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Burningham v. Teton Toys Lehi, Inc.

United States District Court, D. Utah, Central Division

November 30, 2018

Samuel Burningham, Plaintiff,
v.
Teton Toys Lehi, Inc. d.b.a. Teton Toys, Defendant.

          MEMORANDUM DECISION AND ORDER

          Dustin B. Pead Magistrate Judge.

         On June 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.)

         This 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 part.

         BACKGROUND

         Plaintiff 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.

         Defendant 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.)

         Defendant 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. 12(b)(6).

         Alternatively, 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.

         ANALYSIS

         A. The Disposition of Claim B for Failure to State a Claim

         In 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.

         Although 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.

         Claim 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 to ...


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