Timoneri v. Speedway, LLC

Filing 20

Memorandum of Opinion and Order: Speedway LLC's Motion to Dismiss (Doc. 10 ) is GRANTED. Plaintiff's claims regarding Speedway's locations that he has not visited are dismissed. Judge Patricia A. Gaughan on 5/12/16. (LC,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Mark Timoneri,
Plaintiff,
Vs.
Speedway, LLC,

Defendant.

)
)
)
)
)
)
)
)
)
)

CASE NO. 1:15CV2423
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

INTRODUCTION
This matter is before the Court upon Speedway LLC’s Motion to Dismiss (Doc. 10). This
case arises under the Americans with Disabilities Act (“ADA”). For the reasons that follow, the
motion is GRANTED. Plaintiff’s claims regarding Speedway’s locations that he has not visited
are dismissed.
FACTS
The following facts are taken from plaintiff’s complaint. Plaintiff is a quadriplegic and
depends on a wheelchair for mobility. He alleges that he frequently visits defendant Speedway’s
facility located at 29201 Euclid Avenue in Wickliffe, Ohio (the “Subject Property”), because it is
1

close to his home. At the Subject Property, he has “experienced unnecessary difficulty and risk
due to faded markings in a purportedly accessible parking space, excessive slopes on the landing
at the top of a curb ramp, and the lack of an access aisle adjacent to a purportedly accessible
space.” (Compl. ¶ 22).
On plaintiff’s behalf, investigators examined 18 other locations owned or operated by
Speedway and allegedly found a variety of ADA violations. According to the complaint, these
violations included: surfaces of purportedly accessible parking spaces with excessive slopes;
surfaces of aisles with excessive slopes; landings at the top of curb ramps with excessive slopes;
no spaces designated as “van accessible” at one or more groups of purportedly accessible
parking spaces; one or more purportedly accessible spaces not marked with required signs; faded
markings and cracks in cement of purportedly accessible parking spaces; one or more signs
designating spaces as “accessible” mounted less than 60 inches above the finished surface of the
parking area; no clear markings designating accessible parking space and access aisle; no access
aisle provided adjacent to one or more purportedly accessible spaces; and a curb ramp located on
the route to the building entrance with an excessive running slope. (Id. ¶ 23 a-r). Plaintiff’s
investigators discovered between one and four of these violations at each location they visited.
Plaintiff alleges in the complaint that he intends to return to these 18 properties to ascertain
whether they remain in violation of the ADA but is deterred from doing so as long as the
architectural barriers continue to exist. (Id. ¶ 30).
Plaintiff asserts that Speedway’s “ADA compliance policies are inadequate in both their
conception and implementation and are not reasonably calculated to make their facilities fully
accessible to, and independently usable by individuals with mobility disabilities.” He claims that

2

the alleged access barriers at Speedway’s facilities violate Title III of the ADA, which requires
that places of public accommodation and commercial facilities be readily accessible to and
usable by individuals with disabilities. He brings this suit as a class action under Fed. R. Civ. P.
23(b)(2), seeking a declaratory judgment that Speedway is in violation of Title III and a
permanent injunction directing Speedway to take all necessary steps to bring its facilities into
compliance with the ADA and to change its policies so that discriminatory barriers do not
develop or recur at Speedway’s stores in the future. Although plaintiff does not define the scope
of the putative class in the complaint, it is clear that he intends to seek certification of a class for
properties beyond those identified in the complaint: “The scope of the investigation is in no way
related to what the ultimate scope of the class that Mr. Timoneri will seek to certify might be.
Mr. Timoneri will not be in a position to make a decision regarding the scope of the class until
discovery has been completed.” (Pl.’s Br. in Opp. at 2 n.1).
In its motion to dismiss, Speedway argues that plaintiff lacks standing to pursue a claim
under Title III regarding its locations that plaintiff has not visited and for which he does not
allege any intent to visit. It therefore asks the Court to dismiss those allegations. It also asks the
Court to dismiss the class allegations because plaintiff has failed to plead a viable class. Plaintiff
opposes the motion.
STANDARD OF REVIEW
Speedway brings its motion under Fed. R. Civ. P. 12(b)(6); however, to the extent the
motion is based on plaintiff’s lack of standing, it is more appropriately considered as a motion to
dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). A party can bring either a
facial attack or a factual attack in such a motion. United States v. Ritchie, 15 F.3d 592, 598 (6th

