PLETCHER v. GIANT EAGLE, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

KIMBERLY PLETCHER, et al.,

)

)

Consolidated Plaintiffs,

)

)

v. Civil Action No. 2:20-754

)

)

GIANT EAGLE INC., et al.,

)

)

Defendants.

MEMORANDUM OPINION

I. INTRODUCTION

There are forty-seven (47) individuals remaining in this consolidated action involving

Plaintiffs Kimberly Pletcher et al.’s challenge to Defendants Giant Eagle et al.’s (“Giant Eagle” or

“Defendants”) COVID-19 mask policy. (Docket No. 51). Plaintiffs’ only federal claims under

Title III of the Americans with Disabilities Act (“ADA”) for discrimination and

retaliation/coercion seek prospective injunctive relief affording them an accommodation under the

policy due to their asserted disabilities which would permit them to shop at Giant Eagle stores

without masks. (Id.). However, it is uncontested that the challenged mask policy is no longer in

effect and Giant Eagle’s customers can freely shop without masks or face coverings at its stores.

(Docket Nos. 152; 158; 165).

The United States Court of Appeals for the Third Circuit and other federal courts across

the country have reviewed similar legal challenges to COVID-19 restrictions which have been

lifted and generally determined that claims seeking to enjoin such restrictions are no longer

justiciable under Article III of the U.S. Constitution. See e.g., County of Butler v. Governor of

Pa., 8 F.4th 226, 230 (3d Cir. 2021) (challenge to rescinded stay-at-home orders, business closure

orders and congregation limits moot); Clark v. Governor of New Jersey, --- F. 4th ----, App. No.

21-2732, 2022 WL 17246445, at *1 (3d Cir. Nov. 28, 2022) (First Amendment claims against

Governor’s congregation limits on religious organizations moot); Parker v. Governor of

Pennsylvania, App. No. 20-3518, 2021 WL 5492803, at *4 (3d Cir. Nov. 23, 2021) (challenge to

expired state mask mandate moot); John Doe 1 et al. v. Upper Saint Clair Sch. Dist., et al, and

John Doe 1 et al. v. North Allegheny Sch. Dist., App. Nos. 22-1141, 22-1160 & 22-1299, 2022

WL 2951467 (3d Cir. Mar. 1, 2022) (claims seeking to enjoin mask policies at local schools moot).

Given the Court’s continuing obligation to ensure that it maintains subject matter jurisdiction over

this action, a rule to show cause was issued on the parties to demonstrate why Plaintiffs’ Title III

ADA claims should not be dismissed, as moot, and the Court should not decline to exercise

supplemental jurisdiction over their state law claims. (Docket No. 150).

The Show Cause Order has been fully briefed, there are no other outstanding issues for the

Court to address and the matter is now ripe for disposition.1 (Docket Nos. 152; 158; 160; 165).

After careful consideration of the parties’ positions and for the following reasons, the Court will

dismiss this case, as the Court lacks subject matter jurisdiction over the non-justiciable federal

claims and declines to exercise supplemental jurisdiction over the remaining state law claims.

II. BACKGROUND

A. Relevant Facts

Because the Court writes primarily for the parties and has set forth the facts in its prior

decisions, it focuses on those facts necessary to resolve the pending dispute. (See Docket Nos. 42;

98; 99; 112; 149; 205). The COVID-19 pandemic is still ongoing but both the virus itself and our

society’s response to it have evolved significantly since March and April of 2020. See Clark, 2022

1 At this stage of the proceedings, fact discovery has concluded, the parties’ discovery disputes have been

adjudicated and they were unable to resolve the case at a recent mediation with court-appointed neutral Mary Jo

Rebelo, Esq. (See Docket Nos. 205-06; 208; 211). The numerous delays caused by the parties’ discovery disputes

are discussed ad nauseum elsewhere and not repeated here. (See e.g., Docket Nos. 149; 205).

WL 17246445, at *1. In those early days of the pandemic, Giant Eagle was deemed an essential

business and permitted to operate with substantial restrictions, including executive orders issued

by then-Secretary of Health Rachel Levine, M.D., which required its employees and patrons to

wear masks while inside its stores, (the “state mask mandate”). (Docket No. 42 at 5-6). Relevant

here, the state mask mandate contained an exception for individuals with medical conditions who

were unable to wear a mask and was later amended to expressly authorize the use of face shields

and other face coverings in lieu of masks. (Id.; see also Docket No. 51 at ¶¶ 270-71). Ultimately,

the state mask mandate was lifted as of June 28, 2021, and businesses operating in the

Commonwealth have not been required to have any type of mask policy for their patrons since that

time. See Parker, 2021 WL 5492803 at *1.

