NATIONAL ALLIANCE FOR ACCESSIBILITY, INC. et al v. RITE AID OF NORTH CAROLINA, INC. et al
Filing
26
MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 9/27/11, Recommending that Defendants' Motion to Dismiss (Docket Entry 7 ) be GRANTED; Ordering that Plaintiffs' Motions to Amend (Docket Entry 13 and 16 ) are DENIED. (Law, Trina)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NATIONAL ALLIANCE FOR
ACCESSIBILITY, INC., a Florida
non-profit corporation, and
DENISE PAYNE, individually,
Plaintiffs,
v.
RITE AID OF NORTH CAROLINA, INC.,
a North Carolina Corporation, and
RITE AID HDQTRS CORP., a Delaware
corporation,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
1:10CV932
MEMORANDUM OPINION, ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
matter
comes
before
the
undersigned
United
States
Magistrate Judge for a recommendation, pursuant to the Court’s
Amended Standing Order No. 30, on the Motion to Dismiss and/or
Alternatively, Partial Motion to Strike (Docket Entry 7) filed by
Rite Aid of North Carolina, Inc. (“RANC”) and Rite Aid Hdqtrs Corp.
(“RAH” collectively with RANC “Defendants”), as well as for a
ruling on the “Motionto [sic] Amend Complaint to Add EDC Drug
Stores, Inc. a North Carolina Corporation, as a Defendant with
Memorandum of Law” (Docket Entry 13) filed by National Alliance for
Accessibility, Inc. (“NAA”) and Denise Payne (“Payne) and “Motionto
[sic] Amend Complaint to Add EDC Drug Stores, Inc. a North Carolina
Corporation, as a Defendant” (Docket Entry 16) filed by Plaintiffs
NAA and Payne.
grant
For the reasons stated herein, the Court should
Defendants’
Motion
to
Dismiss
(Docket
Entry
7),
and
Plaintiff’s Motions to Amend (Docket Entries 13 and 16) are denied.
I.
BACKGROUND
Plaintiffs bring this action, pursuant to Title III of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq.,
alleging that, at the “Rite Aid Pharmacy, located at 1218 Raleigh
Road, Chapel Hill, North Carolina[,] 27515” (the “Property”), Payne
encountered
against
her
“architectural
on
the
basis
endangered her safety.”
barriers
of
her
.
.
.
which
disability
discriminate
and
which
have
(Docket Entry 1 at 1-3 & 12.)
Plaintiff Payne, a Florida resident, has cerebral palsy which
“renders her paralyzed from the waist down, and unable to use her
arms and hands to easily grasp objects” and “[she] requires the use
of a wheelchair . . . .”
(Id. at 2-3.)
Plaintiff NAA, a Florida
non-profit corporation, alleges that its members include Payne and
other “individuals with disabilities” and its purpose is “to
represent the interest of its members by assuring places of public
accommodation are accessible to and usable by the disabled and that
its
members
are
not
discriminated
disabilities.”
(Id. at 3-4.)
as
for
“advocates
the
against
because
of
their
Plaintiffs characterize themselves
disabled
when
suing
places
of
public
accommodation that are in violation of the federal civil rights
law . . . .”
(Id. at 5-6.)1
1
One court recently observed: “In addition to this action, Payne has
filed at least thirty-two (32) other ADA lawsuits in North Carolina. In total,
plaintiff has filed one hundred and seventy-one (171) ADA lawsuits since 2008.”
National Alliance for Accessibility, Inc. v. Waffle House, No. 5:10-CV-375-FL,
2011 U.S. Dist. LEXIS 69815, at *3 (E.D.N.C. Jun. 29, 2011) (unpublished).
Defendants claim that: “This action by Plaintiff Payne is one of approximately
150 similar litigations she has filed against various public establishments over
(continued...)
-2-
According
to
Tracy
L.
Landis,
the
Senior
Manager,
Administrative Claims & Litigation for Rite Aid Corporation (“Rite
Aid Corp.”), Rite Aid Corp. and RAH are Delaware corporations with
their principle place of business in Pennsylvania.
7, Ex. 1, ¶¶ 2, 4.)
(Docket Entry
She states that “[RANC] is a wholly owned
subsidiary of Rite Aid Corp.” (Id., Ex. 1, ¶ 3.)
Plaintiffs have
alleged that RANC is a North Carolina corporation. (Docket Entry 1
at 1.)
Landis also declares that neither RANC, nor RAH “own,
operate, lease, lease to, or control the [Property].”
Entry 7, Ex. 1, ¶¶ 3, 5.)
(Docket
Rather, EDC Drug Stores, Inc. (“EDC”),
“a wholly owned subsidiary of Rite Aid Corp.[,]” is “[t]he tenant
entity that leases and operates the [Property] . . . .”
(Id., Ex.
1, ¶ 7.)
Plaintiffs have submitted Payne’s affidavit in which she avers
in relevant part that:
“[She] travel[s] back and forth between Florida and North
Carolina because [she] ha[s] business associations, friends in, and
continuing connections with North Carolina” (Docket Entry 21, ¶ 3;
see id., ¶ 6);
“[She] [is] in the process of establishing a local chapter of
[NAA] in Asheville and in Raleigh, so [NAA] will have a presence in
Florida and North Carolina” (id., ¶ 4 (emphasis added));
“On June 22, 2011, Tamara Campbell and [Payne] are scheduled
to meet Vicky Smith of Disability Rights of North Carolina at their
1
(...continued)
the past three years.” (Docket Entry 8 at 2.) In a footnote, they state they
reached this determination by “searching her name in Pacer.” (Id. at 2 n.1.)
