro Se Action under separate cover. (Signed by Judge Katherine Polk Failla on 5/17/2016) Copies Mailed By Chambers. (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EDWARD C. FUNCHES,
MARY T. BARRA, et al.,
DOC #: _________________
DATE FILED: May 17, 2016
14 Civ. 7382 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
On September 10, 2014, Plaintiff Edward C. Funches initiated this action
against Defendants General Motors, LLC 1; Mary T. Barra (the Chief Executive
Officer (“CEO”) of General Motors, LLC); Robert E. Ferguson 2 (an employee of
General Motors, LLC); Pepe Auto Group, also known as Pepe Cadillac; Sue
Silverman (the Chief Financial Officer (“CFO”) of Pepe Auto Group); MercedesBenz USA, LLC; and Stephen Cannon 3 (the CEO of Mercedes-Benz, USA, LLC).
Plaintiff’s Amended Complaint alleges that Defendants violated his rights under
the Americans with Disabilities Act (the “ADA” or “Act”), 42 U.S.C. § 12181 et
seq., engaged in deceptive trade practices and false advertising, breached an
express warranty, breached a contract, and engaged in unjust enrichment. On
General Motors, LLC is incorrectly named as Global Cadillac Company in the Amended
Complaint. (See GM Br. 1 n.1).
Robert E. Ferguson is incorrectly named as Robert E. Furguson in the Amended
Complaint. (Compare Am. Compl. 1, with GM Br. 1).
Stephen Cannon is incorrectly named as “Steve Cannon” in the Amended Complaint.
(Compare Am. Compl. 1, with Mercedes Br. 1).
September 11, 2015, the defendants in this case filed a total of three
dispositive motions: Defendants General Motors, LLC, Mary T. Barra, and
Robert E. Ferguson (collectively, the “GM Defendants”) filed a motion to dismiss
the claims against them pursuant to Federal Rules of Civil Procedure 12(b)(6)
and 12(b)(1). Defendants Stephen Cannon and Mercedes-Benz USA, LLC
(collectively, the “Mercedes Defendants”) filed a motion for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c). Finally,
Defendants Pepe Auto Group and Sue Silverman (collectively, the “Pepe
Defendants”) filed a motion for judgment on the pleadings. For the reasons set
forth in the remainder of this Opinion, the Court will grant the GM Defendants’
Motions and the Mercedes Defendants’ motions, and it will grant the Pepe
Defendants’ motion in part.
On August 9, 2012, Plaintiff purchased a used Mercedes-Benz
automobile (the “Mercedes”) from a Mercedes-Benz dealership located at 770
Eleventh Avenue in New York City. (Am. Compl. 4). A few weeks later, on
September 14, 2012, Plaintiff purchased a used Cadillac automobile (the
The facts in this Opinion are drawn from the Amended Complaint (“Am. Compl.,” Dkt.
#24), and the papers submitted in connection with the Defendants’ motions, including
the declaration of John Egan (“Egan Decl., Dkt. #46).
For the sake of clarity, the Court will refer to the GM Defendants’ opening brief as “GM
Br.” (Dkt. #47), the Mercedes’ Defendants’ opening brief as “Mercedes Br.” (Dkt. #53),
and the Pepe Defendants’ opening brief as “Pepe Br.” (Dkt #57). The Court will refer to
Plaintiff’s responses to these briefs as “GM Resp.” (Dkt. #58), “Mercedes Resp.” (Dkt.
#59), and “Pepe Resp.” (Dkt. #60). Finally, the Court will refer to Defendants’ reply
briefs as “GM Reply” (Dkt. #61), “Mercedes Reply (Dkt. #63), and “Pepe Reply”
“Cadillac”) from Pepe Cadillac (“Pepe”), located at 15 Walter Street in White
Plains, New York. (Id.). Because Plaintiff is paraplegic, he installed hand
controls in both vehicles after he purchased them. (Id. at 2, 4).
Plaintiff’s Allegations Concerning the Mercedes
On July 22, 2014, Plaintiff took his Mercedes back to the Mercedes-Benz
dealership so that the sunroof could be repaired. (Am. Compl. 5). He asked
the dealership if he could borrow a car until the repairs were completed, but
the dealership did not have any rental cars with hand controls available. (Id.).
