Struffolino v. McCoy

2004 DNH 174

• Court: District Court, D. New Hampshire
• Decided: November 30, 2004
• Docket: CV-04-137-SM
• Status: Published

Opinion

Struffolino v. McCoy CV-04-137-SM 11/30/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Michael Struffolino, Plaintiff

v. Civil No. 04-137-SM Opinion No. 2004 DNH 174 Richard McCoy d/b/a Collev-McCoy N.H. Co., Defendant

O R D E R

In this action, removed from the New Hampshire Superior

Court, plaintiff has sued in two counts, the first alleging

negligence and the second violations of his rights under the

Americans with Disabilities Act ("ADA") and N.H. R e v . S tat . A n n .

("RSA") § 354-A. Both claims arise from a slip-and-fall accident

at a McDonald's restaurant in Portsmouth, New Hampshire, owned by

defendant. Before the court is defendant's motion for partial

judgment on the pleadings. Plaintiff, who is currently pro se,

has filed no objection. For the reasons given below, defendant's

motion for judgment on the pleadings is granted in part and

denied in part. Judgment on the pleadings is available, pursuant to Fed. R.

C i v . P. 1 2 ( c ), only if "it appears beyond doubt that the

[claimant] can prove no set of facts in support of his claims

which would entitle him to relief." United States v. United

States Currency, $81,000.00, 189 F.3d 28, 33 (1st Cir. 1999)

(guoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In ruling

on a motion for judgment on the pleadings, the court does not

look to extrinsic evidence, see U.S. Currency, 189 F.3d at 33

(citing Collier v. City of Chicopee, 158 F.3d 601, 603 (1st Cir.

1998)), and must "accept the claimant's material allegations as

true, and draw all reasonable inferences in favor of the

claimant," U.S. Currency, 189 F.3d at 33 (citing Int'1 Paper C o .

v. Town of Jay, 928 F.2d 480, 482 (1st Cir. 1991)).

According to plaintiff's complaint, on February 18, 2000, he

slipped and fell on a patch of ice on a walkway leading to the

rear entrance of a McDonald's restaurant owned by defendant.

Plaintiff sued defendant in the New Hampshire Superior Court,

alleging a single count of negligence, by writ of summons dated

February 4, 2003. By motion dated March 12, 2004, plaintiff

sought to amend his complaint to add a second count, alleging

2 violations of his rights under the ADA and N.H. R e v . S t a t . A n n .

("RSA") Ch. 354-A, New Hampshire's Law Against Discrimination.

Before the superior court could rule on plaintiff's motion to

amend, defendant removed the case to this court. Defendant now

moves for judgment on the pleadings on Count II, plaintiff's

claim under RSA 354-A and the ADA.

According to defendant, he is entitled to judgment on

plaintiff's RSA 354-A claim because it was not filed within 180

days of the alleged act of discrimination. Under RSA 354-A:21,

III, complaints of unlawful discrimination must be filed with the

state Commission for Human Rights ("HRC") "within 180 days of the

alleged act of discrimination." Before June 16, 2000, RSA 354-A

provided no private right of action outside the administrative

process established by that statute. See Munroe v. Compag

Computer Corp., 229 F. Supp. 2d 52, 66-67 (D.N.H. 2002). RSA

354-A has been amended, however, and now includes a choice-of-

forum provision that allows discrimination claimants to "bring a

civil action for damages or injunctive relief or both, in the

superior court." RSA 354-A:21-a, I. However, such suits may be

filed only "at the expiration of 180 days after the timely filing

3 of a complaint with the commission . . . Id. Thus, filing a

complaint with the HRC is a necessary prerequisite to filing suit

in the superior court. Because Count II includes no allegation

that plaintiff ever filed a complaint with the HRC, plaintiff has

failed to allege an essential jurisdictional prerequisite for his

RSA 354-A claim. Accordingly, defendant is entitled to judgment

as a matter of law on that portion of Count II alleging a

violation of the New Hampshire Law Against Discrimination.

Defendant makes two arguments for judgment on the pleadings

on plaintiff's ADA claim: (1) although plaintiff alleges that one

entrance to defendant's restaurant failed to meet ADA standards,

he does not allege that the restaurant had no entrance that met

the applicable standards; and (2) plaintiff seeks only money

damages, which are not available under the ADA in a private

action.

With regard to defendant's first argument, plaintiff has

adequately alleged that defendant's restaurant does not meet ADA

standards. While defendant could well prevail by showing -

perhaps on summary judgment - that his restaurant has an

4 accessible route, and thus meets the requirements of the ADA, at

this stage in the proceedings it is enough for plaintiff to

assert, as he does, that the restaurant does not meet ADA

standards. Notice pleading does not require plaintiff to negate

all possible defenses in his complaint.

Turning to defendant's second argument, the unavailability

of money damages under Title III of the ADA does not entitle

defendant to dismissal of plaintiff's ADA claim. Rather, by this

order, plaintiff is put on notice that should he prevail on the

ADA claim, his remedies are limited to those set forth in 42

U.S.C. § 2000a-3(a), as specified by 42 U.S.C. § 12188(a)(1).

To conclude, defendant's motion for judgment on the

pleadings (document no. 15) is granted in part and denied in

part. Plaintiff's claim under RSA 354-A is dismissed, due to his

failure to allege satisfaction of the jurisdictional

prerequisite, i.e., the filing of a timely complaint with the

state Commission for Human Rights, but without prejudice to

filing a motion to amend his complaint, within thirty (30) days

of the date of this order, to make the proper allegations, j_f he

5 can do so in good faith (plaintiff should carefully review Fed.

R. Civ. P. 11). Plaintiff's ADA claim remains, subject to the

pertinent limitation on remedies.

SO ORDERED.

Steven J. McAuliffe Chief Judge

November 30, 2 004

cc: Christopher J. Poulin, Esg. Michael Struffolino