ABADI v. TARGET CORPORATION

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AARON ABADI, :

Plaintiff, :

:

v. : NO. 22-CV-2854

:

TARGET CORPORATION, et al., :

Defendants. :

MEMORANDUM

KENNEY, J. JANUARY 9, 2023

I. INTRODUCTION

Pro se Plaintiff Aaron Abadi1 (“Plaintiff”) maintains three claims against Target

Corporation (“Target”) and unnamed employees of Target Corporation (collectively

“Defendants”), alleging that Defendants discriminated against him on the basis of a disability in

violation of Title III of the Americans with Disabilities Act (“Title III”), Section 504 of the

Rehabilitation Act of 1973 (“Section 504”), and the Pennsylvania Human Relations Act, 43 P.S.

§ 951, et seq, (“PHRA”). ECF No. 2. Before the Court is Target’s fully briefed Motion to

Dismiss pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), and 28 U.S.C.§ 1915(e)(2)(A). ECF Nos.

23, 25, 26. For the reasons set forth below, the Court will grant Target’s Motion and dismiss this

case. An appropriate order will follow.

1 The Court notes that although Plaintiff is pro se, he is no stranger to litigating and has a history of filing lawsuits

and appeals related to mask and vaccine requirements. See Abadi v. Walt Disney World Parks & Resorts, 338 So. 3d

1101 (Fla. Dist. Ct. App. 2022); Abadi v. The Walt Disney Co., et al., 22-cv-01343 (S.D.N.Y.); Abadi v. NYU

Langone Health et al., 21-cv-11073 (S.D.N.Y.); Abadi v. British Airways PLC, et al., 21-cv-1082 (S.D.N.Y.); Abadi

v. City of New York, 21-cv-08071 (S.D.N.Y.); Abadi v. Caesars Ent., Inc., 22-cv-00285 (D. Nev.); Abadi v. Marina

Dist. Dev. Co., LLC, 22-cv-00314 (D.N.J.); Abadi v. Quick Check Corp., 21-cv-20272 (D.N.J.); Abadi v. Walmart,

Inc., 22-cv-00228 (D. Me.); Abadi v. U.S. DOT, 22-1012 (D.C. Cir.); Abadi v. TSA, 21-1258 (D.C. Cir.); Abadi v.

OSHA, 21-4133 (6th Cir.); Abadi v. U.S. DOT, 21-7372 (U.S.); Abadi v. U.S. DOT, 22- 5026 (U.S.).

II. BACKGROUND

The incident giving rise to this case is straightforward. On the evening of January 11,

2021, Plaintiff entered a Target store located at 4000 Monument Road in Philadelphia (the

“Store”). ECF No. 2 ¶ 24. At the time, Target maintained policies for its retail stores to ensure

the health and safety of its guests and employees during the height of the Covid-19 pandemic.

ECF No. 23 at 5. One such policy was the requirement that customers entering the Store wear a

face mask. ECF No. 2 at ¶ 24.

However, Plaintiff entered the Store without wearing a mask due to a medical condition.

ECF No. 2, Ex. B (letter from Dr. Karasina). Plaintiff suffers from a sensory processing disorder

and is extremely sensitive to touch. ECF No. 2 at ¶ 10–12. Plaintiff cannot wear glasses, hats,

neckties, starched shirts, or face masks without experiencing headaches and anxiety. Id. When

approached by an employee of the Store, Plaintiff attempted to explain his disorder and reason

for not wearing a mask to no avail. Id. at ¶ 24. Eventually, several employees of the Store were

following Plaintiff and imploring him to put on a mask or otherwise leave the Store. Id. at ¶ 25.

Plaintiff asked to speak with the Store Manager, who told Plaintiff that he had to leave,

notwithstanding Plaintiff’s attempts to explain that his medical condition exempted him from

mask requirements. See id. at ¶ 26–32. Plaintiff left the Store after this exchange. Id. at ¶ 33.

Though Plaintiff does not specify the total duration of the incident, the Court infers that it lasted

only “several minutes.” See id. at ¶ 29.

