PAYNE et al v. CHAPEL HILL NORTH PROPERTIES, LLC

Filing 12

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 5/22/2013; that Defendant CHNP's motion to dismiss (Doc. 8 ) is GRANTED. A separate Judgment will be entered. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DENISE PAYNE, Individually,
and NATIONAL ALLIANCE FOR
ACCESSIBILITY, INC., a Florida
not for profit corporation,
Plaintiffs,
v.
CHAPEL HILL NORTH PROPERTIES,
LLC, a Domestic Limited
Liability Company,
Defendants.

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1:12-cv-1143

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

and

injunctive

National
Denise

relief

Alliance

Payne
against

for

(“Payne”)
Defendant

Accessibility,
seek

Inc.

declaratory

Chapel

Hill

and
North

Properties, LLC (“CHNP”) 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

CHNP’s

motion

to

dismiss the complaint for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1).

(Doc. 8.)

For the reasons set forth below, the motion will be granted.
I.

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

a wheelchair, characterizes herself as an advocate for disabled

individuals.

From

her

home

state

of

Florida,

she

and

the

organization she founded, the NAA, seek to promote equality for
disabled individuals through ADA litigation.
2012,

Payne

and

the

NAA

had

filed

more

As of September

than

290

lawsuits,

including over eighty lawsuits in North Carolina, asserting ADA
claims.

Nat’l Alliance for Accessibility, Inc. v. NCP Western

Blvd. LLC, No. 5:11-CV-357-FL, 2012 WL 3834931, at *1 (E.D.N.C.
Sept. 4, 2012).

Approximately 24 of these lawsuits have been

filed in the Middle District of North Carolina.
CHNP operates a shopping center at 1800 Martin Luther King,
Jr. Boulevard in Chapel Hill, North Carolina (“Property”).

The

present lawsuit arises from Payne’s visits to the Property on
June 10, 2010, April 1, 2012, and September 27, 2012.

(Doc. 1

¶¶

assumes

8-15.)

without

For

purposes

deciding

that

of

the

this

motion,

Property

is

the
a

court

place

of

public

accommodation subject to the requirements of Title III of the
ADA.

See 42 U.S.C. § 12182.
Payne

claims

that

CHNP

“discriminated

against

[her]

by

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

services,

accommodations
§ 12181

et

facilities,

of”

seq.

the
(Doc.

alleged

privileges,

Property,
1

¶

ADA

in

20.)

advantages,

violation

of

Specifically,

violations.

U.S.C.

Plaintiffs

identify

twelve

stated.

By way of example, the allegations of the complaint

2

Most

42

and/or

are

vaguely

include

the

following:

disabled

parking

spaces

“do

not

have

clear and level access aisles provided”; signage is not mounted
at sufficient heights; slopes of curb ramps contain “excessive
slopes” and “there are [ramp] changes in levels of greater than
1/2

inch”;

there

are

“permanently

designated

interior

spaces

without proper signage”; counters are in excess of 36 inches
[tall]; and “there are dispensers provided for public use in the
restroom, with controls outside the ranges prescribed in Section
4.27 of the ADAAG.”

(Id. ¶ 21.)

Payne alleges generally that

these architectural barriers have “endangered her safety.”
¶ 5.)

(Id.

To be sure, there is no allegation in the complaint that

Payne was prevented from accessing and shopping at the Property.
Plaintiffs allege that they would need a full inspection of the
Property to “measure all of the discriminatory acts violating
the ADA and all of the barriers to access.”
The

complaint

Defendant’s
affidavit

alleges

property

filed

on

that

“Payne

once

again.”

(Doc.

January

11,

2013,

in

(Id. ¶ 22.)
intends
1

¶

to

16.)

response

visit
In

to

an

CHNP’s

motion to dismiss, Payne states that at the time of filing the
complaint

she

intended

(Doc. 11-1 ¶ 8.)

to

visit

the

Property

in

June

2013.

She says she shops there because it “has an

attractive selection of goods and services” and “is convenient
based on her travel patterns.”

(Doc. 1 ¶¶ 8, 15.)

In that

regard, she notes that she is endeavoring to set up local NAA

3

chapters

in

North

Carolina

Fayetteville, and Raleigh.

in

Asheville,

(Doc. 11-1 ¶ 3.)

Wilmington,

She represents

that she usually flies into the Raleigh airport and, when she
travels to Clemmons to meet with her attorney, she “pass[es]
through Chapel Hill.”

(Id. ¶ 10.)