As a result, the dealership offered to (and did in fact) reimburse Plaintiff for the
cost of renting a hand-controlled car from another company. (Id. at 7).
Plaintiff’s Allegations Concerning the Cadillac
Courtesy Rental Cars
Between December 6, 2012, and October 20, 2014, Pepe serviced
Plaintiff’s Cadillac six times. (Am. Compl. 4-6). Each time he left his car to be
serviced, Plaintiff requested a “courtesy loaner car,” but Pepe was unable to
provide a loaner car with hand controls. On two of these occasions, Plaintiff
also asked Pepe’s staff to transfer the hand controls on his car to a rental car,
but the staff declined to make the transfer because they lacked the requisite
certification. (Id.). During Plaintiff’s October 2014 visit to Pepe’s, an employee
allegedly told Plaintiff that he could only have a courtesy rental car with foot
controls, and said that Plaintiff’s “common law [w]ife, Kimberly Walcott, [would]
have to drive him around since she’s on the policy.” (Id. at 6). Ms. Walcott
picked up a foot-controlled car on October 31, 2014, and returned it on
November 3, 2014. (Id.).
The Extended Warranty
Plaintiff’s Cadillac was covered by two warranties. (Am. Compl. 2). The
first was a factory warranty, and the second was an “extended” warranty
provided by Pepe. (See id.; Egan Decl., Ex. C). Pepe’s warranty covered the
Cadillac until January 1, 2014, or until the car had traveled 75,000 miles.
(See Egan Decl., Ex. C).
Plaintiff filed a Complaint on September 10, 2014, alleging that
Defendants had violated his rights under the ADA. (See Dkt. #1). More
specifically, he alleged that the GM Defendants and the Mercedes Defendants
had violated his rights because they did not manufacture some portion of their
cars with hand controls. (Id.). In addition, he claimed that Pepe had violated
his rights when it did not provide a courtesy, hand-controlled loaner car while
his Cadillac was serviced. (Id.).
On June 4, 2015, Plaintiff filed an Amended Complaint, which asserted
the same claims as his original Complaint, as well as “additional claims against
[Pepe] for: [i] deceptive trade practices and false advertising in violation of [New
York] General Business Law § 349, [ii] breach of express extended warranty,
[iii] unjust enrichment, [iv] breach of contract, and [v] a request for a
declaratory judgment declaring [that Pepe’s warranty covered the Cadillac until
August 1, 2015, or until the Cadillac had traveled 75,000 miles beyond the
distance covered by the factory warranty].” (Am. Compl. 1-2). The Amended
Complaint also claimed that the GM Defendants committed fraud and
breached a contract by providing a factory warranty that overlapped with
Pepe’s warranty. (Id. at 7). On September 11, 2015, Defendants filed their
motions to dismiss and motion for judgment on the pleadings.
Motions to Dismiss Under Rule 12(b)(6) and Motions for
Judgment on the Pleadings Under Rule 12(c)
Courts apply the same procedure to evaluate a motion to dismiss under
Rule 12(b)(6) and a motion for judgment on the pleadings under Rule 12(c).
Altman v. J.C. Christensen & Associates, Inc., 786 F.3d 191, 193 (2d Cir. 2015);
Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009). This procedure requires
courts to “draw all reasonable inferences in [the] [p]laintiff[’s] favor, assume all
well-pleaded factual allegations to be true, and determine whether they
plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted) (quoting Selevan
v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009)). A plaintiff will survive a
motion to dismiss if he alleges “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007); see
also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (“[W]hile
Twombly does not require heightened fact pleading of specifics, it does require
enough facts to nudge [a plaintiff’s] claims across the line from conceivable to
plausible.” (internal quotation marks omitted)).
The Court is not, however, bound to accept “conclusory allegations or
legal conclusions masquerading as factual conclusions.” Rolon v. Hennenman,
517 F.3d 140, 149 (2d Cir. 2008) (citation omitted); accord Biro v. Conde Nast,
807 F.3d 541, 544 (2d Cir. 2015); see also Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009) (“[A]lthough a court must accept as true all of the allegations
contained in a complaint, that tenet is inapplicable to legal conclusions, and
threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” (internal quotation marks omitted)).