-3-
corporate headquarters in Raleigh . . .” (id., ¶ 7 (emphasis
added));
“On June 11, 2010, Tamira Campbell and [Payne] met in Raleigh,
North Carolina with Janice Willmott of Disability Rights North
Carolina and their privately funded non-profit organization named
North Carolina Disability Action Network . . .” (id., ¶ 8 (emphasis
added));2
“From July 13 - 24, 2010, [Payne] attended the annual SUUSI
retreat . . . in Radford, Virginia.
[She] travelled . . . through
South Carolina, Virginia, North Carolina, Georgia and stay[ed]
overnight along the trip” (id., ¶ 9 (emphasis added));
“[Payne] was in North Carolina on July 24, and 25th 2010.
[She] was in Greensboro . . . .
From there [she] travelled to
Winston-Salem, North Carolina . . .” (id., ¶ 10 (emphasis added));
“This year, on October 19, 20 and 21, 2011, [she is] scheduled
to attend meetings . . . in Asheville[,] North Carolina” (id., ¶ 11
(emphasis added)).3
Payne’s affidavit also asserts that “when [she] was driving
through North Carolina, in Chapel Hill, on June 10, 2010, [she]
2
In her affidavit, Payne refers to Tamra Campbell and Tamira Campbell (see
Docket Entry 21, ¶¶ 7, 8), but does not explain her relationship to these
individuals or provide sufficient information for the Court to determine whether
the similarity of the names reflects a spelling error.
3
Plaintiffs claim that they have submitted “a letter to counsel” as an
Exhibit B to their Response (Docket Entry 15 at 2), and make other factual claims
relying on an Exhibit C to their Response (id. at 6). Plaintiffs, however, have
not filed either exhibit. (See id.) They also assert other facts which lack any
citation to the record. (See id. at 2-6.) The Court does not rely on any of
these assertions which lack record support.
-4-
went shopping at the Rite Aid at 1218 Raleigh Road.” (Docket Entry
21, ¶ 12.) Plaintiffs allege that with respect to the Property
“numerous ADA violations and barriers to access exist” with respect
to the lack of signs in interior spaces, the design of the
restrooms, and the lack of “policies and procedures . . . to deal
with disabled individuals and [] to put in place and maintain an
ADA-compliant facility.”
(Docket Entry 1 at 8.)
Plaintiffs claim
that “Payne desires to visit the [Property], not only to avail
herself of the goods and services available at the property but to
assure herself that this property is in compliance with the ADA .
. . .”
(Id. at 6.)
They also assert that “[she] is aware that it
will be a futile gesture to re-visit the property until it becomes
compliant with the ADA.”
(Id.)
Plaintiffs’ Complaint alleges that Defendants violated Title
III of the ADA, 42 U.S.C. § 12181 et seq., and requests that the
Court: (1) issue a declaratory judgment; (2) injunctive relief; (3)
award attorneys fees; and (4) award other “just and proper” relief.
(Docket Entry 1 at 12.)
Defendants thereafter moved to dismiss.
(Docket Entry 7.) Plaintiffs responded (Docket Entries 14 and 15),
and Defendants filed their Reply (Docket Entry 25).
In addition, Plaintiffs filed a motion to amend, requesting
permission to add EDC as a Defendant (Docket Entry 13 at 1), along
with a supporting memorandum (Docket Entry 17).
Six days later,
Plaintiffs filed a second motion to amend requesting the same
relief (Docket Entry 16 at 1), and again filed another supporting
brief (Docket Entry 19).
Instead of filing a response, Defendants
-5-
characterize their Reply to their motion to dismiss as a “Reply to
Plaintiffs’ [second] Motion to Amend Complaint.”
at 1.)
Plaintiffs did not file a reply.
(Docket Entry 25
(See Docket Entries from
June 24, 2011, to present.)
II.
DISCUSSION
The
Court
first
discusses
Defendants’
Motion
to
Dismiss
(Docket Entry 7), and then proceeds to address Plaintiffs’ motions
to amend (Docket Entries 13 & 16).
A.
Motion to Dismiss
Defendants move to dismiss this matter for lack of standing
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
(Docket Entry 7 at 1.) Alternatively, they move, pursuant to Rules
12(b)(1),
12(b)(6)
and
12(f),
to
“dismiss
and/or
strike
the
Complaint’s allegations related to the men’s restroom for lack of
standing[.]”
(Id.)
As another alternative, if Plaintiffs have
standing, Defendants request dismissal pursuant to Rule 12(b)(6)
for failure to state a claim and/or Rule 12(b)(7) for failure to
join a proper party.
1.
(Id.)
Rule 12(b)(1) Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party
may assert that a court lacks subject matter jurisdiction over a
plaintiff’s complaint, including by challenging a plaintiff’s
standing.
See, e.g., White Tail Park, Inc. v. Stroube, 413 F.3d
451, 459 (4th Cir. 2005).