She concludes that at the

time of the complaint she planned to travel to the “Chapel Hill
area at least twice per year” and “plan[s] to return to Chapel
Hill and to shop at the Defendant’s property.”
II.

(Id. ¶¶ 10, 11.)

ANALYSIS
CHNP moves to dismiss Plaintiffs’ complaint under Federal

Rule of Civil Procedure 12(b)(1).

(Doc. 8.)

CHNP argues, as

several other district courts in North Carolina have found, 1 that
Plaintiffs fail to sufficiently show that Payne will return to
the Property and therefore are unable to meet the burden of
demonstrating a likelihood of future harm to her.
that

Payne

reliable

lives

record

over
of

700

past

miles

patronage

CHNP contends

from

the

Property,

lacks

of

the

Property,

and

a

has

offered reasons to return to it that are not credible for any
reason other than to test whether Defendant has remedied the
alleged defects.

Because Payne lacks standing, CHNP contends,

the NAA, whose status is derivative of Payne’s, lacks standing
as well.

(Doc. 9.)

1

See, e.g., Nat’l Alliance for Accessibility, Inc. v. Macy’s Retail
Holdings, Inc., No. 1:11-cv-877, 2012 WL 5381490, at *3 (M.D.N.C.
Oct. 30, 2012) (citing cases).
Of course, standing must be assessed
under the specific facts of each case.

4

Plaintiffs argue that CHNP has acted unlawfully and that
Payne’s

three

visits

to

the

Property

establish

a

real

and

immediate threat of repeated injury that is not conjectural or
hypothetical.

Plaintiffs

also

object

here,

as

they

have

in

other cases, to any evaluation of standing using 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

establishment.

the

business

and

her

past

patronage

of

the

Instead, Plaintiffs urge the court to focus on

the fact that Defendant’s alleged non-compliance with the ADA
creates an ongoing injury to disabled individuals like Payne.
(Doc. 11.)
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

to

justify

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

exercise

of

the

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

component of the case or controversy requirement.”

5

“an

integral

CGM, LLC v.

BellSouth

Telecomms.,

(citation

and

seeking

to

Inc.,

internal

invoke

664

F.3d

quotation

the

federal

46,

marks

52

(4th

Cir.

2011)

The

party

omitted).

courts’

jurisdiction

has

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

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
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.

CGM, 664 F.3d

at 52 (distinguishing statutory standing from Article III and
prudential standing); see also Pitt Cnty. v. Hotels.com, L.P.,

6

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

jurisdiction
under

Rule

pleadings

motion

under

Rule

12(b)(1),
as

mere

to

dismiss

for

12(b)(1)).

“‘the

evidence

lack
When

of

resolving

district

court

is

on

issue,

and

the

subject

to

a

matter
motion

regard

may

the

consider

evidence outside the pleadings without converting the proceeding
to one for summary judgment.’” 2

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)).
has

not

provided

evidence

to

dispute

the

Where a defendant
veracity

of

the

jurisdictional allegations in the complaint, the court accepts
2

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
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 evidenced 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,
694-95 (E.D. Va. 2000) (applying the same test).

7

facts alleged in the complaint as true just as it would under
Rule 12(b)(6).

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)).

In addition, the court assumes the truth of the

uncontested facts augmented by a plaintiff’s affidavits.

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).

A.

Plaintiffs’ Claim of Actual or Imminent Injury

Plaintiffs

contend

that

absent

an

injunction

from

this

court, they will suffer an irreparable injury because of CHNP’s
alleged ongoing violations of the ADA.

A disabled individual

seeking an injunction under the ADA, however, must, like all
litigants

in

federal

court,

satisfy

requirement of Article III.
Inc.,

631

F.3d

939,

946

the

case

or

controversy

Chapman v. Pier 1 Imports (U.S.)
(9th

Cir.

2011)

(en

banc).

A

plaintiff’s “profession of an ‘inten[t]’ to return to the places
[she]

ha[s]

visited

before”

is

generally

establish standing to seek injunctive relief.
at

564

(first

intentions

--

alteration
without

any

in

original).

description

of

insufficient

to

Lujan, 504 U.S.
“Such

concrete

‘some

day’

plans,

or

indeed even any specification of when the some day will be -- do

8

not

support

a

finding

of

the

‘actual

or

imminent’

injury”

required by Supreme Court precedent interpreting Article III.
Id.

Thus, to show likely future harm, Payne must demonstrate a

sufficiently concrete intention to return to CHNP’s Property in
Chapel Hill.

