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Cottrell v. Nicholson Properties LLC

United States District Court, D. New Jersey

August 24, 2018



          LEWIS G. ADLER LAW OFFICE OF LEWIS ADLER On behalf of Defendants.



          NOEL L. HILLMAN, U.S.D.J.

         This matter concerns Plaintiffs' allegations that Defendants retaliated against them for documenting violations of the Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“NJLAD”). Before the Court is Defendants' Motion for Summary Judgment and what Plaintiffs style as a “Cross-Motion for Adverse Inference and Attorneys' Fees.” For the reasons that follow, the Court will grant Defendants' Summary Judgment Motion and deny Plaintiffs' Cross-Motion.


         Unless otherwise indicated, the Court takes its facts from Defendants' Statement of Material Facts and Plaintiff's Response. Defendant Nicholson Properties is an organization doing business as Hollybush Laundromat and Hollybush Car Wash in Glassboro, New Jersey. Defendant George Nicholson, Sr. is the owner of Nicholson Properties, and Defendant George Nicholson, Jr. is an employee of Nicholson Properties. Hollybush Car Wash and Hollybush Laundromat are both self-service businesses. Casa Rocie's Grocery is another business on the property.

         Plaintiff Maryann Cottrell is the mother of a disabled child. She is lawfully permitted to park her car in handicap accessible parking spaces reserved for the disabled. Plaintiff Richard Holland also lives in the household with Cottrell. As advocates for the disabled, Plaintiffs “assess and document handicap access with the public accommodations that [they] come[] in contact with during [their] daily activities.”

         At her deposition, Cottrell explained that on June 2, 2009, she “observed a vehicle that was delivering product to the Mexican grocery store . . . in their one and only handicapped spot.” (Tr. at 8). Cottrell “went inside to notify someone in the store.” (Tr. at 8). The woman at the desk directed her to a gentleman who identified himself as George Nicholson, who told her “to stay off his property.” (Tr. at 8).[1] Cottrell testified that she thereafter stayed off the property, but took videos “[t]hrough the course of observing violations from the sidewalk.” (Tr. at 9). Holland testified similarly.

         Holland also testified that he was on the property again on March 31, 2010 because of “a car that was improperly parked, making it difficult for anybody to get to the access to the ramp.” (Tr. at 16-17). There was an altercation between Holland and Nicholson, Jr. at Holland's car, and he too was told to stay off the property.[2]

         Cottrell received a written notice to stay off the property on April 9, 2010. Nicholson, Jr. described Cottrell and Holland as “aggressive” and “looking for a fight” whenever they came on the premises. Nicholson, Jr. stated that Cottrell and Holland were banned from the property because of what he characterized as annoying behavior.

         Plaintiff filed an April 9, 2012 Complaint with the Court. The Court's December 23, 2013 Opinion and Order granted Defendants' Motion to Dismiss but also granted leave for Plaintiffs to file a motion to amend. The December 23, 2013 Opinion focused on Plaintiffs' standing to bring the lawsuit. The Court found Cottrell failed to allege any past patronage of Defendants' businesses. The Court further found the First Amended Complaint's allegations about future patronage insufficiently concrete. The Court found the allegations regarding Holland's patronage to suffer from the same deficiencies. On that basis, the Court granted the motion to dismiss without prejudice.

         In the Court's October 22, 2014 Opinion and Order, the Court found Plaintiffs' Second Amended Complaint sufficiently alleged standing and granted their motion to amend. Plaintiffs' Second Amended Complaint brings two claims: (1) retaliation in violation of the ADA and (2) retaliation in violation of the NJLAD.

         In the Court's February 21, 2017 Opinion and Order, the Court considered another attack on standing from Defendants. Construing it as a motion for reconsideration, the Court declined to reconsider its decision. The Court further declined to consider Defendants' attack on Plaintiffs' ability to withstand the burden-shifting analysis in a retaliation claim. The Court therefore denied Defendants' Motion to Dismiss. Defendants filed a January 26, 2018 Motion for Summary Judgment. Plaintiffs filed their opposition and a Cross-Motion for Adverse Inference and Attorneys' Fees on February 21, 2018.

         While this case was pending, and shortly prior to the filing of the pending Motion for Summary Judgment, Defendants issued a November 3, 2017 letter lifting the ban from the property “effective immediately.”


         The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, as Plaintiffs assert a federal statutory claim under the ADA. The Court has supplemental jurisdiction over the NJLAD claim pursuant to 28 U.S.C. § 1367.


         The Court begins by considering whether Plaintiffs have Article III standing. This Court has considered Defendants' argument that Plaintiffs lack standing several times before at the motion to dismiss stage. The Court will consider Plaintiffs' standing again, now with reference to the heightened standard required in assessing a summary judgment motion.[3]

         The Constitution confines the power of federal courts as extending only to “Cases” and “Controversies.” U.S. Const., art. III, § 2. “No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976)).

There are three well-recognized elements of Article III standing: First, an “injury in fact, ” or an “invasion of a legally protected interest” that is “concrete and particularized.” Second, a “causal connection between the injury and the conduct complained of[.]” And third, a likelihood “that the injury will be redressed by a favorable decision.”

