NATIONAL ALLIANCE FOR ACCESSIBILITY, INC., et al v. BIG LOTS STORES, INC.

Filing 22

MEMORANDUM OPINION AND ORDER re 11 MOTION to Dismiss filed by BIG LOTS STORES, INC. IT IS ORDERED that Defendant Big Lots's motion to dismiss (Doc. 11 ) is GRANTED. A separate Judgment will be entered. Signed by JUDGE THOMAS D. SCHROEDER on 4/26/2012. (Solomon, Dianne)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NATIONAL ALLIANCE FOR
ACCESSIBILITY, INC., and
DENISE PAYNE,
Plaintiffs,
v.
BIG LOTS STORES, INC., an Ohio
Corporation,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

1:11-cv-941

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiffs
(“NAA”),

and

National
Denise

Alliance

Payne

for

(“Payne”)

Accessibility,
seek

declaratory

Inc.
and

injunctive relief against Defendant Big Lots Stores, Inc. (“Big
Lots”),

for

alleged

violations

of

the

Americans

with

Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (2006 & Supp.
2011) (“ADA”).

Before the court is Big Lots‟s motion to dismiss

Plaintiffs‟ claims for lack of subject matter jurisdiction and
failure to state a claim, pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), respectively.

(Doc. 11.)

For

the reasons set forth below, the court will grant Big Lots‟s
motion to dismiss on the ground that Plaintiffs lack standing.

I.

BACKGROUND
Payne, who was born with cerebral palsy and is confined to

a wheelchair, characterizes herself as an advocate for disabled
individuals.

(Doc. 18-1 ¶¶ 5, 7.)

From her home state of

Florida, Payne and the organization she founded, the NAA, seek
to

promote

litigation.

equality

for

disabled

individuals

through

ADA

As of June 2011, Payne and the NAA had filed at

least 171 ADA cases, some 32 of them in North Carolina.

Nat‟l

Alliance for Accessibility, Inc. v. Waffle House, Inc. (Waffle
House I), No. 5:10-CV-375-FL, 2011 WL 2580679, at *1 (E.D.N.C.
June 29, 2011).

To date, Plaintiffs have filed 24 ADA lawsuits

in the Middle District of North Carolina alone.

The present

lawsuit is Plaintiffs‟ fourth in this state against Big Lots in
the past year.

See Nat'l Alliance for Accessibility, Inc. v.

Big Lots Stores, Inc., No. 5:12-cv-0006 (E.D.N.C. Jan. 6, 2012)
(Raleigh store); Nat'l Alliance for Accessibility, Inc. v. Big
Lots

Stores,

Inc.,

No.

5:11-cv-741

(E.D.N.C.

Dec.

20,

2011)

(Cary store); Nat'l Alliance for Accessibility, Inc. v. Big Lots
Stores,

Inc.,

No.

1:11-cv-730

(M.D.N.C.

Sept.

13,

2011)

(Greensboro store).1

1

Plaintiffs have also actively pursued ADA litigation against Big Lots
in Florida.
Payne has brought at least four cases against Big Lots
across that state since November 2011.
Nat'l Alliance for
Accessibility, Inc. v. Big Lots Stores, Inc., No. 0:12-cv-60243-WPD
(S.D. Fla. Feb. 9, 2012) (Hollywood, Fla.); Nat'l Alliance for
Accessibility, Inc. v. Big Lots Stores, Inc., No. 9:11-cv-81234-KLR
(S.D. Fla. Feb. 2, 2012) (Fort Lauderdale, Fla.); Payne v. Big Lots

2

The present lawsuit arises from an undated visit Payne paid
to Big Lots‟s store located at 2531 Eastchester Drive in High
Point, North Carolina (also the “Store”).

(Doc. 7 at 2, 5.)

For purposes of this motion, the court assumes without deciding
that the Store is a place of public accommodation subject to the
requirements of Title III of the ADA.
Payne

claims

that

Big

Lots

See 42 U.S.C. § 12182.

“discriminated

against

[her]

by

denying her access to full and equal enjoyment of the goods,
services,

facilities,

accommodations

of

its

privileges,
place

of

advantages,

public

and/or

accommodation

or

commercial facility . . . in violation of 42 U.S.C. § 12181 et
seq.

and

28

C.F.R.

[§] 36.302

et

seq.”

(Doc.

7

at

13.)

Specifically, Plaintiffs identify eleven alleged ADA violations.
Most relate to the accommodations for disabled individuals in
the Store‟s men‟s restroom and unisex restroom, including the
baby changing table.2

(Id. at 7-8, 11-12.)

