MacDonald v. Cape Cod Central Railroad, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MICHAEL MACDONALD, ) Civil Action No.

) 18-12175-FDS

Plaintiff, )

)

v. )

)

CAPE COD CENTRAL RAILROAD, INC., )

CAPE RAIL, INC., and P. CHRIS )

PODGURSKI, )

)

Defendants. )

__________________________________________)

MEMORANDUM AND ORDER ON DEFENDANTS’

MOTION TO DISMISS AND PLAINTIFF’S MOTION TO STRIKE

SAYLOR, J.

This action involves a claim of disability discrimination. Plaintiff Michael MacDonald

suffers from spina bifida and has been confined to a wheelchair for more than 31 years. On

August 8, 2018, he attempted to board the Cape Cod Coastal Excursion Train in Hyannis,

Massachusetts. He was told that he could not board the train because the rail cars were not

accessible to disabled persons. According to the complaint, the train is owned and operated by

defendants Cape Cod Central Railroad, Inc. and Cape Rail, Inc. Defendant P. Chris Podgurski is

the president and a director of both corporations.

MacDonald has filed suit, alleging that defendants violated the Americans with

Disabilities Act, 42 U.S.C. § 12101 et seq. Defendants have moved to dismiss the complaint on

grounds of (1) lack of standing, (2) failure to join necessary parties, and (3) failure to state a

claim upon which relief can be granted. Defendants have also moved for judgment on the

pleadings under Fed. R. Civ. P. 12(c). Plaintiff has moved to strike various exhibits attached to

defendants’ motion. For the following reasons, plaintiff’s motion to strike will be granted in part

and denied in part, and defendants’ motions to dismiss and for judgment on the pleadings will be

denied.

I. Background

A. Factual Background

The facts are set forth as described in the complaint.

Michael MacDonald is a resident of Cotuit, Massachusetts. (Compl. ¶ 2). He has spina

bifida, and has been using a wheelchair for mobility for more than 31 years. (Id.).

Cape Cod Central Railroad, Inc. and Cape Rail, Inc. own and operate the Cape Cod

Coastal Excursion Train. The train is based at the Hyannis depot in Hyannis, Massachusetts.

(Id. ¶ 5). The train provides tours of lower Cape Cod to members of the public. (Id. ¶ 11). P.

Chris Podgurski, a resident of Canton, Massachusetts, is the president and a director of both

Cape Cod Central Railroad, Inc. and Cape Rail, Inc. (Id. ¶ 5).

On August 8, 2018, MacDonald attempted to ride the Coastal Excursion Train. (Id. ¶ 3).

However, he was unable to board the train because of alleged “barriers to access.” (Id.).

Specifically, he identifies ten violations of the ADA, including inaccessible means of egress,

inaccessible restrooms and water closets, and lack of ramps. (Id. ¶ 16).1 He alleges that he

“intends to visit [defendants’ trains] again in the near future,” but expects that such efforts will

be frustrated unless and until defendants remove the barriers. (Id. ¶ 14).

B. Procedural Background

The complaint in this action was filed on October 18, 2018. It asserts a single claim

1 Defendants contend that the rail cars, which were initially purchased under a contract in October 1988, are

not subject to the requirements of the ADA. Whatever the merits of that argument, it cannot be resolved on a

motion to dismiss.

against defendants for violation of the ADA, and seeks injunctive relief in the form of a court

order directing defendants to make the Coastal Excursion Train comply with the ADA. The

complaint further seeks reasonable attorney’s fees and costs incurred in the bringing of this

litigation.

Defendants have moved to dismiss the complaint for lack of standing under Fed. R. Civ.

P. 12(b)(1), failure to join a necessary party under Fed. R. Civ. P. 12(b)(7), and failure to state a

claim under Fed. R. Civ. P. 12(b)(6). Defendants have also moved for judgment on the

pleadings pursuant to Fed. R. Civ. P. 12(c). Plaintiff has moved to strike various exhibits

defendants attached to their motion to dismiss.

