United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
N. Parrish United States District Court Judge
the Court is Defendant's Rule 12(b)(1) motion to dismiss,
filed July 14, 2017 (ECF No. 5). Plaintiff filed a response
on August 10, 2017 (ECF No. 20), and Defendant replied on
August 24, 2017 (ECF No. 23). For the reasons below, the
Court converts Defendant's motion to dismiss to a motion
for summary judgment and grants both parties an opportunity
to submit additional evidence.
Trevor Kelly has severe mobility issues due to Arthrogryposis
Multiplex Congenita. The condition results in limited or
absent movement around small and large joints known as
contractures. Plaintiff is unable to walk and relies on a
wheelchair for mobility.
31, 2017, Plaintiff filed a complaint against Defendant Cafe
Rio, Inc., alleging violations of the Americans with
Disabilities Act of 1990 (“ADA”). Specifically,
the complaint alleges that Defendant (1) failed to
“provide a parking space identified with a sign that
includes the International Symbol of Accessibility”,
(2) failed to “provide accessible parking space
identification signs 60 inches above the finish floor or
ground surface, (3) failed to “provide signs containing
the designation ‘van accessible' that identify van
parking spaces, and (4) failed to “provide toilet flush
controls on the open side of the water closet.” ECF No.
2 at 6-7.
Court notes that this is not Plaintiff's only lawsuit
pending in this district. From the Court's review, it
appears that, from May 26, 2017 to August 28, 2017, Plaintiff
brought 111 cases against Utah businesses, most alleging
identical or nearly identical violations of the ADA.
RULE 12(b)(1) STANDARD
motion alleges that Defendant has remediated the alleged
violations of the ADA, rendering them moot, and therefore the
Court lacks subject-matter jurisdiction. “Article III
limits a federal court's jurisdiction to ‘cases and
controversies.'” See U.S. Const. art. III,
§ 2, cl. 1. “Mootness is a threshold issue because
the existence of a live case or controversy is a
constitutional prerequisite to federal jurisdiction.”
Disability Law Ctr. v. Milcreek Health Ctr., 428
F.3d 992, 996 (10th Cir. 2005). “An actual controversy
must be extant at all stages of review, not merely at the
time the complaint is filed.” Utah Animal Rights
Coal. v. Salt Lake City, 371 F.3d 1248, 1256 (10th Cir.
2004). Consequently, once a controversy ceases to exist,
“the action is moot and this court lacks jurisdiction
to adjudicate the matter.” Wyoming v. Dept. of
Interior, 674 F.4d 1220, 1228 (10th Cir. 2012) (citing
U.S. v. Seminole Nation, 321 F.3d 939, 943 (10th
Cir. 2002)). When a party seeks only equitable relief,
“[p]ast exposure to illegal conduct does not in itself
show a present case or controversy . . . if unaccompanied by
any continuing, present adverse effects.” Beattie
v. United States, 848 F.2d 1092, 1094 (10th Cir. 1991).
“The burden of establishing subject matter jurisdiction
is on the party asserting jurisdiction.” Basso v.
Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
to dismiss under Rule 12(b)(1) take two forms: facial and
factual. Holt v. United States, 46 F.3d 1000, 1002
(10th Cir. 1995). Defendant's motion constitutes a
factual challenge. In a factual challenge, “a party may
go beyond allegations contained in the complaint and
challenge the facts upon which subject matter jurisdiction
depends.” Id.at 1003. District courts
“may not presume the truthfulness of the
complaint's factual allegations, ” and they have
“wide discretion to allow affidavits, other documents,
and a limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1).” Id.
district courts are required to convert Rule 12(b)(1) motions
into Rule 12(b)(6) motions to dismiss or Rule 56 motions for
summary judgment “when resolution of the jurisdictional
question is 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.
Converting Defendant's Motion
argues that it has “voluntarily remediated any alleged
ADA violations in the Complaint that actually exist, and has
established an ongoing monitoring program such that the
violations are not reasonably expected to recur.” ECF
No. 5 at 8. Specifically, Defendant avers that it has taken
the following remedial actions:
1. It installed an automatic flush control mechanism, with a
secondary flush button, on ...