HEINZL v. CRACKER BARREL OLD COUNTRY STORE, INC.

Filing 35

ORDER DENYING 10 Motion to Dismiss. Magistrate Judge Mitchell's 15 Report and Recommendation is ADOPTED as the Opinion of the Court, as supplemented by this Memorandum Order. Signed by Judge Mark R. Hornak on 4/24/15. (bdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SARAH HEINZL, individually and on behalf
of all others similarly situated,

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Plaintiff,
v.
CRACKER BARREL OLD COUNTRY
STORE, INC.,
Defendant.

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Civil Action No. 2:14-cv-1455
Judge Mark R. Hornak

MEMORANDUM ORDER
On October 27,2014, Plaintiff Sarah Heinzl filed this action individually and on behalf ofall
others similarly situated against Defendant, Cracker Barrel Old County Stores, Inc. ("Cracker
Barrel"), alleging violations ofTitle III ofthe Americans With Disabilities Act, 42 U.S.C. §§ 12181
to 12189 (ADA). Specifically, she alleges that the facilities at Cracker Barrel are not fully accessible
to and independently usable by individuals who use wheelchairs for mobility, as she does, because of
various barriers in the parking lot and along the route to the building entrance.
On December 1,2014, Defendant filed a Partial Motion to Dismiss (ECF No.1 0), in which it
argued that Plaintiff lacks standing to raise claims as to locations she is unlikely to visit under the
intent to return theory and that her class allegations do not give her standing. Plaintiff filed a Briefin
Opposition on December 22,2014.
On January 5, 2015, Magistrate Judge Robert C. Mitchell filed a Report and
Recommendation (ECF No. 15), recommending that the Partial Motion to Dismiss be denied.
Service ofthe Report and Recommendation was made on the parties, and the Defendant filed
Objections (ECF No. 16) on January 20, 2015. On February 6, 2015, Plaintiff filed a Response to

the Defendants' Objections (ECF No. 19). The Defendant filed a Reply to that Response on February
13,2015 (ECF No. 23). The Court has considered all of those materials.
In its objections, Defendant contends for the first time that, pursuant to Ortiz v. Fibreboard

Corp., 527 U.S. 815 (1999), the Court must decide the issue of class certification now, prior to
addressing the issue of standing. It then proceeds to address this issue and argues that Plaintiffs
class action allegations should be dismissed (even though Plaintiff has not filed a motion for class
certification). As discussed below, Defendant's objections read as a brief in support of a motion to
strike class action allegations under Federal Rule of Civil Procedure 23( d)( 1)(D), when no such
motion is pending before the Court. 1
In response, Plaintiff argues that Defendant waived this argument by not addressing it in its
opening brief and that it would be improper for the Court to decide the issue of class certification
without the benefit of discovery and briefing. Because Plaintiff s second argument is availing, it is
not necessary for the Court to address the waiver argument.
Plaintiff cites case law holding that, prior to rendering any class certification decision, the
Court is required to engage in a "rigorous analysis" ofthe record, measured against the requirements
of Fed. R. Civ. P. 23. In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 309 (3d Cir.

2009); In re Mercedes-Benz Tele Aid Contract Litigation, 257 F.R.D. 46, 54 (D.N.J. 2009)
("Certification is appropriate only if the trial court is satisfied, after a rigorous analysis, that the
prerequisites ofRule 23 are met. That analysis calls for findings by the court, not merely a threshold
showing by a party, that each requirement of Rule 23 is met. In other words, to certify a class the

1 In addition, Defendant makes a number of other observations mostly about procedural matters and primarily in a series
of footnotes, which the Court does not find apt to the matters now before the Court. See, e.g., ECF No. 16 at 1 n. I; id at
3 n.2; id at 7; id at 10 n.9. In addition, on February 13, 2015, Defendant filed a reply brief (ECF No. 23), without
seeking leave of the Magistrate Judge. Nonetheless, the Court has considered that reply brief.

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district court must find that the evidence more likely than not establishes each fact necessary to meet
the requirements of Rule 23.") (internal citations and quotation marks omitted). She contends that,
by asking the Court to forego this "rigorous analysis," in favor of striking the class allegations from
the Complaint without any evidentiary record, Defendant is seeking extraordinary relief which it has
not justified.
A treatise on class actions states that "Rule 23(b)(2) authorizes class actions when all the
prerequisites of Rule 23(a) have been met, and 'the party opposing the class acted or refused to act
on grounds that apply to the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.'" Newberg on Class Actions § 4:26 (5th ed. 2014)
(quoting Fed. R. Civ. P. 23(b)(2». Plaintiff also observes that our Court of Appeals has held that
Rule 23(b)(2) "is almost automatically satisfied in actions primarily seeking injunctive relief ....
What is important is that the relief sought by the named plaintiffs should benefit the entire class."

Baby Nealfor and by Kramer v. Casey, 43 F.3d 48, 58-59 (3d Cir. 1994). Rule 23(b)(2) "was
designed specifically for civil rights cases seeking broad declaratory or injunctive relief for a
numerous and often unascertainable or amorphous class of persons." Id. (internal quotation marks
omitted). Moreover, as a procedural matter, Defendant has not filed a motion to strike class action
allegations, and Plaintiff has not filed a motion for class certification.
Courts routinely reject preemptive motions to strike class allegations except in the rare case.
This is true not only in cases seeking injunctive relief under Rule 23(b)(2), but even in cases for
damages under Rule 23(b)(3). As this Court recently explained:
courts grant motions to dismiss class allegations before class discovery only in the
rare few cases where the complaint itself demonstrates that the requirements for
maintaining a class action cannot be met. Thus, it is only when no amount of
discovery or time will allow for plaintiffs to resolve deficiencies in class definitions
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under Rule 23, that a motion to strike class allegations should be granted. In other
words, if it is possible that discovery could possibly demonstrate the viability of the
class, a defendant's motion to strike class allegations should be denied.