II. Motion to Strike

Because the disposition of the motion to strike will affect the record, the Court will

address it first.

Defendants attached ten exhibits to their motion to dismiss: (1) an excerpt from the book

A History of Commonwealth Engineering; (2) an article from the New York Times dated

September 21, 1988, titled L.I.R.R. May Add Double-Decker Coaches; (3) a certificate of use and

occupancy for the Hyannis Station Platform issued by the Massachusetts Department of Public

Safety; (4) corporate registration information for Cape Cod Central Railroad, Inc.; (5) corporate

registration information for Cape Rail, Inc.; (6) copies of tickets issued to a Joann Miller; (7)

corporate registration information for Iowa Pacific Holdings, LLC; (8) what appears to be a draft

pamphlet from the Massachusetts Department of Transportation titled “Massachusetts State Rail

Plan”; (9) corporate registration information for McEvoy Commercial Associates, LLC; and (10)

a Westlaw printout of Section 3:7 of a Massachusetts practice guide to landlord and tenant law.

At the motion to dismiss stage, “any consideration of documents not attached to the

complaint, or not expressly incorporated therein, is forbidden.” Watterson v. Page, 987 F.2d 1, 3

(1st Cir. 1993). There are certain narrow exceptions to that rule, including “documents the

authenticity of which are not disputed by the parties,” “official public records,” “documents

central to plaintiffs’ claim,” and “documents sufficiently referred to in the complaint.” Id. Many

of the exhibits do not fall into any of these categories. However, some of the exhibits

(specifically, the corporate registration information) are verifiable official public records

locatable on the websites of the Secretaries of States of Massachusetts and Iowa. Accordingly,

the motion to strike will be granted as to Exhibits 1, 2, 3, 6, 8, and 10, and denied as to Exhibits

4, 5, 7, and 9.

III. Motion to Dismiss

A. Lack of Standing

Defendants contend that this court lacks subject-matter jurisdiction because plaintiff does

not have legal standing. On a motion to dismiss made pursuant to Rule 12(b)(1), “the party

invoking the jurisdiction of a federal court carries the burden of proving its existence.” Murphy

v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (quoting Taber Partners, I v. Merit Builders,

Inc., 987 F.2d 57, 60 (1st Cir. 1993) (internal quotation marks omitted)). A court “must credit

the plaintiff’s well-[pleaded] factual allegations and draw all reasonable inferences in the

plaintiff’s favor.” Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010).

To establish standing, a plaintiff must show an injury in fact, causation, and

redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). It is well

established that “[a] disabled individual who is currently deterred from patronizing a public

accommodation due to a defendant’s failure to comply with the ADA and who is threatened with

harm in the future because of existing or imminently threatened noncompliance with the ADA

suffers actual or imminent harm sufficient to confer standing.” Disabled Am. for Equal Access,

Inc. v. Ferries del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005) (internal quotation marks and

citation omitted). Here, the complaint clearly pleads sufficient facts to establish an injury:

plaintiff alleges that he is disabled, that he was denied access to defendants’ rail cars, and that he

intends to return to the premises again.

In their motion, defendants raise a variety of arguments. First, they contend that plaintiff

never suffered an “injury in fact” because he was never able to board the train. (Def. Mem. at

12). But that has it backwards; the fact that plaintiff allegedly was unable to access the train

because of his disability constitutes the required “injury in fact.” See Disabled Am. for Equal

Access, Inc., 405 F.3d at 64-65.

Second, defendants contend that the complaint fails to “state specifically whether he

actually encountered the alleged barrier(s) during his single visit” to the train. (Id. at 13). They

reason that the complaint fails to state an injury because it does not adequately describe the

specific barriers that plaintiff encountered. (Id.) However, paragraph 16 explicitly alleges that

the train included ten barriers to access, including lack of ramps and inaccessible means of

egress. (Compl. ¶ 16). That is a sufficiently specific allegation for present purposes.

