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Abbott v. Tacconelli's Pizzeria

August 24, 2010


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



Plaintiffs Rhonda Abbott, Gregory Lasky, and the non-profit corporation Advocates For Disabled Americans (hereinafter referred to as "AFDA") filed suit against Defendants Tacconelli's Pizzeria, Vincent Tacconelli and "John Doe(s)" A thru Z -- the landlords of the building where the Pizzeria is located - for denying services to Plaintiff Abbott because of the presence of Abbott's service dog (Pls.' Compl. ¶¶ 7-8), and for Lasky's inability to access the restaurant because Defendants allegedly did not provide proper accessible parking or an accessible entry route due to snow (id. ¶¶ 12-13). Plaintiffs allege that Defendants Tacconelli Pizzeria and Mr. Tacconelli violated the New Jersey Law Against Discrimination (hereinafter referred to as "NJLAD"), N.J. Stat. Ann. §§ 10:5-1 to -49, and Title III of the Americans with Disabilities Act (hereinafter referred to as "ADA"), 42 U.S.C. §§ 12101-12213,*fn1 when they allegedly discriminated against Plaintiffs causing them to experience anger and emotional distress. (Id. ¶¶ 8-9, 14, 16, 20.)

The matter before the Court is Defendants Tacconelli and Tacconelli Pizzeria's motion to dismiss Plaintiffs' Complaint comprised of four counts [Docket Item 3]. Defendants argue that the Court should dismiss Plaintiffs' Complaint with prejudice for their failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), Fed. R. Civ. P. Defendants also argue that Plaintiff AFDA has no standing to sue pursuant to Rule 17, Fed. R. Civ. P., because its certification of incorporation was revoked on August 16, 2008, thereby dissolving AFDA as a corporation under New Jersey law, N.J. Stat. Ann. § 15A:12-1(a)(8), giving the Court further reason to dismiss AFDA's Complaint with prejudice. (Defs.' Mot. to Dismiss 8-10; Defs.' Reply Br. 4-10.)

For the following reasons, Defendants' motion will be granted in part and denied in part.*fn2 The Court will dismiss Plaintiff Lasky's claims without prejudice, and will deny Defendants' motion to dismiss Plaintiff Abbott's claims in Count I and Count IV. The Court will permit Plaintiff Lasky to move to amend his claims in Count II and Count IV of the Complaint. Defendants' motion to dismiss Plaintiff AFDA for lack of standing is converted to a motion for summary judgment, which will be granted.


Plaintiff Rhonda Abbott is a hearing impaired and disabled individual who uses a service dog, and Plaintiff Gregory Lasky is a paraplegic who uses both a wheelchair and a service dog. (Pls.' Compl. ¶¶ 1-2.) On August 2, 2009 and December 9, 2009 Plaintiff Abbott alleges that she was denied "the services of Tacconnelli's Pizzeria because of the presence of her service dog," which caused her to "sustain anger and emotional distress." (Id. ¶¶ 7, 9.) Subsequent to Plaintiff Abbott's experiences with Tacconnelli's Pizzeria, Plaintiff Lasky went to the Pizzeria to order food and "investigate," but was unable to enter the Pizzeria because he alleges that Defendants "piled snow on [their] curb cut rendering it impossible for [him] to become a patron," and because Defendants "do not have proper accessible parking and accessible route." (Id. ¶ 12.) Plaintiff Lasky contends that he too experienced anger and emotional distress following his trip to the Pizzeria.*fn3 (Id. ¶ 14.)

In Count III Plaintiff AFDA states that it "repeats the allegations of the first count" and that it "has standing in its own right to prosecute this action." (Id. ¶¶ 17-18.) The AFDA does not allege anything further in the Complaint. In Count IV all Plaintiffs "repeat the allegations of the first count," and allege that Defendant Mr. Tacconelli discriminated against them for failure to serve Plaintiff Abbott because of her service dog. (Id. ¶¶ 19-20.) All Plaintiffs seek damages, injunctive relief, attorney fees and costs of the suit because of Defendants' alleged denial of service, which Plaintiffs' argue violates the NJLAD and ADA. (Id. ¶¶ 8, 10, 16, 18, 20.)

On April 14, 2010, Defendants removed this action from the Superior Court of New Jersey [Docket Item 1]. Defendants subsequently filed a motion to dismiss Plaintiffs' Complaint on June 17, 2010, arguing that Plaintiffs failed to state claims upon which relief may be granted under Rule 12(b)(6) [Docket Item 3]. Plaintiffs argue in opposition that Defendants' motion should be denied as to Plaintiff Abbott's counts because she made a plausible claim for relief, and in the alternative, if the Court disagrees with Plaintiff, asking the Court for leave to amend Plaintiff Abbott's and Plaintiff Lasky's counts. (Pls.' Resp. Br. 2.) In addition Plaintiffs consented to the dismissal of AFDA without prejudice, even though they disagree with Defendants' standing argument. (Id.) In their reply [Docket Item 5], Defendants ask the Court to "preserve [their] right to seek litigation expenses and attorneys' fees*fn4 by ruling on this motion" -- granting the motion to dismiss with prejudice for all Plaintiffs' claims -- rather than "allowing the AFDA and their attorney and agent, Anthony J. Brady, Esquire, to again withdraw a baseless claim brought on behalf of the AFDA without any repercussions."*fn5 (Defs.' Reply Br. 10.)


A. Standards for Motion to Dismiss and for Summary Judgment

In deciding the Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), with respect to the claims of Plaintiffs Abbott and Lasky, the Court must look to the face of the Complaint and decide, taking all of the allegations of fact as true and construing them in a light most favorable to the plaintiffs, whether Plaintiffs' allegations state any legal claim, and "determine whether, under any reasonable reading of the complaint, the plaintiff[s] [are] entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)); see Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). For plaintiffs to proceed with their claim, the complaint has to contain a "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). In accord with Fed. R. Civ. P 8(a)(2), a pleading that states a claim for relief need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Thus, a Plaintiff is obligated to "provide [in his complaint] the 'grounds' of his 'entitle[ment] to relief,'" which requires more than "labels and conclusions," but he is not required to lay out "detailed factual allegations." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Therefore, a complaint must contain facially plausible claims, that is, a plaintiff must "plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Twombly, 550 U.S. at 556.

Following the Supreme Court precedent in Iqbal, the Third Circuit Court of Appeals in Fowler instructs district courts to conduct a two-part analysis when presented with a motion to dismiss for failure to state a claim upon which relief may be granted. Fowler, 578 F.3d at 210-11 (citations omitted). The analysis should be conducted as follows:

(1) the Court should separate the factual and legal elements of a claim, and the Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions; and (2) the Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief, so the complaint must contain allegations beyond ...

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