3

Cir. 1994). Because Speedway challenges the sufficiency of the allegations in the complaint and
does not rely on other facts or evidence, its motion raises a facial attack. Id. In a facial attack, the
court must review the motion similarly as it would a 12(b)(6) motion by taking the material
allegations of the complaint as true and construing them in a light most favorable to the
nonmovant. Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 235-57, 94 S. Ct. 1683, 1686-67 (1974).
When considering a motion to dismiss under Rule 12(b)(6), the allegations of the
complaint must be taken as true and construed liberally in favor of the plaintiff. Lawrence v.
Chancery Court of Tenn., 188 F.3d 687, 691 (6th Cir. 1999). Notice pleading requires only that
the defendant be given “fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.” Conley, 355 U.S. at 47. However, the complaint must set forth “more than the bare
assertion of legal conclusions.” Allard v. Weitzman (In Re DeLorean Motor Co.), 991 F.2d
1236, 1240 (6th Cir. 1993). Legal conclusions and unwarranted factual inferences are not
accepted as true, nor are mere conclusions afforded liberal Rule 12(b)(6) review. Fingers v.
Jackson-Madison County General Hospital District, 101 F.3d 702 (6th Cir. Nov. 21, 1996),
unpublished. Dismissal is proper if the complaint lacks an allegation regarding a required
element necessary to obtain relief. Craighead v. E.F. Hutton & Co., 899 F.2d 485, 489-490 (6th
Cir. 1990).
In addition, a claimant must provide “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569 (2007). A pleading
that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of
action will not do.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1955 (2009). Nor does a complaint suffice
if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id.

4

To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. A
claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts that are “merely consistent
with” a defendant's liability, it stops short of the line between possibility and
plausibility of ‘entitlement to relief.’
Id. at 1949 (citations and quotations omitted). See also, Hensley Mfg. v. ProPride, Inc., 579 F.3d
603 (6th Cir.2009).
ANALYSIS
1. Standing
There is no dispute that plaintiff has standing to pursue his claim regarding the Subject
Property. Speedway contends, however, that plaintiff has no standing regarding the Speedway
locations that he has not visited and for which he alleges no intent to visit because, as to those
locations, he has suffered no injury and is at no risk of future injury.1 For the following reasons,
the Court agrees.
To litigate a case in federal court, a plaintiff must have constitutional standing, “which
requires a showing that the plaintiff has suffered: (1) an injury that is (2) ‘fairly traceable to the
defendant’s allegedly unlawful conduct’ and that is (3) ‘likely to be redressed by the requested

1

As noted above, plaintiff alleged in his complaint that he intends to visit the 18
properties where his investigators identified ADA violations to ascertain whether
the violations have been ameliorated. (He did not allege that he intended to visit a
Speedway location other than the Subject Property for any other purpose.) In his
brief in opposition, however, he does not dispute Speedway’s statements in its
motion that plaintiff has no intention to visit these properties, nor has he argued
that he has standing to sue for violations at these properties under an intent to
return theory or as a tester.
5