Third, defendants attack plaintiff’s request that he be permitted to conduct an “inspection

of the [train facility]” to determine whether there are further ADA violations. (Id. ¶ 17). They

rely on Norkunas v. Seahorse NB, LLC, 444 F. App’x 412 (11th Cir. 2011) (unreported), in

which the Eleventh Circuit held that the plaintiff lacked standing to bring certain claims under

the ADA. That court also held that the ADA does not permit a plaintiff to assert claims against

“an entire facility . . . once one barrier is encountered.” Id. at 416.2 However, at least two other

2 The Eleventh Circuit’s Local Rules state that unpublished opinions like Norkunas are “not considered

binding precedent, but they may be cited as persuasive authority.” 11th Cir. R. 36-2.

federal appellate courts have held that a plaintiff need not “have personally encountered all the

barriers that bar his access . . . in order to [have standing to] seek an injunction to remove those

barriers,” as long as he has encountered at least one such restriction. See Pickern v. Holiday

Quality Foods, Inc., 293 F.3d 1133, 1138 (9th Cir. 2002) (reasoning that such a requirement

would narrowly construe the ADA and be inefficient and impractical); Steger v. Franco, Inc.,

228 F.3d 889, 893-95 (8th Cir. 2000) (same). While the First Circuit has not addressed the

precise issue at hand, it has suggested that it would agree with the reasoning of the Eighth and

Ninth Circuits. See Dudley v. Hannaford Bros. Co., 333 F.3d 299, 305 (1st Cir. 2003) (“The

proposition that . . . a disabled person must subject himself to repeated instances of

discrimination in order to invoke the remedial framework of Title III . . . turns the language of

[the ADA] on its head.”). Therefore, the claim will not be dismissed on that basis.

Fourth, defendants contend that plaintiff is “unlikely to return to the [train] and therefore

does not have a substantial likelihood of future injury.” (Def. Mem. at 15). They reason that

because the station is approximately 11 miles away from his home, he “would not regularly

visit” the train. (Id. at 16). They further argue that he “cannot establish a likelihood of future

injury . . . because [he] never visited in the past.” (Id.). However, an allegation that a disabled

plaintiff was subject to discrimination at a facility, and intends to return to the facility to avail

himself of the offered services, suffices to establish standing. See Disabled Am. for Equal

Access, Inc., 405 F.3d at 64-65; see also Marradi v. Karoska Landing, Inc., 323 F. Supp. 3d 216,

218-19 (D. Mass. 2018) (Zobel, J.); Marradi v. K&W Realty Inv. LLC, 212 F. Supp. 3d 239, 244

(D. Mass. 2016) (Gorton, J.); Marradi v. K&W Realty Inv. LLC, 2016 WL 5024198, at *2 (D.

Mass. Sep. 15, 2016) (Sorokin, J.).

Accordingly, defendants’ motion to dismiss for lack of standing will be denied.3

B. Failure to Join a Necessary Party

Defendants have also moved to dismiss the complaint for failure to join a necessary

party. Whether joinder of a party is required is governed by Fed. R. Civ. P. 19. As the First

Circuit has explained:

Rule 19 is designed to protect the interests of parties who are not yet involved in

ongoing litigation. To measure how critical those interests are, the rule instructs

courts to engage in a two-part analysis. Parties should be joined, when feasible, if

they are “necessary” to the action according to the criteria laid out in Rule 19(a).

If a necessary party cannot be joined in the action without divesting the court of

subject-matter jurisdiction, Rule 19(b) lays out additional criteria for determining

whether that party is “indispensable.” If the court finds that party is anything less

than indispensable, the case proceeds without her. If, on the other hand, the court

finds that the litigation cannot proceed in the party's absence, the court must

dismiss the case.

Jimenez v. Rodriguez-Pagan, 597 F.3d 18, 25 (1st Cir. 2010) (internal citations and footnote

omitted). The court continued:

The term ‘necessary’ is a vestige of a superseded version of Rule 19 and no

longer appears in the text. . . . Lest there be any confusion, the word is used as a

term of art and signifies desirability rather than actual necessity. Parties are not

truly necessary in the vernacular sense of the word unless and until they satisfy

the terms of Rule 19(b).

