NATIONAL ALLIANCE FOR ACCESSIBILITY, INC., et al v. MACY'S RETAIL HOLDINGS, INC., No. 1:2011cv00877 - Document 18 (M.D.N.C. 2012)
Court Description: MEMORANDUM OPINION AND ORDER re 14 Motion to Dismiss. For the reasons stated, the court finds that Plaintiffs have not established standing in this case and the complaint must be dismissed pursuant to Rule 12(b)(1). Macy's request for attor ney fees is denied. IT IS THEREFORE ORDERED that Macy's motion to dismiss the complaint (Doc. 14 ) is GRANTED and that its related request for attorneys' fees is DENIED. Signed by JUDGE THOMAS D. SCHROEDER on 10/30/2012. (Solomon, Dianne)
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA NATIONAL ALLIANCE FOR ACCESSIBILITY, INC., a Florida not for profit corporation, and DENISE PAYNE, Individually, ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. MACY S RETAIL HOLDINGS, INC., Defendant. 1:11-cv-877 MEMORANDUM OPINION AND ORDER THOMAS D. SCHROEDER, District Judge. Plaintiffs ( NAA ) and National Denise Alliance Payne for ( Payne ) Accessibility, seek Inc. declaratory and injunctive relief against Defendant Macy s Retail Holdings, Inc. ( Macy s ), for alleged violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (2006 & Supp. 2012) dismiss ( ADA ). Plaintiffs jurisdiction pursuant 12(b)(1) and for an Before the court for lack of Federal Rule of of reasonable claims to award pursuant to 42 U.S.C. § 12205. its (Doc. 14.) is Macy s motion subject Civil to matter Procedure attorneys fees For the reasons set forth below, the court will grant Macy s motion to dismiss on the ground that Plaintiffs lack standing but will deny Macy s request for attorneys fees. I. BACKGROUND Payne, who was born with cerebral palsy and is confined to a wheelchair, characterizes herself as an advocate for disabled individuals. 4, 6, 7.) and the (Doc. 1 ¶¶ 5, 8; Doc. 16-1 (Payne affidavit) ¶¶ 1, From her home state of Florida (Doc. 1 ¶ 7), Payne organization she founded, the NAA, seek to promote equality for disabled individuals through ADA litigation (id. ¶¶ 1, 6). As approximately Carolina. Stores, of September 292 ADA lawsuits, 4, 2012, over 80 Payne of had filed in North them Nat l Alliance for Accessibility, Inc. v. Big Lots Inc., No. 5:11-CV-741-FL, (E.D.N.C. Sept. 4, 2012). 2012 WL 3835870, at *1 To date, Payne has filed 24 ADA lawsuits in the Middle District of North Carolina alone. Payne alleges that architectural barriers relating to the height of counters and water closet arrangement at Macy s store at Hanes Mall in Winston-Salem, North Carolina, have endangered her safety. (Id. ¶¶ 5, 15.) Additional but violations of the ADA at Macy s are also alleged. 1 unspecified (Id.) The complaint alleges that Payne twice visited the Macy s store at Hanes Mall, once in 2010 and again over a year later, 1 Payne s affidavit repeats many of the allegations in the complaint, while adding some detail to the architectural barriers noted in the complaint. (See Doc. 16-1 ¶¶ 1-4, 6-11.) 2 and plans to return to the property to avail himself [sic] of the goods and services offered to the public at the property, and to determine compliant. whether the (Doc. 1 ¶ 5.) property has been made ADA Payne visited the property that forms the basis of this lawsuit on July 26, 2010, on her way back to Florida after attending an annual Virginia held about two weeks earlier. church (Id. ¶ 7.) retreat in Payne also alleges that she visited Raleigh, North Carolina, in October 2011, in part for purposes of her organization, and that during this same trip Plaintiff intends to visit the Richard Petty NASCAR Museum Winston-Salem. 8, 9.) in Randleman, approximately 40 miles She has an annual pass to the museum. 