III. PROCEDURAL HISTORY

After unsuccessfully pursuing a claim with the Pennsylvania Human Relations

Commission, Plaintiff initiated this action on July 19, 2022 when he filed the Complaint and a

motion to proceed in forma pauperis. ECF Nos. 1–2. The pro se Complaint asserted five claims

against Target and unnamed employees of Target: discrimination in violation of Title III of the

Americans with Disabilities Act (“Count I”); conspiracy to interfere with civil rights pursuant to

42 U.S.C. § 1985 (“Count II”); negligence in preventing an interference with civil rights

pursuant to 42 U.S.C. § 1986 (“Count III”); discrimination in violation of the Pennsylvania

Human Relations Act (“Count IV”); and discrimination in violation of Section 504 of the

Rehabilitation Act (“Count IV”). ECF No. 2. As set forth in the Complaint, Plaintiff seeks: (i)

compensatory damages of at least $300,000; (ii) punitive damages as determined by the Court;

(iii) declaratory relief providing that Plaintiff is exempt from wearing a mask and is “allowed to

go anywhere and everywhere without harassment or discrimination” and that “disability laws

did not go into abeyance until Covid disappears”; (iv) injunctive relief requiring Target to “notify

every employee[] and staff member that disability laws are applicable to all, and that they are all

required to become familiar with those laws”; (v) injunctive relief requiring that Target “allow

Plaintiff to enter all its facilities”; and (vi) any other relief deemed appropriate. Id. at 20–21.

On July 28, 2022, the Court granted Plaintiff’s motion to proceed in forma pauperis but

dismissed Counts II and III with prejudice.2 ECF No. 7. Plaintiff sought reconsideration of the

dismissed claims on August 8, 2022, which the Court denied on August 29, 2022. ECF Nos. 11,

15. Plaintiff then appealed to the Third Circuit on September 8, 2022. ECF No. 18. On

December 1, 2022, the Third Circuit dismissed Plaintiff’s appeal for lack of appellate

jurisdiction. ECF No. 28.

2 Even if a party does not make a formal motion to dismiss, “the Court may on its own initiative dismiss the

complaint for failure to state a claim upon which relief can be granted where the inadequacy of the complaint is

apparent as a matter of law.” Belfi v. USAA Federal Savings Bank, No. 22-cv-2083, 2022 WL 4097325, at *3 (E.D.

Pa. Sept. 7, 2022). The Court dismissed Plaintiff’s claims with prejudice because any amendments would have been

futile. Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251, (3d Cir. 2007); Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). As described in the Court’s Order, dismissal of Count III

was warranted because the intra-corporate conspiracy doctrine provides that employees and officers of a corporation

cannot conspire amongst themselves or with the entity when they are acting in their capacities as agents of the

corporation. ECF No. 7 at 2 (collecting cases and providing the Court’s rationale in full). Count IV, in turn, was

dismissed because a plausible § 1986 claim depends upon the existence of a plausible § 1985 claim. Id.

Following the Court’s dismissal of Counts II and III, Target filed the instant Motion to

Dismiss Plaintiff’s remaining claims (Counts I, IV, and V) on October 11, 2022. ECF No. 23.

Plaintiff filed a Response on October 13, 2022, to which Target Replied on October 31, 2022.

ECF Nos. 25–26. The Motion has been fully briefed and is now ripe for consideration.

IV. STANDARD OF REVIEW

a. Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction

A Rule 12(b)(1) motion addresses a Court's “very power to hear the case.” Petruska v.

Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006) (citing Mortensen v. First Fed. Sav. & Loan

Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). The Third Circuit has identified two types of Rule

12(b)(1) motions: “[those] that attack the complaint on its face and [those] that attack subject

matter jurisdiction as a matter of fact[.]” Mortensen, 549 F.2d at 891. In the present matter,

Target purports to raise a factual attack. ECF No. 23 at 11. However, a factual attack may be

raised “at any stage of the proceedings, from the time the answer has been served until after the

trial has been completed.” Id. at 889–92 (emphasis added); see also Constitution Party of Pa. v.

Aichele, 757 F.3d 347, 357–58 (3d Cir. 2014) (finding that the District Court erred in construing

a Rule 12(b)(1) motion as presenting a factual attack, rather than a facial attack, when defendants

“filed the attack before it filed any answer to the Complaint.”). Here, Target’s Rule 12(b)(1)

motion was filed prior to an answer and will therefore be “considered a facial challenge to

jurisdiction.” Aichele, 757 F.3d at 357.

