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Burningham v. TVI, Inc.

United States District Court, D. Utah, Central Division

October 25, 2017

TVI, INC., DBA SAVERS, Defendant.



         Within 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.

         Nearly 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.[1] 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.


         Mr. 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.)

         In 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.

         After 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. ¶ 8.)

         Mr. 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.)

         Mr. 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. VanDam.)

         After 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.


         I. The Court Will Consider Mr. VanDam's Declaration and Its Attachments to Resolve the Piping Claim, but not to Resolve the Accessible-Parking Claim.

         As an 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 disagrees.

         In a 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).

         Federal courts do not presume jurisdiction. Rather, the party asserting federal jurisdiction bears the burden of proof. Marcus v. Kan. Dep't of ...

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