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Kamal v. Kohl's Corp.

United States District Court, W.D. Wisconsin

June 4, 2018

MONICA KAMAL, Plaintiff,
v.
KOHL'S CORPORATION and KOHL'S DEPARTMENT STORES, INC., Defendants.

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Plaintiff Monica Kamal is suing defendants Kohl's Corporation and Kohl's Department Stores, Inc. under Title III of the Americans with Disabilities Act for allegedly failing to accommodate her use of a wheelchair at their department stores. (For simplicity, the court will refer to defendants as “Kohl's.”) Kohl's has filed a motion for judgment on the pleadings, Dkt. 20, which is ready for review. Kohl's says that Kamal's lawsuit is barred under the doctrine of claim preclusion in light of the decision by the parties in a related case to stipulate to a dismissal with prejudice. Because the court agrees with Kamal that Kohl's consented to splitting the claims in this case, the court will deny the motion.

         BACKGROUND

         This case started as part of a broader lawsuit filed in the Northern District of Illinois, with District Judge Ronald A. Guzman presiding. Fisher v. Kohl's Corporation, No. 14-cv-8259.[1] Among the named plaintiffs was the Equal Rights Center, or ERC, which is a nonprofit organization that engages in “research, outreach and education, counseling, advocacy, and enforcement” to obtain “equal rights, equal access, and equal opportunity for persons with disabilities.” Id., Dkt. 1, ¶ 24. The other plaintiffs were individual members of the organization, including Kamal. As in this case, the plaintiffs in Fisher sought injunctive relief against Kohl's for allegedly failing to accommodate individuals with disabilities at its stores. The plaintiffs also sought class certification under Rule 23 of the Federal Rules of Civil Procedure.

         Judge Guzman denied the plaintiffs' motion for class certification, in part on the ground that the plaintiffs were not challenging “a company-wide policy but daily individual decisions by relevant Kohl's employees in each particular store as to how wide aisles would be and where merchandise racks would be placed.” Id., Dkt. 173, at 3. The plaintiffs admitted “that the obstructions they encountered could differ depending on the store they visited as well as on which day.” Id.

         After denying the motion for class certification, Judge Guzman directed the parties “to file a position statement on whether the six named plaintiffs should be severed.” Id., Dkt. 178. In its position statement, Kohl's said that the court should “sever Plaintiffs' respective claims from each other and have them proceed before this Court on separate tracks” because of “the highly individualized, fact-intensive, and divergent nature of Plaintiffs' claims.” Id., Dkt. 179, at 2. Specifically, Kohl's said that “Plaintiffs' claims arise out of different alleged occurrences, i.e. alleged encounters with different alleged barriers at different stores during different times, ” so it was appropriate to sever the claims under Rule 21. Id. at 5.

         In their statement, the plaintiffs wrote that “the issue of the aisle width and whether Kohl's ‘Shopability Standards' are readily achievable under the Americans with Disabilities Act can be determined at one hearing” if “the parties reach agreement” on a “framework to resolve the non-aisle width claims.” Id., Dkt. 180, at 2. If the parties failed to reach an agreement, the plaintiffs asked “that the individual Plaintiffs' actions be severed and transferred to the venue of the Plaintiffs' residence” for the convenience of the parties and witnesses. Id.

         Judge Guzman concluded that severance was appropriate because “each of the individual plaintiffs complains of different barriers (such as limited parking spots, difficulty accessing merchandise or restrooms due to items blocking the aisles or entries, and counters that are too high, among other things) at different stores at different times.” Id., Dkt. 182, at 3. The court declined to stay a decision while the parties attempted to narrow the issues and, without explanation, directed the clerk of court to randomly assign each of the new cases to a judge in the Northern District. Id. at 4. The court deferred any ruling on a request to transfer pending reassignment. Neither the parties nor the court discussed how ERC's claims related to the claims of the individual plaintiffs.

         After ERC's case was assigned to a new judge, Kohl's moved to dismiss that case for lack of standing. No. 17-cv-5852, Dkt. 9. Kohl's argued that ERC lacked standing because it failed to show that its members visited Kohl's stores or were harmed by any failure to accommodate; ERC had a conflict of interest with its members because it was seeking damages but they were not; and litigation of ERC's claims required participation of the members because of the “highly individualized nature of their ADA claims and correspondingly individualized nature of any injunctive relief.” Id., Dkt. 10, at 25. The court held a hearing on the motion, but before the court issued a decision, ERC and Kohl's filed a stipulation of dismissal with prejudice. Id., Dkt. 23.

         In the meantime, Kamal's case was reassigned to a different judge in the Northern District. Kamal v. Kohl's Corp., No. 17-cv-5853. Kamal filed a motion to transfer the case to the Western District of Wisconsin on the ground that she lives here and the Kohl's store she visits are here. Id., Dkt. 11. When Kohl's did not object to the transfer, the court granted the motion. Id., Dkt. 14.

         ANALYSIS

         Under the doctrine of claim preclusion, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Highway J Citizens Group v. United States Dept. of Transp., 456 F.3d 734, 741 (7th Cir. 2006) (internal quotations omitted). Under federal law, claim preclusion has three requirements: (1) an identity of the parties or their privies; (2) an identity of the causes of action; and (3) a final judgment on the merits. Kohl's says that the dismissal of the ERC action satisfies all three requirements because: (1) Kamal and ERC are in privity; (2) Kamal's complaint in this case is identical to the complaint filed in the ERC action; and (3) a voluntary dismissal with prejudice qualifies as a judgment on the merits.

         Kamal does not directly challenge Kohl's ability to satisfy the elements of claim preclusion, but she says that the court should decline to apply it for three related reasons: (1) Kohl's forfeited its right to raise a claim preclusion defense when it sought to sever the original action filed in the Northern District; (2) Kohl's is judicially estopped from raising the defense because it previously contended that Kamal's claim was not the same as any of the other original plaintiffs; and (3) it would be fundamentally unfair to apply claim preclusion under the circumstances of this case. Because the court agrees with Kamal's first contention, it is not necessary to consider the other two.

         Kamal's first contention is consistent with the view recognized by the court of appeals that “[l]itigants who want to [allow the plaintiff] split a claim among different suits can do so.” Arrow Gear Co. v. Downers Grove Sanitary Dist.,629 F.3d 633, 638 (7th Cir. 2010). See also Restatement (Second) of Judgments § 26(1)(a) and comment a (1982) (claim preclusion is “not applicable where the defendant consents, in express words or otherwise, to the splitting of the claim”); Charles A. Wright, Arthur R. Miller & Edward H. Cooper, 18 Federal Practice and Procedure § 4415 (3d ed. 2018) (“Consent may establish a . . . clear justification for splitting a single claim.”). Since the original action was filed, Kohl's has taken the position that Kamal's claim should ...


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