In reviewing a facial attack, “the court must only consider the allegations of the

complaint and documents referenced therein and attached thereto, in the light most favorable to

the plaintiff.” In re Schering Plough Corp. Intron / Temodar Consumer Class Action, 678 F.3d

235, 243 (3d Cir. 2012) (quoting Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.

2000)) (internal quotation marks omitted). Thus, a facial attack calls for a district court to apply

the same standard of review it would use in considering a motion to dismiss under Rule 12(b)(6),

i.e., construing the alleged facts in favor of the nonmoving party. Id. Accordingly, “well-pleaded

factual allegations are taken as true, and reasonable inferences are drawn in the plaintiff's favor.”

Id. Dismissal is proper for claims that “clearly appear to be immaterial and made solely for the

purpose of obtaining jurisdiction” or are “wholly insubstantial and frivolous.” Kehr Packages,

Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408–09 (3d Cir. 1991) (quoting Bell v. Hood, 327 U.S.

678, 682 (1946)).

b. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

To survive a motion to dismiss for failure to state a claim, the Complaint must contain

sufficient facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). A complaint is plausible on its face when the plaintiff pleads factual

contention that “allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Courts are required to

“accept all factual allegations as true, construe the complaint in the light most favorable to the

plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff

may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)

(quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

However, the complaint must provide “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The pro se

litigant’s complaint is “to be liberally construed” and held to “less stringent standards than

formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).; Higgs v.

Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011). Yet pro se plaintiffs must still meet a minimum

standard by “alleg[ing] sufficient facts in their complaint to support a claim.” Mala v. Crown Bay

Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).

V. DISCUSSION

Viewed in the light most favorable to him, Plaintiff has not shown that he has standing to

pursue injunctive relief under Title III, and dismissal of Count I is appropriate pursuant to Fed.

R. Civ. P. 12(b)(1). Additionally, Plaintiff’s factual allegations fail to state any plausible claims

for relief under Section 504, and dismissal of Count V is warranted pursuant to Fed. R. Civ. P.

12(b)(6). Finally, the Court will construe the Complaint to confer subject matter jurisdiction over

Plaintiff’s remaining state law claim but will nevertheless dismiss Count IV because Plaintiff’s

claim fails as a matter of law. Because dismissal is otherwise appropriate, the Court does not

reach Target’s assertion that dismissal is required pursuant to 28 U.S.C.§ 1915(e)(2)(A).3

a. Plaintiff’s Title III Claim

Plaintiff brings his first claim under Title III of the ADA which prohibits discrimination

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. §

12182(a). Importantly, Title III only allows for injunctive relief and only then when the plaintiff

shows an ongoing harm or “immediate threat of future injury.” See Lloyd v. Hilton Garden Inn,

No. 20-cv-4070, 2021 WL 2206291, at *3 (E.D. Pa. June 1, 2021).

3 Dismissal is required at any time if the Court determines that allegations of poverty made in support in forma

pauperis status were untrue. 28 U.S.C.§ 1915(e)(2)(A). Target spends considerable effort scrutinizing Plaintiff’s

social media presence, status as CEO of a business (the success of which is unclear), and other circumstantial

evidence suggesting that he is not impoverished. ECF No. 23. Plaintiff provides that his travels were paid for by

others or necessary due to emergency circumstances, that his social media presence does not accurately capture the

reality of his finances, and that his business is not lucrative. ECF No. 25. The Court declines to speculate as to

Plaintiff’s financial circumstances because dismissal is appropriate on other grounds.

Target challenges Plaintiff’s Article III standing to pursue his Title III claim, which is

“properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter.”

Aichele, 757 F.3d 347, 357 (3d Cir. 2014); Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181,

188 (3d Cir. 2006) (“Absent Article III standing, a federal court does not have subject matter

jurisdiction to address a plaintiff’s claims, and they must be dismissed.”). To demonstrate Article

III standing, Plaintiff must establish: (i) he suffered an injury-in-fact; (ii) the injury is fairly

traceable to the challenged action of the defendant; and (iii) it is likely, as opposed to

speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992). To establish an injury-in-fact, an allegation of future injury

“may suffice if the threatened injury is certainly impending, or there is a substantial risk that the

harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (internal citations

omitted). Allegations based on “conjectural or hypothetical” future injury are insufficient to

establish standing. Trump v. New York, 141 S. Ct. 530, 535 (2020). Because this Motion presents

a facial challenge to jurisdiction, the Court considers only the allegations set forth in the

Complaint, the documents referenced therein and, where appropriate, the facts alleged by pro se

Plaintiff in his Response to the instant Motion, and the Court views such allegations in the light

most favorable to Plaintiff.

