MAURER v. HEIGHTS PLAZA GROUP, LLC

[Docket No. 16]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

DENNIS MAURER,

Plaintiff,

Civil No. 20-20028 (RMB/KMW)

v.

GL QICHEN INVESTMENT LTD, OPINION

Defendant.

APPEARANCES:

Shadinger Law, LLC

By: Jon G. Shadinger, Jr. Esq.

717 E. Elmer St.

Vineland, NJ 08360

Attorney for Plaintiff

Hang & Associates, PLLC

By: Ge Qu, Esq.

136-20 38th Avenue, Suite 10G

Flushing, NY 11354

Attorney for Defendant

BUMB, UNITED STATES DISTRICT JUDGE:

This matter comes before the Court upon its own Motion.

Plaintiff Dennis Maurer brings this action under the Americans

with Disabilities Act, 42 U.S.C. § 12181 et. seq. and the New

Jersey Law Against Discrimination, N.J.S.A. 10:5-12. In

addition, Defendant GL Qichen Investment LTD has filed a Motion

to Dismiss for Insufficient Service, which is currently pending

before the Court. [Docket No. 16].

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I. ANALYSIS

A. Standing

In reviewing the Complaint, the Court is not satisfied that

Plaintiff has established the Court’s jurisdiction. “The federal

courts are under an independent obligation to examine their own

jurisdiction, and standing ‘is perhaps the most important of

[the jurisdictional] doctrines.’” FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 231 (1990) (modification in original)

(quoting Allen v. Wright, 468 U.S. 737, 750 (1984)). A plaintiff

states a viable claim when he satisfies three elements; the

plaintiff must have: “(1) suffered an injury in fact, (2) that

is fairly traceable to the challenged conduct of the defendant,

and (3) that is likely to be redressed by a favorable judicial

decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

Plaintiff, as the party invoking federal jurisdiction, bears the

burden of establishing these elements. Id.

Injury in fact is the “‘[f]irst and foremost’ of standing’s

three requirements.” Id. (quoting Steel Co. v. Citizens for

Better Environment, 523 U.S. 83, 103 (1998). Moreover, this is a

constitutional requirement that Congress cannot erase. Id. at

1547-48. A plaintiff establishes injury in fact only by showing

that “he or she suffered ‘an invasion of a legally protected

interest’ that is ‘concrete and particularized,’ and ‘actual or

imminent, not conjectural or hypothetical.’” Id. at 1548

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(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992)). “For an injury to be ‘particularized,’ it must affect

the plaintiff in a personal and individual way.” Id. (cleaned-

up). An injury is “concrete” only when it is “de facto; that is,

it must actually exist.” Id.

Where, as here, a plaintiff seeks prospective injunctive

relief, he satisfies the injury in fact requirement only by

showing that he is “‘likely to suffer future injury’ from the

defendant’s conduct.” McNair v. Synapse Grp. Inc., 672 F.3d 213,

223 (3d Cir. 2012) (quoting City of Los Angeles v. Lyons, 461

U.S. 95, 105 (1983)); see also Indep. Project, Inc. v. Shore

Point Plaza, LLC, No. 18-cv-15048(FLW/ZNQ), 2020 WL 6363714, at

*2 (D.N.J. Oct. 29, 2020). Stated differently, “past exposure to

illegal conduct does not show a present claim for injunctive

relief.” Indep. Project, Inc., 2020 WL 6363714, at *2 (quoting

Brown v. Fauver, 819 F.2d 395, 400 (3d Cir. 1987)).

Consistent with these standards, courts within this

District rely on a four-factor test to determine whether a

plaintiff has pleaded a concrete and particularized injury for

an ADA claim: (1) the plaintiff's proximity to the defendant’s

place of public accommodation; (2) the plaintiff’s past

patronage; (3) the plaintiff’s frequency of nearby travel; and

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(4) the definiteness of the plaintiff’s plan to return1.

Louisiana Counseling & Fam. Servs. Inc. v. Mt. Fuji Japanese

Rest., 08-cv-6143, 2014 WL 941353, at *7 (D.N.J. Mar. 11, 2014),

aff’d sub nom. Brown v. Mt. Fuji Japanese Rest., 615 F. App’x

757 (3d Cir. 2015); Indep. Project, Inc., 2020 WL 6363714, at

*2.

Here, the Complaint fails to allege that Plaintiff suffered

a concrete and particularized injury under these factors. First,

the Complaint identifies both Plaintiff’s and Defendant’s

addresses. The Court takes judicial notice that Plaintiff’s

listed address is approximately 50 miles away from Defendant’s

listed address. Second, Plaintiff identifies only a single visit

to the property in question. [See Docket No. 1, at ¶ 7].

Plaintiff does so without stating or approximating the exact

date of his visit. Instead, he provides only that he visited

Defendant’s property sometime “in October 2020.” [Id.].

Third, Plaintiff has failed to allege any definitive plans

to return to Defendant’s establishment. Although Plaintiff makes

1 Within the Third Circuit, some District Courts use a substantially

similar test. See e.g., Hollinger v. Reading Health Sys., No. CV 15-5249,

2017 WL 429804, at *4 (E.D. Pa. Jan. 31, 2017) (reciting the test for

evaluating standing under the ADA as “(1) plaintiff has alleged defendant

engaged in past discriminatory conduct that violates the ADA; (2) it is

reasonable to infer from the allegations in the complaint that the

discriminatory conduct will continue; and (3) it is reasonable to infer based

on past patronage, proximity of the place to the plaintiff's home, business,

or personal connections to the area, that the plaintiff intends to return to

the place in the future.”).

