Townsend v. Haza foods, LLC. et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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SARAH TOWNSEND, individually and
on behalf of all others similarly situated,
Plaintiff,
-v- 	5:23-CV-1419
HAZA FOODS, LLC, HAZA FOODS OF
NORTHEAST, LLC, and HAZA FOODS
OF MINNESOTA, LLC,
Defendants.
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APPEARANCES: 	OF COUNSEL:
NYE, STIRLING, HALE, 	BENJAMIN SWEET, ESQ.
MILLER & SWEET LLP
Attorneys for Plaintiff
1145 Bower Hill Road, Suite 104
Pittsburgh, PA 15243
NYE, STIRLING, HALE, 	JORDAN PORTER, ESQ.
MILLER & SWEET LLP
Attorneys for Plaintiff
33 W. Mission Street, Suite 201
Santa Barbara, CA 93101
FISHER & PHILLIPS 	PHILLIP BAUKNIGHT, ESQ.
Attorneys for Defendants
430 Mountain Avenue, Suite 303
Murray Hill, NJ 07974
DAVID N. HURD
United States District Judge
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ORDER TO SHOW CAUSE
Plaintiff Sarah Townsend (“plaintiff”) is a wheelchair user with a mobility
disability. Defendants Haza Foods, LLC, Haza Foods of Northeast, LLC, and
Haza Foods of Minnesota (collectively “defendants”) own, lease, or operate
something like four hundred Wendy’s restaurants in the states of Texas,
Louisiana, Minnesota, New York, and Ohio.
On November 15, 2023, plaintiff filed this putative nationwide class action
under Title III of the Americans with Disabilities Act (“ADA”). Broadly
speaking, the putative class complaint alleges that defendants’ “existing but
inadequate internal maintenance procedure” at their facilities has created
“excessive sloping conditions in purportedly accessible parking spaces, access
aisles, and curb ramps” that are hard to navigate in a wheelchair.
Plaintiff alleges that she resides in Oswego, New York. Compl. ¶ 8. She
alleges that defendants are Texas and Delaware corporations with a principal
place of business in Texas. Id. ¶¶ 10, 11, 12. And she alleges that she visited
defendants’ facility at 3050 Winton Road in Rochester, New York, where she
suffered the alleged harm. Id. ¶ 17.
Based on those allegations, plaintiff has mislaid venue. Under the general
venue provision, a civil action may be brought in:
(1) a judicial district in which any defendant resides,
if all defendants are residents of the State in which the
district is located; (2) a judicial district in which a
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substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of property
that is the subject of the action is situated; or (3) if
there is no district in which an action may otherwise
be brought as provided in this section, any judicial
district in which any defendant is subject to the court’s
personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b).1
Plaintiff’s complaint invokes § 1391(b)(2). Compl. ¶ 34. For venue to be
proper under that provision, “significant events or omissions material to the
plaintiff’s claim must have occurred in the district in question.” Gulf Ins. Co.
v. Glasbrenner, 417 F.3d 353, 357 (2d Cir. 2005) (emphases in original).
Plaintiff’s complaint alleges that she resides here; i.e., in Oswego County,
which is within the Northern District of New York. 28 U.S.C. § 112(a). But
the events giving rise to her ADA claim; i.e., the accessibility challenges she
experienced, occurred at one of defendants’ facilities in Rochester, New York.2
Rochester (the one in New York, at least) is in Monroe County. And Monroe
County is in the Western District of New York. 28 U.S.C. § 112(d).
Therefore, it is
ORDERED that
1 A quick review of case law did not reveal any special venue-laying provision for non-employee
ADA claims. See, e.g., Cooney v. Barry School of Law, 994 F. Supp. 2d 268, 271 (E.D.N.Y. 2014).
2 The complaint further alleges that investigators working on plaintiff’s behalf found other
violations at defendants’ facilities in Wisconsin, Minnesota, Ohio, and New York. Compl. ¶ 30. The
New York facilities were in Niagara Falls, id. ¶ 30(g), and at a second location in Rochester, id. ¶
30(h). As with Rochester, though, Niagara Falls (in Niagara County) is still the Western District of
New York.
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1. Plaintiff must SHOW CAUSE, in writing, on or before March 25, 2024,
why this action should not be transferred to the Western District of New York
pursuant to 28 U.S.C. § 1406(a).
IT IS SO ORDERED.
Dated: March 18, 2024
Utica, New York.
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