“When a Rule 12(b)(1) motion challenge
is raised to the factual basis for subject matter jurisdiction, the
burden of proving subject matter jurisdiction is on the plaintiff.”
-6-
Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945
F.2d 765, 768 (4th Cir. 1991).
On a Rule 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction, “the district
court
may
consider
evidence
outside
the
pleadings
without
converting the proceeding to one for summary judgment.” White Tail
Park, 413 F.3d at 459 (internal quotation marks omitted).
The United States Court of Appeals for the Fourth Circuit has
explained that “when a defendant asserts that the complaint fails
to allege sufficient facts to support subject matter jurisdiction,
the trial court must apply a standard patterned on Rule 12(b)(6)
and assume the truthfulness of the facts alleged.” Kerns v. United
States, 585 F.3d 187, 193 (4th Cir. 2009) (italics in original).
“On the other hand, when the defendant challenges the veracity of
the facts underpinning subject matter jurisdiction, the trial court
may go beyond the complaint, conduct evidentiary proceedings, and
resolve the disputed jurisdictional facts.”
Id.
Moreover, the
Fourth Circuit has stated that “when the jurisdictional facts are
inextricably intertwined with those central to the merits, the
court should resolve the relevant factual disputes only after
appropriate discovery, unless the jurisdictional allegations are
clearly immaterial or wholly unsubstantial and frivolous.”
2.
“[T]he
Id.
Standing
question
of
standing
is
whether
the
litigant
is
entitled to have the court decide the merits of the dispute or of
particular issues.”
Warth v. Seldin, 422 U.S. 490, 498 (1975).
“This inquiry involves both constitutional limitations on federal-7-
court jurisdiction and prudential limitations on its exercise.”
Id.
“In both dimensions it is founded in concern about the proper
-- and properly limited -- role of the courts in a democratic
society.” Id. With respect to the constitutional limitations, the
standing
analysis
imports
justiciability,
i.e.,
“whether
the
plaintiff has made out a ‘case or controversy’ between himself and
the defendant within the meaning of Art[icle] III.”
Id.
The United States Supreme Court has identified three elements
to establish the constitutional minimum of standing:
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
traceable to the challenged action of the defendant, and
not the 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 of Wildlife, 504 U.S. 555, 560-61 (1992)
(internal
citations,
brackets,
ellipses
and
quotation
marks
omitted).
“When a plaintiff seeks injunctive relief, the ‘injury in
fact’ element of standing requires more than simply an allegation
of defendant’s prior wrongful conduct.” Harty v. Luihn Four, Inc.,
747 F. Supp. 2d 547, 551-52 (E.D.N.C. 2010) (citing City of Los
Angeles v. Lyons, 461 U.S. 95 (1983)).
Rather, a plaintiff must
show a “real or immediate threat that the plaintiff will be wronged
again -- a likelihood of substantial and immediate irreparable
injury.”
Lyons,
461
U.S.
at
111
-8-
(internal
quotation
marks
omitted).
“In other words, ‘to establish standing to pursue
injunctive relief . . . under the ADA, [the plaintiff] must
demonstrate a real and immediate threat of repeated injury in the
future.’” National Alliance for Accessibility, Inc. v. Waffle
House, Inc., No. 5:10-CV-375-FL, 2011 U.S. Dist. LEXIS 69815, at *5
(E.D.N.C.
Jun.
29,
2011)
(unpublished)
(ellipse,
bracket
and
emphasis in original) (quoting Chapman v. Pier I Imports Inc., 631
F.3d 939, 946 (9th Cir. 2011)) (emphasis added).
A plaintiff’s “profession of an ‘intent’ to return to the
places [she] had visited before . . . is simply not enough.”
Lujan, 504 U.S. at 564. “Such ‘some day’ intentions -- without any
description of concrete plans, or indeed even any specification of
when the some day will be -- do not support a finding of the
‘actual or imminent’ injury . . . .”
determining
whether
plaintiff
has
Id.
“Accordingly, in
demonstrated
a
‘real
and
immediate threat of future harm’ as required to bring an ADA claim,
this [C]ourt looks to (1) the proximity of plaintiff’s residence to
the property in question, (2) plaintiff’s past patronage of the
public accommodation, and (3) the definitiveness of plaintiff's
plan to return.” Waffle House, 2011 U.S. Dist. LEXIS 69815, at *5.
“In addition to these three factors, other courts also have
considered whether [the] plaintiff frequently travels near the
establishment.”
Id.
“The standing requirement must be satisfied by individual and
organizational plaintiffs alike.”
458.
White Tail Park, 413 F.3d at
The Supreme Court has recognized that “an association may
-9-
have standing in its own right to seek judicial relief from injury
to itself and to vindicate whatever rights and immunities the
association itself may enjoy.”
added).
Warth, 422 U.S. at 511 (emphasis
“Additionally, an organizational plaintiff may establish
associational standing to bring an action in federal court 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 Park, 413 F.3d at 458 (internal
quotation marks omitted).
3.
Analysis
Defendants argue that, pursuant to Rule 12(b)(1), “Plaintiffs
lack
standing
to
pursue
their
ADA
Title
III
claim
against
(Docket Entry 8 at 4.)4
Defendants.”
i.