Id. at 25 n.3.

Here, defendants contend that the complaint must be dismissed because plaintiff failed to

file suit against Iowa Pacific Holdings, LLC. In support, they rely on certain exhibits attached to

3 Defendants contend that that “[p]laintiff’s claims must be dismissed to the extent that they are based upon

or attempt to rely upon technical, abstract violations of the regulations promulgated by the United States Attorney

General or [state or federal Departments of Transportation] for the purpose of implementing the ADA.” (Def. Mem.

at 18). It is uncertain what defendants are referring to, as the complaint refers exclusively to the ADA and its

implementing regulations.

Defendants also contend that plaintiff did not actually purchase the train tickets in question. (Def. Mem. at

15). Whatever the merits of that argument, at a minimum, it relies on evidence that cannot be considered in

addressing the motion to dismiss.

their motion, which purportedly show that Iowa Pacific is the owner of the rail cars in question.

Courts are “not limited to the pleadings” in considering a motion to dismiss under Rule 12(b)(7)

and may rely on certain “relevant extra-pleading evidence.” See Axis Ins. Co. v. Hall, 287

F.R.D. 110, 113 (D. Me. 2012). However, even assuming that Iowa Pacific is an “indispensable”

party, defendants’ argument fails because joinder would not divest this court of subject-matter

jurisdiction.4 The proper remedy is simply for defendants to file a motion for joinder. Indeed,

defendants suggested they would file such a motion in their memorandum, but ultimately

decided not to. (See Def. Mem. at 19; Pl. Ex. 3).

Defendants also suggest that joinder of the Massachusetts Department of Transportation

and an entity called McEvoy Commercial Associates, LLC, is required. Defendants contend that

the Department of Transportation is “an owner” of the platforms used to board the rail cars and

that McEvoy is the owner of the real property at the station. (Def. Mem. at 19). However,

plaintiff has not alleged that features within the control of those entities violate the ADA. (Pl.

Opp. at 17).5 Accordingly, the motion to dismiss for failure to join a necessary party will be

denied.

C. Failure to State a Claim

On a motion to dismiss pursuant to Rule 12(b)(6), the court “must assume the truth of all

well-plead[ed] facts and give . . . plaintiff the benefit of all reasonable inferences therefrom.”

Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino,

175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the complaint must state a

claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In

4 The basis for subject-matter jurisdiction in this suit is a federal question, not diversity.

5 The complaint alleges only that the rail cars themselves violate the ADA.

other words, the “[f]actual allegations must be enough to raise a right to relief above the

speculative level, . . . on the assumption that all the allegations in the complaint are true (even if

doubtful in fact).” Id. at 555 (citations omitted). “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556).

Dismissal is appropriate if the complaint fails to set forth “factual allegations, either direct or

inferential, respecting each material element necessary to sustain recovery under some actionable

legal theory.” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Medico

del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).

A Rule 12(c) motion for judgment on the pleadings “is treated much like a Rule 12(b)(6)

motion to dismiss.” Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008). It differs

from a Rule 12(b)(6) motion primarily because it is filed after the close of pleadings and

“implicates the pleadings as a whole.” Aponte–Torres v. Univ. of P.R., 445 F.3d 50, 54-55 (1st

Cir. 2006). Because the legal standards for Rule 12(b)(6) and Rule 12(c) motions are

substantively the same, the Court will address them in tandem.

Although it is not entirely clear from their memorandum, defendants appear to suggest

that the complaint does not state a prima facie case for an ADA violation. To make a prima

facie claim, a plaintiff must show that he is (1) disabled within the meaning of the ADA; (2) that

the defendants own, lease, or operate a place of public accommodation; and (3) that the

defendants discriminated against the plaintiff within the meaning of the ADA. Marradi, 212 F.

