Blue et al v. Big Lots Stores, Inc.

Filing 16

ORDER GRANTING 10 Defendant's Motion to Dismiss. Plaintiffs' claims are DISMISSED in their entirety. The clerk is directed to close this case. Signed by US District Judge Terrence W. Boyle on 9/24/2013. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:13-CV-38-BO
JACKIE BLUE, Individually, and
NATIONAL ALLIANCE FOR
ACCESSIBILITY, INC. a Florida not for
profit corporation,
Plaintiffs,
v.
BIG LOTS STORES, INC., a Foreign
Corporation,
Defendant.

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ORDER

This cause comes before the Court on defendant's motion to dismiss pursuant to Rules
12(b)(1) and 12(b)( 6) of the Federal Rules of Civil Procedure. Plaintiffs have responded,
defendant has replied, and the motion is now ripe for adjudication. For the following reasons,
defendant's motion to dismiss is granted and plaintiffs' complaint is dismissed in its entirety.
BACKGROUND
Plaintiffs brought this action alleging violations of Title III of the Americans with
Disabilities Act, 42 U.S.C. § 12181 et seq. ("ADA") and seeking a declaratory judgment,
injunctive relief, attorney's fees, litigation expenses, and costs. Plaintiff Blue is a resident of
Fayetteville, North Carolina and claims she qualifies as an individual with a disability as defined
by the ADA. She lives eight miles from defendant's property at 3910 Raeford Road, has visited
the property, and plans to return to the property to avail herself of the goods and services offered
to the public there. Plaintiff is also a member of the National Alliance for Accessibility.
DISCUSSION
Federal Rule of Civil Procedure 12(b)(l) authorizes dismissal of a claim for lack of subject

matter jurisdiction. When subject matter jurisdiction is challenged, the plaintiff has the burden of
provingjurisdiction to survive the motion. Evansv. B.F Perkins Co., 166 F.3d 642,647-50 (4th Cir.
1999). "In determining whether jurisdiction exists, the district court is to regard the pleadings'
allegations as mere evidence on the issue, and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac

R.R. Co. v. UnitedStates,945F.2d765, 768(4thCir.1991). Tothisend, "thenonmovingpartymust
set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists." !d.,
citing Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1558-59 (9th Cir. 1987). The
movant's motion to dismiss should be granted if the material jurisdictional facts are not in dispute and
the movant is entitled to prevail as a matter of law. !d.
A Rule 12(b)(6) motion tests the legal sufficiency ofthe complaint. Papasan v. Allain, 478
U.S. 265,283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court should
accept as true all well-pleaded allegations and should view the complaint in a light most favorable
to the plaintiff." My/an Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A complaint must
allege enough facts to state a claim to relief that is facially plausible. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). Mere recitals of the elements of a cause of action supported by conclusory
statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If the factual allegations do
not nudge the plaintiffs claims "across the line from conceivable to plausible," the "complaint must
be dismissed." Twombly, 544 U.S. at 1973.

I.

PLAINTIFFS HAVE STANDING

Defendant contends that plaintiffs lack standing to bring this suit.

Standing is the

determination of whether a particular individual is the proper party to assert a claim in federal court;
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it "is founded in concern about the proper-and properly limited role-of the courts in a democratic
society." Warth v. Seldin, 422 U.S. 490, 498 (1975). The standing doctrine curtails the types of
disputes that an Article III court can decide; it does so by requiring courts to hew to their express
constitutional mandate of resolving "cases" and "controversies." U.S. Const. art. III, §2, cl. 1; Warth,
422 U.S. at 498. The standing question is one that asks "whether the litigant is entitled to have the
court decide the merits of the dispute or of particular issues." Warth, 422 U.S. at 498. An affirmative
answer to this question requires a plaintiff to demonstrate at least three "irreducible constitutional
minimum" requirements:
First, the plaintiff must have 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." Second, there must be a causal connection between the injury and the
conduct complained of-the injury has to be "fairly ... trace[able] to the challenged action of
the defendant, and not ... th[ e] result [of] the independent action of some third party not before
the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will
be "redressed by a favorable decision."