The crux of Plaintiffs’ claims is that Giant Eagle violated the ADA by imposing a

mandatory mask policy on all customers, without providing an exception for individuals with

disabilities and also retaliated against them for seeking an accommodation to shop without masks.

(Docket No. 51 at ¶ 7). As is noted in the Court’s prior decisions, Giant Eagle’s policy2 has

changed over time as it initially required universal masking for all customers, then permitted

2 The current version of Giant Eagle’s policy states the following:

Personal Protective Equipment

On Feb. 25, 2022, the Centers for Disease Control and Prevention (CDC) updated

metrics for determining COVID-19 behavior guidance. To learn more about the

latest CDC guidance, visit Use and Care of Masks | CDC

Following this guidance, Team Members are no longer required to wear masks or

face coverings unless required by local authorities. Pharmacy Team Members will

continue to wear masks when providing direct patient care, such as vaccinations

or testing. Team Members and Guests that choose to wear a mask or protective

face covering are welcomed to do so.

If you are at potential increased risk for COVID-19, we encourage you to speak

with your healthcare provider for mask guidance when shopping in retail stores.

See https://www.gianteagle.com/store-cleansing (last visited 12/6/2022).

shoppers to use face shields and other face coverings instead of masks and was discontinued after

the expiration of the state mask mandate. (See Docket Nos. 42; 98; 99; 112; 149; 150; 205).

Indeed, several Plaintiffs testified at their recent depositions that they have been shopping at Giant

Eagle for many months now that they are not required to wear masks. (See e.g., Duckstein Depo

at 14, Docket No. 200-10 at 15; Ree Depo at 25-26, Docket No. 172-2 at 8; Durso Depo at 36,

Docket No. 200-1 at 10).

Further, although it had been disputed, the information obtained through discovery led

Plaintiffs to concede that Giant Eagle amended its policy to allow customers to wear face shields

as of June 12, 2020. (Docket No. 115-1 at ¶ 243; Pletcher et al. v. Giant Eagle, Inc., et al., Civ.

A. No. 21-1361, Docket No. 1 at ¶ 243 (W.D. Pa. Oct. 12, 2021)). This concession was made

approximately one year after the Court denied Plaintiff Josiah Kostek’s motion for preliminary

injunction for several reasons, including that: the policy had been amended by Giant Eagle to

permit customers to wear face shields; Kostek had neither alleged nor presented any evidence that

he could not wear a face shield; and the requested accommodation of shopping without a mask

was therefore unnecessary. (Docket No. 42). In the more recent decision denying Plaintiffs leave

to amend to add the claims for damages under § 504 of the Rehabilitation Act, the Court pointed

out that Plaintiffs themselves had questioned whether they had standing to pursue the Title III

ADA claims in their proposed Fourth Amended Consolidated Complaint and found that they had

effectively pled themselves out of court by making the concession about face shields but not

updating any of the other allegations. (Docket No. 149). Recognizing these defects along with

the fact that the policy had been discontinued by Giant Eagle, the Court issued the Show Cause

Order as to why the claims in the operative pleading, i.e., the Third Amended Consolidated

Complaint filed on November 6, 2020, should not be dismissed. (Docket Nos. 149; 150).

While the instant lawsuit has also changed over time, with new Plaintiffs and state law

theories added, the essential allegations supporting their Title III ADA claims and the prospective

injunctive relief sought have remained throughout and they continue to present a challenge to a

mandatory mask policy that no longer exists and a corresponding request for an accommodation

that is unnecessary. (Docket No. 51). At this point, twenty-four (24) individuals have dropped

their claims, leaving forty-seven (47) Plaintiffs from the three Divisions of the U.S. District Court

for the Western District of Pennsylvania who are still pursuing this consolidated lawsuit against

Giant Eagle.3 (Docket Nos. 51; 72; 141; 146; 163; 176; 187). All of the remaining Plaintiffs assert

state law claims for damages under the PHRA, four (4) of them bring claims for

negligence/reckless conduct, and a single plaintiff has a claim for assault/battery. (Docket No.

51). Another plaintiff has a PHRA claim against the owner of the Ligonier store, C&J Grocery,

and its manager, Matt Faccenda. (Id.).

