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Inc. v. Smith's Food & Drug Centers, Inc.

United States District Court, D. Utah

August 14, 2017

ACCESS 4 ALL, INC., a Florida non-profit corporation, Plaintiff,
SMITH'S FOOD & DRUG CENTERS, INC., an Ohio Corporation, Defendant.



         Before the court is a Motion for Judgment on the Pleadings pursuant to Fed.R.Civ.P. 12(c) filed by Defendant Smith's Food & Drug Centers, Inc. (“SFDC”). (Docket No. 22). The thrust of Defendant's Motion is that Plaintiff Access 4 All, Inc. (“Access 4 All”) lacks Article III standing.

         The court pauses at the outset to address two issues unrelated to the merits of SFDC's Motion. First, the court notes that both parties have relied almost exclusively on authority from outside of the Tenth Circuit to outline the relevant standard and support nearly all of their substantive arguments. Reliance on persuasive authority from other circuit and district courts alone is singularly unhelpful, as the court must govern itself first by the binding law of this circuit. In this instance, the court has located abundant on-point and controlling authority- mostly ignored by the parties-that addresses many of the issues relevant to this Motion. Both local counsel and counsel admitted pro hac vice are reminded that they must construct their pleadings and briefing based on the law of the Tenth Circuit to the extent possible before turning to the law of other circuits for substantive guidance.

         Additionally, counsel are cautioned that ad hominem attacks against opposing counsel and clients are wholly inappropriate, unnecessary, and unbecoming of attorneys admitted to practice before this court. Certain briefing in this matter alleges deceit, sloppiness, purposeful evasion, and other malfeasances unrelated to the legal and factual issues at bar. Such accusations are plainly inconsistent with the professional civility and courtesy that should pervade argument and proceedings before this court. Indeed, counsel should be especially cautious to avoid personal attacks where, as here, there is some question as to the factual validity of certain declarations and pleadings. In the future, counsel should confine their arguments to the relevant legal and factual issues and at all times treat opposing counsel with appropriate civility and courtesy.

         Failure to abide by either of these admonitions may endanger counsel's present or future pro hac vice status. See DUCivR 83-1.1(d)(2)(c), (g).


         The plaintiff in this action, Access 4 All, is a Florida-based non-profit corporation that seeks “to represent the interest of its [disabled] members by assuring places of public accommodation are accessible to and usable by the disabled and [to further assure] that its members are not discriminated against because of their disabilities.” (Docket No. 2, at 2). The defendant, SFDC, owns a commercial property, consisting of a grocery store and restaurant, located in Salt Lake City, Utah.

         Access 4 All filed the instant lawsuit on June 6, 2016, alleging that SFDC's property is noncompliant with multiple provisions of the Americans with Disabilities Act, 42 U.S.C. § 12182 et seq. (“the ADA”). Specifically, Access 4 All's complaint alleges that one of its disabled members, John Peterson, encountered or at least observed a laundry list of ADA-violative architectural barriers on SFDC's property. Access 4 All claims associational standing to bring this lawsuit through Mr. Peterson.

         On February 23, 2017, SFDC filed the instant motion pursuant to Fed.R.Civ.P. 12(c), requesting judgment on the pleadings as to Access 4 All's associational standing. (Docket No. 22). On April 3, 2017, Access 4 All responded, asserting that it had sufficiently alleged or otherwise demonstrated associational standing. (Docket No. 27). SFDC replied on April 17, 2017. (Docket No. 29). After review of the parties' briefing and other submitted materials, the court does not believe that oral argument would materially advance resolution of this Motion. Accordingly, the court decides the motion on the briefing. See DUCivR 7-1(f).


         Ordinarily, a motion for judgment on the pleadings under Rule 12(c) is evaluated under the same standard as a motion to dismiss under Rule 12(b)(6). See Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir. 2003); Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010) (requiring district courts evaluating a motion for judgment on the pleadings to “construe all the nonmovant's factual allegations in the light most favorable to him”). However, SFDC here argues that Access 4 All lacks Article III standing, directly implicating this court's subject matter jurisdiction over the instant suit. See Consumer Data Indus. Ass'n v. King, 678 F.3d 898, 902 (10th Cir. 2012) (explaining that the elements of Article III standing “must be established before a federal court can review the merits of a case”). SFDC's Motion, then, is more properly categorized as a challenge under Rule 12(b)(1). See Int'l Brotherhood of Elec. Workers v. Pub. Serv. Co. of Colo., 176 F.Supp.3d 1102, 1109 (D. Colo. 2016) (“Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate if the [c]ourt lacks subject matter jurisdiction over the claim for relief asserted in the complaint.”). Accordingly, the court will treat Defendant's Motion as a challenge brought under Rule 12(b)(1). See Roco, Inc. v. EOG Res., Inc., No. 14-1065-JAR-KMH, 2014 WL 5430251, at *2-*3 (D. Kan. 2014) (unpublished) (treating a motion under Rule 12(c) as a motion under Rule 12(b)(1) “because a party's standing implicates subject matter jurisdiction”).

         As noted above, a motion under Fed.R.Civ.P. 12(b)(1) challenges the court's subject matter jurisdiction over the suit. The Tenth Circuit has explained that motions under Rule 12(b)(1)

generally take one of two forms. First, a moving party may make a facial attack on the complaint's allegations as to the existence of subject matter jurisdiction. In reviewing a facial attack, the district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction is based. . . . In reviewing a factual attack, a court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts. In the course of a factual attack under Rule 12(b)(1), a court's reference to evidence outside the pleadings does not convert the motion into a Rule 56 motion [for summary judgment].

Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (internal citations and ...

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