Case: 1:16-cv Document #: 20 Filed: 07/13/16 Page 1 of 12 PageID #:66

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1 Case: 1:16-cv Document #: 20 Filed: 07/13/16 Page 1 of 12 PageID #:66 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION SCOTT MAGEE, ) ) Plaintiff, ) ) v. ) Case No. 16 cv 5652 ) McDONALD S CORPORATION, ) Judge Joan B. Gottschall ) Magistrate Judge Sidney I. Schenkier Defendant. ) DEFENDANT S BRIEF IN SUPPORT OF ITS MOTION TO DISMISS Plaintiff Scott Magee ( Magee ) seeks injunctive relief against defendant McDonald s Corporation ( McDonald s ) for alleged violations of the Americans with Disabilities Act, 42 U.S.C ( ADA ) and injunctive relief and damages for alleged violations of California s Unruh Civil Rights Act, Cal. Civ. Code 51, 52 ( Unruh Act ). As set forth more fully below, this action should be dismissed in its entirety because Magee (1) lacks standing to assert the claims set forth therein (except possibly the claim relating to one restaurant near his home) and (2) fails to state a claim upon which relief can be granted. Specifically, Magee alleges he is blind and was denied service when he attempted to walk through the drive-thru of a McDonald s brand restaurant near his home in Louisiana during the overnight shift when the restaurant lobby was locked for the safety and security of the restaurant employees. Based on these allegations, Magee filed his initial complaint alleging only violations under the ADA. Perhaps realizing that the sole remedy under the ADA is injunctive relief, but the Unruh Act offers damages, Magee suddenly appeared thousands of miles away from home attempting to walk through the drive-thru of McDonald s restaurants in San Francisco and Oakland, California, on June 4 and June 5, 2016, respectively. Two days later, on June 7, 2016,

2 Case: 1:16-cv Document #: 20 Filed: 07/13/16 Page 2 of 12 PageID #:67 Magee amended his complaint to add a count under the Unruh Act, therein seeking damages as well as injunctive relief. Magee alleges McDonald s company policy is to refuse service to any pedestrian who walks up to the drive-thru and that this policy discriminates against him and others similarlysituated because of their disability in violation of Title III of the ADA and the parallel provisions of the Unruh Act. He claims that because his blindness prevents him from driving he cannot use the drive-thru and is prevented from patronizing McDonald s late at night. 1 McDonald s moves to dismiss under Rule 12(b)(1) on the ground that Magee lacks standing, and this Court therefore lacks subject matter jurisdiction, (a) over all claims for injunctive relief (except possibly as to the one restaurant near his home in Louisiana) because he does not allege an intent to return to those restaurants, which is required for standing to seek an injunction, and (b) over any claims relating to the California restaurants because standing is determined as of the date the lawsuit is filed, and Magee visited the California restaurants after the complaint was filed. McDonald s also moves to dismiss all claims under Rule 12(b)(6) for failure to state a claim upon which relief can be granted on the ground that the pending First Amended Complaint ( FAC ) fails to allege discrimination on the basis of disability as the ADA and Unruh Act require, because Magee admits that if he had not been blind and everything else had remained the same, i.e., he was still a pedestrian, he would not have been served. FAC 28 ( McDonald s company policy is to refuse service to any pedestrian who walks up to the drive-thru attempting to order food ) (emphasis added). 1 See First Am. Compl. 3, 24, 26 (the blind are totally precluded, totally unable, unable to access late night service); but see 31 (totally barred from independently using the drive-thru). 2