In their consolidated pleading, Plaintiffs allege that they attempted to enter one of Giant

Eagle’s stores to shop for groceries without wearing a mask between April 15, 2020 and August

17, 2020. (Docket No. 51 at ¶¶ 7-268). They generally complain that they were not permitted to

shop without a mask, despite their disabilities, and each detail the individual circumstances which

resulted ranging from refusal of service to physical altercations with security, and interventions by

police, among other things. (Id.). They seek the following injunctive relief:

3 The Court notes that this is not a class action under Rule 23 of the Federal Rules of Civil Procedure. See

Fed. R. Civ. P. 23. Rather, the Court initially consolidated 35 separate Title III ADA lawsuits which were filed by the

individual Plaintiffs in this District between May 26, 2020 and June 17, 2020 under Rule 42 after “finding it is in the

interests of judicial economy to decide the common issues of fact and law in a single, consolidated proceeding rather

than separate individual lawsuits.” (Docket No. 11). The Court notes that the breakdown of Plaintiffs per county and

Division of our Court is the following. There are 36 Plaintiffs whose suits would typically be filed in the Pittsburgh

Division: 12 – Westmoreland; 11 – Allegheny; 6 – Armstrong; 3 – Butler; 2- Indiana; 1 – Fayette; and, 1 – Washington.

(Docket No. 51). There are 8 Plaintiffs with claims from the Johnstown Division: 6 – Cambria; and, 2 – Blair. (Id.).

Finally, there are 3 Plaintiffs from the Erie Division: 2 – Erie; and, 1 – Venango. (Id.).

Plaintiffs request that the court declare that Giant Eagle violated the

ADA and award them injunctive relief requiring Giant Eagle to

accommodate Plaintiffs by modifying its policies and procedures,

allowing them to shop in its stores without wearing a mask so that

they may fully and equally enjoy the benefits, privileges, goods,

services facilities, advantages, and accommodations of Giant

Eagle’s stores in the future. To affect such relief to Plaintiffs, it may

be appropriate for the court to provide clear protocols to all Giant

Eagle employees advising that persons who cannot wear a mask

inside the stores due to a disability must be accommodated. Giant

Eagle should be required to train its employees about its legal

obligations and to post and disseminate notice to Giant Eagle

employees regarding their legal obligations under the ADA and the

PHRA.

(Docket No. 51 at ¶ 299). In their claims asserting retaliation/coercion in violation of the ADA,

Plaintiffs incorporate all of their allegations, including the injunctive relief sought in ¶ 299, and

further state that “Defendants should be declared in violation of the ADA and enjoined from

retaliating against Plaintiffs for requesting reasonable modifications to Defendants’ policies and

practices and refusing to wear a mask while shopping at Giant Eagle.” (Id. at ¶ 304).

B. Relevant Procedure

The Court’s Show Cause Order was issued on March 17, 2022 as part of its prior

Memorandum Opinion denying Plaintiffs leave to file their proposed Fourth Amended

Consolidated Complaint. (Docket Nos. 149, 150). Plaintiffs submitted their Response on March

18, 2022, stating that they had no objection to the proposed dismissal of this action, without

prejudice, to be refiled in state court. (Docket No. 152). Later that day, at a discovery status

conference, the Court heard brief argument from counsel regarding the issues related to the Show

Cause Order. (Docket No. 160). Defendants submitted their Response on March 31, 2022,

wherein they objected to the dismissal of this lawsuit. (Docket No. 158). At the Court’s direction,

Plaintiffs filed a Reply on April 13, 2022. (Docket No. 165).

In the ensuing months, the parties completed discovery including the depositions of all

remaining Plaintiffs and litigated sanctions motions brought by Defendants which were later

denied in a Memorandum Opinion dated August 26, 2022. (Docket Nos. 205; 206). They also

participated in mediation pursuant to the Court’s ADR Policies and Procedures but were unable to

resolve the case. (Docket Nos. 208; 211). Neither party has requested further briefing or argument

on the issues related to the Show Cause Order and the matter is ripe for disposition.

III. LEGAL STANDARDS

“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). “They possess only that power

authorized by Constitution or statute, which is not expanded by judicial decree.” Id. (internal

citations omitted). In every case, the Court has “an independent obligation to determine whether

subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v.

Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). The Court’s

“continuing obligation” to ensure that subject matter jurisdiction is present extends to it inquiring

into “issues of standing and mootness sua sponte.” Seneca Res. Corp. v. Twp. of Highland, Elk

Cnty., Pennsylvania, 863 F.3d 245, 252 (3d Cir. 2017) (further citations and quotations omitted).