Three involve Big

Lots‟s provision of access to its goods and services; alleged
lack

of

“proper

signage”;

and

counters

“in

excess

of

36

Stores, Inc., No. 3:11-cv-1122-J-32 TEM (M.D. Fla. Nov. 14, 2011)
(Jacksonville, Fla.); Nat'l Alliance for Accessibility, Inc. v. Big
Lots Stores, Inc., No. 0:11-cv-62392 (S.D. Fla. Nov. 7, 2011) (West
Palm Beach, Fla.).
2

For example, one alleged violation is that the men‟s restroom sink
does not contain the proper insulation/pipe wrap. (Doc. 7-4 (Exhibit
D) at 2.) Another is that the unisex door does not provide the proper
hardware. (Doc. 7 at 8.) Yet, the photograph attached to the amended
complaint shows that the door bears a sticker noting that the unisex
restroom is “Temporarily Out of Order.” (Doc. 7-6 (Exhibit F) at 2.)

3

[inches].”

(Id. at 11.)

And one alleged violation is the lack

of “policies and procedures to inform its staff and employees on
how to deal with disabled individuals and how to put in place
and maintain an ADA compliant facility.”

(Id. at 12.)

The only

allegation relating to the women‟s restroom is that its door
lacked

a

required

International

mounted on the latch side.
2.)

Beyond

her

Symbol

of

Accessibility

sign

(Id. at 8; Doc. 7-9 (Exhibit I) at

conclusory

accusation

that

she

“has

been

personally injured” (id. at 14), there is no allegation in the
complaint

that

Payne

was

prevented

from

using

the

women‟s

restroom or that she was otherwise unable to access and shop at
the

Store.

Plaintiffs

allege

that

they

would

need

a

full

inspection of the Store to “determine all of the applicable
areas of non-compliance with the [ADA].”

(Doc. 7 at 12.)

In anticipation of a challenge to their standing to sue for
the alleged ADA violations at the Store -- perhaps relating to
the

fact

that

Plaintiffs

have

had

several

of

their

cases

dismissed in North Carolina‟s federal courts after an inability
to

demonstrate

standing,

see,

e.g.,

Nat‟l

Alliance

for

Accessibility, Inc. v. Triad Hospitality Corp., No. 1:11-cv-527,
2012 WL 996661 (M.D.N.C. Mar. 23, 2012); Waffle House I, 2011 WL
2580679 -- Plaintiffs‟ amended complaint alleges a number of
standing-related facts.

Plaintiffs claim, for instance, that

Payne is a “frequent shopper” at the High Point Store.

4

(Doc. 7

at 5.)

They allege that she has visited a friend in High Point

three times in the past two years and has, on each occasion,
visited

the

represent

Store.

that

candies”

and

(Id.

Payne

at

6.)

patronizes

travel-size

Furthermore,

Big

Lots

for

and

will

toiletries

revisit the High Point Store in May 2012.
II.

Plaintiffs

their

“small

“definitely”

(Id.)

ANALYSIS
Big

Lots

moves

to

dismiss

Plaintiffs‟

amended

complaint

under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
(Doc. 11.)
courts

According to Big Lots, as several other district
North

in

sufficiently

show

Carolina
that

have

Payne

found,

will

Plaintiffs

return

to

the

“fail
Store”

to
and

therefore are unable to meet the “burden of demonstrating a
likelihood of future harm to Payne.”

(Doc. 12 at 16.)

Payne,

Big Lots contends, lives over 700 miles from High Point, lacks a
record of past patronage to the Store, alleges no definitive
plans to return to the Store, and, other than her representation
that she visits a friend in High Point one or two times per
year, has not demonstrated a consistent pattern of travelling
near the area.
Big

Lots

(Id. at 11-15.)

contends,

the

NAA,

Because Payne lacks standing,

whose

Payne‟s, lacks standing as well.

status

is

derivative

of

(Id. at 16-17.)

Plaintiffs‟ amended response brief, spanning some 36 pages,
is more of a policy statement extolling the virtues of the ADA

5

than a legal argument on the merits of this case, particularly
at the outset.

This is problematic because this court‟s local

rules limit response briefs to 20 pages, and the court will
disregard the 16 additional pages that offend the rule.
Local Rule 7.3(d).

