United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
N. Parrish, United States District Court Judge.
Judge Jill N. Parrish Before the Court is Defendant's
Rule 12(b)(1) motion to dismiss, filed September 8, 2017 (ECF
No. 14). 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
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.
29, 2017, Plaintiff filed a complaint against Defendant
Seagull Book, alleging violations of the Americans with
Disabilities Act of 1990 ("ADA"). Specifically, the
complaint alleges that Defendant (1) failed to "provide
an unobstructed high forward reach to the towel dispenser no
greater than 48 inches (1220 mm) above the ground, " (2)
failed to "provide a parking space identified with a
sign that includes the International Symbol of
Accessibility", (3) failed to "provide accessible
parking space identification signs 60 inches (1525 mm) above
the finish floor or ground surface, " (4) failed to
"provide signs containing the designation 'van
accessible' that identify van parking spaces, " (5)
failed to "provide toilet flush controls on the open
side of the water closet, " and (6) failed to
"insulate or otherwise configure water supply and drain
pipes under sinks to protect against contact." ECF No. 2
asks the Court to dismiss Plaintiffs complaint in its
entirety. Defendant presents three independent arguments
favoring dismissal: First, Defendant has allegedly remediated
all alleged violations, rendering Plaintiffs claim moot;
second, Plaintiff does not satisfy the injury-in-fact
requirement for standing; and third, Plaintiff has failed to
join an indispensable party.
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. Ill.
§ 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
United States 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.
Defendant's Motion Must be Converted to a Rule 56 Motion
for Summary Judgment
Court must first determine whether to convert Defendant's
motion to a Rule 12(b)(6) motion to dismiss or to a Rule 56
motion for summary judgment. That determination hinges upon
whether subject-matter jurisdiction depends on the same
statute that provides the substantive claim in this case (the
argues that it "investigated the allegations and
undertook remediation efforts, where such were warranted, and
made any and all repairs necessary to ensure its customers
with disabilities are afforded full and equal enjoyment of
the facilities and services offered at the Taylorsville
Seagull Book." ECF No. 14 at viii. Specifically,
Defendant avers that it has taken the following remedial
1. It corrected the height of its bathroom towel dispenser.
2. It replaced the flush handle on the toilet with a more
3. It insulated the water supply and drain pipes under the
4. It contacted its landlord regarding parking space and sign