“[C]ourts must construe pro se pleadings broadly, and interpret them to
raise the strongest arguments that they suggest.” Cruz v. Gomez, 202 F.3d
593, 597 (2d Cir. 2000) (internal quotation marks omitted) (citing Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir. 1996)); accord McPherson v. Coombe, 174
F.3d 276, 280 (2d Cir. 1999). “That said, the liberal pleading standard
accorded to pro se litigants is not without limits, and all normal rules of
pleading are not absolutely suspended.” Hill v. City of New York, No. 13 Civ.
8901(KPF), 2015 WL 246359, at *2 (S.D.N.Y. Jan. 20, 2015) (internal quotation
The doctrine of claim preclusion provides that, when a court resolves a
case, the parties cannot relitigate “issues that were or could have been raised”
in that case. St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000) (quoting
Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)). Thus, the
doctrine of claim preclusion prevents a court from adjudicating a dispute if a
court of competent jurisdiction has already issued “a final judgment on the
merits” in a case involving: (i) the same parties or their privies; and (ii) the
same cause of action. In re Teltronics Servs., Inc., 762 F.2d 185, 190 (2d Cir.
Plaintiff Has Failed to State a Claim Against the GM
Defendants or the Mercedes Defendants
Plaintiff Has Failed to State an ADA Claim Against the
GM Defendants or the Mercedes Defendants
Plaintiff claims that the GM Defendants and the Mercedes Defendants
violated his rights under Title III of the ADA because: (i) the companies did not
ensure that disabled motorists had an opportunity to test drive their cars; and
(ii) the companies did not manufacture “a portion” of their vehicles with hand
controls. (Compl. 6, 8). Both of these claims lack merit.
Plaintiff Has Not Alleged Any Facts Suggesting
That the GM Defendants or the Mercedes
Defendants Owned, Leased, or Operated Places of
Title III of the ADA 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 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. Places of
public accommodation include “sales or retail establishment[s]” such as car
dealerships, but do not include manufacturing plants or other spaces that are
closed to the public. See id. § 12181.
Crucially, the Amended Complaint only discusses two establishments
that interact with the public, such that they could qualify as places of public
accommodation: (i) a Mercedes dealership located on Eleventh Avenue in New
York City; and (ii) Pepe Cadillac, located in White Plains, New York. But the
Amended Complaint does not allege any facts suggesting that the GM
Defendants or the Mercedes Defendants were “own[ers], le[ssors] …, or
operat[ors]” of either of either dealerships, rather than suppliers who provided
goods for the dealerships to sell. 42 U.S.C. § 12182; cf. U.S. DEP’T OF JUSTICE,
AMERICANS WITH DISABILITY ACT TECHNICAL ASSISTANCE MANUAL § III-4.4200 (1994
Supp.) (suggesting that “manufacturers” cannot be held liable under the ADA
for supplying — or failing to supply — a particular kind of product). As a
result, even if the dealerships violated Plaintiff’s rights under the ADA, Plaintiff
has not shown that the GM Defendants or the Mercedes Defendants could be
held liable for these violations.
The ADA Does Not Require Any Business to
Manufacture Hand-Controlled Cars
Even if the GM Defendants and the Mercedes Defendants owned or
operated places of public accommodation, they would not have an obligation to
manufacture hand-controlled cars. As the Department of Justice has
explained, the purpose of Title III of the ADA “is to ensure accessibility to the
goods offered by a [place of] public accommodation, not to alter the nature or
mix of goods that the [place of] public accommodation has typically provided.”
Commentary on 28 C.F.R. § 36.307, App’x C (1991) (emphasis added); see also
Arizona ex rel. Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d 666,
671 (9th Cir. 2010) (“Th[e] [ADA] does not require provision of different goods or
services, just nondiscriminatory enjoyment of those that are provided.”). Doe v.