See

Still, in the relevant portions of their

brief, Plaintiffs argue that Big Lots “has acted unlawfully” and
that Payne‟s repeated visits to the Store establish “a real and
immediate threat of repeated injury that is not conjectural or
hypothetical.”
the

use

of

Plaintiffs also object to

(Doc. 17 at 4, 7.)
the

proximity

test

--

a

set

of

factors

for

determining standing used by a large number of federal courts,
including

district

courts

in

the

Fourth

Circuit,

based

on

considerations such as a plaintiff‟s distance from the business
and her past patronage of the establishment -- for evaluating
standing.

(Id. at 10-11.)

Instead, Plaintiffs urge the court

to focus on the fact that Big Lots‟s alleged non-compliance with
the ADA creates an ongoing injury to disabled individuals like
Payne.

(Id. at 17.)

Federal

district

courts

exercise

limited

jurisdiction.

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552
(2005).

For a case or controversy to be justiciable in federal

court, a plaintiff must allege “„such a personal stake in the
outcome of the controversy as to warrant [her] invocation of
federal

court

jurisdiction

and

6

to

justify

exercise

of

the

court‟s remedial powers on [her] behalf.‟”

White Tail Park,

Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir. 2005) (quoting
Planned Parenthood of S.C. v. Rose, 361 F.3d 786, 789 (4th Cir.
2004)).

The

judicial

doctrine

of

standing

is

“an

component of the case or controversy requirement.”

integral

CGM, LLC v.

BellSouth Telecomms., Inc., 664 F.3d 46, 52 (4th Cir. 2011)
(citation
seeking

and

to

internal

invoke

quotation

the

federal

marks

omitted).

courts‟

The

jurisdiction

has

burden of satisfying Article III‟s standing requirement.
v. Brown, 462 F.3d 312, 316 (4th Cir. 2006).

party
the

Miller

To meet that

burden, a plaintiff must demonstrate three elements: (1) that
she

has

suffered

an

injury

in

fact

that

is

“concrete

and

particularized” and “actual or imminent”; (2) that the injury is
fairly

traceable

to

the

challenged

conduct;

and

(3)

favorable decision is likely to redress the injury.

that

a

Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Where, as here, a plaintiff seeks injunctive relief, the
injury

in

injury.”
According

fact

element

requires

a

showing

of

“irreparable

City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
to

the

Supreme

Court,

“past

wrongs

do

not

in

themselves amount to that real and immediate threat of injury
necessary to make out a case or controversy.”

Id. at 103.

Absent a “sufficient likelihood that [the plaintiff] will again

7

be wronged in a similar way, [the plaintiff] is no more entitled
to an injunction than any other citizen.”

Id. at 111.

Generally, challenges to standing are addressed under Rule
12(b)(1) for lack of subject matter jurisdiction.3

CGM, 664 F.3d

at 52; see also Pitt Cnty. v. Hotels.com, L.P., 553 F.3d 308,
311

(4th

Cir.

2009)

(noting

that

the

district

court

re-

characterized a defendant‟s challenge to standing from a motion
to dismiss for failure to state a claim under Rule 12(b)(6) to a
motion to dismiss for lack of subject matter jurisdiction under
Rule 12(b)(1)).

When resolving a motion under Rule 12(b)(1),

“„the district court is to regard the pleadings as mere evidence
on the issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary judgment.‟”4

3

Here, Big Lots has moved to dismiss for lack of standing under Rule
12(b)(1) and Rule 12(b)(6).
The Fourth Circuit has explained,
however, that Rule 12(b)(6) is generally reserved for challenges to
statutory -- not constitutional -- standing. CGM, 664 F.3d at 51-52;
cf. Daniels v. Arcade, L.P., No. 11-1191, slip op. at 5 n.1 (4th Cir.
Apr. 24, 2012) (unpublished) (analyzing standing under Rule 12(b)(6)
only because neither party assigned error to the district court‟s
analysis on that basis).
Because Big Lots‟s argument addresses
Plaintiffs‟ lack of constitutional standing under Article III, the
court construes its motion solely as one challenging the court‟s
subject matter jurisdiction under Rule 12(b)(1).
4

It has been said that “[t]he procedural means for resolving standing
issues are not as clearly defined as might be imagined.” 13B Charles
Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice
and Procedure § 3531.15, at 301 (3d ed. 2008). In the Fourth Circuit,
where a party moves under Rule 12(b)(1) on the basis that a complaint
fails to allege facts supporting the court‟s subject matter
jurisdiction,
the
plaintiff
“is
afforded
the
same
procedural
protection as he would receive under a Rule 12(b)(6) consideration.”
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
On the other
hand, where a party contests the veracity of the jurisdictional

8

Evans v. B.F. Perkins Co., a Div. of Standex Int‟l Corp., 166
F.3d 642, 647 (4th Cir. 1999) (quoting Richmond, Fredericksburg
& Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991)).