relief.’” Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 349 (6th Cir. 2007) (citing Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130 (1992)). The party invoking federal
jurisdiction has the burden of satisfying these elements. Lujan, 504 U.S. at 561. Individual
standing is a prerequisite for all actions, including class actions. Fallick v. Nationwide Mut. Ins.
Co., 162 F.3d 410, 423 (6th Cir. 1998) (citations omitted). “A potential class representative must
demonstrate individual standing vis-as-vis the defendant; he cannot acquire such standing merely
by virtue of bringing a class action.” Id.
As to the injury-in-fact element that is at issue in this case, “plaintiffs must demonstrate
actual present harm or a significant possibility of future harm to justify ... relief.” People Rights
Org. v. City of Columbus, 152 F.3d 522, 527 (6th Cir. 1998). Where, as here, a plaintiff seeks
injunctive relief, he or she must demonstrate a “real and immediate threat” of injury to satisfy the
requirement. City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S. Ct. 1660, 1667 (1983)
(holding that plaintiff who had been choked by the police during a traffic stop five months earlier
lacked standing to sue the city for injunctive relief because he could not establish a “real and
immediate threat that he would again be stopped ... by an officer or officers who would illegally
choke him into unconsciousness without any provocation or resistance on his part”).
Plaintiff argues that, once his standing is established with respect to the Subject Property,
“the question of whether [he] can challenge Defendant’s policies as they apply to all of its
locations is determined by application of Fed. R. Civ. P. 23, not by consideration of whether [he]
visited the other of Defendant’s locations.” Speedway agrees that a plaintiff who sufficiently
alleges discrimination arising from a common architectural design or common policy can have
standing to sue on behalf of a class for locations where he has not visited. It contends, however,

6

that plaintiff has failed to adequately allege such a common design or policy.
Plaintiff essentially leapfrogs this key question.2 He asserts that he has sufficiently pled a
common policy merely by claiming that, although Speedway has “centralized management
policies regarding ADA compliance, its ADA compliance policies are inadequate in both their
conception and implementation, and Defendant’s facilities continue to be inaccessible to, and not
independently usable by, individuals who use wheelchairs.” In other words, the common policy
that plaintiff appears to allege is that Speedway fails to adequately comply with the ADA
regarding individuals who use wheelchairs.
The Court finds that this conclusory allegation of a policy, which would encompass any
type of ADA violation regarding individuals with mobility disabilities, is insufficient to confer
standing to sue on behalf of a potentially nationwide class. This is not the type of discrete policy

2

Even the cases that plaintiff cites in support of his argument that the Court should
ignore the standing inquiry and jump immediately to class certification are clear
that a potential class representative must be challenging a common practice or
policy to have standing to sue on behalf of a class. For example, in Fallick, the
Sixth Circuit noted:
[O]nce an individual has alleged a distinct and palpable injury to
himself he has standing to challenge a practice even if the injury is
of a sort shared by a large class of possible litigants.... Thus, in the
instant matter, once the district court correctly determined that
Fallick had standing to bring suit under ERISA against Nationwide
with respect to its application of reasonable and customary
limitations to its determination of medical benefits—a
methodology which, by Nationwide's own admission, it employs
in all the benefits plans which Fallick wishes to include under
the aegis of the proposed class—the court should then have
analyzed whether Fallick satisfied the criteria of Rule 23 with
respect to the absent class members.
Fallick, 162 F.3d at 423 (emphasis added).
7

or practice that would apply similarly to all potential class members that the court contemplated
in Fallick. Indeed, the variety of examples of noncompliance that plaintiff alleges at the 18
properties visited by his investigators undermines plaintiff’s allegation that Speedway adheres to
such a common policy or practice.
The court in King v. O’Reilly Automotive, Inc., recently evaluated virtually identical
allegations and found them to be insufficient to allege a common policy. 2016 WL 868223, at *3
(E.D. Wa. Mar. 4, 2016). As here, the plaintiff in King alleged that, while the defendant had
“centralized management policies regarding ADA compliance, its ADA compliance policies are
inadequate in both their conception and implementation, and Defendant’s facilities continue to
be inaccessible to, and not independently usable by, individuals who use wheelchairs.” As here,
he then followed this allegation with a list of alleged barriers to accessibility for wheelchairbound customers that the plaintiff’s investigators found at a number of the defendant’s locations
that the plaintiff had not visited. The court concluded that the plaintiff did not have standing to
sue on a class-wide basis:
The alleged violations appear to follow a pattern as they mostly relate to the slope
of the ground surrounding parking spaces, but the different allegations vary
sufficiently to undermine an allegation of a “common policy or architectural
design.” Plaintiff’s Complaint fails to state how the alleged examples of
noncompliance adhere to any common policy or design.
Id.
Equal Rights Center v. Hilton Hotels Corp., 2009 WL 6067336 (D.D.C. Mar. 25, 2009),
is also persuasive. There, the plaintiffs alleged that they knew of accessibility barriers at 24
Hilton hotels but sought injunctive relief at all 2,869 Hilton hotels nationwide. The plaintiffs did
not allege that all of the hotels were architecturally similar, but claimed “somewhat obliquely”

