United States District Court, D. Utah
ACCESS 4 ALL, INC., a Florida non-profit corporation, Plaintiff,
SMITH'S FOOD & DRUG CENTERS, INC., an Ohio Corporation, Defendant.
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS AND
DISMISSING PLAINTIFF'S ACTION FOR LACK OF SUBJECT MATTER
N. PARRISH UNITED STATES DISTRICT COURT JUDGE.
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
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
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.
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).
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.
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.
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
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”).
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
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 ...