Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mielo v. Steak 'N Shake Operations, Inc.

United States Court of Appeals, Third Circuit

July 26, 2018

CHRISTOPHER MIELO; SARAH HEINZL, individually and on behalf of all others similarly situated
v.
STEAK 'N SHAKE OPERATIONS, INC., Appellant

          Argued May 2, 2018

          On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. No. 2-15-cv-00180) District Judge: Honorable Robert C. Mitchell

          Maria G. Danaher Patrick J. Fazzini Ogletree, Deakins, Nash, Smoak & Stewart, David H. Raizman [ARGUED] Ogletree Deakins Counsel for Appellant

          Teresa L. Jakubowski Barnes & Thornburg Counsel for Amicus Appellants Cary Silverman Shook Hardy & Bacon, Counsel for Amicus Appellants

          R. Bruce Carlson Stephanie K. Goldin Edwin J. Kilpela, Jr. [ARGUED] Benjamin J. Sweet Carlson Lynch Sweet & Kilpela Counsel for Appellee

          Sharon M. Krevor-Weisbaum Brown Goldstein & Levy Counsel for Amicus Appellee, Amy F. Robertston Civil Rights & Enforcement Center, Counsel for Amicus Appellees

          Before: SMITH, Chief Judge, HARDIMAN, and RESTREPO, Circuit Judges

          OPINION

          SMITH, CHIEF JUDGE.

         Table of Contents

         Introduction ....................................................................... 5

         I. Background ..................................................................... 6

         A. Factual Background ...................................................... 6

         B. Procedural History ......................................................... 9

         C. Applicable Law and Theory of Harm ......................... 11

         II. Plaintiffs Have Standing ......................................... 19

         A. Injury in Fact ............................................................... 20

         B. Traceability ................................................................... 26

         C. Redressability ............................................................... 27

         III. Plaintiffs Fail to Satisfy Rule 23(a) ................... 30

         A. Numerosity ................................................................... 34

         B. Commonality ................................................................ 44

         C. The Need for Remand .................................................. 53

         Conclusion ......................................................................... 54

         Introduction

         In this class action lawsuit, two disability rights advocates have sued Steak 'n Shake under the Americans with Disabilities Act ("ADA"). Alleging they have personally experienced difficulty ambulating in their wheelchairs through two sloped parking facilities, these Plaintiffs seek to sue on behalf of all physically disabled individuals who may have experienced similar difficulties at Steak 'n Shake restaurants throughout the country. The District Court certified Plaintiffs' proposed class, and Steak 'n Shake now appeals that certification decision. We are tasked with answering two questions: First, whether Plaintiffs have standing under Article III of the United States Constitution, and second, whether they have satisfied the requirements set out in Federal Rule of Civil Procedure 23(a).

         As to the first question, we conclude that Plaintiffs have standing to bring their claims in federal court. Although a mere procedural violation of the ADA does not qualify as an injury in fact under Article III, Plaintiffs allege to have personally experienced concrete injuries as a result of ADA violations on at least two occasions. Further, Plaintiffs have sufficiently alleged that these injuries were caused by unlawful corporate policies that can be redressed with injunctive relief. We withhold judgment as to whether those corporate policies are indeed unlawful, as our standing inquiry extends only so far as to permit us to ensure that Plaintiffs have sufficiently pled as much.

         As to the second question before us, we conclude that Plaintiffs have failed to satisfy Rule 23(a). The extraordinarily broad class certified by the District Court runs afoul of at least two of Rule 23(a)'s requirements. In light of this conclusion, the District Court's judgment will be reversed, and this matter will be remanded to the District Court to reconsider if a class should be certified.

         I. Background

         The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 12188. This matter comes to us pursuant to Federal Rule of Civil Procedure 23(f), which permits a court of appeals to allow "an appeal from an order granting or denying class-action certification." Fed.R.Civ.P. 23(f). We exercise appellate jurisdiction pursuant to 28 U.S.C. § 1292(e). We review a district court's class certification decision under an abuse of discretion standard. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 312 (3d Cir. 2008). We review de novo the legal standards applied by a district court in reaching the certification decision. Id.

         A. Factual Background

         Christopher Mielo and Sarah Heinzl ("Plaintiffs") are physically disabled individuals who claim they have personally experienced difficulty in ambulating through steeply graded parking facilities at one Steak 'n Shake location each. Specifically, Mielo alleges that he "experienced unnecessary difficulty and risk due to excessive slopes in a purportedly accessible parking space and access aisle"[1] at a Steak 'n Shake in East Munhall, Pennsylvania. JA 90, 439. Heinzl alleges that she "experienced unnecessary difficulty and risk due to excessive surface slope in purportedly accessible parking spaces and access aisles, and excessive cross slope along the route connecting purportedly accessible parking spaces to the facility's entrance" at a Steak 'n Shake in Pleasant Hills, Pennsylvania. JA 90, 404-07. After experiencing these alleged violations, neither Mielo nor Heinzl notified anyone at Steak 'n Shake, although they did contact a lawyer. JA 408-10, 441-42; see also National Association of Convenience Stores, National Grocers Association, and Food Marketing Institute Amici Br. 8 (stating that "21 of the 135 [ADA] Title III lawsuits filed in federal court in Pennsylvania in 2014 were filed on behalf of one of the plaintiffs in this case, Christopher Mielo"); Katherine Corbett, Julie Farrar-Kuhn, Carrie Ann Lucas, Julie Reiskin, and the Civil Rights Education and Enforcement Center Amici Br. 3 n.1, 18 (noting it is not uncommon for disability advocates to serve as repeat class representatives).

