The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court on a motion to dismiss by Defendants Bob's Little Sport Shop, Inc., Robert Viden, Robert Viden Jr., and Gail Viden (collectively, "Defendants") for lack of standing [Docket Item 7]. The substantive portion of Defendants' motion is a multi-paragraph quote from Cottrell v. Zagami, LLC, No. 08-3340, 2009 WL 1416044 (D.N.J. May 20, 2009), in which Judge Irenas dismissed without prejudice a similar suit by pro se Plaintiffs Maryann Cottrell and Richard Holland on the grounds that they had not sufficiently alleged standing under Article III. Defendants urge the Court to dismiss with prejudice Plaintiffs' entire action for lack of standing. For the reasons to be discussed below, the Court will dismiss without prejudice Plaintiffs' discrimination and retaliation claims under the Americans with Disabilities Act ("ADA"), as well as Plaintiffs' claims of retaliation under the New Jersey Law Against Discrimination ("NJLAD"), for lack of standing.*fn1
Plaintiffs Cottrell and Holland allege that they are longstanding advocates for the disabled and that as part of their advocacy they document handicap access to places of public accommodation.*fn2 (Compl. ¶¶ 13-14.) When a business fails to maintain handicap accessible parking or fails to regulate access to handicap parking, Cottrell informs the appropriate authorities and files "citizen's complaints." (Id. ¶¶ 15-16.)
Defendant Bob's Little Sport Shop, a sporting goods store owned and run by Defendants Robert Viden, Robert Viden Jr., and Gail Viden, has a parking spot reserved for people with disabilities. (Id. ¶¶ 18-19.) On several occasions, Plaintiffs observed unauthorized vehicles blocking the handicap spot and filed citizen complaints. (Id. ¶¶ 20-25.) On May 6, 2006, Plaintiffs observed Robert Viden's sister parking in a designated handicap parking space without authorization and Cottrell filed a complaint against the sister which led to a guilty finding. (Id. ¶ 20.) On March 15, 2007, Plaintiffs similarly documented a UPS delivery truck blocking the handicap spot and Cottrell filed a successful citizen's complaint. (Id. ¶ 21.) On that same day, Plaintiffs apparently observed another UPS delivery truck blocking the handicap spot and employees from Bob's Little Sport Shop helping to unload the truck. (Id. ¶ 22.) As Plaintiffs were documenting this new alleged violation, Defendant Robert Viden came out of the store and ordered Plaintiffs off the property, striking Plaintiff Holland with his hand. (Id.)
On April 24, 2007, both Cottrell and Holland received a "ban letter" from Bob's Little Sport Shop. (Id. ¶ 23.) Nevertheless, Plaintiffs continued to record two more alleged parking violations by UPS delivery trucks. (Id. ¶¶ 24-25.)
On April 24, 2009, Plaintiffs brought the present action, alleging retaliation and discrimination under the ADA (Counts I, II, and IV) and retaliation under NJLAD (Counts III and IV). In addition, in the final paragraph of their complaint, Plaintiffs assert that Defendants also violated the New Jersey Civil Rights Act (Count IV).
On July 22, 2009, Defendants filed the instant motion to dismiss adopting wholesale the Zagami opinion. In the quoted portion, Judge Irenas dismissed similar claims brought by the same Plaintiffs for failure to allege a real and immediate threat of injury necessary to establish standing for the purposes of prospective relief under the ADA. 2009 WL 1416044, at *3. Plaintiffs submitted what they titled "Plaintiff's motion to answer Defendant's motion to dismiss," but what is, in fact, simply their opposition. Defendants submitted a reply, making the motion ripe for decision.
Defendants present their motion as one pursuant to Rule 12(b)(6), Fed. R. Civ. P. It is evident, however, from the substance of their motion, which consists entirely of a lengthy quote from an opinion dismissing a similar claim for lack of standing, that Defendants are instead asserting lack of subject matter jurisdiction pursuant to Rule 12(b)(1). See Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007) ("A motion to dismiss for want of standing is also properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter.") An attack on subject matter jurisdiction can be either facial --based solely on the allegations in the complaint -- or factual --looking beyond the allegations to attack jurisdiction in fact. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Where, as here, the challenge to subject matter jurisdiction is facial, the Court must, for the purposes of this motion, take all the allegations in the complaint to be true and construe them in the light most favorable to the Plaintiffs. Id.
Federal courts are courts of limited jurisdiction and may only consider those actions that meet the case-or-controversy requirements of Article III. Essential to Article III jurisdiction is the doctrine of standing. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180 (2000). To meet the minimal constitutional mandate for Article III standing Plaintiffs must show (1) an "injury in fact," (2) "a causal connection between the injury and the conduct complained of," and (3) that the injury will "likely" be "redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). An "injury in fact" is defined as "an ...