2 from (Id. ¶¶ Of greater import, however, is Payne s allegation that on October 19, 2011, she met with her attorney, whose office is seven miles from Macy s, and thereafter visited the Macy s store for a second time. (Id. ¶ 10; see Doc. 1-2 (signed October 19, 2011 verification to complaint).) Payne frequently also in alleges recent she years has to 2 traveled visit and to meet North Carolina with business For a history of Payne s allegations relating to the museum at the time of her July 2010 trip and generally, see National Alliance for Accessibility, Inc. v. Triad Hospitality Corp., No. 1:11-cv-527, 2012 WL 996661, at *3, *5 (M.D.N.C. Mar. 23, 2012), which reviews Payne s changing story with respect to her alleged visit to a racing museum in July 2010. As noted in Triad Hospitality, [u]nclear from [Payne s] change of fact is how a small museum located some 44 miles from Winston-Salem attracts Payne to the vicinity of [a hotel in WinstonSalem]. Id. at *5. The same observation applies here. 3 associates and friends. affidavit states that (Id. ¶ 6.) she has Payne s May 10, 2012 traveled approximately 10 times in recent years. further alleges that part of her to North Carolina (Doc. 16-1 ¶ 3.) travel is to She increase membership in the National Alliance for Accessibility and to start local chapters in Raleigh and Asheville. 3 The complaint alleges that [i]n the (Doc. 1 ¶ 6.) future, Plaintiff Denise Payne intends to meet with her counsel in the WinstonSalem area and intends to stay in places of public accommodation in the vicinity, and to patronize shopping and dining establishments in the vicinity. (Id. ¶ 11.) intends National to continue Accessibility, throughout Macy s not available Inc. North only at the her and Carolina. to avail property work to with meet herself but to Alliance with of business Payne (Id.) Payne also desires the assure goods contacts to and herself for visit services that this property is in compliance with the ADA so that she and others similarly situated will have full and equal enjoyment of the property without fear of discrimination. (Id. ¶ 14.) Payne s affidavit states that she visited the property for a third time on March 31, 2012, which was over five months after her last stated visit prior to filing the complaint. 3 (See Doc. Payne states that there are four members of the NAA who are North Carolina residents. She does not specify their locations within the state. (Doc. 16-1 ¶ 5.) This was an increase of one member since the complaint. (See Doc. 1 ¶ 6.) 4 16-1 ¶ 8 (describing third visit).) She states that the March 31, 2012 visit was to meet with her attorney and to handle other, undisclosed, business matters. (Doc. 16-1 ¶ 10.) She met her attorney at the food court at Hanes Mall to discuss cases that he is working for me and she and handled several legal matters at the food court. II. her attorney (Id.) ANALYSIS Macy s moves to dismiss the complaint pursuant to 12(b)(1) and for attorneys fees as the prevailing party. 14.) Federal district courts exercise limited Rule (Doc. jurisdiction. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). For a case or controversy to be justiciable in federal court, a plaintiff must allege such a personal stake in the outcome of the controversy as to warrant [her] invocation of federal court jurisdiction and to justify court s remedial powers on [her] behalf. exercise of the White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir. 2005) (quoting Planned Parenthood of S.C. v. Rose, 361 F.3d 786, 789 (4th Cir. 2004)). The judicial doctrine of standing is an component of the case or controversy requirement. BellSouth Telecomms., (citation and seeking to Inc., internal invoke the 664 quotation federal F.3d 46, marks courts 52 (4th integral CGM, LLC v. Cir. 2011) The party omitted). jurisdiction burden of satisfying Article III s standing requirement. 