         In addition to these two Pennsylvania locations, Plaintiffs allege specific ADA violations at six other Steak 'n Shake restaurants located throughout Pennsylvania and Ohio. JA 90-92. Although Mielo and Heinzl do not claim to have personally experienced violations at the six other locations, [2] the law firm representing them hired an investigator who visited these locations and recorded evidence purportedly supporting the existence of violations. JA 90. Relying on the investigator's discoveries at these six additional locations, as well as their own experiences at the East Munhall and Pleasant Hills locations, Mielo and Heinzl seek to enjoin Steak 'n Shake on a national basis by requiring the company to adopt corporate policies relating to ADA compliance. There are over 500 Steak 'n Shake restaurants located throughout the United States, approximately 417 of which are at issue in this appeal.[3]

         B. Procedural History

         Plaintiffs' complaint requests both "a declaration that [Steak 'n Shake's] facilities violate federal law," and "an injunction requiring [Steak 'n Shake] to remove the identified access barriers so that [Steak 'n Shake's] facilities are fully accessible to, and independently usable by individuals with mobility disabilities, as required by the ADA." JA 87. Plaintiffs propose novel interpretations of the ADA and its corresponding regulations, according to which Steak 'n Shake would not only be required to correct access barriers, but would also be required to adopt corporate policies directing Steak 'n Shake employees to continually search for hypothetical access barriers that might need correcting. Despite the novelty of these interpretations, Steak 'n Shake has not yet filed a motion to dismiss or motion for summary judgment.

         On April 27, 2017, the District Court granted Plaintiffs' motion to certify a class under Federal Rule of Civil Procedure 23(b)(2). JA 75. The certified class was defined as follows:

All persons with qualified mobility disabilities who were or will be denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any Steak 'n Shake restaurant location in the United States on the basis of a disability because such persons encountered accessibility barriers at any Steak 'n Shake restaurant where Defendant owns, controls and/or operates the parking facilities.

         JA 75. As part of its certification ruling, the District Court appointed Mielo and Heinzl as class representatives. JA 75.

         In certifying the class, the District Court analyzed the underlying law in this case. Although discussion of such underlying law must necessarily be limited when conducting the standing analysis here, Cottrell v. Alcon Labs., 874 F.3d 154, 162 (3d Cir. 2017) (referring to the "fundamental separation between standing and merits at the dismissal stage"), that law is intertwined with our Rule 23 inquiry. Hydrogen Peroxide, 552 F.3d at 307 ("[T]he court must resolve all factual or legal disputes relevant to class certification, even if they overlap with the merits- including disputes touching on elements of the cause of action."); Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 591 (3d Cir. 2012) (stating that a "court cannot be bashful" when determining "whether there is actual conformance with Rule 23"). In light of this overlap, we briefly lay out the law upon which Plaintiffs rest their claims.

         C. Applicable Law and Theory of Harm

         The ADA seeks to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C § 12101. Title III of that landmark civil rights law specifically prohibits discrimination against the disabled in the full and equal enjoyment of any place of public accommodation. See 42 U.S.C. § 12182(a). Title III applies to buildings built both before and after the ADA's enactment. Specifically, Title III requires "places of public accommodation"[4] to "remove architectural barriers … in existing facilities … where such removal is readily achievable," 42 U.S.C. § 12182(b)(2)(A)(iv), and to "design and construct facilities for first occupancy [no] later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection." 42 U.S.C. § 12183(a)(1).

         Plaintiffs seek injunctive relief to require Steak 'n Shake to adopt centralized corporate policies crafted to ensure that potential discriminatory access violations are actively sought out and corrected. Plaintiffs seek to do so pursuant to the ADA, which permits private individuals to seek injunctive relief. As 42 U.S.C. § 12188(a)(1)(2) provides:

(1) Availability of remedies and procedures. The remedies and procedures set forth in section 2000a-3(a)[5] of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability . . . .
(2) Injunctive relief.
In the case of violations of sections 12182(b)(2)(A)(iv)[6] and section 12183(a)[7] of this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this subchapter. Where appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods, to the extent required by this subchapter.

42 U.S.C. § 12188(a)(1)(2). Of the many interconnected sections mentioned within the statutory language laid out above, 42 U.S.C. § 12182(b)(2)(A)(iv) is perhaps the most relevant to our Rule 23(a) analysis.[8] We must, therefore, look at it closely.

         Section 12182(b)(2)(A)(iv) states that, for purposes of 42 U.S.C. § 12182(a), [9] the term "discrimination" shall include a "failure to remove architectural barriers . . . where such removal is readily achievable." 42 U.S.C. § 12182. While the ADA itself fails to define "architectural barriers," the Department of Justice's ADA Guide for Small Businesses defines "architectural barriers" as:

[P]hysical features that limit or prevent people with disabilities from obtaining the goods or services that are offered. They can include parking spaces that are too narrow to accommodate people who use wheelchairs; a step or steps at the entrance or to part of the selling space of a store; round doorknobs or door hardware that is difficult to grasp; aisles that are too narrow for a person using a wheelchair, electric scooter, or a walker; a high counter or narrow checkout aisles at a cash register, and fixed tables in eating areas that are too low to accommodate a person using a wheelchair or that have fixed seats that prevent a person using a wheelchair from pulling under the table.

         ADA Guide for Small Businesses, at 3, available at https://www.ada.gov/smbusgd.pdf. The Department of Justice promulgated guidelines pursuant to 42 U.S.C. § 12186 (providing that "the Attorney General shall issue regulations").

         One regulation, 28 C.F.R. § 36.211 ("Section 211"), is of central importance to Plaintiffs' theory of harm. That regulation arguably refers to a restaurant's "ongoing" maintenance obligation, providing:

Maintenance of accessible features.
(a) A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.
(b)This section does not prohibit isolated or temporary interruptions in service or access due to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.