United States District Court, W.D. Pennsylvania
SARAH HEINZL, individually and on behalf of all others similarly situated, Plaintiff,
QUALITY FOODS CORPORATION, d/b/a KUHN'S MARKET, Defendant.
MEMORANDUM OPINION AND ORDER
ROBERT C. MITCHELL, Magistrate Judge.
Plaintiff, Sarah Heinzl, brings this action individually and on behalf of all others similarly situated against Defendant, Quality Foods Corporation, d/b/a Kuhn's Market ("Kuhn's"), alleging violations of Title III of the Americans With Disabilities Act, 42 U.S.C. §§ 12181 to 12189 (ADA). Specifically, she alleges that the facilities at Kuhn's 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.
Presently before the Court is Defendant's motion to dismiss or stay the Amended Complaint. Defendant challenges Plaintiff's standing to bring this action, contends that she has sued the incorrect party or at least failed to join an indispensable party, requests a stay on the grounds that the case will shortly become moot once the property owner makes expected changes to the parking lot and argues that, because Plaintiff's counsel filed this action without providing prior notice, any request for attorney's fees should be denied. For the reasons that follow, the motion will be denied.
Plaintiff states that she is a resident of the Commonwealth of Pennsylvania who has a mobility disability and is limited in the major life activity of walking, causing her to be dependent upon a wheelchair for mobility. (Am. Compl. ¶¶ 2, 15.) She has visited Defendant's property located at 3125 Banksville Road in Pittsburgh, Pennsylvania (the "Subject Property") many times. During these visits, she has experienced unnecessary difficulty and risk due to excessive slopes in a purportedly accessible parking space and access aisle and along the route to the building entrance. (Am. Compl. ¶¶ 18, 24.)
She also indicates that, on her behalf, investigators examined this location and five other retail Kuhn's locations around the greater Pittsburgh area and found the following violations: 1) the surfaces of one or more access aisles and one or more purportedly accessible parking spaces had slopes exceeding 1:48 (i.e., 2.1%); 2) a portion of the route to the store entrance had a running slope exceeding 1:20 (i.e., 5.0%); 3) one or more purportedly van accessible parking spaces and adjacent access aisles were too narrow; 4) a portion of the route to the store entrance had a cross slope exceeding 1:48 (i.e., 2.1%); 5) one or more purportedly accessible spaces were not marked with required signs; 6) no spaces were designated as "van accessible"; 7) one or more access aisles adjacent to purportedly accessible parking spaces was less than 60 inches wide; 8) a curb ramp located on the route to the building entrance had a running slope exceeding 1:12 (i.e., 8.3%); and 9) signs designating spaces as "accessible" were mounted less than 60 inches above the finished surface of the parking area. (Am. Compl. ¶ 19.)
Plaintiff indicates that the Subject Property is located 2.76 miles from her residence and is the closest grocery store to her residence; that she has shopped at the Subject Property at least once a week for approximately the past five years and it is virtually the only grocery store at which she shops; and that she intends to return to this location as it is the closest and most convenient to her residence, but that numerous architectural barriers deter her from doing so. (Am. Compl. ¶¶ 23-26.)
Plaintiff filed this action on July 28, 2014. On September 3, 2014, Defendant filed a motion to dismiss or stay (ECF No. 3). On September 25, 2014, Plaintiff filed an Amended Complaint (ECF No. 7).
Federal question jurisdiction is based on the ADA claim, 28 U.S.C. § 1331; 42 U.S.C. § 12188(a). She alleges that the cited violations constitute "a failure to remove architectural barriers" in violation of 42 U.S.C. § 12182(b)(2)(A)(iv) and a failure to alter, design or construct accessible facilities after the effective date of the ADA in violation of § 12183(a)(1) and the appropriate regulations, which will deter her and similarly situated individuals from returning to Defendant's facilities and that, without injunctive relief, she will be unable to fully access Defendant's facilities in violation of her rights under the ADA. (Am. Compl. ¶¶ 27, 35-41.)