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

Supp. 2d 998, 1001 (W.D.N.C. 2011) (citing Lujan, 504 U.S. at
564), aff’d, 474 F. App’x 369 (4th Cir. 2012) (unpublished per
curiam opinion).
Here, although Payne lives in Florida, she states she is in
the process of establishing local chapters of her NAA advocacy
group

in

Raleigh,

(Doc. 11-1 ¶ 3.)

Asheville,

Wilmington,

and

Fayetteville.

She alleges that she patronizes the Property

because she “prefers it,” “it is convenient based on her travel
patterns,”
services.”

and

it

“has

an

attractive

(Doc. 1 ¶¶ 8, 15.)

selection

of

goods

and

She also acknowledges that she

desires to visit the Property in the future “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. ¶ 19.)

In sum, she states that her visits to the

Property arise from her occasional, perhaps semi-annual (Doc.
11-1 at 10), travels around the state of North Carolina – from
Asheville to Wilmington – as she works on establishing possible
local chapters of the NAA.

9

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; see 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)
(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). 3

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.
Courts

Proximity to Defendant’s Business
have

found

that

a

3

plaintiff’s

proximity

to

a

The court previously considered the application of these factors in
light of Daniels v. Arcade, L.P., 477 F. App’x 125, 129 (4th Cir.
2012) (unpublished opinion), and found the case distinguishable.
Macy’s Retail, 2012 WL 5381490, at *4-5.
The court finds the
reasoning in Macy’s Retail applies to the facts of this case. Accord
Nat’l Alliance for Accessibility, Inc. v. W & K of Asheville, LLC, No.
1:12CV24, 2012 WL 6761420, at *5 (W.D.N.C. Nov. 26, 2012) (Howell,
Mag. J.) (finding factual situation “a far cry” from that in Daniels),
adopted, 2013 WL 30131 (W.D.N.C. Jan. 3, 2013).

10

defendant’s

place

of

business

is

generally

probative

of

the

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

Camarillo, 518 F.3d at 158;

Nat’l Alliance for Accessibility, Inc. v. Waffle House, Inc.,
No. 5:10-CV-375-FL, 2011 WL 2580679, at *2 (E.D.N.C. June 29,
2011) (“Waffle House I”); cf. Daniels v. Arcade, L.P., 477 F.
App’x 125, 129 (4th Cir. 2012) (unpublished opinion) (noting
that the plaintiff’s home near the defendant’s business weighed
in favor of the plaintiff’s standing).
should

apply,

the

further

away

a

While no per se rule

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.”).
Payne claims that “I almost always” fly into the Raleigh
airport and plans to “pass through Chapel Hill” when she meets
her

attorney

miles

in

away).

Clemmons,

(Doc.

11-1

North
¶

10.)

Carolina

(approximately

However,

Payne’s

103

home

in

Broward County, Florida, is approximately 700 or more miles from
the

Property.

The

court

notes,

moreover,

that

this

representation contradicts her sworn statements in a companion

11

case

where,

in

order

to

avoid

dismissal

of

her

claims,

she

states that upon arriving at the Raleigh airport her “first stop
is always Greensboro” where she has visited a Big Lots store
that is the target of that lawsuit because Greensboro is where
her

attorney

of

Accessibility,

record

Inc.

v.

has

his

office.

Big

Lots

Stores,

(M.D.N.C.) (Doc. 18-1 ¶¶ 6-7).
service

of

her

attorney,

Mr.

Nat’l
Inc.,

Alliance
No.

for

1:11cv730

Of course, the certificate of
Lane,

in

this

and

other

cases

plainly notes that his office is not in Greensboro, but rather
in Clemmons (as Payne notes here).
has

submitted

such

clearly

However, the fact that Payne

conflicting

statements

clearly

calculated to avoid dismissal in these cases is very troubling
and casts significant doubt on her claims. 4
4

Unfortunately, Payne has a practice of submitting false information
to courts in an effort to avoid dismissal. For example, in National
Alliance for Accessibility, Inc. v. Triad Hospitality Corp., No. 1:11cv-527, 2012 WL 996661, at *9-10 (M.D.N.C. Mar. 23, 2012), she
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 false.
Other courts have noted and condemned
Plaintiffs’ gamesmanship.
See, e.g., W & K of Asheville, 2012 WL
6761420, at *3-4 (Howell, Mag. J.) (finding that Payne and NAA
“attempt[ed] to fabricate standing by making misleading and false
factual allegations to the Court” as Payne had also attempted to do in
another case in the Western District of North Carolina), adopted, 2013
WL 30131 (W.D.N.C. Jan. 3, 2013) (ordering that Magistrate Judge

retain
jurisdiction
to
determine
whether
sanctions
were
warranted); Payne v. AAC Invests., Inc., No. 5:12-CV-00264-F,
2013 WL 791261 (E.D.N.C. Mar. 4, 2013) (finding Payne’s action
“frivolous, unreasonable, and without foundation”; allowing
defendant’s motion for attorneys’ fees).
12

Given

the

vague

nature

of

the

reason

Payne

claims

for

visiting the Property, her claim that to shop there she would
travel from her home in Florida or deviate from her occasional
travels

through

North

Carolina,

and

her

erroneous

and

conflicting representations to this court about her travel plans
and

reasons,

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
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.

