National Alliance for Accessibility, Inc. et al v. Hillcrest Foods, Inc.

Filing 52

ORDER denying as moot 35 Motion to Compel and 41 Motion to Strike, and granting 20 Motion to Dismiss. Signed by US District Judge James C. Dever III on 9/29/2011. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

NO.5:10-CV-385-D

NATIONAL ALLIANCE FOR
ACCESSIBILITY, INC., and
DENISE PAYNE,
Plaintiffs,
v.
WAFFLE HOUSE, INC.,
Defendant.

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ORDER

On September 18, 2010, National Alliance for Accessibility, Inc. (''National Alliance") and
Denise Payne ("Payne") (collectively, "plaintiffs"), filed suit under Title ill of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189. Plaintiffs name Waffle House, Inc. ("Waffle
House" or "defendant") as defendant and seek injunctive relief [D.E. 5]. On May 9, 2011, Waffle
House filed a motion to dismiss plaintiffs' amended complaint under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), arguing that plaintiffs lack standing [D.E. 20]. On June 2, 2011,
plaintiffs responded in opposition [D.E. 25]. On June 16,2011, Waffle House replied [D.E. 39].
For the reasons explained below, defendant's motion to dismiss is granted.
I.

Payne is a resident of Florida. Payne Aff. [D.E. 27] ~ 2. Payne has cerebral palsy, which
renders her paralyzed from the waist down and unable to use her arms and hands to grasp objects.
Id.

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1. National Alliance is a Florida non-profit corporation, based in Fort Lauderdale, Florida,

which works to ensure that places ofpublic accommodation are accessible to its disabled members.
Id. ~ 4; Am. CompI. ~~ 3, 9. Payne is a co-founder ofNational Alliance and occasionally travels to

North Carolina for business relating to National Alliance. Payne Aff. ~~ 3-4. During one such trip
in 2010, Payne visited defendant's Waffle House restaurant located at 3909 Hillsborough Street in
Raleigh, North Carolina ("the restaurant"). Id. ~ 12; Am. Compl. ~ 8. At the restaurant, Payne
alleges that she discovered various violations of the ADA, including improperly designated
handicapped parking spaces, inaccessible routes from the parking area to the restaurant, and interior
spaces (such as restrooms and counters) that do not meet ADA requirements. Am. Compl. ~~ 10,
17. Payne alleges that she was unable to enjoy the restaurant because ofthese violations, but asserts
that she would like to return in the future if the barriers to access are removed. Id.
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8; Payne Aff.

13. In support ofher intent to return, Payne notes that she will be in Asheville, North Carolina for

three days in October 2011. Payne Aff. ~ 11. The court takes judicial notice that Asheville, North
Carolina is approximately 250 miles from Raleigh, North Carolina. 1
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure tests
subject-matter jurisdiction, which is the court's "statutory or constitutional power to adjudicate the
case." Steel Co. v. Citizens for a Better Env'i, 523 U.S. 83, 89 (1998) (emphasis omitted). A federal
court "must determine that it has subject-matter jurisdiction over [a claim] before it can pass on the
merits of that [claim]." Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474,
479-80 (4th Cir. 2005). In considering a motion to dismiss for lack of subject-matter jurisdiction,
the court may consider evidence outside the pleadings without converting the motion into one for
summary judgment. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). Plaintiffs, as the
party asserting that this court has subject-matter jurisdiction, must prove that subject-matter
jurisdiction exists. See, e.g., Steel Co., 523 U.S. at 104; Evans, 166 F.3d at 647; Richmond.
1 Payne is a frequent litigator in federal court. Since 2008, Payne has filed 32 ADA lawsuits
in North Carolina alone, and a total of 171 ADA lawsuits. Def.'s Mem. Supp. Mot. Dismiss, Ex.
2 [D.E. 21-2] ("Hartzog Affidavit") W2-3.

2

Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
Individual and organizational plaintiffs must establish Article ill standing. White Tail Park.
Inc. v. Stroube, 413 F.3d, 451, 458 (4th Cir. 2005). To establish Article ill standing, a plaintiff must
show: (1) that the plaintiff has "'suffered an injury in fact-an invasion of a legally-protected
interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical;'" (2) '''a causal connection between the injury and the conduct complained of-the
injury has to be fairly traceable to the challenged action of the defendant, and not the result ofthe
independent action ofsome third party not before the court; '" and (3) that it is '" likely, as opposed
to merely speculative, that the injury will be redressed by a favorable decision'" from the court.
Chambers Med. Techs. of S.C .. Inc. v. Btyan.t, 52 F.3d 1252, 1265 (4th Cir. 1995) (alterations
omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