Where, as here, a defendant has not provided evidence

to dispute the veracity of the jurisdictional allegations in the
complaint, the court accepts facts alleged in the complaint as
true just as it would under Rule 12(b)(6).5

Kerns v. United

States, 585 F.3d 187, 192-93 (4th Cir. 2009) (citing Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).
court

assumes

the

truth

plaintiff‟s affidavits.

of

the

facts

In addition, the
augmented

by

the

Fair Hous. in Huntington Comm., Inc. v.

Town of Huntington, N.Y., 316 F.3d 357, 362 (2d Cir. 2003).
Ultimately, the plaintiff bears the burden of “clearly . . .
alleg[ing] facts demonstrating that [s]he is a proper party to
invoke judicial resolution of the dispute.”

Warth v. Seldin,

422 U.S. 490, 518 (1975).
allegations in the complaint, “[a] trial court may consider evidence
by
affidavit”
and
“weigh[]
the
evidence
to
determine
its
jurisdiction.”
Id.
This appears to be consistent with the Fifth
Circuit‟s approach, which permits district courts to consider “(1) the
complaint alone; (2) the complaint supplemented by the undisputed
facts evidence in the record; or (3) the complaint supplemented by the
undisputed facts plus the court‟s resolution of disputed facts” when
resolving motions under Rule 12(b)(1). Lane v. Halliburton, 529 F.3d
548, 557 (5th Cir. 2008) (citation and internal quotation marks
omitted); see also Hostetler v. United States, 97 F. Supp. 2d 691, 694
(E.D. Va. 2000) (applying the same test).
5

The court does so even though in Triad Hospitality Corp., 2012 WL
996661, Payne submitted an affidavit to this court in support of her
standing to bring an ADA claim against a hotel in Winston-Salem which
contained representations as to her travel activities that were
demonstrated to be materially incorrect.

9

A.

Actual or Imminent Injury

Plaintiffs

contend

that

absent

an

injunction

from

this

court, they will suffer an irreparable injury because of Big
Lots‟s

alleged

ongoing

violations

of

the

ADA.

A

disabled

individual seeking an injunction under the ADA, however, must,
like

all

litigants

controversy

in

requirement
Inc.,

federal
of

631

court,

Article
F.3d

satisfy

III.

939,

the

Chapman

946

(9th

Cir.

case

v.

or

Pier

2011)

1

Imports

(U.S.)

(en

banc).

A plaintiff‟s “profession of an „inten[t]‟ to return to

the places [she] ha[s] visited before” is generally insufficient
to establish standing to seek injunctive relief.
U.S. at 564 (first alteration in original).
intentions

--

without

any

description

of

Lujan, 504

“Such „some day‟
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”

required by Supreme Court precedent interpreting Article III.
Thus, to show likely future harm, Payne must demonstrate a

Id.

sufficiently concrete intention to return to Big Lots‟s Store in
High Point.

Norkunas v. Park Road Shopping Ctr., Inc., 777 F.

Supp. 2d 998, 1001 (W.D.N.C. 2011) (citing Lujan, 504 U.S. at
564).
For her part, Payne alleges that she is a “frequent shopper
at the Big Lots in High Point.”

(Doc. 7 at 5.)

Though she

lives in Florida, Payne claims that she “definitely plans to

10

return frequently to the Big Lots store on Eastchester [Drive].”
(Id.)

Specifically, she alleges that she visited a friend in

High Point twice in 2010 and once in 2011 during her visits to
North Carolina.

(Id. at 6.)

“shopped at Big Lots.”

(Id.)

“Each time,” Payne claims, she
In addition, she represents that

she plans to visit the Store “not only to avail herself of the
goods and services available . . . but to assure herself that
this property is in compliance with the ADA.”

(Id. at 10.)

To

that end, the complaint states that Payne “will return to [the
High Point] Big Lots in May 2012.”
affidavit

Payne

submitted

in

(Id. at 6.)

support

of

An evidentiary

Plaintiffs‟

standing

further represents that she would visit the Store by April 18,
2012 and “later in 2012.”

(Doc. 18-1 at 2.)