“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss

the action,” and an order dismissing a case for lack of subject matter jurisdiction is without

prejudice. Fed. R. Civ. P. 12(h)(3).

IV. DISCUSSION

Plaintiffs concede that their Title III ADA discrimination and retaliation/coercion claims

are moot and that an order for the injunctive relief sought in their operative complaint to permit

them to shop without masks at Giant Eagle stores would do them “little to no good” since the

mandatory mask policy is no longer in effect. (Docket Nos. 152; 165). They likewise have not

objected to dismissal of their state law claims, without prejudice, to be refiled in state court. (Id.).

In response, Defendants maintain that the federal claims are not moot because six of the Plaintiffs

may have viable retaliation claims and the voluntary cessation exception to mootness applies.

(Docket No. 158). Defendants alternatively argue that if the claims are deemed moot, the Court

should exercise its discretion to hear the state law claims under its supplemental jurisdiction. (Id.).

Having carefully considered the parties’ arguments, the Court dismisses the federal claims, as

moot, and the state law claims, without prejudice, to be refiled in state court. The Court’s rationale

follows, starting with the justiciability of Plaintiffs’ claims.

A. Justiciability of Plaintiffs’ Title III ADA Claims

Helpfully, in the recent decision of Clark v. Governor of New Jersey, the United States

Court of Appeals for the Third Circuit set forth the following legal standards which are applicable

here.

The jurisdiction of the federal courts is limited to “Cases” and

“Controversies”. U.S. Const. art. III, § 2, cl. 1. “Thus, [we] can

entertain actions only if they present live disputes, ones in which

both sides have a personal stake.” Hartnett v. Pennsylvania State

Educ. Ass'n, 963 F.3d 301, 305 (3d Cir. 2020) (citing Summers v.

Earth Island Inst., 555 U.S. 488, 492–93, 129 S.Ct. 1142, 173

L.Ed.2d 1 (2009)). The doctrine of mootness ensures that this

condition remains “throughout the life of the lawsuit.” See Freedom

from Religion Found. Inc. v. New Kensington Arnold Sch. Dist., 832

F.3d 469, 476 (3d Cir. 2016) (quoting Cook v. Colgate Univ., 992

F.2d 17, 19 (2d Cir. 1993)); see also Already, LLC v. Nike, Inc., 568

U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) (“No matter how

vehemently the parties continue to dispute the lawfulness of the

conduct that precipitated the lawsuit, the case is moot if the dispute

‘is no longer embedded in any actual controversy about the

plaintiffs' particular legal rights.’” (quoting Alvarez v. Smith, 558

U.S. 87, 93, 130 S.Ct. 576, 175 L.Ed.2d 447 (2009))).

If it is impossible for us to grant “any effectual relief whatever to

the prevailing party,” then the case is moot. See, e.g., Campbell-

Ewald Co. v. Gomez, 577 U.S. 153, 161, 136 S.Ct. 663, 193 L.Ed.2d

571 (2016) (quoting Knox v. Serv. Emps., 567 U.S. 298, 132 S. Ct.

2277, 2287, 183 L.Ed.2d 281 (2012)); see also N.Y. State Rifle &

Pistol Ass'n v. City of New York, ––– U.S. ––––, 140 S. Ct. 1525,

1526, 206 L.Ed.2d 798 (2020) (holding that case became moot when

statutory amendments provided the relief sought); Trump v. Hawaii,

––– U.S. ––––, 138 S. Ct. 377, 199 L.Ed.2d 275 (2017) (Mem.)

(holding that challenge to expired provision of an executive order

was moot). Yet, one “recurring situation” in which we are reluctant

to dismiss a case as nonjusticiable—despite the absence of ongoing

conduct to enjoin—occurs where the defendant claims the matter

has become moot owing to his voluntary cessation of the challenged

action. Hartnett, 963 F.3d at 306–07; see City of Mesquite v.

Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71

L.Ed.2d 152 (1982) (“Such abandonment is an important factor

bearing on the question whether a court should exercise its power to

enjoin the defendant from renewing the practice, but that is a matter

relating to the exercise rather than the existence of judicial power.”).

Clark, 2022 WL 17246445, at *4.