Based on the facts alleged, Plaintiff must demonstrate a “real or immediate threat that

[he] will be wronged again—a likelihood of substantial and immediate irreparable injury.”

Brown v. Mt. Fuji Japanese Rest., 615 F. App’x 757, 758 (3d Cir. 2015) (quoting City of Los

Angeles v. Lyons, 461 U.S. 95, 111 (1983). A likelihood of substantial and immediate irreparable

injury in the Title III context is assessed by considering: (1) the proximity of defendant’s

business to plaintiff’s residence; (2) plaintiff’s past patronage of defendant’s business; (3) the

definiteness of plaintiff’s plans to return; and (4) plaintiff’s frequency of travel near defendant’s

business. Brown, 615 F. App’x at 758.

Assuming, arguendo, that Plaintiff has sufficiently pled each of the four “immediate

irreparable injury” factors,4 Plaintiff nevertheless lacks standing because he failed to plead that

the mask mandate was in effect at the time of filing his Complaint, and any allegations of a

future mask mandate are purely conjectural. Past exposure to illegal conduct, if any indeed

existed, “does not itself show a present case or controversy regarding injunctive relief if

unaccompanied by any continuing, present adverse effects.” Lujan, 504 U.S. at 564. In the Title

III context, standing does not exist “where a fear of subsequent discrimination is unfounded or is

not based in reality.” Doe v. Nat’l Bd. Of Med. Examiners, 210 F. App’x 157, 160 (3d Cir. 2006);

see also Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002) (imminent

injury exists under Title III where plaintiff was threatened with a harm in the future due to

“existing or imminently threatened non-compliance with the ADA”).

Plaintiff alleges that the purported discrimination occurred on January 11, 2021. ECF No.

2. Because this is a facial attack under Rule 12(b)(1), the Court will not consider Target’s factual

assertions with respect to the existence of a general mask mandate (even if it is different from the

policy alleged by Plaintiff) or when any such mandate was lifted. However, at no point in

Plaintiff’s Complaint, filed July 19, 2022, does he allege that a mask requirement was still in

4 As to the first factor, the Complaint indicates that Plaintiff resides in New York City and the Target location is

located in Philadelphia. ECF No. 2 ¶¶ 1, 24. Nevertheless, Plaintiff’s Response to the instant motion avers that his

girlfriend resides one mile from the Target in Philadelphia. ECF No. 25 at 13. As to the second factor, Plaintiff’s

Complaint only vaguely asserts that he had “come to this store before.” ECF No. 2 ¶ 24. However, Plaintiff clarifies

in his Response that due to the proximity to his girlfriend’s house he has visited the Target “dozens of times” and,

specifically, has been there several times since the mask restriction was lifted. ECF No. 25 at 13. The Complaint is

silent as to the third and fourth factors. ECF No. 2. Plaintiff summarily asserts that he will “be going there in the

future,” but does not specify how frequently he travels to the area to see his girlfriend or otherwise. ECF No. 25 at

13. The Court notes that these clarifications would have been more appropriately pled in in Amended Complaint but,

because Plaintiff is pro se, will not base its decision on procedural missteps.

effect at the time of filing. Indeed, Plaintiff’s prayer for relief does not seek an injunction

requiring that Target modify its policies, lift its mask mandate, or similar. See ECF No. 2 at 21

(seeking injunctive relief requiring Target to educate its employees on disability laws and

requiring that Plaintiff be allowed to enter all its facilities, full stop). This alone is enough to find

Plaintiff without standing. Moreover, Plaintiff confirms that as of the filing of his Response to

the instant motion on October 13, 2022, “the mask restrictions were lifted” and he has returned to

Target “several times.” ECF No. 25 at 13. In sum, Plaintiff’s submissions to the Court do not

establish that at the time the Complaint was filed or presently, in January 2023, there are any

mask policies to enjoin or that there is any imminent threat of non-compliance with the ADA.5

Accordingly, Plaintiff does not have standing to pursue injunctive relief for his Title III claim

and Count I must be dismissed.6

b. Plaintiff’s Section 504 Claim

Plaintiff also brings a discrimination claim under Section 504 of the Rehabilitation Act

which provides that “[n]o otherwise qualified individual with a disability in the United States . . .

