United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
CAMPBELL U.S. DISTRICT COURT JUDGE.
a three-month period, Samuel Burningham filed 149 lawsuits in
this district, all alleging violations of the Americans with
Disabilities Act (ADA) by local businesses. This order
involves one of those lawsuits.
identical to Mr. Burningham's other suits, he alleges
here that TVI, Inc., DBA Savers (Savers), violates the ADA by
(1) providing accessible-parking signs that stand a few
inches short of the ADA requirement and (2) failing to
insulate the pipes under its sink. Because Savers has now
insulated the piping under its sinks, and because Mr.
Burningham fails to allege that Savers owns, leases, or
operates the parking lot in which the alleged nonconforming
sign stands, the court dismisses Mr. Burningham's
suit. And though the court finds the alleged
behavior of Mr. Burningham and his counsel disturbing,
because the court has determined that the case should be
dismissed, further investigation into the allegations at this
time would waste judicial resources. Consequently, the court
declines to impose sanctions.
Burningham has a disability that requires the use of a
wheelchair. Savers owns and operates several thrift stores,
including one in Orem, Utah (the Orem Store). Mr. Burningham
has shopped at the Orem Store and intends to return in the
future. Mr. Burningham also intends to visit the Orem Store
in the future to “verify compliance . . . with the
ADA.” (Compl. ¶ 14, ECF No. 2.)
visiting the Orem Store, Mr. Burningham encountered
“barriers to access” that deter him from further
shopping there and monitoring its compliance. (Id.)
As a result, Mr. Burningham filed this lawsuit, alleging that
Savers continues to violate the ADA by failing (1) “to
provide accessible parking space identification signs 60
inches . . . above the . . . ground surface” and (2)
“to insulate . . . [its] water supply and drain pipes
under sinks to protect against contact.” (Id.
¶ 34.) Mr. Burningham seeks an injunction requiring
Savers to fix its violations.
receiving the complaint, Savers's District Manager,
Joseph VanDam, travelled to the Orem Store to investigate the
violations. While there, he “discovered that the
restroom sinks indeed had no protective insulation around the
pipes under the sinks.” (Decl. of Joseph C. VanDam
¶ 4, ECF No. 5-9, attached to Mot. to Dismiss.) Mr.
VanDam immediately installed insulation and submitted photos
as proof. He also instructed the Orem Store employees to
“be certain that the under-sink insulation remains
intact, in place and in good repair.” (Id.
VanDam then examined the accessible-parking signs in front of
the Orem Store. On inspecting them he “discovered that
they were actually over 60 inches from the ground.”
(Id. ¶ 5.) After comparing a photo of the
alleged noncompliant sign that Mr. Burningham had provided to
Savers, Mr. VanDam concluded that the alleged noncompliant
sign was not any “of the signs that were actually in
front of the store.” (Id. ¶ 6.)
VanDam testified that Savers leases the building for the Orem
Store, which is located in a shopping center with a large
parking lot that serves multiple storefronts. Under the
lease, the landlord of the shopping center maintains
“exclusive control and management of . . . the Common
Areas, ” including the parking lot. (Shop Lease
Provisions 13, attached as Ex. 3 to Decl. of Joseph C.
insulating the under-sink piping, confirming that the
accessible-parking signs in front of its store complied with
the ADA's regulations, gathering evidence that Savers is
not the owner, operator, or lessor of the parking lot, Savers
moved to dismiss Mr. Burningham's suit.
The Court Will Consider Mr. VanDam's Declaration and
Its Attachments to Resolve the Piping Claim,
but not to Resolve the Accessible-Parking Claim.
initial matter, Mr. Burningham argues that the court
“is required to convert [the] Rule 12(b)(1) motion to
dismiss into a Rule 12(b)(6) motion or a Rule 56 summary
judgment motion” because the “jurisdictional
question is intertwined with the merits of the case.”
(Resp. to Def.'s Mot. to Dismiss 7, ECF No. 11.) Savers
typical motion to dismiss, a motion under Rule 12(b)(6), the
court accepts “as true all well-pleaded facts, as
distinguished from conclusory allegations, and view[s] those
facts in the light most favorable to the nonmoving
party.” Beedle v. Wilson, 422 F.3d 1059, 1063
(10th Cir. 2005) (citation and internal quotations marks
omitted). But when a defendant moves for dismissal under Rule
12(b)(1)-asserting that the court lacks subject-matter
jurisdiction- the court can “go beyond allegations
contained in the complaint” by looking at
“affidavits [and] other documents.” Holt v.
United States, 46 F.3d 1000, 1003 (10th Cir. 1995).
courts do not presume jurisdiction. Rather, the party
asserting federal jurisdiction bears the burden of proof.
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