Lujan v. Defenders ofWildlife, 504 U.S. 555, 560-61 (1992) (internal citations omitted).
When a plaintiff seeks injunctive relief, the "injury in fact" element of standing requires more
than simply an allegation of a defendant's prior wrongful conduct; a plaintiff must show a substantial
likelihood of future harm. See City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983 ). In assessing
the credibility of a plaintiffs intention to return in order to determine whether there is a substantial
likelihood of future harm, courts consider: (1) the plaintiffs proximity to the defendant's place of
public accommodation; (2) the plaintiffs past patronage; (3) the definiteness of plaintiffs plan to
return; and (4) the plaintiffs frequency of nearby travel. See e.g. Norkunas v. Park Rd. Shopping

Ctr., Inc., 777 F. Supp. 2d 998, 1002 (W.D.N.C. 2011). Although the Fourth Circuit has, in an
unpublished opinion, "decline[d] at this time to endorse the four-factor test," it has acknowledged the

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importance of a plaintiff's plausible allegation of a likelihood of future harm, specifically considering
a plaintiff's proximity to the subject site in evaluating plausibility. Daniels v. Arcade, L.P., 4 77 Fed.
App'x 125, 129 (4th Cir. 2012) (unpublished).
In Daniels, the plaintiff alleged that he "intends to continue to visit the [site] in the future for
his shopping needs." The Fourth Circuit accepted the allegation as true for purposes of the motion
to dismiss, and deemed the allegation plausible because the plaintiff in that case resided "in relatively
close proximity" (within twenty miles) of the site. !d. Here, plaintiffBlue states that she lives within
close proximity (within eight miles) of the subject Big Lots property, that she regularly visits this Big
Lots store, and that she intends to continue to visit this Big Lots in the future for her shopping needs.
Blue Aff. ,-r,-r 3-4. Informed by Daniels, the Court holds that plaintiff Blue has standing to bring this
suit.
"When an association asserts standing solely as the representative of its members, it must
allege that its members, or any one of them, are suffering immediate or threatened injury as a result
of the challenged action of the sort that would make out a justiciable case had the members
themselves brought suit." Disability Advocates, Inc. v. N. Y Coalition for Quality Assisted Living,

Inc., 675 F.3d 149, 156-57 (2d Cir. 2012) (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975))
(internal quotation marks omitted). Because National Alliance for Accessibility relies on plaintiff
Blue's alleged injury, the Court's finding that she maintains standing allows National Alliance to have
standing as well.

II.

PLAINTIFFS HAVE FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

Even assuming that, in light of Daniels, plaintiffs have standing to bring this action, plaintiffs
have failed to do more than recite the elements of their cause of action supported by conclusory

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statements. The complaint states that, pursuant to a preliminary inspection of the property, several
ADA violations were identified, including lack of a continuous path of travel connecting all essential
elements ofthe facility, counters in excess of thirty-six inches, and urinals that do not comply with
ADA standards. No facts have been pled that would allow the Court to infer, even considering the
claims in the light most favorable to plaintiffs, that, for example, urinals that do not comply with
ADA standards have resulted in discrimination against plaintiffBlue (presumably a woman) or would
result in discrimination against her in the future. See also Nat. Alliance for Accessibility v. Big Lots
Stores, Inc., No. 5:12-CV-349-D, 2013 WL 1452928 *2 (E.D.N.C. April9, 2013). In the absence of

sufficient factual support, plaintiffs have not stated a facially plausible claim for relief.
Though plaintiff Blue has submitted an affidavit to bolster her claims in the complaint, the
Court declines to consider it as it is "beyond the pleadings and cannot be considered on a Rule
12(b)(6) motion." E.! DuPont De Nemours & Co. v. Kalan Indus., Inc., 637 F.3d 435,449 (4th Cir.
2011 ). Plaintiffs have not sought to amend their complaint to include such factual support, and
dismissal of this action is therefore appropriate.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss [DE 10] is hereby GRANTED and

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plaintiffs' claims are DISMISSED in their entirety. The clerk is DIRECTED to close this case.
SO ORDERED,

this~ day of September, 2013.

~lJ._
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE

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