United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
B. Pead Magistrate Judge.
6, 2017, Plaintiff Samuel Burningham
(“Plaintiff”) filed a Complaint against Defendant
Teton Toys Lehi, Inc. dba Teton Toys
(“Defendant”) alleging a violation of the
Americans With Disabilities Act (“ADA”), as
amended (Compl., ECF No. 8.) The parties consented to the
jurisdiction of the Magistrate Judge pursuant to 28 U.S.C.
636(c) on February 6, 2018. (ECF No. 20.)
matter is before the court on Defendant's Motion to
Dismiss for lack of jurisdiction (“Motion”). (ECF
No. 24.) The court has carefully reviewed the moving papers
submitted by the parties. Pursuant to civil rule 7-1(f) of
the Rules of Practice for the United States District Court
for the District of Utah, the court has concluded that oral
argument is not necessary and will determine the motions on
the basis of the written papers. For the reasons below, the
court GRANTS the Motion in part and DENIES the Motion in
brings his action under Title III of the ADA, 42 U.S.C.
§ 12101 et seq. Plaintiff resides in Spanish Fork, UT
and has a disability stemming from a diagnosis of multiple
sclerosis. (ECF No. 27 at ¶¶2, 6.) Plaintiff relies
primarily on the use of a wheelchair for mobility.
Id. at 6.
operates a specialty toy store located at 1438 East Main St.,
Suite #7, Lehi, UT. (ECF No. 8 at ¶3.) Plaintiff asserts
that he visited Defendant's store on or about April 4,
2017. (ECF No. 8 at ¶33.) Plaintiff alleges that
Defendant was in violation of 36 C.F.R §1191, Appendix
D, Guideline 403.5.1 because Defendant did not provide a
clear width of 36” in all walking surfaces, aisles and
pathways (“Claim A”). (ECF No. 8 at ¶34a.)
Additionally, Plaintiff alleges that Defendant was in
violation of 36 C.F.R §1191, Appendix D, Guideline 502.6
because an accessible parking space identification sign was
placed in a manner in which Plaintiff “[was] not able
to see…and quickly recognize where the accessible
parking spaces [were] located, ” (“Claim
B”). (ECF No. 8. at ¶34b.) Plaintiff also alleges
that Defendant is failing to make “reasonable
modifications in policies, practices and procedures necessary
to accommodate…Plaintiff's disability and provide
ongoing full and equal access as required by 42 U.S.C.
§12182 (b)(2)(A)(ii); 28 C.F.R. §36.304(a)
(“Claim C”). (ECF No. 8 at ¶34c.)
asserts that Plaintiff failed to state a claim upon which
relief can be grated because Plaintiff's claim is vague
and does not “raise the right to relief above a
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Defendant asks that
the court dismiss Plaintiff's claims under Fed.R.Civ.P.
Defendant argues that since Defendant has voluntarily
remedied Plaintiff's alleged violations of the ADA, there
is no longer an active case or controversy and the court must
dismiss the matter for lack of subject matter jurisdiction.
Defendant's voluntary remediation is asserted in the
Declaration of Warren Gardner which is an exhibit introduced
outside of the pleadings. (ECF No. 24-1 at 223-224.) Thus,
Defendant contends to be making a factual attack on subject
matter jurisdiction. See Holt v. United States, 46
F.3d 1000, 1002 (10th Cir. 1995). Defendant also argues that
Plaintiff lacks standing. Defendant asserts that
Plaintiff's injury is not sufficient because it is too
speculative. Defendant argues that the litigation funding
model employed by Plaintiff undermines Plaintiff's
standing. Because the court is granting the Motion for lack
of subject matter jurisdiction, the court's analysis does
not reach these arguments.
Disposition of Claim B for Failure to State a Claim
evaluating a motion to dismiss for failure to state a claim,
allegations are viewed in light which is favorable to the
plaintiff. See Beedle v. Wilson, 422 F.3d 1059, 1063
(10th Cir. 2005). The truth of each well-pleaded allegation
is presumed and dismissal is only proper if the plaintiff
fails to plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). Although the truth
of all well-pleaded factual allegations is assumed and they
are viewed favorably for the plaintiff, mere conclusions and
recitation of the elements of a claim may not “raise a
right to relief above the speculative level.”
Id. at 555.
Claims A and C both contain legal conclusory statements and a
recitation of the elements of the claim, they are also both
supported by factual claims. When taken without the
conclusory statements, the factual allegations alone are
sufficient under the appropriate standard of review to
articulate a plausible claim for relief.
B, on the other hand, consists solely of an allegation that
the Defendant violated the ADA by failing to provide
accessible parking signs with specific qualities. Plaintiff
fails to make any allegation that Defendant had a
responsibility to provide accessible parking space
identification signs because Plaintiff does not claim that
Defendant owns, operates or is any other way responsible for
any particular parking spaces. Plaintiff fails to articulate
with any specificity the location of the non-compliant
parking space and fails to even articulate whether they are
complaining that an existing sign is out of compliance with
ADA regulations or if there was no sign at all. In turn, with
regard to Claim B, Plaintiff has failed to raise their right