“Voluntary cessation […] will moot a case only if it is ‘absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.’” Fields v. Speaker of the Pa. House

of Representatives, 936 F.3d 142, 161 (3d Cir. 2019) (quoting Parents Involved in Cmty. Sch. v.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 719, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007)). “While the

case law speaks largely of voluntary cessation, these principles apply even when the defendant’s

cessation is not entirely voluntary.” Hartnett, 963 F.3d at 306. The key question is whether the

defendant “could reasonably be expected to engage in the challenged behavior again.” Id. (citation

omitted). Courts are skeptical of claims of mootness if a defendant “yields in the face of a court

order and assures [the Court] that the case is moot because the injury will not recur, yet maintains

that its conduct was lawful all along.” Id. at 307 (citations omitted). On the other hand, “if the

defendant ceases because of a new statute or a ruling in a completely different case, [the] argument

for mootness is much stronger.” Id. “The burden always lies on the party claiming mootness,

whether the case involves voluntary cessation or not.” Id. at 307 (citation omitted).

Our Court of Appeals has examined the doctrine of mootness and the voluntary cessation

exception in several cases involving challenges to COVID-19 pandemic restrictions which were

lifted during the pendency of the lawsuits. To that end, in Parker, the Court of Appeals found that

the plaintiffs’ Constitutional claims against Governor Wolf contesting the state’s mask mandate

were moot and affirmed the District Court’s denial of a preliminary injunction. Parker, 2021 WL

5492803, at *4. As the Court of Appeals explained:

The voluntary cessation exception does not apply because the

mandate expired by its own terms and not as a response to litigation.

[County of Butler, 8 F. 4th at 230 (citing Trump v. Hawaii, 138 S.

Ct. 377 (2017)]. The mask mandate remained in place for many

months after its constitutionality was challenged. It expired by its

own terms once vaccines became widely available. The Court

“generally presume[s] that government officials act in good faith.”

Id. Absent any evidence to the contrary, that presumption applies

here, and the voluntary cessation exception is inapplicable.

Id. Similarly, the Court of Appeals held that cases involving universal masking at North Allegheny

and Upper Saint Clair school districts were moot after the policies were vacated due to changes in

local COVID-19 pandemic conditions. See In John Doe 1, 2022 WL 2951467 at *1. Each of these

cases relied on County of Butler, where the Third Circuit concluded that the plaintiffs’

Constitutional challenges to “stay-at-home orders, business closure orders and orders setting

congregation limits in secular settings” were moot and that the voluntary cessation exception did

not apply because the restrictions expired, and subsequent legislation limited the authority of the

governor to unilaterally impose the same type of restrictions. See County of Butler, 8 F.4th at 230.

Several District Courts have also held that claims for injunctive relief by patrons challenging mask

policies were non-justiciable after the state mandates upon which the policies were based had been

discontinued. See e.g., Abadi v. Marina Dist. Dev. Co., LLC, No. 1:22-CV-00314, 2022 WL

5208882, at *2 (D.N.J. Oct. 4, 2022) (dismissing Title III ADA claims against Borgata Casino in

Atlantic City, New Jersey as “it seems clear to the Court that Plaintiff continues to lack

constitutional standing to raise his Title III claims because there is no ongoing threat that any of

his rights will be violated. The Executive Orders on which Defendants’ policy was based are no

longer in effect.”); Edtl v. Best Buy Stores, L.P., No. 3:22-CV-00003-AR, 2022 WL 11436434, at

*2 (D. Or. Oct. 13, 2022) (“Edtl asks for, in addition to damages, injunctive relief against Best

Buy's enforcement of Oregon’s mask mandate. The order rescinding the indoor face covering

requirement renders moot Edtl’s requested injunctive relief.”).

In light of this authority, it is this Court’s opinion that Plaintiffs’ Title III ADA

discrimination and retaliation/coercion claims are moot, and that the voluntary cessation exception

does not apply to save their claims from dismissal. See Parker, 2021 WL 5492803, at *4; see also

County of Butler, 8 F. 4th at 230. Hence, Defendants’ objections to the dismissal of the federal

claims are overruled. The Court reaches this decision for several reasons.

