Planque v. The TJX Companies et al
OPINION AND ORDER. Defendants Motion to Dismiss 10 is GRANTED and Plaintiffs Complaint 1 is DISMISSED. The Court also grants Plaintiff leave to amend her Complaint. Signed on 4/3/2017 by Judge Marco A. Hernandez. (joha)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
THE TJX COMPANIES, INC., a Delaware
Corporation; and HOMEGOODS, INC.,
a, Delaware Corporation,
Shannon D. Sims
610 SW Alder St., Suite 502
Portland, Oregon 97205
Attorney for Plaintiff
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OPINION & ORDER
Sharon C. Peters
David C. Campbell
Lewis Brisbois Bisgaard & Smith LLP
888 SW Fifth Avenue, Suite 600
Portland, Oregon 97204
Minh N. Vu
Seyfarth Shaw LLP
975 F. Street, N.W.
Washington, D.C. 20004
Attorneys for Defendant HomeGoods, Inc.
HERNÁNDEZ, District Judge:
Plaintiff Linda Planque brings this action against HomeGoods, Inc., alleging violations of
the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181, 12182, and a state law
negligence claim. 1 Before the Court is Defendant’s Motion to Dismiss. ECF 10. Because
Plaintiff has not satisfied Article III’s standing requirements and failed to state a claim,
Defendant’s Motion to Dismiss is granted and this case is dismissed. The Court also grants
Plaintiff leave to amend.
Plaintiff is disabled and uses a powered wheelchair. Compl. ¶¶ 4, 12, ECF 1. On
September 17, 2014, she went shopping at Defendant’s store. Id. at ¶ 11. She alleges that the
checkout counter was too high for her to reach from her wheelchair. Id. at ¶ 12. Plaintiff gave her
card to Defendant’s employee to pay for her purchase. Id. at ¶ 13. Defendant’s employee asked
Plaintiff multiple times if she would like to open a store credit card and Plaintiff refused each
time. Id. at ¶¶ 14–16. Defendant’s employee was holding Plaintiff’s card while asking if Plaintiff
was interested in a store credit card. Id. When Plaintiff reached for the card reader, her
Plaintiff has voluntarily dismissed The TJX Companies, Inc., as a defendant from this case. See Notice of
Dismissal, ECF 6.
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“wheelchair control was bumped sending her and the wheelchair into the counter.” Id. at ¶ 17.
Plaintiff alleges that as a result of the accident, she has suffered and continues to suffer severe
injuries and her wheelchair was badly damaged. Id. at ¶¶ 18–19.
Plaintiff further alleges that her injuries were a direct result of Defendant’s store being
inaccessible to persons using wheelchairs and its failure to train its employees to properly handle
customers with disabilities. Id. at ¶¶ 20–22. She seeks injunctive relief under the ADA,
prohibiting Defendant from continuing discrimination against persons with disabilities. Id. at
¶¶ 24–27. Additionally, she claims that Defendant negligently failed to train its employees in
handling customer issues and created hazardous conditions for persons using wheelchairs. Id. at
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may move to
dismiss for lack of subject-matter jurisdiction.
A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a
facial attack, the challenger asserts that the allegations contained in
a complaint are insufficient on their face to invoke federal
jurisdiction. By contrast, in a factual attack, the challenger disputes
the truth of the allegations that, by themselves, would otherwise
invoke federal jurisdiction.
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (internal citation omitted).
The Court must accept the factual allegations contained in the Complaint as true when
determining whether subject matter jurisdiction exists. Wolfe v. Strankman, 392 F.3d 358, 362
(9th Cir. 2004). However, when resolving a factual attack on jurisdiction, the court may review
extrinsic evidence without converting the motion to a motion for summary judgment and the
court “need not presume the truthfulness of the plaintiff’s allegations.” Safe Air for Everyone,
373 F.3d at 1039. Once the motion has been converted into a factual motion, the plaintiff “must
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furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter
jurisdiction.” Id. (citation omitted).
