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Burningham v. Costco Wholesale Corp.

United States District Court, D. Utah

December 19, 2017

SAMUEL BURNINGHAM, Plaintiff,
v.
COSTCO WHOLESALE CORPORATION, Defendant.

          MEMORANDUM DECISION AND ORDER DISMISSING PLAINTIFF'S AMENDED COMPLAINT WITHOUT PREJUDICE

          Jill N. Parrish, United States District Court Judge.

         Before the Court is Defendant's Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction (ECF No. 28). For the reasons set forth below, the Court converts the motion to dismiss into a motion for summary judgment and dismisses without prejudice Plaintiff's amended complaint.

         I. BACKGROUND

         Plaintiff Samuel Burningham has severe mobility issues as a result of a multiple sclerosis. He is unable to walk and relies primarily on a wheelchair for mobility. On June 13, 2017, Burningham filed a complaint against Costco Wholesale Corporation, seeking relief under Title III of the Americans with Disabilities Act of 1990 (the “ADA”).

         Burningham claimed that he was prevented from the full and equal enjoyment of the goods and services offered at Costco's warehouse located in Spanish Fork, Utah (the “Spanish Fork warehouse”). Compl. ¶ 34. Burninghman identified two violations of the ADA that deprived him of equal access to the Spanish Fork warehouse:

1. Failure to locate mirrors over lavatories and countertops with the bottom edge of the reflecting surface no greater than 40 inches (1015 mm) above the ground as required by [Guideline] 603.3; and
2. Failure to insulate or otherwise configure water supply and drain pipes under sinks to protect against contract as required by [Guideline] 606.5.

Compl. ¶ 34. Burningham withdrew the second allegation after Costco provided him with evidence that it was factually incorrect. See Am. Compl. ¶ 34. Consequently, Burningham's only remaining alleged violation of the ADA is based on Costco's failure to locate mirrors over lavatories and countertops with the bottom edge no greater than 40 inches above the ground. Am. Compl. ¶ 34.

         Prior to this lawsuit, Costco was not aware that its mirrors violated the ADA. Fackrell Decl. ¶ 3. After Burningham filed suit, Costco permanently installed full-length mirrors in the men's restroom at the Spanish Fork warehouse. Fackrell Decl. ¶ 5. Costco also installed full-length mirrors in the women's restroom and its unisex toilet room. Fackrell Decl. ¶¶ 6-7. Costco contends that the case is now moot because it has remedied the only alleged violation.

         II. DISCUSSION

         A. Federal Rule of Civil Procedure 12(b)(1)

         Motions to dismiss under Rule 12(b)(1) take two forms: facial and factual. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). Costco's motion constitutes a factual challenge to subject matter jurisdiction. On a factual challenge, the defendant goes beyond the allegations in the complaint to “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.

         Despite this discretion, district courts must 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 depends on the same statute that provides the substantive claims in the case. Id.

         Normally, district courts must provide notice to the non-movant before converting a Rule 12(b)(1) motion into a motion for summary judgment. Wheeler v. Hurdman, 825 F.2d 257, 259-60 (10th Cir. 1987). This ensures that there is no unfair surprise. Id. at 260. But a district court need not provide notice when the non-movant ...


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