Small v. General Nutrition Companies, Inc.

Citation388 F.Supp.2d 83
Decision Date25 February 2005
Docket NumberNo. 03CV1872ARR.,03CV1872ARR.
PartiesThomas K. SMALL and Disabled in Action of Metropolitan New York, Plaintiffs, v. GENERAL NUTRITION COMPANIES, INC., Defendant.
CourtU.S. District Court — Eastern District of New York

Martin J. Coleman, Law Offices of Martin J. Coleman, Huntington Station, NY, for Plaintiffs.

James V. Marks, Holland & Knight LLP, New York City, for Defendant.


ROSS, District Judge.

Plaintiffs Disabled in Action ("DIA") and Thomas K. Small ("Small") have brought suit against General Nutrition Companies, Inc. ("GNC"), filing on behalf of themselves and as a class action for wheelchair users who live in New York City, alleging that various features of many of GNC's approximately 55 stores in New York City's five boroughs are not sufficiently accessible to the disabled, in violation of Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq., and New York City Human Rights Law § 8-107(4)(a). Plaintiff's seek injunctive relief, declaratory relief, and attorney's fees and costs. Defendant moves to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(6) on the basis that both the individual and the organizational plaintiff lack standing. Defendant also moves, preemptively, to deny class certification.

For the reasons stated below, the court grants defendant's motion with respect to DIA's claim of organizational standing, grants defendant's motion with respect to DIA's claim of associational standing, and grants in part and denies in part defendant's motion with respect to individual plaintiff Small. The court defers ruling on defendant's motion to deny class certification.


On April 17, 2003, plaintiffs Small and DIA filed suit against GNC alleging failure to provide sufficient access to persons with disabilities under Title III of the ADA and New York City administrative code. After several conferences with the court, plaintiffs amended their Complaint three times in order to establish standing. Currently before the court is plaintiffs' Third Amended Complaint ("Third Am. Compl."), dated September 30, 2004.

Plaintiff Small resides in Brooklyn, New York and suffers from muscular dystrophy. He has used a motorized wheelchair since he was a child. Small regularly purchases nutritional supplements, including vitamins. Third Am. Compl. ¶ 15. Small has purchased such products from various GNC stores in Manhattan and New York City's other boroughs. Id. at ¶ 17. He alleges, however, that eleven of GNC's stores in New York City have architectural barriers to entry, i.e., steps, that violate the ADA by making it difficult or impossible for wheelchair users to enter. Id. at ¶¶ 10-11. He further alleges that the "vast majority" of GNC's approximately 55 New York City stores have temporary, moveable product bins or displays that impede wheelchair users from passing through aisles. Id. at ¶ 18. Small lives in the immediate vicinity of the GNC store at 58 Court Street in Brooklyn, which has a structural barrier at the entrance. Id. at ¶ 12. He states that he "regularly travels in the immediate vicinity" of six other GNC stores with such structural barriers. Id. at ¶ 14. Small also states that he has often encountered barriers to access at GNC stores because of moveable product bins. Id. at ¶ 17.

Plaintiff DIA is a non-profit ADA advocacy organization headquartered in New York. Among other things, DIA advocates to achieve for its members, as well as for non-members, accessibility to public accommodations and public entities. DIA appears at public events and hearings to provide testimony, files informal as well as formal administrative complaints against offending public accommodations and public entities, and acts as a plaintiff in ADA litigation. The organization's members have "a wide variety of disabilities affecting mobility." Id. at ¶ 3. On the basis of its organizational purpose and membership, DIA claims that it enjoys "organizational" or "independent" standing to bring this action in its own right, as well as "associational standing" to bring this action on behalf of its disabled members.

As noted, plaintiffs claim that eleven of GNC's approximately 55 New York City stores have architectural barriers to entry, i.e., steps, that prevent wheelchair users from entering. Plaintiffs also claim that the "vast majority" of these 55 stores use moveable product bins or displays that also constitute access barriers to wheelchair users. Plaintiffs bring this suit both on their own behalf and as a class action on behalf of all similarly situated wheelchair users in New York City.