Mut. of Omaha Ins. Co., 179 F.3d 557, 560 (7th Cir. 1999) (“The common sense
of the statute is that the content of the goods or services offered by a place of
public accommodation is not regulated.”). Thus, the ADA does not generally
require a business to “alter its inventory to include accessible or special goods
that are designed for, or facilitate use by, individuals with disabilities.” 28
C.F.R. § 36.307(a). For example, “[a] camera store may not refuse to sell
cameras to a disabled person, but it is not required to stock cameras specially
designed for such persons.” Doe, 179 F.3d at 560. Similarly, “a bookstore
cannot discriminate against disabled people in granting access, but need not
assure that the books are available in Braille as well as print.” Goddard, 603
F.3d at 671. Applying this principle, neither the GM Defendants nor the
Mercedes Defendants were required to alter the mix of goods they sell by
manufacturing a set portion of their vehicles with hand controls. See
AMERICANS WITH DISABILITY ACT TECHNICAL ASSISTANCE MANUAL § III-4.4200 (1994
Supp.) (“Manufacturers are not required by [T]itle III to produce accessible
Plaintiff Has Failed to State a Claim Against the GM
Defendants for Fraud or Breach of Contract
Plaintiff also alleges that the GM Defendants committed fraud and
breached a contract because the factory warranty for his Cadillac overlapped
with the “extended” warranty that Plaintiff purchased from Pepe Cadillac. (Am.
Compl. 7). However, Plaintiff has not alleged any facts suggesting that the GM
Defendants engaged in fraudulent conduct. Nor has Plaintiff identified the
contractual provisions that the GM Defendants allegedly breached. 5 As a
result, Plaintiff’s fraud and breach-of-contract claims against the GM
Defendants must be dismissed. See Rolon, 517 F.3d at 149 (explaining that a
Court can dismiss claims that are based on “conclusory allegations”); see also
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se
case, ... threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” (internal quotation marks and
Plaintiff Has Failed to State a Claim Against the
Mercedes Defendants for Unjust Enrichment 6
Plaintiff claims that the Mercedes Defendants committed “unjust
enrichment” because Plaintiff had to pay a $250 fee to rent a hand-controlled
car while his Mercedes was being serviced, and it took some time before the
Mercedes dealership reimbursed him for the cost of the rental. (Am. Compl. 2,
To the extent Plaintiff is claiming that the GM Defendants breached the extended
warranty agreement drafted by Pepe, this claim must fail because the GM Defendants
were not signatories to the agreement (see Egan Decl., Ex. C), and Plaintiff has not
alleged that they authorized Pepe to enter the agreement on their behalf (see generally
Am. Compl.). Alternatively, to the extent Plaintiff is claiming that the GM Defendants
breached the factory warranty on his Cadillac, the claim must fail because Plaintiff has
not alleged any facts suggesting that the GM Defendants violated the terms of that
warranty. (See id.).
The Mercedes Defendants suggest that Plaintiff has abandoned his claims for unjust
enrichment (see Mercedes Reply 7), but Plaintiff’s opposition is less clear on that point
(see Mercedes Resp. 5-6 (“Now since the sweeping laws enacted by Congress[,] the MB
USA and GM defendants failed in their obligation of contributing to decency of today’s
norm by including not excluding disabled motorist[s] from test driving or purchasing
hand control vehicles when the need [outweighs] the unjust enrichment for a better
quality of life treatment of the millions of disabled motorist[s] that consume their
7). As the New York Court of Appeals has explained, “[a]n unjust enrichment
claim is rooted in the equitable principle that a person shall not be allowed to
enrich himself unjustly at the expense of another.” Georgia Malone & Co. v.
Rieder, 19 N.Y.3d 511, 516 (2012) (internal quotation marks omitted). Thus, a
plaintiff can only plead an unjust enrichment claim by alleging that the
defendant was somehow enriched. Id. In this case, however, the Amended
Complaint does not allege that the Mercedes Defendants were in any way
enriched by the delay in reimbursing Plaintiff for the cost of renting a handcontrolled car. To the contrary, the Amended Complaint acknowledges that the
Mercedes Defendants fully compensated Plaintiff for any costs that he incurred.
(See Am. Compl. 7). Consequently, Plaintiff’s unjust enrichment claim cannot
Plaintiff Has Stated an ADA Claim Against the Pepe
Defendants, But Has Not Stated Any State-Law Claims
Plaintiff Has Stated an ADA Claim Against Pepe Cadillac
Plaintiff has stated a claim against Pepe Cadillac under two separate
provisions of the ADA. First, 42 U.S.C. § 12182(b)(2)(A)(iii) provides that places
of public accommodation must
make reasonable modifications in policies, practices, or
procedures, when such modifications are necessary to
afford … goods, services, facilities, privileges,
advantages, or accommodations to individuals with
disabilities, unless the entity can demonstrate that
making such modifications would fundamentally alter
the nature of such goods, services, facilities, privileges,
advantages, or accommodations.