These

requirements are ''the irreducible constitutional minimum of standing." Lujim, 504 U.S. at 560.
Unless a plaintiff has standing, the court lacks subject-matter jurisdiction to hear the case. See, e.g.,
id. at 560-61; White Tail, 413 F.3d at 459.
The first element requires a plaintiff to "demonstrate an 'injury in fact' that is concrete and
particularized, and actual or imminent, as opposed to conjectural or hypothetical." Long Term Care
Partners, LLC v. United States, 516 F.3d 225, 231 (4th Cir. 2008). When a plaintiff seeks injunctive
relief, the plaintiff's "injury in fact" requires more than simply an allegation of past exposure to
illegal conduct. See, e.g., Lujan, 504 U.S. at 564; City of Los Angeles v. Lyons, 461 U.S. 95,
102-06 (1983); Suhre v. Haywood Cnty., 131 F.3d 1083,1090-91 (4th Cir. 1997). A plaintiff must
show a substantial likelihood of a "real or immediate threat that [she] will be wronged again."
Lyons, 461 U.S. at 111. This requirement applies with equal force to plaintiffs who seek injunctive
relief under the ADA. See, e.g., Chapman v. Pier 1 Imports, Inc., 631 F.3d 939, 948-49 (9th Cir.

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2011) (en bane); Shotzv. Cates, 256 F.3d 1077, 1081-82 (lIth Cir. 2001); Hartyv. LuihnFour, Inc.,
747 F. Supp. 2d 547, 551-52 (B.D.N.C. 2010); Tyler v. Kansas LotteD'. 14 F. Supp. 2d 1220,
1224-25 (D. Kan. 1998); Aikins v. St. Helena Hosp., 843 F. Supp. 1329, 1333-34 (N. D. Cal. 1994).
A plaintiff's mere intent to return "some day," without any description of concrete plans, is
insufficient to support the "actual or imminent" injury requirement. See ~ 504 U.S. at 564;
Lyons, 461 U.S. at 101-07.
Other courts have identified factors which may be relevant to whether a plaintiff has
demonstrated a ''real and immediate threat offuture harm." These factors include: (1) the proximity
ofplaintiff's residence to the property in question; (2) plaintiff's past patronage ofthe property; (3)
the definitiveness of plaintiff's plan to return; and (4) whether plaintiff frequently travels nearby.
See, e.g., Nat'l Alliance v. Waffle House, Inc., No. 5:1O-CV-375-FL, 2011 WL 2580679, at *2
(B.D.N.C. June 29, 2011) (unpublished); Norkunas v. Park Road Shopping Ctr.. Inc., 777 F. Supp.
2d 998, 1002 (W.D.N.C. 2011); Harty, 747 F. Supp. 2d at 552.
Here, Payne has failed to allege facts demonstrating a substantial likelihood that she will be
injured in the future. Payne resides in Florida, nearly 800 miles from defendant's restaurant. See
Def.'s Mem. Supp. Mot. Dismiss, Ex. A ("Mileage Estimate"). Payne states that she visited the
restaurant on one occasion in 2010. Moreover, Payne does not have any concrete or definitive plan
to return to the restaurant. Instead, Payne simply asserts that she occasionally visits North Carolina
and would like to return at some point in the future. Such allegations are insufficient to establish
standing. See,e.g., Nat'IAlliance, 2011 WL2580679, at *2-3; Harty, 747 F. Supp. 2d at 552; Jones
v. Sears Roebuck & Co., No. 2:05-CV-0535-MCE-KJM, 2006 WL 3437905, at *3-5 (B.D. Cal.
Nov. 29, 2006) (unpublished). Accordingly, Payne lacks standing and her claims against defendant
are dismissed for lack of subject-matter jurisdiction.
4

As for National Alliance, it "relies solely on its right to bring [a] claim based on associational
standing." Pl.'s Mem. Opp'n Mot. Dismiss 18-20. Organizational plaintiffs may establish
"associational standing" to bring suit on behalf of its members when: "(1) its members would
otherwise have standing to sue as individuals; (2) the interests at stake are germane to the group's
purpose; and (3) neither the claim made nor the relief requested requires the participation of
individual members in the suit." White Tail, 413 F .3d at 458 (quotation omitted); Friends for Ferrell
Parkway, LLC v. Stasko, 282 F.3d 315,320 (4th Cir. 2002).
National Alliance lacks standing because it has failed to show that one ofits members would
otherwise have standing to sue as an individual. See, e.g., White Tail, 413 F.3d at 458; Nat'l
Alliance, 2011 WL 2580679, at *3. The only member of National Alliance identified in the
pleadings is Payne, whom the court has already determined lacks standing. Thus, National Alliance
fails to meet the fIrst element required for associational standing. See Nat'l Alliance, 2011 WL
2580679, at *3. As a result, National Alliance lacks standing and the court dismisses its claims for
lack of subject-matter jurisdiction.

n.
In sum, defendant's motion to dismiss [D.E. 20] is GRANTED. Plaintiff's motion to compel

[D.E. 35] and motion to strike [D.E. 41] are DENIED AS MOOT. The clerk is directed to close this
case.
SO ORDERED. This l!j day of September 2011.

¥$tc.' ~"-~

United States District Judge

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