In re Horizon Healthcare Servs. Data Breach Litig., 846 F.3d 625, 633 (3d Cir. 2017) (alteration in original) (quoting Lujan, 504 U.S. at 560, 561). “Although all three elements are ‘constitutionally mandated, the injury-in-fact element is often determinative.'” Brown, 2010 U.S. Dist. LEXIS 133106, at *26 (quoting Toll Bros., Inc. v. Township of Readington, 555 F.3d 131, 138 (3d Cir. 2009)). The injury in fact requirement has been described as “a conglomerate of three components”: “[A] plaintiff must first ‘show that he or she suffered “an invasion of a legally protected interest.”' Second, a plaintiff must show that the injury is both ‘concrete and particularized.' Third, a plaintiff must show that his or her injury is ‘actual or imminent, not conjectural or hypothetical.'” Mielo v. SteakN Shake Operations, Inc., No. 17-2678, 2018 U.S. App. LEXIS 20793, at *12-13 (3d Cir. July 26, 2018) (citation omitted) (quoting Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)).

         As this Court noted in its previous opinion, the only relief available to Plaintiffs on their ADA claim is prospective injunctive relief. See, e.g., Cottrell v. Heritages Dairy Stores, Inc., No. 09-1743, 2010 WL 3908567, at *4 (D.N.J. Sept. 30, 2010) (“The only relief available to a plaintiff for a retaliation claim under the ADA is injunctive relief.”); Cottrell v. Bobs Little Sport Shop, Inc., No. 09-1987, 2010 WL 936212, at *3 n.4 (D.N.J. Mar. 11, 2010) (recognizing that the “only relief available for Plaintiff's retaliation claims against Defendants as a public accommodation under the ADA” is prospective injunctive relief) (citing 42 U.S.C. §§ 12203, 12188(a)); Cottrell v. Zagami, LLC, No. 08-3340, 2009 WL 1416044, at *3 n.1 (D.N.J. May 20, 2009) (same).

         “A plaintiff's satisfaction of the injury in fact requirement varies depending on whether he seeks retrospective or prospective relief.” Brown, 2010 U.S. Dist. LEXIS 133106, at *26 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102-03 (1983)). “To satisfy the injury in fact requirement when seeking prospective injunctive relief, the plaintiff must demonstrate a ‘real and immediate threat' of future injury.” Id. at *26-27 (quoting Access 4 All, Inc. v. Absecon Hosp. Corp., No. 04-6060, 2006 U.S. Dist. LEXIS 79264, at *5 (D.N.J. Oct. 30, 2006)).

The Third Circuit has opined that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief. . . . [I]n order to obtain standing for prospective relief, the plaintiff must establish a real and immediate threat that he would again be [the victim of the allegedly unconstitutional practice].”

Id. at *27 (alterations in original) (quoting Brown v. Fauver, 819 F.2d 395, 400 (3d Cir. 1987)). “In other words, injunctive relief is only appropriate when the Plaintiff establishes a sufficient likelihood that he will be wronged again in a similar fashion.” Id. (citing D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008)). “'Some day' intentions without any description of concrete plans or any indication beyond mere speculation on when some day will occur, does not support a finding for ‘actual or imminent' injury.” Id. (quoting Lujan, 504 U.S. at 564).

         “To determine whether a future injury is concrete and particularized, several New Jersey District Courts, ” including this Court in considering Defendants' earlier motion to dismiss, “have applied a four-factor test that focuses on the likelihood of plaintiff's return to the defendant's place of public accommodation.” Id. at *29. “The four factors include: (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.” Id. “The totality of these four factors helps the court determine whether a plaintiff establishes a concrete and particularized threat of injury that is capable of repetition.” Id.

         Beginning with the first factor - Plaintiffs' proximity to the property - Plaintiffs submitted an exhibit containing a print out of Google Maps, showing the distance from Plaintiffs' residence to Defendants' property. The Certification of Wesley Hanna states that it “shows that the distance between the two is approximately one third of a mile and a five minute walk.”[4] While Plaintiffs have submitted evidence of their proximity to the property, they have not provided evidence of their frequency of nearby travel, although one can assume the closeness of the property implies frequency of nearby travel. These factors weigh in Plaintiffs' favor.

         The Court turns to factors two and three - past patronage and future plans to return to the property. Beginning with Cottrell, she testified at her deposition to visiting the property in June 2009. Cottrell did not provide a reason for her visit, only noting that “the day I went there, I observed a vehicle . . . in their one and only handicapped spot.” Cottrell also testified as to her plans to return. The following exchange occurred at Cottrell's deposition:

Q. . . . You allege you want access back to Holly Bush Carwash, that shopping center?
A. Yes.
Q. Have you ever used any of the facilities there?
A. Shortly after it was opened, I was banned. I didn't have the opportunity to.
Q. Before you were banned, had you used anything there?
A. Before I was banned, Casa Rosie's . . . had just opened.
Q. How long had it been opened prior to you being banned?
A. That just opened up because they had just started stocking the store as I went in there. It was only ...

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