42 U.S.C. § 12182. Here, Plaintiff has alleged that he was denied access to two
services — a test drive service 7 and a courtesy car rental service — because
Pepe refused to move hand controls from Plaintiff’s Cadillac to one of Pepe’s
cars. (Am. Compl. 5, 7). Transferring hand controls from one vehicle to
another might be a “reasonable modification in policies, practices, or
procedures” that would allow disabled individuals to take advantage of the full
range of services that Pepe offers. Thus, to avoid liability under the ADA, Pepe
must show that the transfer would be “unreasonable,” would “fundamentally
alter the nature” of the services Pepe provides, or “would result in an undue
burden.” 42 U.S.C. § 12182(b)(2)(A)(ii). Pepe has not made — and cannot
make — such a showing at this point in the litigation, when there has not been
any discovery. Consequently, Plaintiff has alleged a viable ADA claim against
Pepe under 42 U.S.C. § 12182(b)(2)(A)(ii).
Plaintiff has also stated an ADA claim against Pepe under 42 U.S.C.
§ 12182(b)(2)(A)(iv), which provides that places of public accommodation must
“remove architectural barriers, and communication barriers that are structural
in nature, in existing facilities … where such removal is readily achievable.”
Regulations promulgated by the Department of Justice interpret the phrase
Plaintiff’s Amended Complaint suggests, in somewhat vague terms, that Plaintiff
attempted to test drive one of Pepe’s vehicles, but was unable to do so. (See Am.
Compl. 7). Because this Court has an obligation to construe pro se complaints liberally,
it will construe the Amended Complaint to contain an allegation that Pepe was unable
to accommodate his request for a test drive. Nevertheless, if discovery reveals that
Plaintiff did not expressly ask to test drive one of Pepe’s vehicles, the Court will be
receptive to an argument that Plaintiff lacks standing to bring an ADA claim based on
Pepe’s alleged failure to provide test drives to disabled customers.
“architectural barriers” broadly, and expressly provide that “examples of steps
to remove barriers include … [i]nstalling vehicle hand controls.” 28 C.F.R.
§ 36.304(b)(21). In light of this regulation, Pepe has an obligation to install
hand controls on vehicles that disabled individuals wish to test drive or borrow,
unless Pepe demonstrates that installing hand controls is not “readily
achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv).
As Pepe notes, some courts in other circuits have determined that 28
C.F.R. § 36.304(b)(21) does not require a car dealership to attach hand controls
to its cars because the absence of hand controls cannot be considered an
“architectural barrier” at an “existing facility.” See, e.g., Karczewski v. K
Motors, Inc., No. 14 Civ. 2701 (MMA), 2015 WL 1470651, at *2 (S.D. Cal.
Mar. 21, 2015); Schutza v. FRN of San Diego, LLC, No. 14 Civ. 2628 (JM)(RBB),
2015 WL 574673, at *2-3 (S.D. Cal. Feb. 11, 2015). These courts, however,
seem to conflate arguments regarding the meaning and the validity of 28 C.F.R.
§ 36.304(b)(21). From this Court’s perspective, the plain language of 28 C.F.R.
§ 36.304(b)(21) means that car dealerships must install hand controls for
individuals who wish to rent or test drive their vehicles if doing so is “readily
achievable.” Cf. AMERICANS WITH DISABILITY ACT TECHNICAL ASSISTANCE MANUAL
§ III-4.4200 (1994 Supp.) (explaining that, under 28 C.F.R. § 36.304(b)(21), a
“car rental office” must “install vehicle hand controls” on rental vehicles if it is
“readily achievable” to do so). That said, dealerships might be able to raise a
colorable argument that 28 C.F.R. § 36.304(b)(21) is invalid because it
interprets the statutory phrase “architectural barriers” in an impermissible
manner. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
Here, Pepe has not challenged the validity of 28 C.F.R. § 36.304(b)(21).