5 has the Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006). To meet that burden, a plaintiff must demonstrate three elements: (1) that she has suffered an injury in fact that is concrete and particularized and actual or imminent ; (2) that the injury is fairly traceable to the challenged conduct; and (3) favorable decision is likely to redress the injury. Defenders of Wildlife, 504 U.S. 555, 560-61 that a Lujan v. (1992); Nat l Alliance for Accessibility, Inc. v. Big Lots Stores, Inc., No. 1:11-cv-941, 2012 WL 1440226, at *3 (M.D.N.C. Apr. 26, 2012). Where, as here, a plaintiff seeks injunctive relief, the injury in injury. According fact element requires a showing of irreparable City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). to the Supreme Court, past wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy. Id. at 103. Absent a sufficient likelihood that [the plaintiff] will again be wronged in a similar way, [the plaintiff] is no more entitled to an injunction than any other citizen. Id. at 111. When resolving a motion under Rule 12(b)(1), the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings converting the proceeding to one for summary judgment. 4 4 without Evans When a party moves under Rule 12(b)(1) on the basis that a complaint fails to allege facts supporting the court s subject matter 6 v. B.F. Perkins Co., a Div. of Standex Int l Corp., 166 F.3d 642, 647 (4th Cir. 1999) (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)). Where, as here, a defendant has not provided evidence to dispute the veracity of the jurisdictional allegations in the complaint, the court accepts facts alleged in the complaint as true just as it would under Rule 12(b)(6). 5 Kerns v. United States, 585 F.3d 187, 192-93 (4th Cir. 2009) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). A. Payne Denise Payne has filed asserting ADA claims. circumstances that over eighty lawsuits in North Carolina District courts have found under similar Payne and her organization lack standing. E.g., Nat l Alliance for Accessibility, Inc. v. Big Lots Stores, Inc., No. 5:11-CV-741-FL, 2012 WL 3835870 (E.D.N.C. Sept. 4, 2012); Nat l Alliance for Accessibility, Inc. v. NCP Western Blvd. LLC, 5:11-CV-357-FL, 2012 WL 3834931 (E.D.N.C. Sept 4, jurisdiction, the plaintiff is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). On the other hand, where a party contests the veracity of the jurisdictional allegations in the complaint, [a] trial court may consider evidence by affidavit and weigh[] the evidence to determine its jurisdiction. Id. 5 The court does so even though in Triad Hospitality, Payne submitted an affidavit to this court in support to bring an ADA claim against a hotel in Winston-Salem representations as to her travel activities that were be materially incorrect. 7 2012 WL 996661, of her standing which contained demonstrated to 2012); Nat l Alliance for Accessibility, Inc. v. Nassimi Amsterdam Dev., L.P., 5:11-CV-769-BO (E.D.N.C. Aug. 1, 2012), Doc. 28; Nat l Shopping Doc. Ctr., 42; Alliance Inc., Nat l for Accessibility, 5:11-CV-765-BO Alliance for Inc. (E.D.N.C. Accessibility, v. Aug. Inc. Eutaw 3, v. 2012), Paris & Potter Mgmt. Corp., 5:12-CV-86-BO (E.D.N.C. Aug. 7, 2012), Doc. 22; Payne v. Tri-Player Invs., LLC, 5:12-CV-115-BO (E.D.N.C. Aug. 7, 2012), Doc. 30; Payne v. TR Assocs., LLC, --- F. Supp. 2d ---, Sears, 2012 WL Roebuck 3113211 & (E.D.N.C. Co., No. Jul. 20, 5:11-CV-614-D, 2012); 2012 WL Payne v. 1965389 (E.D.N.C. May 31, 2012); Nat l Alliance for Accessibility, Inc. v. Big Lots Stores, No. Apr. Inc., Triad Hospitality (M.D.N.C. Mar. 996661 Accessibility, 6936181 Inc. (W.D.N.C. (W.D.N.C. Dec. 2012); 3, 1:11-cv-941, Nat l (M.D.N.C. v. 26, Inc., Alliance Corp., v. 23, 2012); Bhuna Dec. 30, 2011) No. Corp., 2011), (Howell, 2012 for WL Accessibility, 1:11-cv-527, Nat l 2012 Alliance No. 1:11cv79, adopting 2011 M.J.); 1440226 Nat l WL 2011 WL for WL 6935497 Alliance for Accessibility, Inc., v. Rite Aid of N.C., Inc., No. 1:10CV932 (M.D.N.C. Nov. (M.D.N.C. Sept. 7, 2011), 27, 2011) Doc. 28, (Auld, adopting M.J.); 2011 Nat l WL 4499294 Alliance for Accessibility, Inc. v. Waffle House, Inc., No. 5:10-CV-385-D, 2011 WL 4544017 (E.D.N.C. Sept. 29, 2011); Nat l Alliance for Accessibility, Inc. v. Tunnel Road (E&A) LLC, 1:10cv282, 2011 WL 8 1789958 (W.D.N.C. (W.D.N.C. Apr. May 8, 10, 2011) 2011), adopting (Howell, M.J.); 2011 Nat l WL 1791293 Alliance for Accessibility, Inc. v. Waffle House, Inc., 5:10-CV-375-FL, 2011 WL 2580679 (E.D.N.C. Accessibility, Inc. v. June 29, 2011); Horne-River Ridge Nat l II, Alliance LP, Civil for No. 1:10cv286, 2011 WL 1060435 (W.D.N.C. Mar. 23, 2011), adopting 2011 WL 1103791 (W.D.N.C. Mar. 3, 2011) (Howell, M.J.); Access for the Disabled, Inc. v. Karan Krishna, LLC, No. 5:10-CV-123WW, 2011 WL 846854 (E.D.N.C. Mar. 8, 2011) (Webb, M.J.), aff d, 453 F. App x 419 (4th Cir. 2011) (per curiam) (unpublished); see Harty v. Luihn Four, Inc., 747 F. Supp. 2d 547 (E.D.N.C. 2010), aff d, 453 F. App x 347 (4th Cir. 2011) (per curiam) (unpublished). 