Payne
First, Defendants claim that “an asserted general intention
that Payne someday ‘desires’ to return to the [Property], without
more, is insufficient” to satisfy the constitutional minimum injury
in
fact
element.
omitted).)
returning
(Docket
Entry
8
at
8
(internal
citation
They identify various factors that weigh against her
to
the
Property
including:
(a)
“[she]
is
[not]
‘proximate’ to the [Property]” (id. at 10); (b) “[she] does not
4
Because Defendants’ motion should be granted based on Rule 12(b)(1), the
Court need not address Defendants’ remaining arguments premised on Rules
12(b)(6), 12(f), and 12(b)(7) (Docket Entry 8 at 4-7).
-10-
allege that she has visited this property more than once” (id.);
(c) “[her] intent to return to North Carolina . . . is too vague”
(id. at 11); (d) “she has alleged no facts to indicate how
frequently she plans on traveling to North Carolina, or whether she
currently has any such plans” (id.); and (e) “[her] status as a
plaintiff in more than 150 similar litigations” (id.).
Next, they
contend that she does not establish the “prudential component of
standing,” because “[she] is merely trying to invoke others’ legal
rights . . . .”
(Id. at 12.)5
a.
Proximity
With respect to the proximity element, Defendants note that
“[Payne] lives in Florida, and the [Property] . . . is located in
Chapel Hill, North Carolina - hundreds of miles away from each
5
Defendants argue that Payne’s affidavit should not be considered:
. . . Payne attempts to bolster her standing argument by providing
a post-Motion affidavit indicating that she has traveled to North
Carolina in the past and intends to travel to North Carolina in the
future. Significantly, however, standing must exist at the time an
action is commenced. As such, “belated efforts to bolster standing
[such as by affidavit] are futile.” [Access 4 All, Inc. v.
Wintergreen Commercial P’ship, Ltd., No. 3:05-CV-1307-G, 2005 U.S.
Dist. LEXIS 26935 (N.D. Fla. Nov. 7, 2005) (unpublished)] citing
Equal Access for All, Inc. v. Hughes Resort, Inc., [No.
504CV178MCR,] 2005 WL 2001740[,] at *5 (N.D. Fla. Aug. 10, 2005)
[(unpublished)] (quoting Moyer v. Walt Disney Work [sic] Company,
146 F. Supp. 2d 1249, 1253 (M.D. Fla. 2000)). Accordingly, Payne’s
attempt to satisfy her standing requirement at this later date . . .
fails . . . .
(Docket Entry 25 at 5 (first bracket in original, internal citations omitted,
non-bracketed emphasis in original). In light of Fourth Circuit authority which
appears to permit the use of such affidavits, see White Tail Park, 413 F.3d at
459 (on Rule 12(b)(1) motion “the district court may consider evidence outside
the pleadings” (internal quotation marks omitted)), the Court should not base its
ruling on this argument by Defendants.
-11-
other.” (Docket Entry 8 at 10.) This consideration weighs against
standing.
See Waffle House, 2011 U.S. Dist. LEXIS 69815, at *6-7
(ruling that fact of plaintiff’s Florida residence more than 700
miles from defendant’s North Carolina restaurant weighs against
standing); Norkunas v. Park Rd. Shopping Ctr., Inc., No. 3:10-cv210-FDW-DSC, 2011 U.S. Dist. LEXIS 41431, at *9 (W.D.N.C. Apr. 15
2011) (unpublished) (finding 120-mile distance between plaintiff’s
residence and defendant shopping center “too great for the Court to
consider it likely that Plaintiff will have occasion to return to
Defendant’s establishment”); National Alliance for Accessibility,
Inc. v. Tunnel Rd. (E & A) LLC, No. 1:10cv282, 2011 U.S. Dist.
LEXIS
50637,
(holding
that
at
*8-10
plaintiff
(W.D.N.C.
had
not
Apr.
met
8,
2011)
burden
of
(unpublished)
demonstrating
standing where defendant’s establishment was in North Carolina and
plaintiff lives in Florida), recommendation adopted, 2011 U.S.
Dist. LEXIS 50771 (W.D.N.C. May 10, 2011) (unpublished).
Plaintiffs respond that “it is irrelevant that [Payne] lives
in Florida . . . given that she has many business contacts in the
area, and already stopped at that Rite Aid once, and Rite Aid is
her chosen pharmacy.” (Docket Entry 15 at 18 (internal citation to
the record omitted).)
Plaintiffs’ argument lacks persuasive force
in that they fail to cite any authority for the proposition that
“business contacts in the state” or a single prior visit render
proximity considerations irrelevant.
-12-
(See id.)
Thus, the great distance between Payne’s Florida residence and
the Property in North Carolina weighs against finding that she will
return.
b.
Past Patronage
Defendants observe that “Payne does not allege that she
visited the property more than once.”
(Docket Entry 8 at 10.)6
Courts in the Fourth Circuit have recognized that a single visit to
a property does not support a finding of an injury-in-fact.
See
Waffle House, 2011 U.S. Dist. LEXIS 69815, at *6-7 (ruling that
plaintiff’s failure to allege visits to property other than single
occasion which formed basis of her complaint weighs against finding
standing); Norkunas, 2011 U.S. Dist. LEXIS 41431, at *10 (holding
that
plaintiff’s
past
patronage
of
defendant’s
establishment
consisting of single occasion which gave rise to suit weighs
against finding plaintiff will likely suffer future harm); Harty v.