13

May 13, 1997); see Payne v. Sears, Roebuck & Co., No. 5:11-CV614-D, 2012 WL 1965389, at *5 (E.D.N.C. May 31, 2012) (noting
that “[i]n fact, the opposite might be true”: “ADA Title III
plaintiffs, aware that a single visit to an establishment weighs
against

their

having

standing,

are

likely

to

visit

the

establishment twice before suing its owner, thus intentionally
avoiding

the

gamesmanship

single-visit
says

nothing

rule”

and

about

a

that

“[s]uch

plaintiff’s

litigation

likelihood

of

suffering future injury.”).
Here, Payne represents that she visited the Property on
three occasions, June 10, 2010, April 1, 2012, and September 27,
2012.
the

(Doc. 1 ¶ 8, 14, 15.)
shopping

centers

She does not indicate why, of all

between

the

Raleigh

airport

and

her

lawyer’s office some 100 miles away in Clemmons, she chooses to
visit

the

Property.

She

asserts

only

that

she

“plan[s]

to

continue [her] pattern of traveling to North Carolina to meet
with

business

contacts

and

continue

the

work

of

[her]

foundation” and that “[d]uring these trips, [she] plan[s] to
return to Chapel Hill and to shop at the Defendant’s property.”
(Doc. 11-1 ¶ 11.)

CHNP points out that Payne only claims a

single receipt for $5.22 for a single purchase at the Property
and argues that this is hardly evidence of a sincere interest in
the retail goods available at the Property.
the

proceedings,

however,

the

court

14

is

At this stage in

obliged

to

draw

the

complaint

in

a

light

most

favorable

to

Payne

and

therefore

accepts that she has visited the Property three times and made a
purchase.

Of course, three visits in a two-year span is meager,

but this factor weighs in Plaintiffs’ favor, even if slightly.
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.,

2009

1470687,

at

*3

WL

Inc.

v.

Fu,

No.

(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
suit

is

not

trivial

because

a

plaintiff

must

establish

a

personal stake in the case’s outcome (citing Lyons, 461 U.S. at

15

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 892-93 (noting that the

relevant facts for standing purposes are those that exist at the
time a complaint is filed); see also Am. Civil Liberties Union
of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006) (same).
In this case, the complaint alleges that Payne “intends to
visit North Carolina again in June of 2013” and “intends to
visit Defendant’s property once again.”
Payne’s

representations,

even

when

(Doc. 1. ¶ 16.)

taken

in

a

light

Yet,
most

favorable to her, cast substantial doubt on the definitiveness
of her plans to return to this Property.

It is located on a

100-mile stretch between the Raleigh airport and her lawyer in
Clemmons,

not

Fayetteville

to
and

mention

in

Wilmington,

the
where

opposite
Payne

direction

states

considering establishing other local chapters of NAA.
not

expressed

any

definite

reason

she

would

Property other than to test it for compliance.

she

of
is

Payne has

patronize

the

This is indeed

the principal reason she visits the scores of other properties

16

that are the subject of other cases Payne has before this court. 5
(See Doc. 1 ¶ 13; Doc. 11-1 ¶ 4.)

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 (citing cases) (“[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, 1219-20 (S.D. Cal. 2007)
(“Where

[Title

plaintiff’s
litigation

III]

visit
is

litigation

to

a

complete

is

particular
it

is

the

only

local

unlikely

reason

for

establishment,

such

a

plaintiff

a

once
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

place

typically

of

considered

public
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

where

she

5

would

not

have

standing

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 Property’s compliance with the ADA is
underscored by her complaint, in which she admits as much.
(Doc. 1
¶ 5.)

17

otherwise.’”

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

Norkunas, 777 F. Supp. 2d at 1005); 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,

Therefore,

No.

Plaintiffs’

1:10CV932
vague

(M.D.N.C.

reasons

and

Nov.