She also brings this action on behalf of all others similarly situated pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. (Am. Compl. ¶¶ 28-33.) See seeks a declaratory judgment that Defendant is in violation of the specific requirements of Title III of the ADA and its implementing regulations, a permanent injunction directing Defendant to take all steps necessary to remove the architectural barriers and bring its facilities into ADA compliance, an order certifying the class she proposes and naming her as class representative and appointing her counsel as class counsel, payment of costs of suit, payment of reasonable attorney's fees and any other relief the Court deems just, equitable and appropriate. (Am. Compl. at 10.)
On October 9, 2014, Defendant filed a motion to dismiss or stay the Amended Complaint (ECF No. 10), to which Plaintiff responded on October 30, 2014 (ECF No. 13). Defendant filed a reply brief on November 4, 2014 (ECF No. 14).
Defendant argues that: 1) Plaintiff lacks standing under the intent to return theory because she has alleged proximity only as to one Kuhn's but no reliable history of patronage or frequency and she has alleged only a cursory statement of intent to return; 2) she lacks standing under a deterrent effect theory because the scant facts put into doubt that she would ever go to the several Kuhn's properties or to "all Defendants' facilities" but for the alleged barriers; 3) she has either sued the wrong party or failed to join an indispensable party, because Kuhn's does not own the parking lot with the alleged violations, but is only one of many tenants at this shopping plaza; 4) the property owner has agreed to make changes that its architect has proposed and thus this case should be stayed as the work will render the case moot; and 4) Kuhn's never received notice of any violations prior to Plaintiff bringing suit and although advance notice is not required under the ADA, it would have led to voluntary compliance and thus Plaintiff's counsel should be denied any request for attorney's fees for bringing this unnecessary action.
Plaintiff responds that: 1) she has demonstrated an intent to return to the Subject Property based upon past discriminatory conduct, a reasonable inference that the conditions will continue and a reasonable inference that her stated intent to return to the Subject Property is plausible; 2) she satisfies the deterrent effect test based upon the barriers she has encountered at the Subject Property that impede her safe access thereto; 3) the scope of her claims should be determined by application of Rule 23 and she does not have to visit every Kuhn's location to establish standing; 4) her claims are not "moot" because Defendant represents that it has notified the property owner who intends to make changes at some unknown future date; and 5) under the ADA, both landlord and tenant may be held liable and whether or not the property owners are "necessary" to this case is an issue of fact that cannot be determined at this stage of the proceedings.
In a reply brief, Defendant concedes that Plaintiff has standing, but only with respect to the Subject Property and it argues that, as to that Kuhn's location, the property owner is the proper party and a stay will allow the property owner to make changes and render this matter moot without further use of judicial resources. Therefore, it continues to argue that this matter should be dismissed or stayed.
"A motion to dismiss for want to standing is... properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter." Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007) (citations omitted). The Court of Appeals has explained that:
In evaluating whether a complaint adequately pleads the elements of standing, courts apply the standard of reviewing a complaint pursuant to a Rule 12(b)(6) motion to dismiss for failure to state a claim: "Court[s] must accept as true all material allegations set forth in the complaint, and must construe those facts in favor of the nonmoving party." Ballentine, 486 F.3d at 810 (citing Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)); see also Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 73 (3d Cir. 2011) ("A dismissal for lack of statutory standing is effectively the same as a dismissal for failure to state a claim."). The Supreme Court most recently explained this standard in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009): "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955)....
"A complaint has to show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). With respect to 12(b)(1) motions in particular, "[t]he plaintiff must assert facts that affirmatively and plausibly suggest that the pleader has the right he claims (here, the right to jurisdiction), rather than facts that are merely consistent with such a right." Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007).
In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243-44 (3d Cir. 2012).
The Supreme Court has held that:
In every federal case, the party bringing the suit must establish standing to prosecute the action. "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The standing requirement is born partly of "an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.'" Allen v. Wright, ...