First, Plaintiffs concede that an order for the injunctive relief they seek in this case would

do them “little to no good” and have “little value” due to Giant Eagle’s abandonment of the

mandatory mask policy. (Docket Nos. 152; 165). For its position, Defendants lodge a narrow

objection to the mootness of the Title III ADA retaliation claims raised by six Plaintiffs and have

not specifically contested that the discrimination and retaliation/coercion claims brought by the

rest of the Plaintiffs are moot. (Docket No. 158). The Court agrees that Plaintiffs have already

been granted the relief that they sought for these claims because Giant Eagle discontinued its mask

policy and individuals have been shopping there without wearing masks for some time. (See

Docket No. 51). Since none of the Plaintiffs need an accommodation to shop at Giant Eagle

without a mask, it would be impossible to grant “any effectual relief” to them if they prevailed on

their Title III ADA claims. Clark, 2022 WL 17246445, at *4.

Second, the Court overrules Defendants’ objections and its interpretation of the Third

Amended Consolidated Complaint that six Plaintiffs have pled Title III ADA retaliation claims

which outlive Giant Eagle’s discontinued mask policy because they were allegedly banned from

certain stores. (Docket No. 158). To the contrary, the only explicit relief sought by Plaintiffs

under their retaliation theory is limited to the same injunctive relief providing them all with an

accommodation to shop without masks at Giant Eagle stores. (See Docket No. 51 at ¶¶ 299-304).

Although Plaintiffs ask that Defendants be enjoined from retaliating against them “for requesting

reasonable modifications to Defendants’ policies and practices and refusing to wear a mask while

shopping at Giant Eagle,” such a broad “obey-the-law” or “do not retaliate” type of injunction

would not meet the specificity requirements of the Federal Rules. See e.g., Murray-Nolan v. Rubin,

No. CV 22-801 (EP) (AME), 2022 WL 4104343, at *7 (D.N.J. Sept. 8, 2022) (finding that parent’s

request for injunction against school board that it not retaliate against her for refusing to wear a

mask at school board meetings was overbroad and otherwise moot following the school’s recission

of its mask policy); Fed. R. Civ. P. 65(d)(1)(C) (“Every order granting an injunction and every

restraining order must: … describe in reasonable detail … the act or acts restrained or required.”).

Beyond Defendants’ misinterpretation of the allegations in the operative pleading, three of

the Plaintiffs identified by the defense, (i.e., Mara Sims, Danielle Markham, and Crystal

McGinnis), have separately dismissed their claims and are no longer parties to this lawsuit. (See

Docket Nos. 72; 176). Another two of the Plaintiffs, (i.e., Tommy Wynkoop and Owen Burk),

admitted at their depositions that they were not permanently banned from stores for requesting an

accommodation. (See Docket Nos. 94-2 at 65-69; 172-1, Wynkoop Depo at 41 (“Q. All right. So

they didn’t – he didn’t ban you because you wanted to shop without wearing a mask; right? A.

Correct.”); 200-9, Burk Depo at 28-29 (“Yeah, all right. So they said you can’t come back to the

store unless you’re wearing a mask? A. Yeah, I think so. Yep.”)). Finally, the Court previously

ruled that the sixth individual, Kostek, had not presented evidence supporting a conclusion that he

was banned from the Oil City Giant Eagle store due to his request for an accommodation, as

opposed to his other behavior for which he was prosecuted. See Pletcher, 2020 WL 6263916, at

*5 (finding that “the letter was sent to Kostek at the suggestion of police who arrived at the scene

of the second incident but persuaded him to leave without arresting him” and “Kostek has not

proven that his misconduct at the Oil City Giant Eagle which led to the issuance of this letter was

the result of any disability.”).

Third, the voluntary cessation exception does not save Plaintiffs’ federal claims because

there is no evidence before the Court indicating that “substantially the same legal controversy” is

reasonably likely to recur in the future. See Clark, 2022 WL 17246445, at *5-8. The Court of

Appeals’ decision in Clark is instructive on this point given the in-depth discussion of the

plaintiffs’ Constitutional challenges to executive orders issued by the Governor of New Jersey

establishing congregation limits on churches that were lifted in May of 2021. Id. In determining

whether the Governor was reasonably likely to re-impose the defunct restrictions on religious

worship, the Court of Appeals analyzed the many factual and legal changes since the outset of the

pandemic and the government’s response to same and determined that it was “implausible” that

“substantially the same legal controversy” could recur. Id. at *6-8. Among other things, the Court

of Appeals noted that “it is hard to imagine that we could once again face anything like [the

pandemic conditions which] confronted us [in 2020-21]”; “the public health outlook has changed

dramatically since the dark days of March 2020, when the [challenged restrictions] were

implemented,” and, “[t]he fact that such restrictions did not return during the Delta and Omicron

waves – nor during the less extreme increase of May 2022—indicates that gathering restrictions

are reasonably unlikely to return as a COVID mitigation measure.” Id. at *6-7.

