United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
Benson United States District Judge.
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.
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. Pei Wei also seeks sanctions including
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)).
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.
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.
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.
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.
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.
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 ...