3 Case: 1:16-cv Document #: 20 Filed: 07/13/16 Page 3 of 12 PageID #:68 I. COMPLAINT ALLEGATIONS 2 In his original Complaint, Magee, a resident of Metairie, Louisiana, alleged that despite having previously been refused walk-up service at the drive-thru at McDonald s restaurants because he was a pedestrian (Compl. 40), in August 2015 he again visited a McDonald s near his home late at night and attempted to walk up to the drive-thru, where he was denied service. Id. 33, He alleges that McDonald s company policy is to refuse service to any pedestrian who walks up to the drive-thru. Id. 28. In the original Complaint, filed only under the ADA, Magee sought an injunction and attorney s fees (Title III of the ADA provides for an injunction but not damages). 3 While this lawsuit was pending, on June 4, 2016, Magee visited a McDonald s restaurant in San Francisco and on June 5, 2016, visited another McDonald s in Oakland, California, on both occasions at night when the interior portions of the restaurants were locked for the safety and security of the restaurant employees. 4 Despite being aware of McDonald s purported policy of not serving pedestrians at the drive-thru, on both occasions he walked up to the drive-thru but, because he was a pedestrian, was not permitted to order. FAC On June 7, 2016, Magee filed a First Amended Complaint based on his visits to the California restaurants that added claims under the Unruh Act, which, unlike the ADA, provides for damages. 5 2 McDonald s assumes the facts alleged by Magee are true for purposes of this motion only. 3 The original Complaint also included a count alleging that McDonald s violated the ADA by providing inaccessible glass front vending machines throughout the United States. Compl. 63. This allegation was included from an apparent cut-and-paste of an identical allegation in an ADA complaint by the same plaintiff s counsel on behalf of Scott Magee s brother Emmett Magee in Emmett Magee v. Coca-Cola Refreshments U.S.A., Inc., No. 2:15-cv-1939 (E.D. La., filed June 5, 2016), Compl. 70 (making identical allegations), but was deleted from the First Amended Complaint in this case. 4 The reason for locking the lobby is not alleged in the Complaint or FAC, but is a matter of common sense. 5 Although the caption of the FAC states that it was filed in the Eastern District of Louisiana, it was in fact filed in this court. 3

4 Case: 1:16-cv Document #: 20 Filed: 07/13/16 Page 4 of 12 PageID #:69 Magee also seeks to represent two classes: a Nationwide Class of all legally blind individuals who have been and/or are being denied access to McDonald s restaurants in the United States where service is offered only in the drive-thru; and a California Class of all legally blind individuals who have been or are being denied access to McDonald s restaurants in California where service is offered only in the drive-thru. FAC 44. As noted, McDonald s is moving to dismiss: (1) all claims except the claim for injunctive relief relating to the one restaurant near Magee s home in Louisiana under Rule 12(b)(1) for lack of standing; and (2) all claims under Rule 12(b)(6) for failure to state a claim as to which relief can be granted, as explained below. II. MAGEE LACKS STANDING ON NEARLY ALL OF HIS CLAIMS Article III of the Constitution provides that the jurisdiction of federal courts is limited to Cases and Controversies. U.S. Const., Art. III, 2. Standing is an essential element of this case-or-controversy requirement. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In order to have standing under Article III, a plaintiff must meet three requirements: the plaintiff must show (1) injury in fact, which must be concrete and particularized, and actual and imminent; (2) a causal connection between the injury and the defendant s conduct; and (3) the injury is redressable by the relief sought. Lujan, 504 U.S. at 560. The party invoking federal jurisdiction bears the burden of establishing standing. Id. at A. Magee Lacks Standing to Seek Injunctive Relief under the ADA and the Unruh Act as to any McDonald s Restaurant Except Possibly the One Near His Home in Metairie, Louisiana Because He Does Not Allege an Intent to Return to Those Restaurants To establish injury in fact when seeking injunctive relief, a plaintiff must allege a real and immediate threat of future violations of his rights. City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983). Past exposure to illegal conduct does not in itself show a present case or 4