Tathata Inc., No. 5:10-CV-113-WW, 2011 U.S. Dist. LEXIS 35136, at
*11-12
(E.D.N.C.
Mar.
31,
2011)
(unpublished)
(finding
that
plaintiff failed to demonstrate substantial likelihood of future
injury where plaintiff only visited defendant’s business once).
Payne has not alleged that she visited the Property more than once.
(See Docket Entry 1; Docket Entry 15 at 2-19; Docket Entry 21 at 2-
6
Plaintiffs claim that:
“[Payne] has a discount card provided for
frequent Rite Aid shoppers and she uses it.
. . . Payne is a ‘bona fide’
patron.”
(Docket Entry 15 at 19.)
There is no support in the record for
Plaintiffs’ assertion that Payne possesses a Rite Aid discount card (see supra,
n.3), and, moreover, such possession would not show that Payne shops at the
Property as opposed to another Rite Aid pharmacy.
-13-
4.)
Accordingly, the second factor weighs against finding that
Payne will visit the Property in the future.
c.
Definitive Return Plans
Defendants contend that “Payne’s intent to return to North
Carolina . . . at an unspecified time in the future is too
vague . . . .”
(Docket Entry 8 at 11.)
Plaintiffs, relying on
Molski v. Price, 224 F.R.D. 479 (C.D. Cal. 2004), argue that:
“Courts have granted standing to Plaintiffs with dual motivations
to return to a place of public accommodation, even when one
motivation was to determine if the place of public accommodation
has been brought into ADA compliance.”
(Docket Entry 15 at 18.)
Plaintiffs also cite Clark v. McDonald’s Corp., 213 F.R.D. 198
(D.N.J. 2003), and Colorado Cross Disability Coal. v. Hermanson
Family Ltd. P’ship, No. 96-WY-2490-AJ, 1997 WL 33471623 (D. Colo.
Aug. 5, 1997) (unpublished).
(See Docket Entry 15 at 18.)
“[W]hile Plaintiff may not need to identify a specific date on
which [s]he plans to return to the [establishment], [s]he must have
a non-speculative intent to return that amounts to more than an
allegation that [s]he will return ‘some day.’” Norkunas, 2011 U.S.
Dist. LEXIS 41431, at *10.
See also Lujan, 504 U.S. at 564 (“Such
‘some day’ intentions -- without any description of concrete plans,
or indeed even any specification of when the some day will be -- do
not support a finding of the ‘actual or imminent’ injury that our
cases require.”); Waffle House, 2011 U.S. Dist. LEXIS 69815, at *6
(“Payne has no definite plan to return.
Instead, she merely
asserts that she will be in North Carolina again in 2011 and that
-14-
she would like to return to the restaurant at some point in the
future.”); Tunnel Rd. (E & A), 2011 U.S. Dist. LEXIS 50637, at *810 (“[E]ven though the Complaint alleges that Plaintiff Payne
‘plans to return to the property to avail herself of the goods and
services offered to the public at the property in a manner equal to
that
offered
Defendant
has
allegation
to
individuals
eliminated
that
she
who
the
are
not
disabled,
violations,’
intends
to
visit
this
the
once
the
conclusory
[defendant’s
establishment] some day in the future is insufficient to satisfy
the constitutional requirements of standing.”); Tathata, 2011 U.S.
Dist. LEXIS 35136, at *11-12 (“Plaintiff’s assertions that he
‘plans to return to the property’ are indefinite, and Plaintiff
makes
no
specific
allegation
that
he
frequently
travels
to
Raleigh.”).
“[W]hile Title III may recognize that a plaintiff need not
engage in the futile gesture of visiting a building containing
known barriers to access that the owner has no intention of
remedying, a plaintiff must at least prove knowledge of the
barriers and that they would visit the building in the imminent
future but for those barriers.”
Norkunas, 2011 U.S. Dist. LEXIS
41431, at *10 (internal quotation marks omitted, emphasis added)
(citing Betancourt v. Ingram Park Mall, L.P., 735 F. Supp. 2d 587,
599 (W.D. Tex. 2010) (quoting Steger v. Franco, Inc., 228 F.3d 889,
892 (8th Cir. 2000))).
Payne’s averments do not show that she has any definite plans
to return to Chapel Hill, North Carolina, and specifically the
-15-
Property. Rather, her affidavit shows that she had plans to travel
to Raleigh and Asheville, North Carolina (see Docket Entry 21, ¶¶
7, 11), and that she has business in Asheville and Raleigh (see
id., ¶ 4).
Additionally, Plaintiffs allege vaguely that Payne
“desires to visit the [Property]” (Docket Entry 1 at 6), but
neither the Complaint, nor Payne’s affidavit shows a definite
intention to return even if the barriers to access ceased to exist
(see id.; Docket Entry 21 at 2-4).
In other words, there is no
evidence that Payne seeks to patronize the establishment in the
imminent future, “but for” the presence of the barriers.
Plaintiffs’ argument, which relies on Price and two cases
cited therein, that standing exists where a plaintiff has “dual
motivations” for visiting the Property lacks merit.