The same is true in this case because the many legal and factual changes since the height

of the pandemic in April of 2020 when Giant Eagle initially adopted its no exception mask policy

make it implausible that it would impose a substantially similar policy on all customers in the

future. See Clark, 2022 WL 17246445, at *5-8. While defense counsel suggests that Giant Eagle

continues to believe that the mask policy was lawfully enacted and speculates that the company

could revert to it at any time during the ongoing COVID-19 pandemic, the policy was not

discontinued due to this lawsuit. (Docket No. 158). Instead, Giant Eagle dropped its policy after

the state mask mandate expired in June of 2021 and none of the businesses across the

Commonwealth have been required to have their customers “mask up” since that time. See Parker,

2021 WL 5492803 at *1. Despite Defendants’ objections, they have not produced any evidence

that Giant Eagle plans to revert to the original policy requiring all customers to wear masks and

not allowing them to wear face shields or other face coverings. (Docket Nos. 152; 158; 165). As

in Clark, the track record of Giant Eagle permitting face shields and other face coverings from

June 12, 2020 until the expiration of the state mandate in June of 2021 and not re-imposing the

more restrictive policy “during the Delta and Omicron waves – nor during the less extreme increase

of [COVID-19 cases in] May 2022,” demonstrates that it is implausible that the company would

return to the more restrictive policy demanding that all shoppers wear masks at this point in the

pandemic where vaccines, booster shots and other therapeutic treatments are widely available to

combat COVID-19. Clark, 2022 WL 17246445, at *6-7.

Fourth, as the Court of Appeals also recognized in Clark, the law is well established that

“[a]n interest in attorney’s fees is ... insufficient to create an Article III case or controversy where

none exists on the merits of the underlying claim.” Clark, 2022 WL 17246445, at *5, n.10 (quoting

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 107, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998))

(further citation omitted). In addition, the parties’ “interest in attorneys’ fees does not save a matter

from mootness.” Id. (quoting Ivy Club v. Edwards, 943 F.2d 270, 276 (3d Cir. 1991)). Therefore,

the fact that Plaintiffs and/or Defendants may have sought attorneys’ fees as a prevailing party

under the ADA is insufficient to confer subject matter jurisdiction over the non-justiciable federal

claims.4 See Clark, 2022 WL 17246445, at *5, n.10.

For all of these reasons, the Court holds that Plaintiffs’ Title III ADA discrimination and

retaliation/coercion claims are moot and must be dismissed for lack of subject matter jurisdiction.

B. Supplemental Jurisdiction Over State Law Claims

The Court’s final inquiry is whether it should decline to exercise supplemental jurisdiction

over Plaintiffs’ state law claims. Section 1367(c)(3) “permits a district court to decline the exercise

of supplemental jurisdiction if ‘the district court has dismissed all claims over which it has original

jurisdiction.’” Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009) (quoting 28 U.S.C. § 1367(c)(3)).

“Congress explicitly green-lighted” the dismissal of state law claims in such situations. Kach, 589

F.3d at 650. With that said, “[t]he decision to retain or decline jurisdiction over state-law claims

is discretionary” and “‘should be based on considerations of judicial economy, convenience and

fairness to the litigants.’” Id. at 650 (quoting New Rock Assets Partners v. Preferred Entity

Advancements, Inc., 101 F.3d 1492, 1505 (3d Cir. 1996)) (further citations omitted). If the Court

declines jurisdiction, the dismissal of the state law claims is without prejudice so that they can be

4 In their brief, Defendants asserted that they would seek attorneys’ fees against one specific Plaintiff, John

Blackstone. (Docket No. 158). However, Blackstone dismissed all of his claims against Giant Eagle on April 6, 2022

and is no longer a party to this lawsuit. (Docket No. 163).

refiled in an appropriate state court. Id. (citing Elmore v. Cleary, 399 F.3d 279, 283 (3d. Cir.

2005)).

As there is no ongoing case or controversy of federal law and only state law issues remain

to be decided in this case between Pennsylvania-based Giant Eagle and its local customers, the

Court believes that the interests of judicial economy, convenience, and fairness weigh strongly in

favor of declining supplemental jurisdiction over Plaintiffs’ state law claims so that they can be

adjudicated in an appropriate state forum. See Kach, 589 F.3d at 650. Most importantly, the

PHRA claims for damages present a dispute that is best suited for resolution by a state tribunal

because Plaintiffs assert that Giant Eagle refused them service in violation of the state mask

mandate issued by the Secretary of Health. (See Docket No. 51).

