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Cottrell v. Zagami

June 23, 2010


The opinion of the court was delivered by: Irenas, Senior District Judge


This matter involves Plaintiffs Maryann Cottrell and Richard Holland's claims that Defendant Zagami, LLC ("Zagami") retaliated against Plaintiffs in response to Plaintiffs' efforts to discourage the unauthorized use of handicap accessible parking. Defendant has moved to dismiss Plaintiffs' Amended Complaint. For the reasons expressed below, Defendant's Motion to Dismiss will be denied.


The factual recitation that follows accepts at true the facts as alleged in the Amended Complaint.*fn1 Plaintiff Maryann Cottrell is the mother of a severely disabled girl; she shares responsibility for the care of her daughter with Plaintiff Richard Holland. Plaintiffs are long-time advocates for the disabled and have received media attention for their advocacy efforts. In an attempt to enforce anti-discrimination regulations, Plaintiffs assess and document the availability of handicapped parking access to public accommodations that they encounter during their daily activities. Additionally, Cottrell informs local authorities about businesses and public accommodations that fail to maintain and/or fail to discourage the misuse of handicapped parking spaces. Cottrell also regularly files citizen's complaints alleging handicapped parking violations.

Defendant Zagami operates a bar, liquor store, and night club in Glassboro, New Jersey. Plaintiffs allege that on several occasions they visited Defendant's business and observed vehicles without handicapped parking tags parked in spaces reserved for people with disabilities, access aisles, and/or passenger loading zones. Plaintiffs allege these vehicles were being used by Defendant or by others with Defendant's overt or implied permission. Particular incidents of such misuse included two professional football players' parking in reserved spaces and Defendant's using such spaces for loading and unloading. On July 6, 2006, Defendant sent Plaintiffs a letter warning that their entry onto Defendant's premises would constitute criminal trespass and threatening criminal charges.

Plaintiffs have previously dined at Defendant's establishment, which is located less than a mile from their home, and have friends that regularly dine there. Plaintiffs assert that because of the threat in Defendant's letter, they have foregone opportunities to dine at Defendant's establishment, for fear of being refused entry or ejected. In the future, Plaintiffs would like to accompany their friends to Defendant's establishment and dine there with them.

On July 3, 2008, Plaintiff initiated this action by filing a five-count Complaint alleging retaliation, substantive discrimination, and civil rights claims. Defendant moved to dismiss all counts. Holding that Plaintiff had failed to allege facts sufficient to establish standing under Article III of the Constitution, this Court dismissed Defendant's motion without prejudice and permitted Plaintiffs to file an amended pleading.

Plaintiffs filed an Amended Complaint on June 19, 2009. Amended Complaint contains additional averments in support of standing and removed the substantive discrimination claims pleaded in the original complaint. The three-count Amended Complaint alleges Defendant retaliated against Plaintiffs' efforts to discourage the unauthorized use of handicap accessible parking in violation of the Americans with Disability Act ("ADA"), 42 U.S.C. § 12101 et seq. (Count I) and the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et seq. (Count II). The Amended Complaint also alleges that Defendant's alleged retaliation gives rise to a civil rights claim pursuant to the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 et seq. (Count III). Defendant then filed the instant Motion to Dismiss the Amended Complaint. The matter has been fully briefed.*fn2 For the reasons explained herein, Defendant's motion will be granted in part and denied in part.*fn3


Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In order to survive a motion to dismiss, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a)(2). While a court must accept as true all allegations in the plaintiff's complaint, and view them in the light most favorable to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The complaint must state sufficient facts to show that the legal allegations are not simply possible, but plausible. Phillips, 515 F.3d at 234. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).


Defendant makes the following arguments in support of their motion to dismiss: (1) Plaintiffs lack standing, (2) Plaintiffs failed to plead a prima facie case of retaliation under the ADA and LAD, (3) Plaintiffs failed to plead that Defendant acted under color of law as required under the NJCRA, and (4) Plaintiffs' claims should be dismissed as barred under the statute of limitations, as well as dismissed under the doctrines of laches, sham affidavit, and judicial estoppel. The Court will address each in turn.

1. Standing

Defendant argues that, despite making additional averments in the Amended Complaint, Plaintiffs still have not adequately demonstrated they have standing to proceed on their ADA and LAD claims.*fn4 The Court has previously set out the standard for Article III standing in Cottrell v. ...

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