In Price, the
handicapped California plaintiff filed an action seeking injunctive
relief under the ADA against a California service station in
connection with the plaintiff’s inability to use the defendant’s
restroom because a designated handicap parking space was not
available.
made
224 F.R.D. at 480-81.
another
visit
to
the
The plaintiff had subsequently
establishment.
Id.
Defendant’s
establishment was located off of a highway; the plaintiff made 10
to 50 trips per year upon the very same highway and had taken the
exit which leads to the service station “no more than five times.”
Id.
The plaintiff testified that he intended to return to the
service station to “check out its accessibility and to use the
restroom facilities.”
Id. at 483.
-16-
The district court denied the
defendant’s
jurisdiction.
motion
to
dismiss
for
lack
of
subject
matter
Id. at 484-85.
In so ruling, the court observed that the defendant had taken
issue with Plaintiff’s motivation to return to the service station.
Id. at 483.
The court observed that “[it] c[ould] find no
authority that suggests that . . . a plaintiff must possess an
intention to return . . . that is not motivated in any way by
advancing his litigation against that public accommodation” and
noted that “[t]wo district court cases that have considered this
issue under similar facts provide guidance”:
In Colorado Cross Disability Coalition v. Hermanson
Family Limited Partnership, No. 96-WY-2490-AJ, 1997 WL
33471623 (D.Colo.1997), the court found that a plaintiff
who used a wheelchair established standing based on his
averment that he intended to shop at the defendant’s
stores. Id. at *6. The court so held notwithstanding
the defendants’ argument that the plaintiff’s trip to the
defendants stores “was not triggered by a desire to shop
in the businesses there, but was rather driven by a
desire to ferret out which buildings were in violation of
the ADA’s accessibility requirements.” Id. at *4. The
Court agrees that an ADA plaintiff’s motivation -- but
not his intent -- is irrelevant for purposes of
determining standing.
The Court is also guided by Clark v. McDonald's
Corporation, 213 F.R.D. 198 (D.N.J.2003). In Clark, the
court held that a plaintiff who was paraplegic had
standing to assert claims against fast-food restaurants
that he had visited notwithstanding the defendant’s
objection that the plaintiff was a mere “tester” and not
a “patron” of the restaurant. Id. at 227-28. In other
words, the defendant contended that the sole purpose of
the plaintiff’s visits was to test the ADA compliance of
the restaurants.
Id.
The court rejected this
proposition based on the evidence presented, because the
complaint
suggested
that
plaintiff
visited
each
restaurant with the dual motivation of availing himself
of the goods and services and verifying the restaurant’s
ADA compliance. Id. Such dual motivation, in the Clark
-17-
court’s view, sufficed to make the plaintiff a “bona fide
‘patron.’” Id.
Price, 224 F.R.D. at 483-84 (italics in original).
The court
concluded that “[t]he record here establishes that Plaintiff Molski
has a similar dual motivation” and held that the plaintiff had met
his burden of establishing “his intent to return to Defendant’s
service station[.]”
Id. at 484.
In contrast with the foregoing authority, Defendants have not
argued that Payne’s “dual motivation” alone fails to support a
finding of intent to return.
(See Docket Entry 8 at 10-11.)
Rather, Defendants have asserted that her intent is “too vague” to
establish sufficient risk of future harm.
(Id. at 11.)
To the
extent Plaintiffs rely on Payne’s “dual motivation” to satisfy the
future
plan
factually
to
return
requirement,
distinguishable
from
Payne’s
Price.
circumstances
Unlike
Price,
are
Payne’s
residence and the Property are in different states (Docket Entry 1
at 2), Payne has only visited the Property once (Docket Entry 21,
¶ 12), and Payne does not claim to have even passed close by the
Property on any other occasion as the plaintiff in Price did on
numerous occasions (see id. at 2-4).
Recently, one court in the Fourth Circuit explained that a
plaintiff’s motivation to verify ADA compliance does not lessen her
burden to meet the standing requirements:
Nor is Plaintiff afforded standing simply by way of his
status as an ADA “tester.” . . . [T]he law makes clear
that a Title III plaintiff cannot use her status as a
tester to satisfy the standing requirements where she
would not have standing otherwise.
Thus, the naked
assertion of a desire to return to a defendant
-18-
establishment for the sole purpose of confirming
ADA-compliance, without more, is insufficient to
establish standing.
Norkunas, 2011 U.S. Dist LEXIS 41431, at *18-19 (internal citations
omitted).
The Court finds that Plaintiffs have not shown that Payne has
concrete plans to return to Chapel Hill, North Carolina, and in
particular to the Property.
Therefore, this factor weighs against
finding that Payne has standing.
d.
Defendants
claim
Travel Near Establishment
that
“[Payne]
has
alleged
no
facts
to
indicate how frequently she plans on traveling to North Carolina,
or whether she currently has any such plans.”
11.)
a
(Docket Entry 8 at
Other courts have found that a plaintiff’s general travel to
state
does
demonstrated
not
a
support
threat
of
a
finding
future
establishment within the state.
harm
that
said
related
plaintiff
to
a
has
specific
See Waffle House, 2011 U.S. Dist.
