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Shelton v. Cafe Rio, Inc.

United States District Court, D. Utah, Central Division

October 2, 2017

TAMMY SHELTON, Plaintiff,
v.
CAFÉ RIO, INC., Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          DALE A. KIMBALL, UNITED STATES DISTRICT JUDGE.

         This matter is before the court on Defendant Café Rio's Inc. (Café Rio) Motion to Dismiss for lack of subject matter jurisdiction. On September 27, 2017, the court held a hearing on the motion. At the hearing, the Plaintiff Tammy Shelton (Shelton) was represented by James K. Ord and Café Rio was represented by T. Mickell Jimenez and Trenton L. Lowe. The court took the motion under advisement. Based on the briefing filed by the parties and the law and facts relevant to the pending motion, the court issues the following Memorandum Decision and Order GRANTING Café Rio's Motion to Dismiss.

         BACKGROUND

         This case involves an alleged violation of the Americans with Disabilities Act (ADA). Shelton claims that Café Rio violated the ADA by discriminating against her because Café Rio failed to provide signs containing the designation “van accessible” to identify van parking spaces. Shelton seeks an injunction requiring Café Rio to fix the violation. Café Rio moves pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction arguing the claim is moot.

         Shortly after Shelton commenced this action against Café Rio, Café Rio remediated the alleged violation by installing a van accessible handicap sign. Café Rio first claimed in its motion to dismiss that the ADA claim is moot because the alleged violation is in the process of being remediated. In Café Rio's reply in support of its motion to dismiss, it now argues that the claim is moot because the alleged violation has been remediated. Because Café Rio's initial motion to dismiss only contained plans of remediation, and its reply brief asserts that the violation has been fully remediated, the court entered an order allowing Shelton to file a sur-reply to address this development in Café Rio's argument.

         LEGAL STANDARD

         Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, federal courts do not presume jurisdiction, and the party asserting federal jurisdiction bears the burden of proof. Marcus v.Kansas Dep't of Revenue, 170 F.3d 1305, 1309 (10th Cir. l999) (citing Penteco Corp. Ltd. Partnership-1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991)). Motions to dismiss for lack of subject matter jurisdiction may take the form of a “facial attack on the complaint's allegations, ” or “a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends.” Holt v.United States, 46 F.3d 1000, 1002 (10th Cir.1995) (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)).

         DISCUSSION

         Café Rio filed this motion to dismiss asserting that Shelton's claim is moot because the alleged violation has been remediated. Specifically, Café Rio asserts that: 1. The court may look at evidence outside of the complaint to establish whether subject matter jurisdiction exists; 2. Shelton's claim is moot and should be dismissed because the alleged violation has been remediated; and 3. Shelton is not entitled to attorneys' fees because she is not a prevailing party. For the reasons that follow, the court grants Café Rio's motion to dismiss in its entirety.

         1. The Court May Look at Evidence Outside of the Complaint to Establish Subject Matter Jurisdiction Because the Merits and Jurisdictional Issues are not Impermissibly Intertwined.

         Café Rio asks the court to view evidence outside of the complaint to establish that subject matter does not exist because it has remediated the alleged ADA violation. This evidence includes a photograph of the remediated van accessibility sign, and also a declaration from Jordan Hill, the Director of Facilities at Café Rio, stating that the alleged violation has been remediated. See Dkt. Nos. 8, 24. Notably, Café Rio does not dispute the allegations in Shelton's complaint. Rather, Café Rio asserts that even if everything in the complaint is true, nonetheless, the case is moot. Shelton objects to the court viewing evidence that the alleged violation has been remediated because she claims that viewing this evidence would impermissibly require the court to make a ruling on the merits of the case.

         “Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint.” Holt v. U.S., 46 F.3d 1000, 1002 (10th Cir. 1995). For a facial attack the court must accept the allegations in the complaint as true. Id. For a factual attack “a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends.” Id. at 1003. “A district court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. Viewing such “evidence outside of the pleadings does not convert the motion to a Rule 56 motion.” Id.

         A court, however, is required to convert a 12(b)(1) motion to dismiss to a Rule 56 motion when the jurisdictional questions are intertwined with the merits of the case. Id. “The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case.” Id.

         Here, Café Rio's factual attack on subject matter jurisdiction is not intertwined with the merits of the case. Café Rio's does not argue that the allegations in Shelton's complaint are untrue. Rather, Café Rio argues that assuming all of the allegations in the complaint are true there nonetheless is no longer an ongoing controversy because the alleged violation has been remediated. The court is therefore able to consider evidence that Café Rio remediated the violation without converting the motion to a Rule 56 motion. Viewing such evidence is consistent with a number of other courts that have viewed factual evidence ...


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