5 Case: 1:16-cv Document #: 20 Filed: 07/13/16 Page 5 of 12 PageID #:70 controversy regarding injunctive relief. Lujan, 504 U.S. at 564. In order to have standing to seek an injunction for lack of accessibility at a public accommodation, a plaintiff must allege: (1) past injury under the ADA or Unruh Act; (2) that the discriminatory treatment will continue unless enjoined; and (3) that it is reasonable to infer, based on the past frequency of plaintiff s visits and the proximity of the public accommodation to plaintiff s home, that plaintiff intends to return to the public accommodation in the near future. Scherr v. Marriott Int l, Inc., 703 F.3d 1069, 1074 (7th Cir. 2013); Payne v. Chapel Hill N. Properties, LLC, 947 F. Supp. 2d 567, 574 (M.D. N.C. 2013) (even multiple past visits to a location are not sufficient, alone, to establish standing); Molski v. Kahn Winery, 405 F. Supp. 2d 1160, (C.D. Cal. 2005). In Scherr, the court held that plaintiff had standing as to one Courtyard Marriott hotel where she had been injured by a spring-hinged door closer before filing her complaint and to which she had specific plans to return in the near future, but her standing did not extend to the other 56 Courtyard Marriotts that she knew used the same spring-hinged door closers, but as to which she made no showing of an intent to visit in the near future. Absent such a showing, she cannot establish standing to pursue her claims against the other hotels. Id. at Applying these legal principles to this case, Magee has standing to seek an injunction concerning, at most, the Metairie, Louisiana restaurant near his home that he alleges he visited in August 2015 and many times before and expects to visit again in the future. FAC He does not have standing to seek injunctive relief as to the restaurants in California because he does not allege an intent to return to those restaurants, or to any other McDonald s restaurants. B. Magee Also Lacks Standing as to the California Restaurants Because He Visited Them After He Filed This Lawsuit A plaintiff in an ADA (or Unruh Act) case has standing only as to the facilities at which he was denied service (or where he would have gone but for knowing that he would be denied 5

6 Case: 1:16-cv Document #: 20 Filed: 07/13/16 Page 6 of 12 PageID #:71 service) before the original complaint was filed. Lujan, 504 U.S. at 571, n. 4; Scherr v. Marriott Int l, Inc., 703 F.3d at (ADA). Put differently, any acts occurring after the lawsuit was filed do not create standing. See e.g., Brother v. Tiger Partner, LLC, 331 F. Supp. 2d 1368, (M.D. Fla. 2004) (fact that plaintiff made reservation at defendant s hotel after he filed his complaint in the action is ineffective to create standing as to that hotel in an ADA case, as are all other facts after plaintiff commenced his lawsuit) (collecting cases). The proper analysis considers only the facts at the time the plaintiff filed suit. Id. This rule applies to state law claims as well as federal law claims brought in federal court because the limitation on a federal court s jurisdiction imposed by the standing doctrine applies to all claims. Hollingsworth v. Perry, -- U.S. --, 133 S. Ct. 2652, 2667 (2013). In this case, the original Complaint alleged that Magee visited just the one McDonald s near his home in Metairie, Louisiana. He has standing only as to that one restaurant (at most). After filing his Complaint (and just days before filing his FAC), Magee alleges he visited two other McDonald s restaurants in San Francisco and Oakland, California on June 4 and 5, 2016, respectively, where he was also denied service when he walked up to the drive-thru. Magee lacks standing to assert claims as to the California restaurants under the ADA and under the Unruh Act because those alleged incidents relating to the California restaurants occurred after he commenced his lawsuit. III. MAGEE FAILS TO STATE A CLAIM FOR DISCRIMINATION ON THE BASIS OF DISABILITY The FAC alleges disparate treatment. Magee complains that McDonald s treated him differently and less favorably than sighted individuals and claims he was discriminated against because he is blind. Specifically, he alleges that: (1) McDonald s does not permit any 6

7 Case: 1:16-cv Document #: 20 Filed: 07/13/16 Page 7 of 12 PageID #:72 pedestrian to use its drive-thru; (2) he attempted to use the drive-thru as a pedestrian; and (3) he was denied service because he was a pedestrian. FAC 2, 28 (emphasis added), 33, 35, A. Magee Fails to State a Claim for Discrimination under the ADA or Unruh Act The denial of service allegedly violated 42 U.S.C (a). FAC 55. That section, which is headed Prohibition of discrimination by public accommodations, provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C (a) (emphasis added). The test for determining whether a plaintiff has been discriminated against on the basis of disability is whether he would have been treated differently if he did not have a disability and everything else had remained the same. Gehring v. Case Corp., 43 F.3d 340, 344 (7th Cir. 1994), citing Hazen Paper Co. v. Biggins, 507 U.S. 604, , 113 S. Ct. 1701, 1706 (1993). This test also applies to the Unruh Act claims for two reasons. First, as Magee alleges, the Unruh Act uses discrimination under the ADA to establish a violation of the Unruh Act (FAC 70; Cal. Civ. Code 51(f)), so if there is no ADA violation there is no Unruh Act violation. Second, the Unruh Act applies the same if plaintiff did not have a disability and everything else remained the same test as the ADA to determine whether there is violation of the Unruh Act. As the court held in Turner v. Association of American Medical Colleges, 167 Cal. App. 4th 1401, 1408, 85 Cal. Rptr. 3d 94, 100 (2008), as mod f on denial of reh g (November 25, 2008), review denied (February 11, 2009): Despite its broad application, the Unruh Act does not extend to practices and policies that apply equally to all persons: This section shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike to persons of every sex, color, race, religion, ancestry, national origin, disability, medical 7