As a result, this Court must apply that regulation to the facts at hand.
According to that regulation, Pepe had an obligation to take readily achievable
steps to install hand controls on its vehicles. At this point in the proceedings,
Pepe has not demonstrated that it fulfilled that obligation. Consequently,
Plaintiff has stated a claim against Pepe under 42 U.S.C. § 12182(b)(2)(A)(iv). 8
Pepe makes one additional argument to avoid liability, which is its
strongest argument by far: The vehicles that Plaintiff wishes to drive are part of
Pepe’s inventory, and under 28 C.F.R. § 36.307(a), a place of public
accommodation is not required to “alter its inventory to include accessible or
special goods[.]” Crucially, however 28 C.F.R. § 36.307(a) must be read
together with 28 C.F.R. § 36.304(b)(21), which clearly contemplates that
businesses may be required to install hand controls on the cars they own, if
doing so is “readily achievable.” The best way to harmonize these provisions is
to say the following: While places of public accommodation are generally not
required to alter their inventories by manufacturing or ordering specialty
goods, they are required to make reasonable, temporary adjustments to goods
The Court also considered whether the transfer of hand controls from one vehicle to
another could be considered an “auxiliary … service” that a place of public
accommodation would be required to provide under 42 U.S.C. § 12182(b)(2)(A)(iii).
However, the Department of Justice has interpreted the phrase “auxiliary … service” to
mean services intended to facilitate “effective communication.” 28 C.F.R. Pt. 36,
already in stock if doing so will help disabled customers access the same goods
and services as non-disabled customers. For example, car dealerships are
required to install temporary hand controls on cars already in stock if:
(i) installing temporary hand controls is readily achievable; and (ii) making this
temporary modification will allow disabled customers to access the full range of
goods and services offered by the dealerships. 9 Under this interpretation of the
ADA regulations, Plaintiff has stated an ADA claim against Pepe.
Plaintiff Has Stated an ADA Claim Against Sue Silverman
Plaintiff has also stated an ADA claim against Sue Silverman. Title III of
the ADA provides that it is impermissible for “any person who owns, leases (or
leases to), or operates a place of public accommodation” to discriminate against
disabled individuals. 42 U.S.C. § 12182(a). Construed liberally, the Amended
Complaint in this case alleges that Sue Silverman “operate[d]” Pepe Cadillac, a
place of public accommodation. The Amended Complaint states that, as the
Chief Financial Officer of Pepe, Sue Silverman … “sold Motor vehicles from
various manufacturing companies.” (Am. Compl. 3). Later, the Amended
Complaint reiterates that Ms. Silverman “is responsible for the sales of [Pepe’s]
vehicles.” (Id.). At this stage in the litigation, these allegations are sufficient to
support a claim that Ms. Silverman “operate[d]” Pepe Cadillac, and as a result,
she would be legally responsible for Pepe’s alleged failure to install temporary
In determining whether installing hand controls is “readily achievable” for Pepe, this
Court will consider whether Pepe has employees who are certified to install hand
controls and, if not, how much it would cost for an employee to become certified. (Cf.
Am. Compl. 6 (alleging that Pepe employees are not certified to transfer hand controls
from Plaintiff’s car to a rental car)).
hand controls on its vehicles. During discovery, however, Ms. Silverman is free
to produce evidence demonstrating that she did not in fact “operate” Pepe.
Plaintiff’s State-Law Claims Against All of the Pepe
Defendants Are Barred by the Doctrine of Claim
Plaintiff’s non-ADA claims against Pepe are barred by an earlier court
decision. In 2015, Plaintiff brought suit against “Pepe Cadillac” in the Civil
Court of the City of New York, County of Bronx (the “Civil Court”). (Egan Decl.,
Ex. E). Plaintiff’s suit was premised on the claim that, when Pepe sold him an
“extended warranty” for his Cadillac, “coverage should have commenced after
the original manufacturer’s 50,000-mile warranty expired, thereby providing
him with 125,000 miles of total warranty coverage.” (Id.). After a bench trial
on June 9, 2015, the Civil Court concluded that the clear, unambiguous
language of the warranty provided that it would provide 75,000 miles worth of
coverage, beginning “at 0 miles.” (Id.). As a result, the Civil Court issued a
“decision and judgment” in Pepe’s favor. (Id.).