In assessing the plausibility of a plaintiff‟s claim that
she is likely to return to the site of the discrimination (at
least once the barriers to her return are removed), courts often
find

the

following

factors

helpful:

“(1)

the

plaintiff‟s

proximity to the defendant‟s place of public accommodation; (2)
the plaintiff‟s past patronage; (3) the definitiveness of the
plaintiff‟s plan to return; and (4) the plaintiff‟s frequency of
nearby travel.”

Norkunas, 777 F. Supp. 2d at 1002; Access 4

All, Inc. v. Absecon Hospitality Corp., Civ. A. No. 04-6060,
2006

WL

3109966,

at

*6

(D.N.J.

Oct.

30,

2006);

see

also

Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d Cir. 2008)

11

(per curiam) (considering a plaintiff‟s past patronage of the
defendant‟s establishment and its proximity to her home to be
factors in finding standing).

Here, too, the court finds these

factors helpful and will consider them, in addition to any other
relevant factor raised by the facts.

Each will be addressed in

turn.
1.

Proximity to Defendant’s Business

Courts
defendant‟s

have

found

place

of

that

a

business

plaintiff‟s

is

generally

proximity
probative

to
of

a
the

likelihood that the plaintiff will return to the sight of past
discrimination and suffer harm.

Camarillo, 518 F.3d at 158;

Waffle House I, 2011 WL 2580679, at *2; cf. Daniels v. Arcade,
L.P., No. 11-1191, slip op. at 10 (4th Cir. Apr. 24, 2011)
(unpublished)
defendant‟s
standing).

(noting
business

that
weighed

the

plaintiff‟s

in

favor

of

home
the

near

the

plaintiff‟s

While no per se rule should apply, the further away

a plaintiff ordinarily finds herself from a business, the less
likely she is to suffer future harm.

Molski v. Kahn Winery, 405

F. Supp. 2d 1160, 1163-64 (C.D. Cal. 2005) (“Where the distance
between

[a

plaintiff‟s

residence

and

a

place

of

public

accommodation] is significant, especially if it is in excess of
100 miles, courts have often held that such a distance weighs
against finding a reasonable likelihood of future harm.”); Delil

12

v. El Torito Rests., Inc., No. C 94-3900-CAL, 1997 WL 714866, at
*4 (N.D. Cal. June 24, 1997).
Payne claims that she intends to visit the Store when she
visits

a

friend

who

lives

in

High

Point.

(Doc.

7

at

6.)

However, Plaintiffs fail to provide any information as to the
location

of

residence

her

to

friend

the

and

Store.

the

distance

Payne‟s

home

from
in

her

friend‟s

Broward

County,

Florida, by contrast, is more than 700 miles from the Store.
Given the generic nature of the merchandise Payne claims to be
purchasing

at

Big

Lots‟s

stores

(small

candies

and

mini-

toiletries), her claim that in order to shop at the Store she
would travel from her home in Florida (especially when she has
proven, by her multiple lawsuits against Big Lots stores in
Florida, that there are stores much closer to her in her home
state)

or

Carolina

deviate
(where

from

she

has

her

occasional

also

sued

travels

multiple

through

Big

Lots

North
stores

located 80 miles or more apart), and her failure to indicate her
friend‟s proximity to the Store, this factor weighs strongly
against Payne‟s standing.
2.

Plaintiffs’ Past Patronage

Courts have found that a plaintiff‟s past patronage of a
defendant‟s place of business is probative of a likelihood to
return.

See Kahn Winery, 405 F. Supp. 2d at 1163.

However,

“„[p]ast exposure to illegal conduct does not in itself show a

13

present case or controversy regarding injunctive relief . . . if
unaccompanied by continuing, present adverse effect.‟”

Access 4

All, Inc. v. Wintergreen Commercial P‟ship, Ltd., No. Civ. A.
3:05-CV-1307-G, 2005 WL 2989307, at *4 (N.D. Tex. Nov. 7, 2005)
(alterations

in

original)

(quoting

Lyons,

461

U.S.

at

102).

Accordingly, a plaintiff‟s single prior visit to a defendant‟s
place of business is insufficient to make it likely that she
will face harm there in the future.
2d at 1164.

Kahn Winery, 405 F. Supp.

And even multiple prior visits to a place of public

accommodation are not sufficient to show a likelihood of future
harm in the absence of additional allegations.

Naiman v. N.Y.

Univ., No. 95 CIV. 6469(LMM), 1997 WL 249970, at *5 (S.D.N.Y.
May 13, 1997).
Here, Payne represents that she visited a friend in High
Point three times in the last two years.