8 Case: 1:16-cv Document #: 20 Filed: 07/13/16 Page 8 of 12 PageID #:73 condition, marital status, or sexual orientation. (Civ.Code, 51, subd. (c) 6 ; Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1172, 278 Cal.Rptr. 614, 805 P.2d 873 (Harris ).) A policy that is neutral on its face is not actionable under the Unruh Act, even when it has a disproportionate impact on a protected class. (Harris, at pp , 278 Cal.Rptr. 614, 805 P.2d 873; Belton v. Comcast Cable Holdings, LLC (2007) 151 Cal.App.4th 1224, 1238, 60 Cal.Rptr.3d 631 (Belton ).) In Belton (cited in the above quotation), for example, a blind cable subscriber challenged a practice of offering music services only as part of a package with TV service on the grounds that he could not use all of the services. The court held that the plaintiff failed to state a cause of action, finding that the practice was non-discriminatory because it applied to all cable subscribers. It was undisputed that Hall was treated exactly the same as sighted subscribers, and that Comcast applied its policy of requiring its customers to subscribe to the basic cable tier [of video] service in order to receive music service to all residential subscribers regardless of... disability. 60 Cal Rptr. 3d at 643. Applying the foregoing test to this case, the restaurants would have denied service to Magee at the drive-thru had he not been blind, but everything else remained the same. Magee alleges that McDonald s does not permit any pedestrian which includes sighted and blind pedestrians to use the drive-thru, and he was a pedestrian. FAC 28 (emphasis added). Thus he admits that pedestrians who are sighted are not served in the drive-thru. Conversely, he admits that blind individuals who are in motor vehicles are served. FAC 4 (admitting that blind people can use the drive-thru while in a car or taxi). 7 The distinguishing factor is being on foot for whatever reason. 6 Civil Code 51 (c) now reads: This section shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike to persons of every sex, color, race, religion, ancestry, national origin, disability, medical condition, marital status, sexual orientation, citizenship, primary language, or immigration status, or to persons regardless of their genetic information. 7 Or in a ride-sharing vehicle such as Uber or Lyft, one might add. Thus, Magee s allegation that the blind are totally precluded from accessing Defendant s products during late night hours (FAC 3) is untrue, as he admits in the very next paragraph of his pleading. 8

9 Case: 1:16-cv Document #: 20 Filed: 07/13/16 Page 9 of 12 PageID #:74 Because sighted pedestrians are treated the same as blind pedestrians, there is no discrimination on the basis of disability under the ADA or the Unruh Act. In sum, McDonald s alleged policy to bar pedestrians from the drive-thru did not harm Magee on the basis of his disability, but rather solely by virtue of the common need to be in a motor vehicle that was applicable to all individuals, sighted or not, and therefore McDonald s alleged policy does not support a claim for discrimination under the ADA or the Unruh Act. B. Magee Also Fails to State a Claim for Failure To Accommodate under 42 U.S.C (b)(2)(A)(iii) Magee also alleges a failure to accommodate claim. He quotes (without citation) 42 U.S.C (b)(2)(A)(iii). FAC 56. That section provides: For purposes of subsection (a) of this section, discrimination includes * * * (iii) a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden; 42 U.S.C (b)(2)(A)(iii). But his failure-to-accommodate claim fails to state a claim upon which relief can be granted for two reasons. First, the same legal principles that limit violations of Section 12182(a) to situations where a plaintiff is treated differently on the basis of disability (as discussed above) also apply to failure to accommodate claims under Section 12182(b)(2). That is, unless an individual was treated differently because of a disability as opposed to some other factor he has in common with other people, there is no duty of accommodation. Good Shepherd Manor Foundation, Inc. v. City of Momence, 323 F.3d 557, 561 (7th Cir. 2003). There, a group home for developmentally disabled adults challenged the city s decision to shut off the water supply to 9

