Payne et al v. AAC Investments, Inc.

Filing 16

ORDER granting 8 Motion to Dismiss for Lack of Jurisdiction; granting 10 Motion for Attorney Fees. Within fourteen (14) days of the filing date of this order, Defendant is DIRECTED to file appropriate supporting proof of its request sufficient for this court to determine reasonable award. Plaintiffs shall then have ten (10) days after the date Defendant files its supporting proof within which to file any response. Signed by Senior Judge James C. Fox on 3/4/2013. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:12-CV-00264-F
DENISE PAYNE, et al.,
Plaintiffs,

v.
AAC INVESTMENTS, INC.,
Defendant.

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ORDER

This matter is before the court on Defendant's Motion to Dismiss [DE-8] and
Defendant's Motion for Attorney's Fees [DE-10]. The motions have been fully briefed and are
ripe for disposition.

I. BACKGROUND
Denise Payne ("Payne") and National Alliance For Accessibility, Inc. ("National
Alliance") (collectively, "Plaintiffs") filed suit under the Americans with Disabilities Act, 42
U.S.C. § 12181 et seq. ("ADA"). Compl. [DE-l]. In this action, Plaintiffs seek a declaratory
judgment; injunctive relief; and an award of attorney's fees, costs and litigation expenses. Id
Payne is disabled with cerebral palsy. Pls.' Opp'n Def.'s Mot. Dismiss [DE-12], Ex. 1
Affidavit of Denise Payne ("Payne Aff. ") ,-r 1. She is unable to walk and has very limited use of
her hands. Id Payne is a member and the founder of the organization National Alliance. Id at ,-r
4; Compl. ,-r 5, 6. The members ofNational Alliance include individuals with disabilities, as
defined by the ADA. Compl. ,-r 15. The purpose ofNAA is to represent the interests of its
members by assuring that places of public accommodation are accessible and usable by the
disabled and that its members are not discriminated against on the basis of their disabilities. Id

during recent years. Payne Aff.

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2, 3. Payne is an advocate for disabled persons and a tester

who monitors the level of compliance by places of public accommodation. Id

at~

7. On July 26,

2010 and April1, 2012, Payne visited defendant's property, Brier Creek Commons Shopping
Center, which is located at 8000 Brier Creek Parkway in Raleigh, North Carolina. Compl.

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4,

9, 16. During both of Payne's visits to the shopping center, she encountered architectural barriers
which allegedly endangered her safety. Id

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5, 9.

National Alliance is a non-profit corporation with its principal office in Fort Lauderdale,
Florida. Id

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1; Payne Aff.

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4. Payne is in the process of establishing a local chapter of

National Alliance in Asheville and in Raleigh to give the organization a presence in North
Carolina. Payne Aff.

Id

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4. Eight members ofNational Alliance are residents of North Carolina.

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II. ANALYSIS
A. Motion to Dismiss
On August 7, 2012, AAC Investments, Inc. ("AAC" or "Defendant") moved to dismiss
the Complaint pursuant to Rule 12(b)(l) of the Federal Rules of Civil Procedure [DE-8]. AAC
argues that the court should dismiss Plaintiffs' claims for lack of subject-matter jurisdiction on
the basis that Plaintiffs lack standing under Article III of the U.S. Constitution. Def.'s Mem.
Supp. Mot. Dismiss [DE-9]. Specifically, AAC argues that Payne lacks standing as an individual
because she has not suffered an injury-in-fact, and NAA lacks organizational standing because
Payne and/or other members of the organization lack standing. Jd
A Rule 12(b)(1) motion challenging subject matter jurisdiction questions the "very
power" of the court to hear the case. United States v. Beasley, 495 F.3d 142, 147 (4th Cir. 2007).

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Subject matter jurisdiction can't be forfeited or waived, and as such, it can be raised at any time.

!d. When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(l), the court
can consider evidence outside of 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). The burden of
establishing that subject matter jurisdiction exists rests with the plaintiff. !d.
Both individual and organizational plaintiffs must satisfy the standing requirement.
White Tail Park, Inc. v. Stroube, 413 F.3d 451,458 (4th Cir. 2005). "The standing requirement
is designed to guarantee that the plaintiff has a sufficient personal stake in the outcome of a
dispute to render judicial resolution of it appropriate." Long Term Care Partners, LLC v. US.,
516 F.3d 225,231 (4th Cir. 2008) (quoting Emery v. Roanoke City Sch. Bd., 432 F.3d 294,298
(4th Cir. 2005) (internal quotations omitted)). In order to establish the existence of Article III's
standing requirements, a plaintiff must show that: (1) "the plaintiff ... suffered an injury in factan invasion of a legally protected interested which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical"; (2) "there [is] a causal connection between
the injury and the conduct complained of'; and (3) "it [is] likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (citations and internal quotation marks omitted).
The first element requires a plaintiff to show an "injury in fact" that is concrete and
particularized, and actual or imminent, not merely conjectural or hypothetical. Long Term Care
Partners, LLC, 516 F.3d at 231 (citing Lujan, 504 U.S. at 560-61). An intent to return to the
place where the alleged injury first occurred "' some day[,] ... without any description of
concrete plans, ... do[es] not support a finding ofthe 'actual or imminent' injury[.]" Lujan, 504
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U.S at 564.
1. Denise Payne's Standing
Payne has not shown that she has suffered an injury in fact. Although the Complaint does
not state where Payne resides, according to her affidavit, Payne resides in the state of Florida.
Payne Aff.

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2. As noted, defendant's property is located in Raleigh, North Carolina. The

Complaint provides: "Plaintiff Payne intends to visit North Carolina in the future." Compl.