(Doc. 7 at 6.)

claims that “[e]ach time, [she] shopped at Big Lots.”
Big

Lots

is

particularly

correct
when

read

to

point

out

that

this

in

conjunction

with

Payne‟s

Payne
(Id.)

allegation,
affidavit

claiming only that she “visited” the Store without specifying a
number of prior visits (Doc. 18-1 at 1) and her numerous other
suits pending against Big

Lots stores across the state, may

indicate that during her trips to High Point she shopped at some
Big Lots stores but not necessarily this Big Lots Store.

At

this stage in the proceedings, however, the court is obliged to

14

draw the complaint in a light most favorable to Payne and assume
that she has visited the Store in High Point on each of her
three visits to North Carolina.

Of course, three visits in a

two-year span hardly make Payne a “frequent shopper at the Big
Lots

in

High

Point”

(Doc.

7

at

5),

but

this

factor

weighs

slightly in Plaintiffs‟ favor.
3.

Definitiveness of Plans to Return

Courts also consider the definitiveness of a plaintiff‟s
plans to return to the defendant‟s place of business.

Nat‟l

Alliance for Accessibility, Inc. v. Waffle House, Inc. (Waffle
House II), No. 5:10-CV-385-D, 2011 WL 4544017, at *2 (E.D.N.C.
Sept. 29, 2011).

Although a plaintiff does not need to engage

in the “futile gesture” of re-visiting a place of business that
is unsafe for disabled individuals, she must still prove that
she would visit the business in the imminent future but for
those safety barriers.

Steger v. Franco, Inc., 228 F.3d 889,

892-93 (8th Cir. 2000).

When assessing the definitiveness of a

plaintiff‟s plans to return, courts have considered booked hotel
reservations,

see

3:08CV542-RJC-DSC,

Disabled Patriots of Am., Inc. v. Fu, No.
2009

WL

1470687,

at

*3

(W.D.N.C.

May

26,

2009), or plane tickets, Lujan, 504 U.S. at 579 (Kennedy, J.,
concurring) (explaining that a requirement that the plaintiff
demonstrate the acquisition of airline tickets or announce a
“date certain” to return to the location at the core of their

15

suit

is

not

trivial

because

a

plaintiff

must

establish

a

personal stake in the case‟s outcome (citing Lyons, 461 U.S. at
101-02)), to be indicative of concrete plans, while vague and
self-serving desires to revisit a particular establishment fall
short of the definitiveness required to show a likelihood of
future harm, Norkunas, 777 F. Supp. 2d at 1002.
plaintiff‟s

intent

complaint is filed.

to

return

must

exist

In any event, a

at

the

time

the

Steger, 228 F.3d at 892 (noting that the

relevant facts for standing purposes are those that exist at the
time a complaint is filed).
In this case, the amended complaint alleges that Payne will
return to the Store in May 2012 when visiting High Point.
7

at

6.)

Payne‟s

affidavit,

however,

claims

that

(Doc.
she

is

planning to visit High Point within 30 days of March 16, 2012,
and sometime “later in 2012” (Doc. 18-1 at 2), while making no
mention of a visit in May.

Of course any visits that Payne

planned subsequent to the filing of this complaint -- other than
the trip planned for May 2012 -- are irrelevant to the question
of standing since the conditions supporting standing must exist
at the time the complaint is filed.

See Am. Civil Liberties

Union of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006).
Still, these shifting representations, even taken in a light
most favorable to Payne, cast doubt on the definitiveness of her
plans to return.

To be sure, Payne fails to provide any of the

16

indicia of concrete plans to support a finding that she will
suffer an actual or imminent injury necessary for standing.

See

Lujan, 504 U.S. at 564.
Beyond

her

interest

in

Big

Lots‟s

“small

candies”

and

travel-size toiletries (which are apparently available at each
of Big Lots‟s stores in her region, not to mention at virtually
an unlimited number of drug, discount, and convenience stores),
Payne has failed to indicate a special interest in this Big Lots
Store.

In fact, a primary motivation for visiting the High

Point Store in the future is to test the Store‟s compliance with
the ADA.6

(Doc. 7 at 10.)

Courts are split over whether a

plaintiff can demonstrate a concrete interest in returning to a
business

based

on

assessing

its

compliance

with

the

ADA.

Compare Norkunas, 777 F. Supp. 2d at 1005 (“[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.”), and Harris v. Stonecrest Care Auto
Ctr.,

LLC,

472

F.