In any event, the primary reasons cited by Defendants for this Court to retain jurisdiction

over the state law claims have now been resolved. (See Docket No. 158). To that end, fact

discovery has been completed and the Court has adjudicated their many discovery disputes.

(Docket Nos. 205; 206). Defendants suggested that they would be prejudiced if Plaintiffs engaged

in forum shopping by splitting their claims and filing separate individual actions in different Courts

of Common Pleas, but Plaintiffs replied that they have no such intentions and plan “to promptly

refile in state court and move directly to trial without additional discovery or delay.” (Docket No.

165 at 3). Even if Plaintiffs change tactics and employ this disavowed strategy, Defendants would

not be prejudiced because the Pennsylvania Rules of Civil Procedure would permit them to move

for the cases to be consolidated within a particular county or coordinate any actions filed in

different counties before a single court. See e.g., HTR Restaurants, Inc. v. Erie Ins. Exch., 260

A.3d 978, 990 (Pa. Super. Ct. 2021), reargument denied (Oct. 13, 2021), appeal granted, 279 A.3d

38 (Pa. 2022), and appeal granted, 279 A.3d 40 (Pa. 2022) (“Rule 213.1 does authorize a single

judge […] to decide coordination issues within the constraints of Rule 213.1)); Pa. R. Civ. P. 213

(consolidation of actions); Pa. R. Civ. P. 213.1 (coordination of actions).

All told, the purpose of the Court consolidating these individual actions was to streamline

the litigation of the common legal and factual issues regarding Plaintiffs’ Title III ADA claims for

injunctive relief and now that those claims have been dismissed, the state law claims will be

dismissed, without prejudice, to be refiled in state court. See 28 U.S.C. § 1367(c)(3).

V. CONCLUSION

To conclude, Article III of the Constitution limits this Court’s jurisdiction to deciding live

cases or controversies and the recent decisions from the United States Court of Appeals for the

Third Circuit make clear that Plaintiffs’ federal claims are moot now that Giant Eagle has

discontinued its COVID-19 mask policy and welcomed its customers to shop in its stores without

masks. See e.g., County of Butler, 8 F.4th at 230; Clark, 2022 WL 17246445, at *1; Parker, 2021

WL 5492803, at *4. Since the federal claims will be dismissed, the Court will decline to exercise

supplemental jurisdiction over Plaintiffs’ state law claims but expects that the parties should be

able to bring them to a prompt resolution in an appropriate forum because fact discovery has been

completed and all of their discovery disputes have been adjudicated. See 28 U.S.C. § 1367(c)(3).

Accordingly, for the reasons set forth herein, Plaintiffs’ Response to Rule to Show Cause

[152] is granted, Defendants’ Response to the Rule to Show Cause [158] is denied, and the Third

Amended Consolidated Complaint [51] is dismissed, for lack of subject matter jurisdiction as to

the federal claims and without prejudice to Plaintiffs pursuing their state law claims in state court.5

5 The Court notes that the dismissal of the federal claims for lack of subject matter jurisdiction due to mootness

is without prejudice. See e.g., Korvettes, Inc. v. Brous, 617 F.2d 1021, 1024 (3d Cir.1980) (“A dismissal for lack of

jurisdiction is plainly not a determination of the merits of a claim. Ordinarily, such a dismissal is ‘without prejudice.’”);

New Jersey Physicians, Inc. v. President of U.S., 653 F.3d 234, 241 (3d Cir. 2011) (“the District Court's dismissal for

An appropriate Order follows.

s/Nora Barry Fischer

Nora Barry Fischer

Senior U.S. District Judge

Dated: December 7, 2022

cc/ecf: All counsel of record.

lack of subject matter jurisdiction was by definition without prejudice.”); Doe 1, 2022 WL 2951467, at *1 (remanding

school mask cases to “the District Court with instruction to dismiss without prejudice the complaints as moot.”);

Lontex Corp. v. Nike, Inc., No. CV 18-5623, 2020 WL 5947852, at *4 (E.D. Pa. Oct. 7, 2020 (“A dismissal without

prejudice makes sense when, as here, a case is mooted by voluntary cessation. If the relevant behavior ever restarts,

the cause of action will cease to be moot, and the opposing party should be allowed to refile his or her claims.”).