6 6 Plaintiffs cite two opinions of district courts sitting in North Carolina which declined to dismiss another plaintiff s claims for lack of standing. (Doc. 16 at 13-14 (citing Harty v. Waffle House, No. 7:11-CV-138-D (E.D.N.C. Sept. 30, 2011), Doc. 17, and Harty v. Pa. Real Estate Inv. Trust, No. 7:11-CV-16-H (E.D.N.C. Feb. 15, 2012), Doc. 14).) Neither opinion presented an analysis and both denied a motion to dismiss based upon a conclusion that the affidavit submitted in each case was sufficient at that stage of the litigation. Plaintiffs brief discusses the referenced affidavits (Doc. 16 at 5-6, 13-14), but Plaintiffs failed to submit the affidavits to this court. Further, the court in Payne v. Sears, Roebuck & Co., No. 5:11-CV-614D, 2012 WL 1965389, at *5 (E.D.N.C. May 31, 2012), recently distinguished Harty v. Waffle House, noting that Payne had not indicated, prior to filing the complaint in Sears, that she had already made plans to return to the property in question, thus declining to consider her affidavit which asserted that since filing the lawsuit she planned a specific trip to North Carolina. Accord Harty v. Lumber River Assocs., LLC, No. 7:11-CV-146-FL, 2012 WL 3870370, at *3-4 (E.D.N.C. Sept. 6, 2012) ( Here, Harty has failed to conclusively demonstrate that his alleged future plans to re-visit defendants shopping center in December 2011 existed at the time of the filing of the complaint. ; finding Harty s affidavit insufficient 9 In assessing the plausibility of a plaintiff s claim that she is likely to return to the site of the discrimination (at least once the barriers to her return are removed), and thus can satisfy the requirement that she faces an actual or imminent threat of future harm, courts often find the following factors helpful: (1) the plaintiff s proximity to the defendant s place of public accommodation; (2) the plaintiff s past patronage; (3) the definitiveness of the plaintiff s plan to return; and (4) the plaintiff s frequency of nearby travel. Big Lots Stores, 2012 WL 1440226, at *4 (citing cases). 1. Daniels v. Arcade L.P. Plaintiffs point to the Fourth Circuit s unpublished opinion Daniels v. Arcade L.P., 477 F. App x 125 (4th Cir. 2012) (per curiam) (unpublished), arguing that the Fourth Circuit altered the standard of review in ADA cases from that of earlier opinions of district courts in the circuit. (Doc. 16 at 2-7.) Payne asserts that the Fourth Circuit declined to follow the four-factor test, holding that the test unnecessarily complicates the issue at hand. (quoting Daniels).) overly and (Doc. 16 at 2 Despite Payne s assertion that the Fourth to determine that the asserted visit had been planned prior to the filing of the complaint); Nat l Alliance for Accessibility, Inc. v. NCP Western Blvd. LLC, No. 5:11-CV-357-FL, 2012 WL 3834931, at *3 (E.D.N.C. Sept. 4, 2012) (recognizing same distinction; granting motion to dismiss). For the reasons discussed below, the court concludes this case is closer to Sears, Lumber River, and NCP Western than to Harty v. Waffle House or Pennsylvania Real Estate. 