This Court must give preclusive effect to the Civil Court’s Decision.
Plaintiff does not — and could not — dispute that the Civil Court was acting
within its jurisdiction when it issued a judgment in favor of Pepe, or that the
Civil Court addressed the merits of the dispute between the parties. Thus, this
Court must consider whether the Civil Court litigation involved: (i) the same
parties or their privies; and (ii) the same cause of action. In re Teltronics Servs.,
Inc., 762 F.2d at 190. The answer to both of these question is yes.
Plaintiff and Pepe Cadillac are both parties to this case, and they were
parties to the Civil Court litigation as well. (See generally Am. Compl.; Egan
Decl., Ex. E). 10 In addition, Plaintiff is currently suing Defendant Sue
Silverman in her capacity as “Chief Financial Officer of Pepe’s Auto Group.”
(Compl. 3). Considering Ms. Silverman in this capacity, her interests have
been fully aligned with Pepe’s interests, both in the Civil Court litigation and in
this case. Consequently, it is fair to say that Ms. Silverman is in privity with
Pepe. See Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 346 (2d
Moreover, this case involves the same cause of action as the Civil Court
litigation. To determine whether two cases involve the same cause of action,
courts consider “whether the same transaction or connected series of
transactions is at issue, whether the same evidence is needed to support both
claims, and whether the facts essential to the second were present in the first.”
Monahan v. New York City Dep’t of Corr., 214 F.3d 275, 289 (2d Cir. 2000)
(quoting N.L.R.B. v. United Techs. Corp., 706 F.2d 1254, 1260 (2d Cir. 1983)).
In other words, courts look to whether the two actions arise out of the “same
nucleus of operative fact.” Channer v. Dep’t of Homeland Sec., 527 F.3d 275,
280 (2d Cir. 2008). Crucially, both Plaintiff’s state-law claims in this case and
his claims in the Civil Court litigation involve the meaning of the “extended”
warranty on Plaintiff’s Cadillac; the two sets of claims involve many of the same
The caption of this case refers to Pepe as “Pepe Auto Group,” but the body of the
Amended Complaint clarifies that “Pepe Auto Group” is also known as “Pepe Cadillac.”
(Am. Compl. 1, 4).
factual issues, and precisely the same issues of contract interpretation. (See
generally Am. Compl.; Egan Decl., Ex. E). This Court will not allow Plaintiff to
relitigate his dispute with Pepe simply because he disagrees with the Civil
Plaintiff Is Not Entitled to Money Damages Under the ADA
The Amended Complaint demands “$1,000,000 (1 million) in damages
against both defendants respectively.” (Am. Compl. 8). The Court does not
fully understand how Plaintiff arrived at this one-million-dollar figure, or which
of the Defendants allegedly owe Plaintiff that sum. However, the Court notes,
for the sake of clarity, that Plaintiff cannot obtain money damages from the
Pepe Defendants for their alleged violations of the ADA. See Powell v. Nat’l Bd.
of Med. Examiners, 364 F.3d 79, 86 (2d Cir.), opinion corrected, 511 F.3d 238
(2d Cir. 2004) (“A private individual may only obtain injunctive relief for
violations of a right granted under Title III [of the ADA]; he cannot recover
For the foregoing reasons, the GM Defendants’ motion to dismiss under
Rule 12(b)(6) and the Mercedes Defendants’ motion for judgment on the
pleadings are granted in their entirety. In addition, the Pepe Defendants’
motion for judgment on the pleadings is granted in part: the only remaining
claims against them are claims that they violated Plaintiff’s rights under the
ADA. The Clerk of Court is directed to terminate docket entries 45, 51, and 55.
The parties remaining in this litigation are further ORDERED to appear
for a pretrial conference on Wednesday, June 22, 2016, at 4:30 p.m., in
Courtroom 618 of the Thurgood Marshall U.S. Courthouse. The Court will reissue a Notice of Initial Pretrial Conference in Pro Se Action under separate
May 17, 2016
New York, New York
KATHERINE POLK FAILLA
United States District Judge
A copy of this Order was mailed by Chambers to:
Edward C. Funches
215 E. 164th Street
Bronx, NY 10456
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