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14.

In her affidavit, Payne states, "At the time I filed the Complaint, I intended to visit the
Defendant's property again[.]" Payne Aff.

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8. The undersigned concludes that these are merely

"some day" intentions, which do not support a finding of actual or imminent injury that Article
III requires. In short, the assertions contained in both the Complaint and in Payne's affidavit
show an absence of any definitive plan by Payne to visit Defendant's property in the future.
Accordingly, Payne has failed to show she has standing to bring this lawsuit.
2. NAA's Standing
"An association has standing to bring suit on behalf of its members when its members
would otherwise have standing to sue in their own right, the interests at stake are germane to the
organization's purpose, and neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000).
Other than Payne, Plaintiffs have not identified any other members ofNAA that have
visited Defendant's property. As noted above, Payne has failed to establish that she has standing,
and as such, NAA lacks standing as well.
Defendant argues that if the court grants its motion to dismiss, it is entitled to attorney's

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fees. Having found that Plaintiffs lack standing and that Defendant's motion to dismiss should
be allowed, the court will now address Defendant's motion for attorney's fees.

B. Motion for Attorney's Fees
Defendant argues that if this court grants its motion to dismiss, then it is entitled to
attorney's fees pursuant to 42 U.S.C. § 12205 and 28 C.F.R. § 36.505 as the prevailing party.
Defs Mt. For Arty's Fees [DE-10). Defendant argues that Plaintiffs litigation history leads to a
finding that this present action is "frivolous, unreasonable, or without foundation." Mem. Supp.
Defs Mt. For Arty's Fees [DE-11). Specifically, Defendant contends that Plaintiffs were aware
when they filed this action of the long line of cases holding that these exact same plaintiffs lack
standing to bring an ADA lawsuit against a premises located in North Carolina. !d.
Plaintiffs contend that Defendant's motion for fees should be denied. Pls' Oppos. to Def's Mt.
For Attorney's Fees [DE-13]. Specifically, Plaintiffs argue that simply because prior cases
involving the same plaintiffs were dismissed does not mean that this case is frivolous. !d.
Rather, Plaintiffs argue that standing in each case must be viewed on its own. !d. Moreover,
Plaintiffs contend that even if this court should find that they have failed to establish standing,
Defendant has not shown that this action is "frivolous, unreasonable, or without foundation." !d.
American courts follow a "general practice of not awarding fees to a prevailing party
absent explicit statutory authority." Key Tronic Corp. v. United States, 511 U.S. 809, 819
(1994). In fact, under what is known as the "American Rule," each party bears his own litigation
expenses, including attorney's fees, regardless whether he wins or loses. Fox v. Vice,- U.S.-,
131 S.Ct. 2205,2213 (2011). Even so, it is within the court's discretion to award the "prevailing
party" in an ADA case with attorney's fees. National Alliance for Accessibility, Inc. v. Triad

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Hospitality Corp., No. 1:11-cv-527, 2012 WL 996661, *8 (M.D.N.C. March 23, 2012).
Prior to filing the instant action, Plaintiffs were aware of the long line of cases which
have held that these exact same plaintiffs lack standing to bring ADA lawsuits against properties
located in North Carolina. 1 E.g., National Alliance For Accessibility, Inc. v. W&K ofAsheville,

LLC, No. 1:12cv00024-MR-DLH, 2013 WL 30131 (W.D.N.C. Jan. 3, 2013); National Alliance
For Accessibility, Inc. v. Macy's Retail Holdings, Inc., No. 1:11-cv-877, 2012 WL 5381490
(M.D.N.C. Oct. 30, 2012); National Alliance For Accessibility, Inc. v. NCP Western Blvd LLC,
No. 5:11-CV-357-FL, 2012 WL 3834931 (E.D.N.C. Sept. 4, 2012); National Alliance For

Accessibility, Inc. v. Big Lots Stores, Inc., No. 5:11-CV-741-FL, 2012 WL 3835870 (E.D.N.C.
Sept. 4, 2012); Payne v. TR Associates, LLC, 880 F. Supp.2d 702 (2012); Payne v. Sears,

Roebuck and Co., No. 5:11-CV-614-D, 2012 WL 1965389 (E.D.N.C. May 31, 2012); National
Alliance For Accessibility v. Big Lots Stores, Inc., No. 1:11-cv-941, 2012 WL 1440226
(M.D.N.C. April26, 2012). For this reason, the undersigned agrees with Defendant that this
action is frivolous, unreasonable, and without foundation. Accordingly, Defendant's Motion for
Attorney's Fees [DE-10] hereby is ALLOWED. Within fourteen (14) days of the filing date of
this order, Defendant is DIRECTED to file appropriate supporting proof of its request sufficient
for this court to determine a reasonable award. Plaintiffs shall then have ten (1 0) days after the
date Defendant files its supporting proof within which to file any response.

III. CONCLUSION

Payne is no stranger to the court. In fact, Payne has filed approximately 268 laws~its ~n
the United States District Courts since November 2007. Def.'s Mem .. Supp. D~fs Mot. D1s.m1~s
[DE-9]. Of that number, approximately 83 have been filed by Payne m the Umted States Dtstnct
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Courts ofNorth Carolina. Id.

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For the foregoing reasons, Defendant's Motion to Dismiss [DE-8] is ALLOWED and
Plaintiffs' claims are DISMISSED in their entirety. Defendant's Motion for Attorney's Fees
[DE-10] is ALLOWED.
SO ORDERED.
This, the£ day of March, 2013.

enior United States District Judge