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Kelley v. Cafe Rio Inc.

United States District Court, D. Utah

November 15, 2017

CAFE RIO, INC., D.B.A. CAFE RIO, Defendant.



         District Judge Ted Stewart This matter is before the Court on Defendant Cafe Rio's (“Defendant”) Motion to Dismiss for Lack of Jurisdiction. For the reasons set forth below, the Court will grant the Motion.

         I. BACKGROUND

         Plaintiff Trevor Kelley (“Plaintiff”) has been diagnosed with Arthrogryposis Multiplex Congentia, which severely limits his physical abilities and requires him to rely on a wheelchair for mobility. Plaintiff visited Defendant's place of business located in Draper, Utah, on or about February 27, 2017. Plaintiff alleges that upon his visit to Defendant's establishment, he was “prevented from the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of Defendant's [business] due to Defendant's violation of the [Americans with Disabilities Act (“ADA”)] and its accompanying Accessibility Guidelines.”[1]Plaintiff alleges Defendant violated the ADA by (1) positioning a soap dispenser more than forty-eight inches above the ground and (2) failing to provide accessible parking space identification signs sixty inches above the ground.

         Plaintiff filed his Complaint against Defendant alleging the above ADA violations on July 13, 2017. Defendant filed this Motion to Dismiss on August 22, 2017. In its Motion, Defendant does not dispute that the violations occurred, but states that the violations have since been remedied. Specifically, Defendant alleges that the soap dispenser has been permanently fixated at a height in compliance with the ADA and that, although the parking lot is not owned or maintained by Defendant, Defendant notified the landlord of the allegations, and the landlord has since raised the height of the handicap parking signs to be ADA compliant. Defendant, therefore, moves to dismiss this matter under Rule 12(b)(1) of the Federal Rules of Civil Procedure, contending this Court lacks subject matter jurisdiction to resolve the matter because the violations alleged in Plaintiff's Complaint are now moot.


         Rule 12(b)(1) of the Federal Rules of Civil Procedure empowers a court to dismiss a complaint for “lack of subject matter jurisdiction.” The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction.[2] “Rule 12(b)(1) motions can take the form of either a ‘facial' or a ‘factual' attack on the court's subject matter jurisdiction.”[3] Here, Defendant's Motion alleges the claims are moot based on its substantial remediation and therefore challenges the Court's jurisdiction on a factual basis.

When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. [A] court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.[4]

         Plaintiff argues the Court should convert Defendant's Motion to a 12(b)(6) motion or a motion for summary judgment and take all the facts alleged in the Complaint as true. “A court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion [only if] resolution of the jurisdictional question is intertwined with the merits of the case.”[5] The jurisdictional facts are not intertwined with the merits of this case. The facts related to the merits of the case concern whether the violations of the ADA occurred. The jurisdictional facts concern the remedial efforts taken by Defendant, which have not been controverted by Plaintiff. The Court will therefore analyze the Motion under the 12(b)(1) standard stated above.


         Defendant's Motion states that Plaintiff's claims should be dismissed because Defendant has voluntarily remedied the alleged ADA violations, therefore rendering Plaintiff's claims moot. “Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.”[6] In determining whether a controversy is “live, ” “[t]he crucial question is whether ‘granting a present determination of the issues offered will have some effect in the real world.'”[7] The controversy must remain live throughout the entire proceeding.[8] “A federal court must order dismissal for mootness if the controversy ends prior to a decision even if a justiciable controversy existed when the suit began.”[9]

         In cases involving alleged ADA violations, courts have found a defendant's voluntary remedial efforts may moot the litigation under certain circumstances.[10] This is because Title III of the ADA provides only for injunctive relief, not monetary damages.[11] Therefore, once a defendant has voluntarily complied with the injunctive relief that would otherwise be ordered by a court, no further controversy exists and the case is moot.

         However, voluntary cessation of alleged offensive conduct can moot litigation only “if it is clear that the defendant has not changed course simply to deprive the court of jurisdiction.”[12]This requirement “exists to counteract the possibility of a defendant ceasing illegal action long enough to render a lawsuit moot and then resuming the illegal conduct.”[13] “The party asserting mootness bears the ‘heavy burden of persuading' the court that the challenged conduct cannot reasonably be expected to start up again.”[14] “Such a burden will typically be met only by changes that are permanent in nature and that foreclose a reasonable chance of recurrence of the challenged conduct.”[15]

         Here, Defendant alleges that it remedied the alleged ADA violations by (1) permanently reaffixing the public restroom soap dispenser to be compliant with the ADA's forty-eight-inch requirement; (2) notifying the owner of the violations in the common area parking lot, which the owner has since remedied; and (3) taking preventative measures by implementing an ADA checklist that is now part of a weekly site check performed by Defendant's Director of Facilities and facilities team.

         Defendant cites to several cases in support of its argument that its remedial efforts have rendered Plaintiff's Complaint moot. In Tandy v. Wichita, disabled passengers brought suit against the city transit system for various violations of the ADA. Following the initiation of the suit, the city remedied each of the violations by changing its policy so all fixed bus routes were accessible, each bus on the fixed bus routes included a lift, and drivers were directed to always deploy lifts for disabled riders. The Tenth Circuit found that “[n]othing in the record suggest[ed] that Wichita Transit intend[ed] to resume its discontinued policies if [the] case [was] dismissed as moot, ” and dismissed the case finding that “it [was] ‘absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.'”[16]

         In Bacon v. Walgreen Co., [17] the plaintiff-a man confined to a wheelchair-brought suit after he was injured while attempting to pass through two electronic sensors placed at either side of the exit doors located at the defendant's place of business. The defendant filed a motion to dismiss after it permanently widened the placement of the sensors to be ADA compliant. Applying the same standard adopted by the Tenth Circuit, the District Court for the Eastern District of New York found “no reason whatsoever why defendant would wish to position the sensors in a narrower width, ” and further found “no evidence suggesting that [the defendant] intend[ed] to move the ...

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