United States District Court, D. New Jersey
MARYANN COTTRELL and RICHARD G. HOLLAND, Plaintiffs,
NICHOLSON PROPERTIES LLC, doing business as HOLLYBUSH CAR WASH and HOLLYBUSH LAUNDROMAT, GEORGE NICHOLSON, SR., and GEORGE NICHOLSON, JR., Defendants.
D. FRIEDMAN WESLEY GLENN HANNA LAW OFFICE OF SANDER D.
FRIEDMAN, LLC On behalf of Plaintiffs.
G. ADLER LAW OFFICE OF LEWIS ADLER On behalf of Defendants.
CLEMENT HASBROUCK COSTA VETRA LAROSA & COSTA On behalf of
L. HILLMAN, U.S.D.J.
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'
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.
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
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). 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.
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.
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
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.
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.
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.
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
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.
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
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. Steak
‘N 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)).
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).
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
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).
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.
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.” 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
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
Q. . . . You allege you want access back to Holly Bush
Carwash, that shopping center?
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
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 ...