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Cottrell v. Nicholson Properties, LLC

United States District Court, D. New Jersey

October 22, 2014

MARYANN COTTRELL and RICHARD G. HOLLAND, Plaintiffs,
v.
NICHOLSON PROPERTIES, LLC, et al., Defendants.

Maryann Cottrell, Richard G. Holland, Glassboro, New Jersey, Pro Se Plaintiffs.

Robert S. LaRosa, Esquire, Seth Clement Hasbrouck, Esquire, Costa Vetra LaRosa & Costa, Mount Laurel, New Jersey, Attorneys for Defendants Nicholson Properties, LLC, George Nicholson, Sr., and George Nicholson, Jr.

OPINION

NOEL L. HILLMAN, District Judge.

This matter comes before the Court by way of motion [Doc. No. 34] of Plaintiffs, Maryann Cottrell and Richard G. Holland, seeking leave to file a Second Amended Complaint pursuant to this Court's Order and Opinion of December 23, 2013. Defendants, Nicholson Properties, LLC, George Nicholson, Sr., and George Nicholson, Jr., have not filed opposition to the motion. The Court has considered Plaintiffs' submissions and decides this matter pursuant to Federal Rule of Civil Procedure 78.

For the reasons expressed below, Plaintiffs' motion will be granted.

I. JURISDICTION

The Court exercises original jurisdiction pursuant to 28 U.S.C. § 1331 over Plaintiffs' federal claims for retaliation under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over Plaintiffs' state law claims under the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. § 10:6-1 et seq.

II. BACKGROUND

The facts underlying Plaintiffs' claims were set forth previously in detail in the December 23, 2013 Opinion, and the Court shall therefore recount only briefly the background of this case. Plaintiffs allege that they are long-time "advocates for the disabled.'" (Op. 3, Dec. 23, 2013 [Doc. No. 29].) Although Plaintiffs are not disabled, they are purportedly lawfully permitted to park their vehicles in handicap accessible parking spaces reserved for disabled individuals when transporting Plaintiff Cottrell's daughter. (Id.) Plaintiffs aver that "part of their advocacy efforts" includes assessing and documenting "parking access at public accommodations that they come in contact [with] during their daily services." (Id.)

Plaintiffs assert in their First Amended Complaint that from 2009 to 2012, they monitored access to the "one and only" handicap-accessible parking spot at a retail strip mall owned by Defendants. (Id. at 4.) The strip mall, located at 135 East High Street, Glassboro, New Jersey, consists of the Hollybush Car Wash, which is a self-service car wash, the Hollybush Laundromat, which is a self-service laundromat, and a retail space that is purportedly rented to a Mexican grocery store called Casa Rocie's. (Id. at 2-3.) Plaintiffs contend that they documented instances of the unauthorized use of the handicap-accessible parking space, and Defendants then allegedly retaliated against them for activity protected by the ADA. (Id. at 5-6.) Specifically, Plaintiffs submit that they received a "ban letter" from George Nicholson[1] on April 9, 2010, a copy of which is attached to their proposed Second Amended Complaint, which states that Plaintiffs are not permitted "to come on our property." (Proposed Second Am. Compl. (hereafter, "Proposed SAC"), Ex. A [Doc. No. 31-1].)

Based on the "ban letter, " on April 9, 2012 Plaintiffs filed a Complaint against Defendants alleging one count of retaliation in violation of the ADA and one count of retaliation in violation of the NJLAD. On November 20, 2012, Plaintiffs filed a First Amended Complaint. Defendants moved to dismiss both counts of the First Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. In their moving papers, Defendants argued, inter alia, that Plaintiffs lacked standing to bring retaliation claims under the ADA and the NJLAD.

The Court granted Defendants' motion to dismiss on standing grounds. With respect to Plaintiff Cottrell, the Court concluded that she "fail[ed] to allege facts sufficient to demonstrate that there is a real and immediate threat of future injury to her as a result of the revocation of her business invitee status." (Op. 22, Dec. 23, 2013 [Doc. No. 29].) The Court specifically noted that Plaintiff Cottrell made "no allegation that she has ever patronized any of the three businesses at the 135 East High Street location for the purposes of shopping, browsing inventory, making a purchase, utilizing the laundry or car wash facilities, or assisting a friend in doing any of the above." (Id. at 21.) Moreover, the Court found that the First Amended Complaint did not allege facts sufficient to demonstrate that Plaintiff Cottrell had any plans to patronize the businesses in the future. (Id.) The Court similarly concluded that Plaintiff Holland failed to set forth sufficient facts demonstrating prior patronage of the three businesses, or a concrete desire to patronize these businesses in the future. (Id. at 23-24.) The Court granted Plaintiffs leave to file a motion to amend the complaint to "assert sufficient facts to meet the requirements of standing for their claims." (Id. at 27.)

Plaintiffs then filed a Second Amended Complaint without an accompanying motion and without the Court's permission. (Proposed SAC [Doc. No. 31].) On April 2, 2014, the Court entered an Order requiring Plaintiffs to file a motion to amend the complaint. (Order 2, Apr. 2, 2014 [Doc. No. 33].) Plaintiffs filed their motion on April 20, 2014, but they did not attach a copy of their proposed pleading to the motion as required by Local Civil Rule 7.1(f).[2] The Court assumes that the proposed pleading to be filed is the Second Amended Complaint that was already ...


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