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Law360 (June 12, 2020, 7:34 PM EDT ) A Pennsylvania federal court shouldn't consolidate more than two dozen lawsuits challenging grocery chain Giant Eagle's COVID-19 mask policy, because the cases all involve different stores, staff and police agencies, one of the suing customers said Friday.
Kimberly Pletcher, one of the customers claiming the Pittsburgh-based grocer violated her rights under the Americans with Disabilities Act by refusing to serve her if she didn't wear a mask, opposed Giant Eagle's motion to consolidate 28 similar cases that had been filed in Pennsylvania's Western District, claiming that while the underlying law is the same, the facts for each case are different.
"Each of the complaints allege that Giant Eagle violated Title III of the Americans with Disabilities Act. However, the cases involve numerous Giant Eagle locations across western Pennsylvania," Pletcher's response said. "Discovery will involve not only Giant Eagle's general mask policies, but it will undoubtedly involve communication, video, complaints, correspondence, etc., with each of the involved locations, locations in other states, and various police departments."
Pletcher asked the court to deny the consolidation request, or at least to only consolidate the cases for purposes of discovery without limitations on what discovery the plaintiffs could conduct.
Pletcher's suit claimed Giant Eagle's mask policy is stricter than Pennsylvania's statewide order, which provides exceptions for children under 2 and people with medical conditions that render them unable to wear a mask.
Pletcher's complaint said she has an unspecified medical condition that makes it difficult for her to breathe with a mask covering her mouth and nose.
The grocer allegedly didn't offer exceptions for people like Pletcher, instead citing curbside pickup and personal-shopper options as alternatives to letting unmasked customers into the store, the suit said. Those accommodations were insufficient because she was denied "full and equal enjoyment" of the store's facilities, her complaint said.
A slew of similar cases prompted Giant Eagle to ask the court on Thursday to consolidate them for purposes of litigating pretrial motions, including two pending motions for preliminary injunctions filed by plaintiffs Josiah Kostek and Tommy Wynkoop. If the court grants consolidation, Giant Eagle also wants it to set deadlines for filing any additional motions for preliminary injunctions and a date for the grocer to come up with a single response.
Pletcher's attorney, who also represents Kostek and Wynkoop, wrote Friday that he did not want any delays, particularly in deciding the preliminary injunctions.
"Plaintiffs Wynkoop and Kostek, who have been permanently barred from Giant Eagle stores within walking distance of their homes, should not have to wait any longer than necessary to have their motions ruled upon; their rights are being violated and they are being subjected to continued irreparable harm every day," the motion said. "Wynkoop's and Kostek's rights to preliminary injunctive relief should not be ignored or shelved until some future date so that Giant Eagle can file one response to all motions, including motions that could potentially be filed in cases that are not even filed as of this date."
Giant Eagle filed a brief response Friday to clarify that it would stick to the court's deadlines for responding to the Kostek and Wynkoop cases, and its request for consolidated deadlines and a single response only applied to additional requests for injunctions in the other cases.
In addition to involving different stores, some of the mask lawsuits also involve claims for negligence and assault and battery, Pletcher's response said.
The customers have also all filed complaints of discrimination with the Pennsylvania Human Relations Commission, which investigates and enforces state laws barring discrimination. If the commission does not dismiss their complaints or reach settlements with Giant Eagle within a year of those filings, the federal lawsuits could be amended to seek relief for those alleged violations of state law, which is a further reason not to consolidate them all, the response said.
An attorney for Pletcher declined to comment. Attorneys for Giant Eagle did not immediately respond to requests for comment Friday.
Pletcher is represented by Thomas B. Anderson of Thomson Rhodes & Cowie PC.
Giant Eagle is represented by Jonathan D. Marcus, Jeremy D. Engle and Lauren Melfa Catanzarite of Marcus & Shapira LLP.
The case is Pletcher v. Giant Eagle Inc., case number 2:20-cv-00754, in the U.S. District Court for the Western District of Pennsylvania.
--Additional reporting by Matt Fair. Editing by Jack Karp.
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