shall, solely by reason of her or his disability, be excluded from the participation in, be denied

the benefits of, or be subjected to discrimination under any program or activity receiving Federal

financial assistance.” 29 U.S.C. § 794(a) (emphasis added). Plaintiff alleges that Target is subject

5 Plaintiff argues that there is an imminent threat of future mask mandates because “anything can happen in the

future” regarding COVID-19 such as the emergence of variant strains, the availability and adoption of vaccines and

testing, and government actions in response to some unspecified development of COVID-19. ECF No. 25 at 13. This

assertion is conjecture and falls far short of the imminency required to establish standing.

6 Nor does Plaintiff have standing to pursue injunctive relief for his Section 504 claim. See Giterman v. Ponoco

Med. Ctr., 361 F. Supp. 3d 392, 408 (M.D. Pa. 2019) (“Plaintiff’s lack of standing to pursue claims for injunctive

and declaratory relief under Title III of the ADA is equally fatal to her parallel or alternative claims under [Section

504].”); see also Shaika v. Gnaden Huetten Memorial Hosp., No. 15-cv-0294, 2015 WL 4092390, at *8 (M.D. Pa.

July 7, 2015) (“[I]nsofar as the plaintiff seeks injunctive relief and declaratory relief regarding her [Rehabilitation

Act] claim, these requests for relief will also be dismissed with prejudice for the same reasons that this relief will be

dismissed regarding her ADA claim, i.e., for lack of standing”). To the extent that Plaintiff seeks more than

injunctive and declaratory relief pursuant to Section 504, Plaintiff’s Section 504 claim must be dismissed pursuant to

Rule 12(b)(6) as set forth below.

to Section 504 because it “has been a recipient of significant federal funds during the Covid

pandemic.” ECF No. 2 at ¶ 73. In his Response to this Motion, Plaintiff further asserts that

Section 504 is applicable because Target’s in-store pharmacies “receive large sums from

Medicare and Medicaid.” ECF No. 25 at 14.

To sufficiently plead a claim under Section 504 against a private corporation, such as

Target, Plaintiff must plausibly allege that, inter alia,7 the defendant operates a “program or

activity” as defined by Section 504. A private corporation is considered a covered “program or

activity” only if: (i) it is “principally engaged in the business of providing education, health care,

housing, social services, or parks and recreation” and it receives Federal financial assistance; or

(ii) if the federal financial assistance it receives is extended to the entire corporation “as a whole”

rather than for a specifically delineated purpose. 29 U.S.C. § 794(b)(3)(A)–(4).

Federal financial assistance in the form of Medicare or Medicaid reimbursement may

subject a corporation to Section 504 if the entity is otherwise engaged in one of the quasi-public

industries contemplated by the Act.8 See Cummings v. Premier Rehab Keller, 142 S. Ct. 1562,

1569, (2022) (Physical therapy rehabilitation center was subject to Section 504 “because it

receives reimbursement through Medicare and Medicaid for the provision of some of its

services.”); but see Pletcher v. Giant Eagle Inc., No. 20-cv-0754, 2022 WL 814268, at *9 (W.D.

Pa. Mar. 17, 2022) (plaintiffs failed to state a plausible Section 504 claim where, among other

7 To establish a violation of Section 504, a plaintiff must prove that (1) he or she is handicapped under the Act;

(2) qualified for the program of benefits from which he or she had been excluded; (3) the program receives federal

financial assistance; and (4) he or she was precluded from participating in the program because of their handicap.”

Lloyd, 2021 WL 2206291, at *5 (citing Sullivan v. Pittsburgh, 811 F.2d 171, 181-82 (3d Cir. 1987)).

8 Plaintiff has not alleged that Target received federal financial assistance “as a whole” pursuant to 29 U.S.C. §

794(b)(3)(A)(i). Indeed, federal financial assistance that is “extended to a corporation or other entity ‘as a whole’

refers to situations where the corporation receives general assistance that is not designated for a particular purpose.”

S. REP. No. 100-64 at 17. Necessarily, funds allocated to an entity via Medicare or Medicaid are for a particular

purpose. Additionally, Plaintiff makes no factual allegations regarding the nature of any purported Covid-related

federal financial assistance and the Court cannot reasonably infer that such financial assistance was extended to

Target “as a whole.”

issues, grocery store with on-site pharmacy that received Medicare payments was not primarily

engaged in health care services). Here, Plaintiff has not alleged that Target is “principally

involved” in providing education, health care, housing, social services, or parks and recreation.