I. Standing

Federal jurisdiction is limited by Article III, § 2, of the U.S. Constitution to actual cases and controversies. As a result, the plaintiffs' standing to sue "is the threshold question in every federal case, determining the power of the court to entertain the suit." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Courts must assess whether standing exists based on the facts as they existed at the time the lawsuit was filed. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190-91, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir.2000) (citation omitted). To show Article III standing, a plaintiff has the burden of proving: (1) that he or she suffered an "injury in fact," (2) a causal relationship between the injury and the challenged conduct, and (3) that the injury likely will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

An "injury in fact" is a harm that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Id. at 560, 112 S.Ct. 2130 (internal quotation marks and citations omitted). The plaintiff must show that he or she "sustained or is immediately in danger of sustaining some direct injury as the result of the challenged ... conduct and [that] the injury or threat of injury [is] both real and immediate...." City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (internal quotation marks and citations omitted). Courts considering ADA claims have found that plaintiffs who have encountered barriers at public accommodations prior to filing their complaints have standing to bring claims for injunctive relief if they show a plausible intention or desire to return to the place but for the barriers to access. See Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1138 (9th Cir.2002); Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir.2001); Steger, 228 F.3d 889; Disabled in Action of Metropolitan New York v. Trump International Hotel & Tower, No. 01 Civ. 5518(MBM), 2003 WL 1751785, *7, 2003 U.S. Dist. LEXIS 5145, *21-22 (S.D.N.Y. Apr. 2, 2003) (collecting cases). Intent to return to the place of injury "some day" is insufficient. Lujan, 504 U.S. at 564, 112 S.Ct. 2130. Although, in the context of Title III of the ADA, plaintiffs need not engage in the "futile gesture" of visiting a building containing known barriers that the owner has no intention of remedying, see 42 U.S.C. § 12188(a)(1), they must at least prove actual knowledge of the barriers and show that they would visit the building in the imminent future but for those barriers. Steger, 228 F.3d at 892.

In addition to these constitutional limitations, there are also three prudential limitations on standing: (1) generally, there is no jurisdiction over "generalized grievances" shared by all or a large class of citizens; (2) a plaintiff must assert his own legal rights and cannot rest his claim to relief on the legal rights of third parties. Warth, 422 U.S. at 499-500, 95 S.Ct. 2197 (finding that without such limitations, courts would decide abstract questions of wide public significance better left to the legislative branch) (citations omitted); (3) "plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision... invoked in the suit." Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). These prudential limitations on standing are not constitutional restraints on the power of federal courts, and Congress can thus eliminate prudential restrictions if it so desires when enacting legislation. Warth, 422 U.S. at 501, 95 S.Ct. 2197. "Congress legislates against the background of [the Supreme Court's] standing doctrine," however, "which it applies unless it is expressly negated." Bennett, 520 U.S. at 163, 117 S.Ct. 1154.

On a motion to dismiss, a district court must "accept all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Thompson v. County of Franklin, 15 F.3d 245, 249 (2d Cir.1994) (quoting Warth, 422 U.S. at 501, 95 S.Ct. 2197). Standing, however, "cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear on the record." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (internal quotation marks and citations omitted). "It is the burden of the party who seeks the exercise of jurisdiction in his favor clearly to allege facts demonstrating he is a proper party to invoke judicial resolution of the dispute." Id. (internal quotation marks and citations omitted). When considering whether a plaintiff has established standing, however, district courts may permit a plaintiff to amend its complaint or consider affidavits containing particularized facts supporting standing. Thompson, 15 F.3d at 249 (quoting Warth, 422 U.S. at 501, 95 S.Ct. 2197); Spann v. Colonial Village, Inc., 899 F.2d 24, 28 n.1 (D.C.Cir.1990).

A. Small's Standing

Defendant argues that plaintiff Small lacks standing to assert any claims against it because the Third Amended Complaint fails to identify (a) any specific stores...

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