7,

uncertain

2011).

date

when

Payne may return to the Property and Payne’s admitted status as
a

tester

--

in

the

absence

of

a

specific

interest

in

this

particular Property -- cast doubt on the definitiveness of her
plans to return to it.

Consequently, the court finds that Payne

fails to provide 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.
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 alleges that she visited North Carolina in July 2010 and
“was in the Greensboro area” on her way back to Florida from a
church retreat in Virginia. 6
Winston-Salem,

Greensboro,

(Doc. 1 ¶ 9.)
High

business contacts related to NAA.

Point,
(Id.)

She traveled through
and

Raleigh

to

meet

She made another trip

to North Carolina in October 2010 and traveled to Asheville.

6

Payne does not state what her being in the Greensboro area has to do
with the Property, which is approximately 45 miles from Greensboro.

18

(Id. ¶ 10.)

In October 2011, she again flew into the Raleigh

airport, which is 20 miles from the Property, for a meeting in
Raleigh with her NAA and stayed at a hotel 30 miles away from
the Property.

(Id. ¶¶

10-13.)

In March 2012, she again flew

to Raleigh, met with her lawyer in Winston-Salem, and stayed at
a hotel in Raleigh some 34 miles away from the Property -- but
chose to visit it anyway.

(Id. ¶ 14.)

She alleges she visited

the Property on September 27, 2012, during a trip to the Raleigh
area.

(Id. ¶ 15.)

She alleges she intends to visit in June

2013

to

with

meet

“Raleigh/Durham/Chapel
Property.
The

disabled

Hill

area”

students

and

intends

in

to

the

visit

the

(Id. ¶ 16.)
court

has

already

noted

how

Payne’s

current

representation that she visits the Property because she passes
through

Chapel

Hill

on

her

way

to

meet

with

her

lawyer

in

Clemmons is contradicted by her sworn statement in another case
in this court that her “first stop is always Greensboro.”

In

addition to her patently false statements offered to this court
in other cases in an effort to avoid dismissal, her claims that
she

visits

the

Property

strains credulity.

because

it

is

“convenient”

simply

Moreover, her contention that she intends to

visit it in connection with her sporadic trips to the state
constitute weak evidence that her nearby travels will make it
likely

that

she

will

suffer

actual

19

or

imminent

harm

at

the

Property.

She is likely to do so only if she seeks to go well

out of her way from her business in the state for the sole
purpose

of

“testing”

Accessibility,

Inc.

the
v.

Property.

Bhuna

See

Nat’l

No.

1:11cv79,

Corp.,

Alliance
2011

for
WL

6935497, at *3-4 (W.D.N.C. Dec. 3, 2011) (Howell, Maj. J.) (“It
is

implausible

that

Payne,

a

Florida

resident

who

travels

approximately once or twice a year to [North Carolina] plans to
return

to

each

of

the

thirty-two

(32) 7

properties

in

North

Carolina she has sued for noncompliance with the ADA.” (quoting
and reaching same conclusion as Waffle House I, 2011 WL 2580679,
at *3)), adopted, 2011 WL 6936181 (W.D.N.C. Dec. 30, 2011). 8
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 CHNP’s

Chapel Hill Property, her vague statement of an intention to
return to the Property, the fact that the Property bears little
proximity to her stated travel plans, and her misrepresentations
to the court as to her travel intentions all render implausible
her representation that she faces an actual or imminent threat
of

future

harm

despite

her

claim

that

she

Property three times in the past two years.
7

has

visited

the

The absence of a

Now over 80.

8

In this regard, the court does not hold Payne’s litigation history
against her.

20

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. 9
B.

NAA

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.

9

NAA

who

is

identified

Because she lacks standing

Plaintiffs rely on National Alliance for Accessibility, Inc. v. CMG
Bethesda Owner LLC, No. 8:12-CV-1864-JFM, 2012 WL 6108244 (D. Md.
Dec. 7, 2012), which found standing.
However, that case involved a
hotel where Payne had a reservation to stay and involved a much more
definite plan. Moreover, the case was nevertheless dismissed as moot
because Payne failed to establish a plausible claim that she intended
to stay there after the single reservation had expired.

21

to sue in her own right, the NAA has failed the first prong of
the associational standing test.

Consequently, CHNP’s motion to

dismiss pursuant to Rule 12(b)(1) (Doc. 8) will be granted as to
Plaintiff NAA.
III. CONCLUSION
For the reasons set forth above, therefore,
IT IS ORDERED that Defendant CHNP’s motion to dismiss (Doc.
8) is GRANTED.
A separate Judgment will be entered.

/s/ Thomas D. Schroeder
United States District Judge
May 22, 2013

22