10 Circuit in Daniels declined to follow the four part test (Doc. 16 at 2), post-Daniel opinions cited above applied the fourfactor test to motions to dismiss pursuant to Rule 12(b)(1) in cases where a plaintiff resides a significant distance from the property in question. Daniels is distinguishable. First, unpublished cases are not precedential. Mining Co., unpublished 468 F.3d decisions 213, 219 have (4th no in this circuit Collins v. Pond Creek Cir. 2006) precedential (noting value and that are entitled only to the weight they generate by the persuasiveness of their reasoning (quoting Hupman v. Cook, 640 F.2d 497, 501 & n.7 (4th Cir. 1981))). Daniels itself made that point clear. See Daniels, 477 F. App x at 126 (cautioning that [u]npublished opinions are not binding precedent in this circuit ). Second, Payne selectively quotes from Daniels. The Fourth Circuit stated that it declined to endorse the four-factor test at this time because the use of this type of analysis in some cases, such as the present one, complicates the issue at hand. (emphasis added). overly and unnecessarily Daniels, 477 F. App x at 129 See Harty v. Lumber River Assocs., LLC, No. 7:11-CV-146-FL, 2012 WL 3870370, at *2 (E.D.N.C. Sept. 6, 2012) (describing Daniels opinion as declining to formally endorse four-factor test as it was not helpful under the circumstances of that particular case ). Thus, the court of appeals viewed 11 the four-factor test as overly and unnecessarily complicating the issue at hand with respect to a plaintiff who resided near the property in question and who regularly visited the property. Payne, who lives over 700 miles from Macy s, does not regularly visit the Macy s store. As noted by Judge Boyle in the Eastern District of North Carolina in distinguishing a lawsuit brought by Payne: Those few ADA suits that have been permitted to go forward despite vague plans to return have involved plaintiffs who live in relatively close proximity to the site in question, and for whom the likelihood of return was necessarily greater. Payne v. TR Assocs., LLC, --- F. Supp. 2d ---, ---, 2012 WL 3113211, at *4 (citing Daniels). Payne does not live in relatively close proximity to the Defendant. Third, Daniels reveals how the facts of the present case fall far short of those presented there. Cf. Daniels, 477 F. App x at 129-30 (finding that Daniels alleged a concrete and particularized injury to support standing under Rule 12(b)(6) where he lived within 20 miles of the market, regularly visits it, and was himself barred entry by inaccessible entry routes, inaccessible ramps, inaccessible inaccessible amenities ). restrooms, and other Daniels, therefore, does not alter the analysis undertaken by this and other courts, at least when a plaintiff resides far from the violates the ADA. 12 property plaintiff claims Thus, the court finds that the four-factor test properly provides guidance in the circumstances presented here. Payne does not suggest additional factors for the court to consider. 2. The Application of Factors to Payne first factor in determining whether Payne states a plausible claim that she is sufficiently likely to return to the site of the alleged discrimination is the plaintiff s proximity to the defendant s place of business. See Big Lots Stores, 2012 WL 1440226, at *4-5 (reviewing case law). that Payne resides Winston-Salem. over 700 miles from Suffice it to say the Macy s store in The primary proximity referenced by Plaintiffs relates to Payne s planned meetings with North Carolina counsel, which is addressed below. The Macy s. second factor This factor weighs against Payne. considers Payne s past patronage of See Big Lots Stores, 2012 WL 1440226, at *5 (reviewing case law). Payne seeks to distinguish this case from opinions in such cases as Triad Hospitality, Bhuna, and Waffle House, which dismissed her claims, stating that all three cases dealt with a plaintiff who visited the property in question only a single time prior to bringing a complaint. (Doc. 16 at 11-13.) Payne asserts that this case is factually different, because she alleges that she patronized Macy s twice prior to filing her complaint and, according to her affidavit, one time since. (Doc. 1 ¶¶ 7, 10; Doc. 16-1 ¶ 8; see Doc. 16 at 7 (Payne a 13 person who has been thrice-victimized by Defendant s property for lack of compliance with the ADA ).) The District court who, agrees in with Chief addressing Judge Dever same situation this of the Eastern with Payne, observed