Mielo v. Steak 'N Shake Operations, Inc.

897 F.3d 467

Christopher MIELO; Sarah Heinzl, individually and on behalf of all others similarly situated

v.STEAK 'N SHAKE OPERATIONS, INC., Appellant

No. 17-2678

United States Court of Appeals, Third Circuit.

Argued May 2, 2018

Filed: July 26, 2018

Maria G. Danaher, Patrick J. Fazzini, Ogletree, Deakins, Nash, Smoak & Stewart, One PPG Place, Suite 1900, Pittsburgh, PA 15222, David H. Raizman [ARGUED], Ogletree Deakins, 400 South Hope Street, Suite 1200, Los Angeles, CA 90071, Counsel for Appellant

Teresa L. Jakubowski, Barnes & Thornburg, 1717 Pennsylvania Avenue, N.W., Suite 500, Washington, DC 20006, Counsel for Amicus Appellants

Cary Silverman, Shook Hardy & Bacon, 1155 F. Street, N.W., Suite 200, Washington, DC 20004, Counsel for Amicus Appellants

R. Bruce Carlson, Stephanie K. Goldin, Edwin J. Kilpela, Jr. [ARGUED], Benjamin J. Sweet, Carlson Lynch Sweet & Kilpela, 1133 Penn Avenue, 5th Floor Suite 210, Pittsburgh, PA 15222, Counsel for Appellee

Sharon M. Krevor-Weisbaum, Brown Goldstein & Levy, 120 East Baltimore Street, Suite 1700, Baltimore, MD 21202, Counsel for Amicus Appellee

Amy F. Robertston, Civil Rights & Enforcement Center, 104 Broadway, Suite 400, Denver, CO 80203, Counsel for Amicus Appellees

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

OPINION

SMITH, Chief Judge.

TABLE OF CONTENTS

INTRODUCTION ... 473

I. BACKGROUND ... 473

A. Factual Background ... 474

B. Procedural History ... 475

C. Applicable Law and Theory of Harm ... 475

II. PLAINTIFFS HAVE STANDING ... 478

A. Injury in Fact ... 478

B. Traceability ... 480

C. Redressability ... 481

III. PLAINTIFFS FAIL TO SATISFY RULE 23( A ) ... 482

A. Numerosity ... 484

B. Commonality ... 487

C. The Need for Remand ... 490

CONCLUSION ... 491

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...