Supp.

2d

1208,

6

1219-20

(S.D.

Cal.

2007)

In ADA litigation, a “tester” is an individual who tests a location‟s
compliance with federal disability statutes.
Judy v. Pingue, No.
2:08-CV-859, 2009 WL 4261389, at *5 (S.D. Ohio Nov. 25, 2009). That
Payne is motivated to test the Store‟s compliance with the ADA is
further underscored by her briefing in which she argues that “[t]he
depth of contempt for the law demonstrated by Defendant BIG LOTS, is
that it continues to administer its places of public accommodation,
its BIG LOTS stores, in violation of the ADA, in spite of being sued
56 times for the same acts of ignoring federal civil rights law to
bring equality for the disabled. Still -- BIG LOTS refuses to conform
its conduct to the requirements of the law.” (Doc. 17 at 5.)

17

(“Where

[Title

plaintiff‟s

III]

visit

litigation

to

a

is

particular

the
local

only

reason

for

establishment,

a

once

litigation is complete it is unlikely such a plaintiff will
return to avail himself of the business‟ goods or services, or
to

visit

the

local

business

for

any

other

reason.”),

with

Absecon Hospitality, 2006 WL 3109966, at *7 (“[T]he motive for a
plaintiff

to

accommodation

return
is

not

to
a

a

particular

factor

typically

place

of

public

considered

by

the

Court.”).
In

this

court‟s

view,

the

better

approach

is

that

a

plaintiff “„cannot use her status as a tester to satisfy the
standing

requirements

otherwise.‟”

where

she

would

not

have

standing

Waffle House I, 2011 WL 2580679, at *3 (quoting

Norkunas, 2011 WL 1438157, at *6); see also Nat‟l Alliance for
Accessibility, Inc. v. Rite Aid of N.C., Inc., No. 1:10CV932,
2011 WL 4499294, at *8 (M.D.N.C. Sept. 27, 2011) (Auld, Mag. J.)
(same),

adopted,

(Schroeder,

J.).

No.

1:10CV932

(M.D.N.C.

Therefore,

Nov.

Plaintiffs‟

7,

2011)

shifting

representations about when Payne will return to the Store and
her admitted status as a tester -- in the absence of a specific
interest

in

this

particular

Big

Lots

Store

or

evidence

of

regular patronage -- cast doubt on the definitiveness of her
plans to return.

18

4.

Frequency of Nearby Travels

Courts also look to the frequency of a plaintiff‟s travels
to the nearby area.

Waffle House II, 2011 WL 4544017, at *2.

Payne represents that she “goes to North Carolina to meet with
other

disabled

individuals

and

organizations”

“frequent route” takes her to High Point.

and

that

her

(Doc. 7 at 5.)

In

Plaintiffs‟ brief, Payne claims that she will be taking three
trips along that route “in the coming months” (Doc. 17 at 20),
but, as noted previously, only one such trip appeared in the
record at the time of this complaint.

On this record, Payne‟s

prior sporadic and unidentified trips to High Point -- a place
to which she has alleged no business or familial ties -- are
weak evidence to establish that her nearby travels will make it
likely that she will suffer actual or imminent harm at the Big
Lots Store.
Taking the allegations concerning standing as a whole, the
court concludes that

Payne has failed to make the requisite

showing that she is sufficiently likely to suffer an actual or
imminent injury.

Her residence of some 700 miles from the High

Point Store, her shifting and indefinite plans to return to the
area and the Store, and her limited number of past trips to High
Point render implausible her representation that she faces an
actual or imminent threat of future harm despite her claim that
she has visited High Point three times in the past two years.

19

The

absence

of

a

plausible

claim

that

Payne

will

suffer

an

irreparable injury in fact prevents her from having standing to
utilize the injunctive power of the federal courts.
B.

Concrete and Particularized Injury

Payne lacks standing for an additional reason:

she fails

to allege a “concrete and particularized injury” sufficient to
show that she has suffered -- or will suffer -- an injury in
fact.

Article

III

requires

that

a

“concrete or particularized” injury.

plaintiff

demonstrate

a

Lujan, 504 U.S. at 560.

“In order for an injury to be „concrete and particularized,‟ it
must „affect the plaintiff in a personal and individual way.‟”
Silvious

v.

Coca-Cola

Co.,

Civ.

A.

No.