10 Case: 1:16-cv Document #: 20 Filed: 07/13/16 Page 10 of 12 PageID #:75 the group home because of the failure of the group home to extend the service line to the lot s boundary. Good Shepherd sued under Title II of the ADA and other statutes, alleging the city failed to provide reasonable accommodation for the disabled residents. 8 The district court rejected this contention, relying on Hemisphere Building Co. v. Village of Richton Park, 171 F.3d 437 (7 th Cir. 1999). In that case, the Seventh Circuit explained that the court confines the duty of reasonable accommodation in rules, policies, practices, or service to rules, policies, etc., that hurt handicapped people by reason of their handicap, rather than that hurt them solely by virtue of what they have in common with other people, such as a limited amount of money to spend on housing. Id. at 440 (emphasis in original). In Good Shepherd, the Seventh Circuit rejected the group home s claim that the city had to modify its decision because shutting off the water harmed disabled residents by preventing them from living in group homes, quoting with approval the district court s holding that the denial of water service did not hurt Plaintiff s residents by reason of their handicap, but instead, hurt them solely by virtue of what they have in common with other people. 323 F.3d at 561. Because in this case Magee was denied service in the drive-thru because of what he had in common with other people being on foot there is no discrimination on the basis of disability and thus no breach of a duty to accommodate. Second, the accommodation that Magee seeks is that McDonald s furnish unspecified auxiliary aids or services. FAC 57. According to his pleading, he was ready, willing and 8 Title II of the ADA applies the ADA to State and local governments. The nondiscrimination provision of Title II, 28 U.S.C (prohibiting discrimination by reason of disability, ) has been interpreted as substantially the same as the on the basis of disability nondiscrimination provision of Title III. 28 CFR Part 35 (Title II regulations are headed Nondiscrimination on the basis of disability (emphasis added), which is the language of 28 U.S.C (a) in Title III); 28 CFR (a) (stating the general prohibition against discrimination in Title II as No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity. ) (emphasis added). 10

11 Case: 1:16-cv Document #: 20 Filed: 07/13/16 Page 11 of 12 PageID #:76 able to make his purchase in the drive-thru but was denied service because he was not in a car. But a car is not an auxiliary aid or service. 42 U.S.C (1); 28 CFR The ADA does not require McDonald s to provide Magee a ride in a car so he can use the drive-thru because a car is not an auxiliary aid. Thus, McDonald s did not discriminate against Magee on the basis of disability and he fails to state a claim upon which relief can be granted under the ADA or Unruh Act. Accordingly, this action should be dismissed in its entirety with prejudice. IV. CONCLUSION In conclusion, and as set forth more fully above, Magee (1) lacks standing to assert claims as to any McDonald s restaurant except, at most, the restaurant in Metairie, Louisiana near his home, and (2) fails to state a claim upon which relief can be granted as to any McDonald s restaurant. Therefore, this action should be dismissed with prejudice. Dated: July 13, 2016 Respectfully submitted, McDONALD S CORPORATION, Defendant By: /s Mark L. Shapiro One of Its Attorneys Mark L. Shapiro/ARDC # Phillip M. Schreiber/ARDC # Jennifer J. Froehlich/ARDC # Andrew N. Fiske/ARDC # Holland & Knight LLP 131 S. Dearborn St., 30th Fl. Chicago, Illinois facsimile mark.shapiro@hklaw.com phillip.schreiber@hklaw.com jennifer.froehlich@hklaw.com andrew.fiske@hklaw.com 11

12 Case: 1:16-cv Document #: 20 Filed: 07/13/16 Page 12 of 12 PageID #:77 CERTIFICATE OF SERVICE The undersigned certifies that on July 13, 2016, I electronically transmitted the foregoing Defendant s Brief In Support of Its Motion to Dismiss to the Clerk of the Court using the CM/ECF System for filing and transmittal to the CM/ECF registrants: Roberto Luis Costales Costales Law Office 3801 Canal Street, Ste. 207 New Orleans, LA costaleslawoffice@gmail.com William Henry Beaumont William H. Beaumont Law 3801 Canal Street, Ste. 207 New Orleans, LA whbeaumont@gmail.com /s/ Mark L. Shapiro