Pursuant to Rule 12(b)(6), 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[,]”
meaning “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks omitted). Additionally, “only a complaint that states a
plausible claim for relief survives a motion to dismiss.” Id. at 679. A complaint must contain
“well-pleaded facts” which “permit the court to infer more than the mere possibility of
misconduct.” Id. at 679. In evaluating the sufficiency of a complaint’s factual allegations, the
court must accept all material facts alleged in the complaint as true and construe them in the light
most favorable to the non-moving party. Wilson v. Hewlett–Packard Co., 668 F.3d 1136, 1140
(9th Cir. 2012). “Factual allegations must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations in the complaint are true (even if
doubtful in fact)[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and footnote
omitted). However, the court need not accept unsupported conclusory allegations as truthful.
Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992). A motion to dismiss under Rule
12(b)(6) will be granted if a plaintiff alleges the “grounds” of her “entitlement to relief” with
nothing “more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action.” Twombly, 550 U.S. at 555.
Defendant asserts that Plaintiff lacks standing to seek injunctive relief under the ADA
because she does not face a real and immediate threat of repeated injury. To satisfy Article III’s
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standing requirements, a plaintiff must have suffered an injury in fact, which is “concrete and
particularized, and actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and citations omitted). When a
plaintiff seeks an equitable remedy such as injunctive relief under the ADA, she must show a
“real or immediate threat that plaintiff will be wronged again—a ‘likelihood of substantial and
immediate irreparable injury.’” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (2003) (quoting
O’Shea v. Littleton, 414 U.S. 488, 502 (1974)). There must also “be a causal connection between
the injury and the conduct complained of” and “it must be ‘likely,’ as opposed to merely
‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Lujans, 504 U.S. at
Here, the speculative nature of Plaintiff’s claim of future harm does not constitute an
injury in fact and she fails to otherwise meet Article III’s standing requirements. Plaintiff has not
alleged a sufficient likelihood that she will be wronged again in a similar way or that she faces a
real and immediate threat of repeated injury based on any practice that violates the ADA.
Furthermore, Plaintiff has not alleged that the height of the counter or any act attributable to
Defendant caused her accident. The Complaint does not describe a causal link between what
“bumped” her wheelchair into the checkout counter and Defendant’s conduct.
Regarding redressability, Defendant has submitted photographs of the checkout counter,
demonstrating that it complied with the ADA’s accessibility requirements. See Allen Decl. ¶¶ 5–
6, Exs. A–D (demonstrating that the counter height and width satisfy the ADA’s accessibility
requirements); see also 2010 ADA Standards for Accessible Design, 28 C.F.R. part 36, subpart
D, § 904.4.1 (2011) (stating that sales and service counters using a parallel approach such as the
counters depicted in Defendant’s pictures, shall be no higher than 36 inches above the floor and
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must be at least 36 inches long). Plaintiff’s argument that Defendant did not state when the
pictures were taken is unavailing because if she were to return to the store at a future date, the
counter would not be in violation of the ADA.
Even if the Court accepts all of Plaintiff’s allegations as true, it cannot draw a reasonable
inference from those allegations that Defendant is liable for her alleged injuries. The Court
agrees with Defendant that Plaintiff’s conclusory allegation that she could not reach the counter,
by itself, does not establish that Defendant violated the ADA. See 42 U.S.C. § 12182(b)(2)(A)
(enumerating prohibited forms of disability discrimination). Similarly, as pleaded in the
Complaint, Defendant’s employee’s requests that Plaintiff sign up for a store credit card do not
constitute ADA violations. It is difficult to comprehend, without speculation, how Defendant
violated the ADA on the facts as alleged in the Complaint.
Because Plaintiff has not established standing and fails to state a claim, the Court
dismisses her ADA claim. Moreover, because the Court is dismissing Plaintiff’s only federal
claim, it declines to exercise supplemental jurisdiction over her negligence claim. 28 U.S.C.
Defendant’s Motion to Dismiss  is GRANTED and Plaintiff’s Complaint  is
DISMISSED. The Court also grants Plaintiff leave to amend her Complaint.
day of ______________________, 2017.
MARCO A. HERNÁNDEZ
United States District Judge
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