3:11-CV-82,

2012

WL

1155214, at *3 (N.D.W. Va. Apr. 5, 2012) (quoting Lujan, 504
U.S. at 560 n.1).
Payne‟s complaint is a catalog of violations and represents
it is “based in part on the preliminary (pre-suit) inspector‟s
report.”

(Doc. 7 ¶ 19.)

Much of the harm Payne identifies

relates to alleged violations of the ADA that have absolutely no
application to her, such as deficiencies in baby changing tables
and the men‟s restroom.7

What Plaintiffs fail to do is “explain

7

That Plaintiffs would focus on such alleged deficiencies in this case
gives support to the suspicion that they are simply litigants in
search of a lawsuit and fee.
See, e.g., Molski v. Mandarin Touch
Rest., 347 F. Supp. 2d 860, 863 (C.D. Cal. 2004) (explaining how the
quest for attorney‟s fees has spurred a “cottage industry” of
individuals and attorneys who “aggressively seek out any and all
violations of the ADA”), aff‟d in part, dismissed in part sub nom.

20

which of these alleged barriers [Payne] encountered and would
likely encounter upon return, or how any of them denied [her]
and will continue to deny [her] „full and equal‟ access” to the
Store.

See Harty v. Burlington Coat Factory of S.C., LLC, Civ.

A. No. 3:11-1138-MBS, 2012 WL 264688, at *3 (Jan. 30, 2012)
(denying standing to an ADA plaintiff who failed to allege a
concrete

or

particularized

unsubstantiated

and

injury).

conclusory

Thus,

claim

despite

that

she

Payne‟s

“has

been

personally injured” (Doc. 7 at 13), she has failed to plausibly
allege

a

concrete

or

particularized

injury

entitling

her

to

standing to seek injunctive relief.8
Payne
standing

therefore
to

invoke

injunctive power.

has
the

failed

to

protection

establish
of

the

that

federal

she

has

courts‟

Consequently, Big Lots‟s motion to dismiss

Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir. 2007),
reh‟g denied, 521 F.3d 1215 (9th Cir. 2008) (en banc).
8

Contrary to Plaintiffs‟ argument that Daniels is “controlling
authority,” in this circuit, unpublished cases are not precedential.
Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006)
(noting that unpublished decisions have no precedential value and are
“entitled only to the weight they generate by the persuasiveness of
their reasoning” (quoting Hupman v. Cook, 640 F.2d 497, 501 & n.7 (4th
Cir. 1981))). Daniels itself made that point clear. See Daniels, No.
11-1191, slip op. at 2 (cautioning that “[u]npublished opinions are
not binding precedent in this circuit”).
Daniels does reveal,
however, how the facts of the present case fall far short of those
presented there. Cf. id. at 10-11 (finding that Daniels demonstrated
a concrete and particularized injury to support standing under Rule
12(b)(6) where he lived within 20 miles of the store, “regularly
visits” it, and was himself barred entry by “inaccessible entry
routes,
inaccessible
ramps,
inaccessible
restrooms,
and
other
inaccessible amenities”).

21

pursuant

to

Rule

12(b)(1)

(Doc.

11)

will

be

granted

as

to

Plaintiff Payne.
* * *
Plaintiffs fail to make a separate argument concerning the
NAA‟s basis for standing, but the complaint appears to rely on
NAA‟s status as Payne‟s frequent litigation partner.

Generally,

in the absence of a direct injury to an organization, it will
only have standing if it can show that (1) at least one of its
members would have standing to sue as an individual, (2) the
interests

at

stake

in

the

litigation

are

germane

to

the

organization‟s purpose, and (3) neither the claim made nor the
relief requested requires the participation of the individual
members in the suit.
475

F.3d

180,

186

Retail Indus. Leaders Ass‟n v. Fielder,

(4th

Cir.

2007).

Such

associational

or

representative standing is satisfied even where just one of the
association‟s members would have standing.

Warth, 422 U.S. at

490.
Here,

the

only

member

of

the

specifically in the record is Payne.

NAA

who

is

identified

Because she lacks standing

to sue in her own right, the NAA has failed the first prong of
the

associational

standing

test.

Consequently,

Big

Lots‟s

motion to dismiss pursuant to Rule 12(b)(1) (Doc. 11) will be
granted as to Plaintiff NAA.

22

III. CONCLUSION
For the reasons set forth above, therefore,
IT IS ORDERED that Defendant Big Lots‟s motion to dismiss
(Doc. 11) is GRANTED.
A separate Judgment will be entered.

/s/
Thomas D. Schroeder
United States District Judge
April 26, 2012

23