8

that “their injuries arise from Hilton’s practices at a corporate level.” Id. at *7. The court
concluded that these allegations were insufficient to confer nationwide class standing. In doing
so, it noted that plaintiffs did not allege any facts that supported their claim that Hilton had
adopted a policy of non-compliance with the ADA: “They have pointed to accessibility barriers
at fewer than one percent of the Hilton Family Brand hotels in the country. The mere existence
of accessibility barriers at some significant percentage of Hilton hotels might provide a sufficient
factual basis for claims of a corporate policy of non-compliance, but, as before, the plaintiffs
have not made that allegation.” Id. See also Clark v. Burger King Corp., 255 F. Supp. 2d 334
(D.N.J. 2003) (finding plaintiff lacked standing to pursue nationwide class action involving
locations he had not visited, absent any allegation that there existed commonality of construction
or that defendant implemented a corporate policy violative of the ADA). Similarly, plaintiff here
apparently seeks injunctive relief against all Speedway locations nationwide and relies on his
allegations that he is aware of accessibility barriers at a small number of Speedway locations to
argue that he should be permitted to do so. This is simply insufficient to support his “somewhat
oblique” allegation that Speedway has a corporate “policy” of not complying with the ADA.
For these reasons, the Court finds that plaintiff has failed to show that he has standing to
sue on a class-wide basis.
2. Class Allegations
Even if plaintiff had adequately pled facts to establish his standing to sue regarding
locations that he has not visited, the class action allegations are insufficient to allow him to
pursue class claims for these locations. A court may strike class action allegations before a
motion for class certification where the complaint itself demonstrates that the plaintiff cannot

9

meet the requirements for maintaining a class action. See Pilgrim v. Universal Health Card.,
LLC, 660 F.3d 943, 949 (6th Cir. 2011) (noting that Rule 23(c)(1)(A) states that the district court
should decide whether to certify a class “[a]t an early practicable time” in the litigation). If
discovery will not “alter the central defect in th[e] class claim,” a court may strike class
allegations prior to discovery. Id.; see also Cowitt v. CitiMortgage, Inc., 2013 WL 940466, at *2
(S.D. Ohio Mar. 8, 2013).
A plaintiff must meet the Rule 23(a) prerequisites and fall within one of the three types of
class actions listed in Rule 23(b) to receive class certification. Young v. Nationwide Mut. Ins.
Co., 693 F.3d 532, 537 (6th Cir. 2012). To meet the Rule 23(a) requirements, (1) the class must
be “so numerous that joinder of all members is impracticable”; (2) there must be “questions of
fact or law common to the class”; (3) “the claims or defenses of the representative parties” must
be “typical of the claims or defenses of the class”; and (4) the named plaintiff must “fairly and
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). The party seeking class
certification bears the burden of proving that it has met all four requirements of Rule 23. Young,
693 F.3d at 537.
Here, the Court need only address commonality because plaintiff’s own allegations show
that he cannot meet this requirement. To establish commonality, the named plaintiff “must show
that [his] claims ‘depend upon a common contention’ that is ‘of such a nature that it is capable
of classwide resolution—which means that determination of its truth or falsity will resolve an
issue that is central to the validity of each one of the claims in one stroke.’” Rikos v. Procter &
Gamble Co., 799 F.3d 497, 505 (6th Cir. 2015), cert. denied, 2016 WL 1173171 (Mar. 28, 2016)
(citing Wal Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 131 S. Ct. 2541, 2552 (2011)). “In