Supp. 3d at 245. The ADA defines discrimination by a defendant public accommodation as

including “a failure to remove architectural barriers . . . in existing facilities . . . where such

removal is readily achievable,” 42 U.S.C. § 12182(b)(2)(A)(iv), and further defines “readily

achievable” as “easily accomplishable and able to be carried out without much difficulty or

expense,” id. § 12181(9).

It is undisputed that plaintiff is “disabled” within the meaning of the ADA. Moreover,

because the complaint alleges that the alleged ADA violations may be remedied “without much

difficulty or expense,” (Compl. ¶ 18), the third element has also been satisfied. See Marradi,

212 F. Supp. 3d at 245-46. Defendants, however, contend that the complaint fails to establish

the second element.

First, defendants contend that Podgurski, the president of both Cape Cod Central Railroad

and Cape Rail, may not be sued in his individual capacity. (Def. Mem. at 6-7). They note that

individuals may not be sued under Title II of the ADA, which prohibits discrimination by public

entities. See Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000). Relying on Coddington v.

Adelphi Univ., 45 F. Supp. 2d 211 (E.D.N.Y. 1999), they seek to extend this reasoning to Title

III (under which this suit was brought), which prohibits discrimination by private entities. In

Coddington, the court held that university leaders and administrators could not be individually

liable under Title III merely because they “were responsible for making decisions regarding

disabled students and plaintiff in particular.” Id. at 217.

However, as another judge in this district has explained, “[n]early every court that has

decided the issue of individual liability under Title III has found that individuals can be held

responsible for violations of these prohibitions against discrimination” if they own, lease, or

operate a place of public accommodation. Guckenberger v. Bos. Univ., 957 F. Supp. 306, 322

(D. Mass. 1997). Whether an individual “operates” a place of public accommodation within the

meaning of Title III depends on whether he or she is in a position of authority, has the power and

discretion to perform potentially discriminatory acts, and the discriminatory acts are the result of

the exercise of the individual’s own discretion. See id. at 322-23 (citing Howe v. Hull, 874 F.

Supp. 779, 787-88 (N.D. Ohio 1994)). Here, Podgurski is alleged to be the president and a

director of the two corporate defendants, and therefore it is plausible that he had the requisite

decision-making authority. Moreover, in their automatic disclosures, defendants themselves

represented that Podgurski “is one of the owners of the defendant railroads” and “has been and is

involved in all aspects of the business and operations of the defendant railroads.” (Pl. Ex. 2).

Under the circumstances, the Court concludes that the complaint has alleged facts sufficient to

support a Title III claim against Podgurski.6

Second, defendants contend that Cape Rail is “merely a holding company” and thus does

not constitute an owner, lessor, or operator of the train lines in question. (Def. Mem. at 10).

However, they concede that Cape Rail “holds stock of [Cape Cod Central Railroad].” (Id.).

Whether Cape Rail exercised the requisite degree of ownership or control is a factual issue not

suitable for resolution on a motion to dismiss.

Defendants also separately contend that the complaint “fail[ed] to specify which set of

ADA technical standards it is applying.” (Def. Mem. at 5). Defendants state that “[a]ny

alterations to the [trains] performed before March 15, 2012, would have been governed by the

1991 ADA Standards, and those performed after [that] date would have been subject to the 2010

ADA Standards.” (Id. at 6). Again, however, the allegations of unlawful barriers make out a

plausible violation of the ADA and its implementing regulations, and the underlying facts, and

applicability of specific regulations, must await a more developed factual record.

IV. Conclusion

For the foregoing reasons, plaintiff’s motion to strike is GRANTED in part and DENIED

6 The Court need not address defendants’ argument that plaintiff must “pierce the corporate veil” in order to

subject Podgurski to individual liability.

in part. Defendants’ motion to dismiss and motion for judgment on the pleadings are DENIED.

So Ordered.

/s/ F. Dennis Saylor IV

F. Dennis Saylor IV

Dated: August 14, 2019 United States District Judge