that a pre-filing second visit does not necessarily make a post-filing return likely. Co., 2012 WL 1965389, at *5 Payne v. Sears, Roebuck & (noting that [i]n fact, the opposite might be true : ADA Title III plaintiffs, aware that a single visit to an establishment weighs against their having standing, are likely to visit the establishment twice before suing its owner, thus intentionally avoiding the single-visit rule and about a that [s]uch plaintiff s litigation likelihood of gamesmanship suffering says future nothing injury ). The court in Sears noted that when a plaintiff s patronage of a store suggests that he or she prefers an establishment, it is likely that he or she will return to that establishment in the future. Id. In the case before it, the court concluded that Payne s two visits during the seventeen months before plaintiffs filed the complaint does not suggest that she prefers the store or faces a real and immediate threat of future harm. Id. Such gamesmanship is readily apparent here, as demonstrated by the complaint and Payne s affidavit. The second visit to the Macy s store occurred some 15 months after the first, the day 14 Payne verified the complaint, and one day before the filing of this action. immediately (See after Doc. meeting 1 ¶ with 10 (second attorney); verification dated October 19, 2011).) visit Doc. to Macy s 1-2 (signed This timing can only lead to the conclusion that the second visit related solely to Payne s litigation strategy and, perhaps to a lesser degree, to verifying the same alleged violations she encountered 15 months earlier. 7 The This factor weighs against Payne. third factor plaintiff s plans business. See to Big (reviewing case law). considers return Lots to Stores, the the 2012 definitiveness defendant s WL 1440226, of place at a of *6-7 Although a plaintiff need not specify a date of return, mere intent to return to the property some day[,] . . . without any description of concrete plans, . . . do[es] not support a finding of the actual or imminent injury that Article III requires. Lujan, 504 U.S. at 564; Republic Bank & Trust Co. v. Kucan, 245 F. App x 308, 310 (4th Cir. 2007) (per curiam) (unpublished) ( Whether a plaintiff has standing is determined by considering the relevant facts as they existed at the time the action was commenced. ). 7 The court notes that the complaint states that on October 19, 2011, Payne visited the Macy s store [a]fter meeting with her attorney. (Doc. 1 ¶ 10.) No reference is made to a subsequent meeting with her attorney that day. Payne s verification of the complaint is dated October 19, 2011, the day before commencement of this action. 15 Payne asserts that she plans to return to Macy s to avail herself of its goods and to determine ADA compliance, in effect acting as a tester. Payne argues that this court should recognize tester standing sufficient to avoid a Rule 12(b)(1) challenge. (Doc. 16 at 21-23.) argument on two grounds. However, the court rejects this First, Payne s briefing exceeds the 20-page limit provided in Local Rule 7.3(d) ( responsive briefs are limited in length to 20 pages ), and she failed to move for permission to exceed the page limit. Payne s tester argument is contained in that portion subsequent to page 20. 8 Second, for the same reasons set out in this court s April 26, 2012 Big Lot Stores decision, Payne cannot use her status as a tester to satisfy standing requirements she otherwise fails to satisfy. See 2012 WL 1440226, at *7 (and cases cited therein); see also TR Assocs. --- F. Supp. 2d ---, ---, 2012 WL 3113211, at *3-5 (rejecting Payne s arguments of tester standing, including argument that the test for Article III standing for injunctive relief violates the language of the ADA itself). 9 8 Plaintiffs brief, filed May 10, 2012, violates the same local rule previously discussed in this court s April 26, 2012 opinion in Big Lots Stores, another case brought by Plaintiffs. 