LEXIS 69815, at *7 (ruling that plaintiff’s “travel to North
Carolina once or twice per year” does not compel finding that she
has standing); Norkunas, 2011 U.S. Dist. LEXIS 41431, at *10-11
(holding that plaintiff failed to show future injury based on
travel through relevant metropolitan area three to four times per
year, where plaintiff had no reason to drive to defendant’s
establishment); Tunnel Rd. (E & A), 2011 U.S. Dist. LEXIS 50637, at
*8-10 (finding that plaintiff failed to satisfy burden of showing
injury in fact where plaintiff alleged previous visits and future
-19-
plans to return to North Carolina, but did not allege any intention
to return to city where defendant’s establishment was located).
Payne avers that she has traveled to North Carolina and that
she has business associations, friends and connections in the State
(Docket Entry 21, ¶¶ 3, 6) and conducts business in Asheville and
Raleigh (id., ¶¶ 4, 8).
Moreover, she alleges that she has
traveled through the State on her way to Virginia (id., ¶ 9) and
has
stayed
in
Greensboro
and
Winston-Salem
(id.,
¶
10).
Furthermore, Payne allegedly had plans to travel to Raleigh and
Asheville.
(Id., ¶¶ 7, 11.)
However, Plaintiffs have not shown
that Payne’s travel to or through the State has brought or will
bring her near the Property.
Moreover, Payne has not averred that
she has any contacts or reason to visit Chapel Hill.
Thus, the
fourth factor does not support finding that Payne will return to
the Property in the future.
e.
Litigation History
Defendants assert that “[m]ultiple courts have held that it
seems rather unlikely that, with so many litigations, a plaintiff
like Payne would return to a remote Rite Aid Pharmacy . . . in
addition to all the other places of public accommodation she is
allegedly ‘intending’ to visit.”
(Docket Entry 8 at 11 (citing
Lamb v. Charlotte Cnty., 429 F. Supp. 2d 1302 (M.D. Fla. 2006);
Access for the Disabled, Inc. v. Rosof, No. 8:05-cv-1413-T-30TBM,
2005 U.S. Dist. LEXIS 37853, at *8 (M.D. Fla. Dec. 28, 2005)
(unpublished); Brother v. Tiger Partner, LLC, 331 F. Supp. 2d 1368,
1374 (M.D. Fla. 2004)).) Plaintiffs respond that: (1) Payne’s role
-20-
as “an advocate” should not affect her “standing” (Docket Entry 15
at
23-24);
(2)
“Defendants
are
attacking
individuals
and
associations (and their counsel) who assert their civil rights”
(id. at 24); (3) “[t]he ADA provides for a private right of action,
making individual lawsuits the only real way of enforcing the law”
(id.); and (4) “the ADA is a remedial statute and should be broadly
construed to effectuate its purpose” (id. (internal citations
omitted)).
Courts are split with respect to whether to consider a
plaintiff’s
filing
of
other
ADA
lawsuits
for
purposes
of
determining the plausibility of a plaintiff’s intent to return to
an
establishment.
Compare
Access
4
All,
Inc.
v.
Absecon
Hospitality Corp., No. 04-6060 (JEI), 2006 U.S. Dist. LEXIS 79264,
at *20 (D.N.J. Oct. 30, 2006) (unpublished) (“Indeed, because
Plaintiff Esposito is a frequent litigant with the stated goal of
ensuring ADA compliance, his claim of intent to return to the
Hampton Inn to do additional examinations is made more, not less,
credible.”), with Lamb, 429 F. Supp. 2d at 1310-11 (“Plaintiff has
filed numerous lawsuits under Titles II and III of the ADA.
The
Court finds that his allegations of intent to return to the
property in question are not credible . . . .”).
Defendants’ authorities do not show that consideration of a
plaintiff’s
appropriate.
litigation
history
Defendants
cited
under
one
these
case
circumstances
which
considered
is
a
plaintiff’s litigation history, but examined the plausibility of
the plaintiff’s return to an establishment in the context of a
-21-
summary judgment motion.
See Tiger Partner, 331 F. Supp. 2d at
1374-75 (finding implausible plaintiff’s intent to return to all
fifty-four properties he sued and granting defendant’s motion for
summary judgment).
Additionally, in Access for the Disabled, the
court did not consider the plaintiff’s litigation history.
See
Access for the Disabled, 2005 U.S. Dist. LEXIS 37853, at *8
(finding that plaintiff’s status as a “tester” and plaintiff’s
intent to visit the facility to “‘verify its compliance or noncompliance with the ADA’ does little to support his allegation that
he is truly threatened by a future injury” where coupled with
plaintiff’s failure to allege intent to visit store as customer,
and plaintiff did not live in the area).
In Lamb, the district court, in granting the defendant’s
motion to dismiss for lack of subject matter jurisdiction, stated
that the plaintiff had filed “numerous [ADA] lawsuits” and found
that “his allegations of intent to return to the property in
question are not credible . . . .”
429 F. Supp. 2d at 1310-11.
In
reaching the foregoing finding, the court relied on Brother v. CPL
Inv., Inc., 317 F. Supp. 2d 1358, 1369 (S.D. Fla. 2004).
F. Supp. 2d at 1310.
Lamb, 429
The CPL Inv. case is distinguishable from
this case in that the court decided not to credit plaintiff’s
allegation regarding his intent to return to the defendant’s
establishment based, in part, on “extensive litigation,” after
“conduct[ing] a non-jury trial” and considering “testimony and
evidence presented at trial[.]”