10

other words, named plaintiffs must show that there is a common question that will yield a
common answer for the class (to be resolved later at the merits stage), and that that common
answer relates to the actual theory of liability in the case.” Id.
Plaintiff relies on his allegation that Speedway employs centralized policies that are
violative of the ADA and the examples of architectural barriers that he identified at the Subject
Property and the 18 stores that his investigators visited to show that he meets the commonality
requirement. Speedway responds that the very examples of non-compliance that plaintiff cites
defeat his claim of commonality. According to Speedway, the differences in the alleged ADA
violations would require the Court to answer a variety of location-specific questions, precluding
a “common answer” for the class. Speedway also points out that the legal standards for ADA
compliance differ with respect to accessibility of new construction versus existing facilities that
predate the effective date of the ADA. (Pl.’s Br. at 8-9) (citing Wagner v. White Castle Sys., Inc.,
309 F.R.D. 425, 431 (S.D. Ohio 2015) (discussing differing standards).
The Court agrees that this is not a situation where “a common question...will yield a
common answer for the class.” Rather, determining liability as to each Speedway location would
require the court to hold a series of “mini-trials,” where it would have to conduct an
individualized analysis of each location’s compliance or non-compliance with the ADA based on
the age of the facility and the type of violation claimed. Several courts have rejected class
allegations in similar situations for this reason. As one court explained:
Before any common legal issues can be reached, each restaurant’s parking lot
must be individually examined, its date of construction or alteration determined,
and then a determination must be made as to whether that parking lot meets the
ADA standards applicable to the structure depending on the date of
construction.... Proving the existence and cause of accessibility barriers at each of
the [defendant’s locations] would be too fact-intensive and individualized to be
11

effectively addressed in a single class action. The threshold question–whether any
store in particular is out of compliance and if so, in what manner (running slope,
cross slope, degree of deviation)–would have to be answered on a store-by-store
basis, and the class members at the various 563 nationwide stores would not share
common legal issues or salient core facts. Rather, the Court would have to
conduct a mini-trial for each restaurant in order to determine if injunctive relief
was appropriate.
Mielo v. Bob Evans Farms, Inc., CIV.A. 14-1036, 2015 WL 1299815, *7 (W.D. Pa. Mar. 23,
2015); see also Wagner, 309 F.R.D. at 431-32 (holding that wheelchair-bound plaintiffs who had
allegedly encountered accessibility barriers at White Castle could not maintain class action
against restaurant because they could not “demonstrate[] that the class members at the various 54
Ohio restaurants would share common legal issues or salient core facts”).3
Though Mielo and Wagner were decided on motions for certification, plaintiff’s own
allegations show that the central defects that both courts identified are present in this case. Nor
has plaintiff shown how discovery will cure these defects. The Court therefore strikes the class
allegations with respect to all Speedway locations that plaintiff has not visited. To the extent
plaintiff seeks to pursue a class action regarding the Subject Property, it finds that a
determination as to whether he has met the Rule 23 requirements would be more appropriately
addressed after he has had an opportunity for discovery.

3

Although Speedway does not argue that plaintiff cannot meet the Rule 23(b)(2)
requirement, the Court notes that he likely would also fail this requirement. See,
e.g., Clark v. McDonald’s Corp., 213 F.R.D. 198 (D.N.J. 2003) (determining,
based on allegations in plaintiff’s complaint, that Rule 23(b)(2) certification was
improper because the allegations “ma[d]e clear that individualized determinations
need to be made as to which ADA violations exist at which McDonald’s
restaurants, a situation in which a class-wide finding of injunctive liability would
hardly be appropriate”).
12

CONCLUSION
For the foregoing reasons, Speedway LLC’s Motion to Dismiss (Doc. 10) is GRANTED.
Plaintiff’s claims regarding Speedway’s locations that he has not visited are dismissed.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 5/12/16

13