9 Within the 20-page brief limit, Payne argued that the Proximity Test [i.e., four-factor test] inversely contradicts the Commerce Clause, which Congress used to enact the ADA, and asserts it makes no sense to favor the rights of the purely intrastate traveler over the rights of the interstate traveler. (Doc. 16 at 19-20.) This argument misunderstands the Commerce Clause and the inability of Congress to pass legislation pursuant to the Commerce Clause which 16 With respect to her other ground for returning, nowhere in her affidavit or complaint does Payne indicate any particular items she plans to purchase at the store or any particular reason for shopping at a Macy s located over 700 miles from her home. In other words, she has articulated no grounds for returning to this specific store other than as a by-product of her litigation efforts. This factor weighs against Payne. The fourth factor is the frequency of nearby travels. See Big Lots Stores, 2012 WL 1440226, at *8 (reviewing case law). On this record, Payne s prior sporadic trips to the area and presence in Winston-Salem related to meeting with her litigation counsel constitute weak evidence to establish that her nearby travels will make imminent harm. implausible it likely that she will suffer actual or As other district judges have noted, [i]t is that Payne, a Florida resident, who travels approximately once or twice a year to [North Carolina], plans to return to each of the thirty-two [now over 80] properties in North Carolina she has sued for noncompliance with the ADA. abridges the constitutionally required elements of Article III. Nor does the court s analytical framework unreasonably burden Payne s ability to travel across state lines. Sears, 2012 WL 1965389, at *8 (agreeing with [o]ther courts [that] have considered and rejected plaintiffs arguments ); Access for the Disabled, Inc. v. Karan Krishna, LLC, No. 5:10-CV-123-WW, 2011 WL 846854, at *4 (E.D.N.C. March 8, 2011) (Webb, M.J.) (rejecting Payne s Commerce Clause and interstate travel arguments), aff d, 453 F. App x 419 (4th Cir. 2011) (per curiam) (unpublished). This court rejects Payne s argument for the same reasons articulated in Sears and Karan Krishna. 17 Nat l Alliance 1:11CV79, 2011 for WL Accessibility, 6935497, at Inc. *3-4 v. Bhuna (W.D.N.C. Corp., Dec. 3, No. 2011) (Howell, M.J.) (quoting and reaching same conclusion as Nat l Alliance for Accessibility, 5:10-CV-375-FL, 2011 WL Inc. v. 2580679, Waffle at Inc., No. (E.D.N.C. *3 House, June 29, 2011)), adopted, 2011 WL 6936181 (W.D.N.C. Dec. 30, 2011). 10 Other than vague connection with her unspecified, business plans to return organization s purposes, to North activities Payne points Carolina and to for her in other, expected visits with her North Carolina counsel, whose office is only a few miles from Macy s at Hanes Mall, and to a past and possible future meetings with her counsel at the Hanes Mall food court. Payne s assertion that visits to an attorney with respect to litigation for which she would not otherwise have standing could itself give her standing is problematic, at best. It would appear anomalous to conclude that a plaintiff could file multiple lawsuits in a geographic area far removed from her residence and for which she would not otherwise have standing and then obtain standing based on her visits to an attorney in the area to discuss those very lawsuits for which she would otherwise lack standing. Regardless of the characterization of 10 In this regard, the court does not, and absent abuse will not, hold Payne s litigation history against her. 18 Payne s assertion of why she will visit the Macy s store at Hanes Mall, the fourth factor weighs against Payne. The court concludes that, taking Payne s allegations as true, she has failed to make the requisite showing that she is sufficiently likely to suffer an actual or imminent injury. Her residence of some 700 miles from the Macy s Store at Hanes Mall, her limited number of past trips to Winston-Salem, her gamesmanship, and her vague plans of returning to Winston-Salem other than for litigation purposes render implausible her