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Kelley v. Cafe Rio, Inc.

United States District Court, D. Utah

October 23, 2017

TREVOR KELLEY, Plaintiff,
v.
CAFE RIO, INC., Defendant.

          MEMORANDUM DECISION AND ORDER

          Jill N. Parrish United States District Court Judge

         Before 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.

         I. BACKGROUND

         Plaintiff 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.

         On May 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.

         The 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.

         II. RULE 12(b)(1) STANDARD

         Defendant's 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. 1974).

         Motions 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.

         Still, 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.

         III. DISCUSSION

         A. Converting Defendant's Motion

         Defendant 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 ...

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