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several vague references to his plan to “return to the Subject

Property in the very near future,” [see e.g., id.] this is

clearly not enough. See e.g., Kennedy v. Floridian Hotel, Inc.,

No. 20-10648, --F 3d.--, 2021 WL 2149361, at *9 (11th Cir. May

27, 2021) (“[Plaintiff] failed to demonstrate a real and

immediate threat of future injury that goes beyond the type of

vague, ‘some day’ intention [to return] the Supreme Court found

insufficient in Lujan.”). Fourth, Plaintiff has not articulated

any facts showing his “frequency of nearby travel.” Given the

approximately 50-mile journey from Plaintiff’s home to

Defendant’s location, Plaintiff’s failure to offer any

explanation on the frequency of his nearby travel prevents the

Court from inferring that Plaintiff actually intends to return

in the future2.

Moreover, Plaintiff has similarly failed to allege any

personal (i.e., particularized, under Spokeo) injury from

Defendant’s alleged ADA violations. Under Title III of the ADA,

a plaintiff’s only available relief is an injunction. See 42

U.S.C. § 12188(a)(1). But § 12188 still requires Plaintiff to

establish a personal stake in the case. Instead, as explained

more fully below, historically Plaintiff’s Complaints seemingly

2 The Complaint attempts to establish both previous patronage and a

definitive plan to return through a formulaic recitation of the elements of

an ADA cause of action. This is insufficient. Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007).

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appear to assume the role of a code compliance officer who uses

the ADA as a strict liability statute without establishing any

relationship between his own disabilities and the alleged

violations.

Taken together, the Court cannot be assured that Plaintiff

has standing to pursue his claims.

B. Additional Deficiencies

The Court will also use this opportunity to note that

Plaintiff’s Complaint appears to be a copy-and-paste template

that Plaintiff has previously used in 155 cases in the District

of New Jersey alone over the last 8 years. Indeed, most of these

Complaints contain the exact same typo-- omitting the word “of”

in between “Section 606” and “the” in a particular paragraph.

See e.g., Docket No. 1, at ¶ 13k (“violating Section 606 the

2010. . .]; Maurer v. Sloane, 20-13650, Docket No. 1 (same);

Maurer v. Heights Plaza Group, LLC, 20-13705, Docket No. 1

(same); Maurer v. Meckel Enterprises, LLC, 19-9869, Docket No. 1

(same); Maurer v. Pep Boys, 18-9175, Docket No. 1 (same).

Relatedly, the Court will take judicial notice that Jon G.

Shadinger, Plaintiff’s counsel in this matter, (1) has

represented Plaintiff in all of Plaintiff’s ADA cases since

March 2018-- approximately 66 cases in total-- and (2) never

represented Plaintiff before March 2018. Yet the typo identified

above appears in Plaintiff’s complaints dating back to 2014. See

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e.g., Maurer v. Traders Lane, LLC, 14-3654, Docket No. 1

(“violating Section 606 the 2010 . . .”); Maurer v. Village Walk

LLC, 15-5510, Docket No. 1 (same). In these cases, Plaintiff was

represented by John P. Fuller and Robert Donaher.

Moreover, Plaintiff’s current counsel has filed numerous

complaints for other plaintiffs-- namely, Charlene Cheli, Ronald

Moore, and the Independence Project Inc.-- which also contain

this typo. See e.g., Charlene Cheli v. Cases Nova Today, LLC,

19-19034, Docket No. 1 (“violating Section 606 the 2010 . . .”);

Ronald Moore v. Riccardi Realty Company, 21-10601, Docket No. 1

(same); The Independence Project, Inc. v. Kimsco, Inc., 18-705,

Docket No. 1 (same). By no means are the cases identified here

an exhaustive list.

Although the Court does not fault a party for the

occasional typo, this situation is far different. Here, the

Court has identified what appears to be a nearly decade-long

practice of filing cookie-cutter complaints, which were

seemingly never proofread beforehand.

Moreover, Plaintiff’s cases all follow a predictable

pattern: a case is filed and shortly thereafter settled, leaving

the Court uncertain whether each defendant’s purported ADA

violation was remedied or if Plaintiff ever returned to each

defendant’s location. This is a practice and pattern that the

Court intends to probe further. There is no independent inquiry

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ever undertaken as to the nature of the alleged violations and

whether the complaints fall within the spirit of the ADA’s

language. In re Zyprexa Prod. Liab. Litig., 424 F. Supp. 2d 488,

492 (E.D.N.Y. 2006) (citing Ex parte Burr, 22 U.S. (9 Wheat.)

529, 530 (1824)) (stating that the Court has the “well-

established authority to exercise ethical supervision of the

bar.”); cf. Restatement (Second) of Torts § 682 (1977)

(Recognizing that a party should not use a “a legal process . .

. against another primarily to accomplish a purpose for which it

is not designed.”)

Finally, in a similar case, the Court previously

“encourage[d] Plaintiff and Plaintiff’s counsel to attempt to

resolve any future disputes without involving the courts at the

outset.” Maurer v. Michael Sloane LTD, 20-13650, Docket No. 7.

Given Plaintiff’s historical practice, the Court will reiterate

that same advice now.

II. CONCLUSION

Plaintiff’s Complaint has not established the Court’s

jurisdiction, and the case cannot proceed at this time. An

appropriate Order accompanies this Opinion.

DATE: June 11, 2021 s/ Renée Marie Bumb _

RENÉE MARIE BUMB

UNITED STATES DISTRICT JUDGE

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