United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANT'S MOTION TO DISMISS
A. KIMBALL, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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)).
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
The Court May Look at Evidence Outside of the Complaint to
Establish Subject Matter Jurisdiction Because the Merits and
Jurisdictional Issues are not Impermissibly
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.
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
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.
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 ...