317 F. Supp. 2d at 1360 & 1369.
-22-
In Waffle House, the district court granted the defendant’s
motion to dismiss for lack of subject matter jurisdiction and found
the plaintiff’s “litigation history to be relevant.”
Dist. LEXIS 69815, at *7.
2011 U.S.
The court stated:
It is implausible that Payne, a Florida resident who
travels approximately once or twice a year to this state,
plans to return to each of the thirty-two (32) properties
in North Carolina she has sued for noncompliance with the
ADA. See, e.g., Wilson v. Costco Wholesale Corp., 426 F.
Supp. 2d 1115, 1123 (S.D. Cal. 2006); Brother v. Tiger
Partner, LLC, 331 F. Supp. 2d 1368, 1375 (M.D. Fla.
2004).
Waffle House, 2011 U.S. Dist. LEXIS 69815, at *7.
However, the
plaintiff’s litigation history was not a determinative factor, as
the court held that other factors were “sufficient to conclude that
[the plaintiff] lacks standing[.]”
Id.
Similarly, in Wilson, the
district court found the plaintiff’s litigation history “relevant,
but not outcome determinative” in the context of granting the
defendant’s motion for summary judgment.
426 F. Supp. 2d at 1123.
Under the circumstances of this case, the Court should decline
to
treat
Payne’s
prior
litigation
history
as
a
relevant
consideration with respect to whether she lacks standing.
f.
Brief Conclusion
Plaintiffs have not met their burden of establishing Payne’s
standing to bring this action, because they fail to demonstrate a
likelihood
of
future
harm
to
Payne.
They
fail
to
show
a
possibility of Payne returning to the Property, because (1) a great
distance exists between Payne’s Florida residence and the North
Carolina Property; (2) Payne has only patronized the Property once;
-23-
(3) Payne has no definitive plans to return to the Property, or
even the city; and (4) Payne does not frequently travel through the
Chapel Hill metropolitan area and specifically near the Property.
Therefore, Defendants’ Motion to Dismiss (Docket Entry 7) should be
granted with respect to Payne.
iii.
NAA
Defendants argue that NAA also lacks organizational standing
and associational standing. (Docket Entry 8 at 12-16.) Plaintiffs
respond that “[NAA] relies solely on its right to bring this claim
based on associational standing . . . .”
(Docket Entry 15 at 19.)
Because Payne lacks standing to pursue her claim and NAA’s standing
is solely predicated upon her standing in this case, NAA lacks
standing to proceed. See White Tail Park, 413 F.3d at 458 (stating
that first prong of associational standing requires organization to
show
“its
members
would
otherwise
have
standing
individuals” (internal quotation marks omitted)).
to
sue
as
Therefore,
Defendants’ Motion to Dismiss (Docket Entry 7) should be granted
with respect to NAA.
B.
Motions to Amend
Plaintiffs seek to “amend their Complaint to include EDC [] as
a Defendant.”
(Docket Entry 13 at 1; accord Docket Entry 16 at 2.)
“The [C]ourt should freely give leave [to amend a pleading] when
justice so requires.”
Fed. R. Civ. P. 15(a)(2).
Under this
standard, the Court has some discretion, “but outright refusal to
grant the leave without any justifying reason appearing for the
denial is not an exercise of discretion.” Foman v. Davis, 371 U.S.
-24-
178, 182 (1962). Reasons to deny leave to amend a pleading include
“futility of amendment,” id.
An amendment is futile where it
cannot withstand a motion to dismiss.
See Perkins v. United
States, 55 F.3d 910, 917 (4th Cir. 1995) (“In sum, the district
court was justified in denying Mrs. Perkins’s motion to amend her
complaint because the proposed amendments could not withstand a
motion to dismiss.”).
Plaintiffs propose to amend their Complaint to add another
defendant, but they do not seek to add allegations which relate to
Payne’s standing to bring this action.
The addition of EDC as a
defendant would not alter the foregoing analysis regarding the
possibility of future harm to Payne and her standing to bring this
action.
Plaintiffs would continue to lack standing even if EDC
were added as a defendant.
Thus, their amended complaint would
fail to survive a Rule 12(b)(1) motion to dismiss.
Accordingly, Plaintiffs’ motions to amend (Docket Entries 13
and 16) are denied.7
III.
CONCLUSION
Plaintiffs have not met their burden of showing that Payne has
standing to bring this action, and, in particular, that she faces
a
likelihood
associational
of
future
standing
harm.
and
any
As
a
result,
proposed
NAA
addition
also
of
lacks
another
defendant fails for futility.
7
For reasons stated in Deberry v. Davis, No. 1:08CV582, 2010 WL 1610430,
at *7 n.8 (M.D.N.C. Apr. 19, 2010) (unpublished), the undersigned Magistrate
Judge will enter an order, rather than a recommendation, as to said motions.
-25-
IT IS THEREFORE RECOMMENDED that Defendants’ Motion to Dismiss
(Docket Entry 7) be GRANTED.
IT IS ORDERED that Plaintiffs’ Motions to Amend (Docket Entry
13 and 16) are DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 27, 2011
-26-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?