The Complaint addresses this element briefly and with only a conclusory statement: after

repeating the covered industries the Complaint concludes only that “[t]hese would include the

defendant.” ECF No. 2 at ¶ 75. This threadbare allegation is not enough to defeat a motion to

dismiss. Twombly, 550 U.S. at 555.

Additionally, entities such as Target have been deemed to be beyond the reach of Section

504, and Plaintiff has provided no reason to interpret this case differently. See, e.g., Pletcher,

2022 WL 814268, at *9 (collecting cases in which courts have found that “principally engaged”

refers to the “primary activities of a business, excluding only incidental activities” and that

grocery stores and other retailers that provide pharmaceutical services as one component of their

business are not subject to Section 504). In Pletcher, the court found that plaintiffs failed to state

a plausible Section 504 claim against Giant Eagle, even though the Complaint alleged that Giant

Eagle provided health care services such as vaccines, blood pressure monitoring, medical and

pharmaceutical advice, and pharmaceutical services through its in-store pharmacy. Id. at *1. The

allegations made in Pletcher far exceed those made by Plaintiff in this case. Even so, the

Pletcher Court found the pleadings insufficient as to whether defendant was principally engaged

in providing health care services as opposed to, for example, selling groceries. Id.

Not only did Plaintiff fail to allege any facts indicating that Target is principally engaged

in providing a covered service, but like in Pletcher, the facts alleged are internally inconsistent.

In the Section 504 context Plaintiff asserts that Target is principally engaged in providing one of

the covered services. ECF No. 2 at ¶ 75. However, in the Title III context, Plaintiff provides that

Target qualifies as a “bakery, grocery store, clothing store, hardware store, shopping center, or

other sales or rental establishment.” Id. ¶ 42. Accordingly, even though Plaintiff alleges that

Target receives federal financial assistance in the form of Medicare and Medicaid, he has failed

to allege that Target is principally engaged in a covered business and therefore subject to Section

504. Count V must therefore be dismissed.

c. Plaintiff’s Pennsylvania Human Relations Act Claim

Finally, Plaintiff asserts a claim under the PHRA. ECF No. 2 at ¶ 67. Because Plaintiff’s

federal claims will be dismissed, Plaintiff must establish diversity jurisdiction over the remaining

state law claim.9 Under 28 U.S.C. § 1332(a), federal courts have jurisdiction to hear and

determine suits between citizens of different states if the amount in controversy exceeds $75,000.

In cases with multiple defendants, such as here, complete diversity is required: Plaintiff cannot

be a citizen of the same state as any defendant. Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d

412, 419 (3d Cir. 2010). Additionally, despite Plaintiff’s contentions that Target has conceded

diversity of citizenship, parties may not waive issues of subject matter jurisdiction. See Samuel-

Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004) (collecting cases).

Target first asserts that Plaintiff alleges only that he “resides” in New York, which is

insufficient to establish citizenship. ECF No. 26 at 9; see also, McIntyre v. Nationwide Mut. Fire

Ins. Co., No. 01-cv-3746, 2001 WL 893697, at *1 n.1 (E.D. Pa. Aug. 6, 2001) (collecting cases).

Though residency is not necessarily equivalent to citizenship, the Court will construe the

Complaint to allege that Plaintiff is a citizen of New York because Plaintiff is pro se.

9 It would be inappropriate for this Court to exercise supplemental jurisdiction over Plaintiff’s state claim after the

early dismissal of his federal claims. See, e.g., Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)

(“[W]here the claim over which the district court has original jurisdiction is dismissed before trial, the district court

must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness

to the parties provide an affirmative justification for doing so.”). At this early stage of litigation, the Court does not

find any justification to exercise supplemental jurisdiction.

