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Mielo v. Giant Eagle, Inc.

United States District Court, W.D. Pennsylvania

December 3, 2014

CHRISTOPHER MIELO, individually and on behalf of all others similarly situated, Plaintiff,
v.
GIANT EAGLE, INC. and ECHO REALTY LP, Defendants

For CHRISTOPHER MIELO, individually and on behalf of all others similarly situated, Plaintiff: R. Bruce Carlson, LEAD ATTORNEY, Carlson Lynch, Pittsburgh, PA: Benjamin J. Sweet, Carlson Lynch LTD, Pittsburgh, PA.

For GIANT EAGLE, INC. and, ECHO REALTY, LP, Defendants: Bernard D. Marcus, LEAD ATTORNEY, Marcus & Shapira, Pittsburgh, PA; Elly M. Heller-Toig, Marcus & Shapira, Pittsburgh, PA; James S. Larrimer, Marcus & Shapira, Pittsburgh, PA.

MEMORANDUM OPINION AND ORDER

Cynthia R. Eddy, United States Magistrate Judge.

Plaintiff, Christopher Mielo, brings this action individually and on behalf of all others similarly situated against Defendants, Giant Eagle, Inc. and Echo Realty LP (" Defendants"), alleging violations of Title III of the Americans With Disabilities Act, 42 U.S.C. § § 12181 et seq. (" ADA").[1] Specifically, he alleges that the parking lots at ten (10) Giant Eagle supermarket locations and one (1) GetGo location contain " access barriers" so as to render Defendants' facilities not fully accessible to and independently usable by plaintiff and a putative class of similarly situated disabled individuals who are dependent upon wheelchairs for mobility, because of various identified access barriers that fail to comply with the requirements of the ADA.

Presently before the Court is Defendants' Joint Motion to Dismiss the Amended Complaint for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), challenging Plaintiff's standing to bring this action, except those claims related to the William Penn Highway Giant Eagle and the Monroeville Boulevard GetGo store locations. For the reasons that follow, the motion will be denied.

Facts[2]

Plaintiff states that he is a resident of the Commonwealth of Pennsylvania who has a mobility disability and is limited in the major life activity of walking, causing him to be dependent upon a wheelchair for mobility. (Am. Compl. ¶ ¶ 2, 15.) He has visited Defendants' Giant Eagle grocery store located at 4680 William Penn Highway, in Pittsburgh, Pennsylvania (the " Subject Property 1"). Plaintiff also visited Defendants' GetGo convenience store located at 4000 Monroeville Boulevard, Monroeville, PA (" Subject Property 2"). During these visits, he experienced unnecessary difficulty and risk due to excessively sloped surfaces in a purportedly accessible parking space and access aisle. He indicates that, on his behalf, investigators examined multiple retail locations owned by Defendants in Pittsburgh, Pennsylvania, Monroeville, Pennsylvania and Cranberry, Pennsylvania. The investigators found the following alleged violations at certain specified locations: (1) the surfaces of one or more access aisles and one or more purportedly accessible parking spaces had running and/or cross slopes exceeding 1:48 (i.e., 2.1%); (2) at one or more groups of purported accessible parking spaces no spaces were designated as " van accessible"; (3) no access aisle was provided adjacent to one or more purportedly accessible spaces; (4) a portion of the route to the store entrance had a running slope exceeding 1:20 (i.e., 5%); (5) a curb ramp located in the route to the building entrance had a running slope exceeding 1:12 (i.e., 8.3%). (Am. Compl. ¶ ¶ 18-20.)

Plaintiff indicates that he is a resident of Churchill, Pennsylvania and that Subject Property 1 is the nicest and closest grocery store to his residence and Subject Property 2 is the closest gas station/convenience store to his residence. Plaintiff does most of his shopping, dining and entertainment in Monroeville and therefore, has reason to frequent Subject Property 1 and Subject Property 2. (Am. Compl. ¶ ¶ 25-27.) He intends to continue to do his grocery shopping at Subject Property 1, as well as to purchase gas and snacks at Subject Property 2. In addition, he intends to return to Defendants' facilities; however, as long as the numerous architectural barriers at Defendants' facilities continue to exist, Plaintiff will be deterred from doing so. (Am. Compl. ¶ ¶ 29-30.)

Procedural History

Plaintiff filed this action on July 17, 2014. On September 14, 2014, Defendants filed a motion to dismiss for lack of jurisdiction, challenging Plaintiffs standing to bring this action. On October 3, 2014, Plaintiff filed an Amended Complaint. (ECF No. 16.)

Federal question jurisdiction is based on the ADA claim, 28 U.S.C. § 1331; 42 U.S.C. § 12188(a). Plaintiff 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 him from returning to Defendants' facilities and that, without injunctive relief, he will be unable to fully access Defendants' facilities in violation of his rights under the ADA. (Am. Compl. ¶ ¶ 12, 39-48.)

He 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. He seeks a declaratory judgment that Defendants are in violation of the specific requirements of Title III of the ADA and its implementing regulations, a permanent injunction directing Defendants to take all steps necessary to remove the architectural barriers and bring its facilities into ADA compliance, an order certifying the class he proposes and naming him as class representative and appointing his 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. ¶ ¶ 32, 48.)

On October 16, 2014, Defendants filed a motion to dismiss the Amended Complaint. (ECF No. 21.) Plaintiff responded on November 11, 2014. (ECF No. 26.) Plaintiff filed a Notice of Supplemental Authority on November 17, 2014, attaching a copy of Heinzl v. Quality Foods Corporation d/b/a Kuhn's Market, 2014 WL 6453894 (W.D. Pa. 2014). (ECF No. 29.) On November 19, 2014 the Court entered an Order allowing Defendants to address the supplemental ...


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