representation that she faces an actual or imminent threat of future harm despite her claim that she has visited the Macy s store three times in a three-year period. The absence of a plausible claim that Payne will suffer an irreparable injury in fact prevents her from having standing to utilize the injunctive power of the federal courts. Consequently, Macy s motion to dismiss Payne s claims will be granted. B. National Alliance for Accessibility, Inc. Plaintiffs fail to make a separate argument concerning NAA s basis for standing, but the complaint appears to rely on NAA s status as Payne s frequent litigation partner. 1 ¶ 12.) (See Doc. Generally, in the absence of a direct injury to an organization, it will have standing only if it can show that (1) at least one of its members would have standing to sue as an individual, (2) the interests at stake in the litigation are 19 germane to the organization s purpose, and (3) neither the claim made nor the relief requested requires the participation of individual members in the lawsuit. Retail Indus. Leaders Ass n v. (4th Fielder, 475 F.3d 180, 186 Cir. 2007). Such associational or representative standing may be satisfied even where just one of the association s members would have standing. Warth v. Seldin, 422 U.S. 490, 511 (1975). Here, the only member of NAA identified specifically in the record is Payne. right, NAA has standing test. Because she lacks standing to sue in her own failed the first prong of the associational Consequently, Macy s motion to dismiss pursuant to Rule 12(b)(1) will be granted as to NAA. 11 C. Defendant s Motion for Attorneys Fees Macy s moves for an award of reasonable attorneys fees pursuant Plaintiffs to 42 fail U.S.C. to § address 12205 this as a issue prevailing in their party. response. Section 12205 provides that the court, in its discretion, may allow the prevailing party . . . a reasonable attorney s fee, including litigation expenses and costs. Although the court finds Plaintiffs lack standing in this case, the court cannot on 11 At least one court has held that an organization that is not itself a victim of discrimination within the reach of Title III s private right of action cannot have standing. See Equal Rights Ctr. v. Equity Residential, 798 F. Supp. 2d 707, 729-30 & n.15 (D. Md. 2011) (noting that Title III of the ADA provides remedies to any person who is being subjected to discrimination on the basis of disability ). In light of the above analysis, the court need not reach this issue. 20 this record conclude that the action was frivolous, unreasonable, without foundation, or filed in bad faith. See Triad Hospitality, 2012 WL 996661, at *8 (citing authority that attorneys fees may be granted to a defendant in a civil rights action only upon a finding that plaintiff s actions were frivolous, unreasonable, or without foundation; noting an action can be frivolous even if not brought in bad faith). therefore, need not consider whether a The court, defendant is a prevailing party under section 12205 when the court does not reach the underlying merits but dismisses the action for lack of jurisdiction pursuant to Rule 12(b)(1). No. 5:11-cv-00769-BO, Doc. 28 at 8 See Nassimi Amsterdam, (discussing prevailing party issue but finding defendant failed to meet the threshold of demonstrating that this case is frivolous or unreasonable ). The court in its discretion, therefore, will deny Macy s request for attorneys fees. See Triad Hospitality, 2012 WL 996661, at *8-9 (declining to award fees under similar circumstances). III. CONCLUSION For the reasons stated, the court finds that Plaintiffs have not established standing in this case and the complaint must be dismissed pursuant to Rule 12(b)(1). attorney fees is denied. 21 Macy s request for IT IS THEREFORE ORDERED that Macy s motion to dismiss the complaint (Doc. 14) is GRANTED and that its related request for attorneys fees is DENIED. /s/ Thomas D. Schroeder United States District Judge October 30, 2012 22
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