Target also points out that the Complaint alleges only that Target is “based in”

Minnesota. ECF No. 2 at ¶ 2. However, in the case of a corporation, both “the state of

incorporation and principal place of business should be alleged, as the corporation is a citizen of

both states.” Lincoln Ben. Life. Co. v. AEI Life, LLC, 800 F.3d 99, 106 (3d Cir. 2015). Again,

because Plaintiff is pro se, the Court construes the Complaint to allege that Target is organized

under the laws of Minnesota and has its principal place of business in Minneapolis. See, e.g.,

Target Corporation v. Seaman Corporation, No. 18-cv-3305, 2021 WL 2526550 (D. Minn. June

21, 2021) (Plaintiff Target Corporation represented that Target is a Minnesota corporation with

its principal place of business in Minneapolis, Minnesota) (Amended Complaint, ECF No. 76).

Finally, the Complaint includes “numerous unnamed employees of Target” as defendants.

ECF No. 2 at 1. However, the Complaint does not include any allegations as to the citizenship of

these unnamed employees. ECF No. 2. Crucially, “John Doe parties destroy diversity jurisdiction

if their citizenship cannot be truthfully alleged.” Mortellite v. Novartis Crop Prot., Inc., 460 F.3d

483, 494 (3d Cir. 2006). However, a Court may dismiss dispensable John Doe parties in order to

preserve diversity where Plaintiff can “obtain complete relief without the presence of the John

Doe plaintiffs.” Mortellite, 460 F.3d at 494. The Court will therefore dismiss the unnamed

employees of Target as defendants in order to preserve diversity jurisdiction. Accordingly, the

Court will not dismiss Plaintiff’s state law claim for lack of subject matter jurisdiction.

However, dismissal of Plaintiff’s state law claim is nevertheless appropriate because, as a

matter of law, Plaintiff has not alleged facts to support a claim under the PHRA. Indeed, “the

Court may on its own initiative dismiss the complaint for failure to state a claim upon which

relief can be granted where the inadequacy of the complaint is apparent as a matter of law.” Belfi

v. USAA Federal Savings Bank, No. 22-cv-2083, 2022 WL 4097325, at *3 (E.D. Pa. Sept. 7,

2022). The PHRA prohibits, in relevant part, any manager, agent, or employee of a “public

accommodation” from refusing, withholding, or denying, either directly or indirectly, “any of the

accommodations, advantages, facilities or privileges of such public accommodation” on the basis

of a “handicap or disability.” 43 Pa. Stat. Ann. § 955(i). Target is a “public accommodation”

under the PHRA. See Sayed-Aly v. Tommy Gun, Inc., 170 F. Supp. 3d 771, 775 (E.D. Pa. 2016)

(collecting cases recognizing retail and commercial entities, such as retail stores, as public

accommodations); see also 43 Pa. Stat. Ann. § 954(l) (defining “public accommodation” to

include drug stores and retail stores).

Even assuming that Plaintiff’s condition qualifies as a disability, the facts alleged in the

Complaint cannot be reasonably interpreted to suggest that Plaintiff was discriminated against on

the basis of his alleged disability. Indeed, Plaintiff readily acknowledges that the Covid-19 virus

caused “significant death and hospitalizations . . . in 2021.” ECF No. 2 at ¶ 6. Moreover, Plaintiff

acknowledges that the Center for Disease Control (“CDC”) announced guidance requiring all

people to wear masks in public places. Id. at ¶ 7. The Complaint does not articulate that Plaintiff

was denied access to Target because of his disability but, rather, that he was denied access due to

a public health emergency and legitimate safety concerns which informed Target’s generally

applicable mask policy. Therefore, enforcing the mask requirement against Plaintiff was not

unlawful discrimination. See Oravitz v. Saxonburg Borough, No. 404-2011, 2011 WL 7443931,

at *5 (Pa. Commw. Ct. Dec. 30, 2011) (the “question is whether the [defendant] denied [the

plaintiff] any accommodation, advantage, facility, or privilege because of [the protected

classification]”); see also Vernon v. A&L Motors, 381 Fed. App’x. 164, 167 (3d Cir. 2010)

(Plaintiff must establish a “causal nexus” between membership in a protected class and the

adverse action). Even viewed in the light most favorable to him, and drawing all reasonable

inferences in Plaintiff’s favor, Plaintiff has failed to allege a cognizable claim as a matter of law

under the PHRA. Accordingly, Count IV must be dismissed.

VI. CONCLUSION

For the reasons stated above, Target’s Motion to Dismiss (ECF No. 23) will be

GRANTED and this case will be DISMISSED with prejudice because any amendment would

be futile.

BY THE COURT:

/s/ Chad F. Kenney

CHAD F. KENNEY, JUDGE