Swank v. Wal-Mart Stores, Inc., No. 13-01185,2015 WL 1508403, at *2 (W.D. Pa. Mar. 31, 2015)
(internal quotation marks, citations, and alterations omitted) (collecting cases).
Defendant argues that, based on the following passage ofthe district court's opinion in Clark
v. McDonald's Corp., 213 F.R.D. 198 (D.N.J. 2003), this Court should dismiss Plaintiffs class
claims now:
This is a case, like Ortiz, in which certain issues of class certification are "logically
antecedent" to those of standing. In particular, the Defendants' argument that Clark
does not enjoy standing to assert claims on behalf of class members regarding
restaurants that Clark has not visited, or in states Clark has not visited, is an issue that
simply would not arise but for Clark's capacity as a putative class representative.

Clark, 213 F.R.D. at 204-05 (quoting Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)). But the
"Ortiz exception" on which the Clark court relied actually stands for the proposition that, in certain
cases, a court should go through the process of class certification before addressing the issue of
Article III standing. The Ortiz Court explained:
Ordinarily, of course, this or any other Article III court must be sure of its own
jurisdiction before getting to the merits. But the class certification issues are
... logically antecedent to Article III concerns, and themselves pertain to statutory
standing, which may properly be treated before Article III standing .... Thus the
issue about Rule 23 certification should be treated first, mindful that the Rule's
requirements must be interpreted in keeping with Article III constraints ...."

Ortiz, 527 U.S. at 831 (internal citations, alterations, and quotation marks omitted). The Ortiz Court
relied on Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), in which the Supreme Court
found that because "class certification issues are dispositive ... [and] because their resolution here is
logically antecedent to the existence of any Article III issues, it is appropriate to reach them first."

Id. at 612 (internal citations and quotations marks omitted).
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The reason for proceeding through class certification determinations before addressing the
issue of standing was explained by one district court as follows:
As in Ortiz, the petitioners in Amchem challenged the standing ofexposure-only class
members prior to the certification of the class. The Supreme Court affirmed the Court
of Appeals for the Third Circuit by stating that "because [the resolution of class
certification issues] is logically antecedent to the existence ofany Article III issues, it
is appropriate to reach them first." Amchem, 521 U.S. at 612, 117 S.Ct. 2231.
As in Ortiz, Amchem dealt with the standing of absent class members, not the named
plaintiffs. Also as in Ortiz, a ruling in Amchem as to the standing ofpeople who were
not asserting claims against the defendants (the proposed class members) would have
been illogical. Had the proposed class members become actual class members, then
an inquiry into their standing to assert claims would become the next logical course
of action.

In re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143, 154 (E.D. Pa. 2009).
Furthermore, as cited in the Report and Recommendation, numerous courts, including the
Court of Appeals for the Tenth Circuit, have held that in an ADA Title III class action situation, the
court should first evaluate the named plaintiff's standing vis-a.-vis the location she has visited and
then determine class action certification as to other locations under Rule 23. See Colorado Cross-

Disability Coalition v. Abercrombie & Fitch Co., 765 F.3d 1205, 1212-13 (lOth Cir. 2014). As
another member of this Court concluded:
With respect to other locations cited in the First Amended Class Action Complaint,
Plaintiff does not have to visit them to establish standing. Rather, that is an issue of
class certification. Therefore, Defendants' argument about the scope of available
injunctive relief based upon various stores that Plaintiff has not visited, goes to
Plaintiffs ability to serve as a class representative, which is not ripe for disposition at
this time.

Mielo v. Giant Eagle, Inc., No. 14-964,2014 WL 6850767, at *5 (W.D. Pa. Dec. 3,2014); see also
Mielo v. Aurora Huts, LLC, No. 14-1162,2015 WL 106631, at *6 (W.D. Pa. Jan. 7,2015); Heinzlv.
Boston Mkt. Corp., No. 14-997, 2014 WL 5803144, at *6 (W.D. Pa. Nov. 7, 2014) ("[W]hen a

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plaintiff has presented a class action complaint, the issue of standing is limited to the plaintiffs
individual standing, not whether the plaintiff can challenge policies as they relate to a multitude of
locations.").
The Court declines the invitation proffered by the Defendant to strike the Plaintiff's class
allegations now, particularly when it has not filed a motion to dismiss class action allegations,2
Plaintiffhas not filed a motion for class certification, little ifany class discovery has been conducted
and in the Court's estimation, there has not been the necessary record development as to this issue.
Finally, the Court would note that it believes that it is appropriate to follow the prevailing approach
of our sister courts in this Circuit, and strike all class allegations at the preemptive stage in only the
"rare" case. See Swank, 2015 WL 1508403, at *2. 3
AND NOW, this 24th day of April, 2015,
IT IS ORDERED that Defendant's Motion to Dismiss (ECF No. 10) is denied.
The Magistrate Judge's Report and Recommendation dated January 5,2015 (ECF No. 15) is
adopted as the Opinion of the Court, as supplemented by this Memorandum Order.

United States District Judge
cc: All counsel of record

2 Which was the procedural posture in Clark, 213 F.R.D. at 202. The Court does not believe that it is appropriate to
address such a consequential issue here when it is first raised at the "objections to the R&R" stage, on an incomplete
record.
3 To the extent Defendant's principal concern is the scope offorthcoming discovery, class or otherwise, nothing about
this decision impedes the authority and responsibility of the Magistrate Judge in the first instance to regulate that
discovery process, with vigor if necessary in the circumstances.

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