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Kelley v. PEI Wei Asian Diner, LLC

United States District Court, D. Utah, Central Division

December 7, 2017

TREVOR KELLEY, Plaintiff,
v.
PEI WEI ASIAN DINER, LLC, Defendant.

          MEMORANDUM DECISION AND ORDER

          Dee Benson United States District Judge.

         This matter is before the Court on Defendant Pei Wei Asian Diner, LLC's (Pei Wei) Motion to Dismiss. [Dkt. 15]. The Motion has been fully briefed. The Court held a hearing on November 29, 2017 at which Plaintiff Trevor Kelley (Mr. Kelley) was represented by Mr. James K. Ord and Pei Wei was represented by Mr. Conrad Kee. The Court took the motion under advisement. Based on the written and oral arguments of the parties and the relevant facts and the law, the Court issues the following Memorandum Decision and Order.

         BACKGROUND

         This case involves alleged violations of the Americans with Disabilities Act (ADA). Mr. Kelley claims that the Pei Wei restaurant located at 10373 South State Street in Sandy, Utah violated the ADA in two ways: (1) the parking signs were installed 57 inches from the ground instead of the minimum required 60 inches; and (2) under-sink piping in the mens' room did not have the required insulation. Mr. Kelly filed this action seeking injunctive relief requiring Pei Wei to comply with the ADA regulations and requesting attorneys' fees, costs and expenses. [Dkt. 2]. Shortly after Mr. Kelley commenced this action, Pei Wei remedied the alleged violations by reconstructing the parking signs so that they are 60 inches from the ground and installing insulation around the under-sink pipes. [Dkt. 15 Exh. H; Dkt. 15-9 Exhs. A & B]. Pei Wei moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction arguing the claim is moot.[1] Pei Wei also seeks sanctions including attorneys' fees.

         LEGAL STANDARD

         Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, federal courts do not presume jurisdiction, and the party asserting federal jurisdiction bears the burden of proof. Marcus v. Kansas Dep't of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999)(citing Penteco Corp. Ltd. Partnership - 1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991). Motions to dismiss for lack of subject matter jurisdiction may take the form of a “facial attack on the complaint's allegations, ” or “a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends.” Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995)(citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)).

         DISCUSSION

         In its motion, Pei Wei asks the Court to view evidence outside of the Complaint to establish that subject-matter jurisdiction does not exist because it has remediated the alleged ADA violations. This evidence includes a declaration from Cynthia Brown, the General Manager at the Sandy, Utah Pei Wei, discussing the remediation of the violations. See Dkt. No. 15 Exh. H. Pei Wei also submitted photographs showing that the violations have been fixed. Dkt. 15-9 Exhs. A & B]. Notably, Pei Wei does not dispute the allegations in the Complaint. Rather, Pei Wei asserts that even if everything in the Complaint were true, the case is moot.

         “Generally, Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction take two forms. First, a facial attack on the complaint's allegations as to subject-matter jurisdiction questions the sufficiency of the complaint.” Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). For a facial attack the court must accept the allegations in the complaint as true. Id. For a factual attack “a party may go beyond allegations contained in the complaint and challenge the facts upon which subject-matter jurisdiction depends.” Id. at 1003. “A district court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. Viewing such “evidence outside of the pleadings does not convert the motion to a Rule 56 motion.” Id.

         A court, however, is required to convert a 12(b)(1) motion to dismiss to a Rule 56 motion when the jurisdictional questions are 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.

         Here, Pei Wei's factual attack on subject-matter jurisdiction is not intertwined with the merits of the case. Pei Wei does not argue that the allegations in the Complaint are untrue. Rather, it argues that assuming all of the allegations in the Complaint are true, there is no longer an ongoing controversy because the alleged violations have been remediated. The Court is therefore able to consider evidence that Pei Wei fixed the violations without converting the motion to a Rule 56 motion. Viewing such evidence is consistent with a number of other courts that have viewed factual evidence outside of the pleadings to determine whether a defendant's voluntary compliance with the ADA rendered the case moot. See Bacon v. Walgreen Co., 91 F.Supp.3d 446 (E.D.N.Y. 2015). Because the jurisdictional issues and the case's merits are not intertwined, it is within the Court's discretion to view the evidence Pei Wei has presented attesting to the remediation of the violations.

         I. MOOTNESS

         Kelley brings her claim under Title III of the ADA. 42 U.S.C. § 12182(a). Under Title III of the ADA, a litigant can bring an action only for injunctive relief to compel correction of a non-conforming barrier. See Rhodes v. S. Nazarene Univ., 554 F.App'x 685, 690 (10th Cir. 2014)(“Title III . . . provides for only injunctive relief and not compensatory damages.”). Pei Wei moves to dismiss the complaint arguing its voluntary compliance rendered the case moot. Mr. Kelley contends that his claim is not moot because Pei Wei cannot meet its burden of proving that the violations are not likely to reoccur.

         “A request for prospective relief can be mooted by a defendant's voluntary compliance if the defendant meets the formidable burden of demonstrating that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur. Such a burden will typically be met only by changes that are permanent in nature and that foreclose a reasonable chance of ...


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