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Stewart v. Popeye's Chicken

United States District Court, D. Nebraska

January 13, 2017

ANNIE STEWART, Individually; Plaintiff,
v.
POPEYE'S CHICKEN, EON PROPERTIES, LLC, NIKHIL MEHTA, AND JOHN DOE 1 AND 2 INCLUSIVE, Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge.

         This matter is before the Court on the Motion to Dismiss, filed by Defendants Popeye's Chicken (“Popeye's”), EON Properties, LLC (“EON”), and Nikhil Mehta (“Mehta”) (collectively, “Defendants”) pursuant to Federal Rule of Civil Procedure 12(b)(1). ECF No. 12. For the reasons stated below, the Motion will be granted.

         BACKGROUND

         Plaintiff Annie Stewart (“Stewart”) patronized Popeye's fast food restaurant located at 5223 N. 30th Street in Omaha, Nebraska (the “restaurant”), on September 20, 2015. Comp. ¶ 9, ECF No. 1, Page ID 2. Stewart has limited mobility and alleges she had difficulty accessing the restaurant because the restaurant facility failed to comply with the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., requirements. Id. Specifically, Stewart alleges the restaurant did not provide a van parking space compliant with the ADA Access Guidelines for Buildings and Facilities (“ADAAG”)[1] with regard to width, length, and signage. Id.; see 36 C.F.R. § 1191, App. B & App. D. Stewart states she intends to return to the restaurant, but that “these barriers” prevent her from doing so. Comp. ¶ 10-11, ECF No. 1, Page ID 2-3.

         On October 19, 2015, Stewart filed a complaint (the “2015 Complaint”) alleging Defendants discriminated against her on the basis of her disability in violation of Title III of the ADA and its regulations. See 42 U.S.C. § 12182(a).[2] The Court dismissed that lawsuit for failure to prosecute. Stewart v. Popeye's Chicken, et al., 8:15-cv-00381-LSC-FG3, ECF No. 13 (D. Neb. Aug. 1, 2016). On October 25, 2016, Stewart filed this action (the “2016 Complaint”), alleging the restaurant's parking area violates 42 U.S.C. § 12182(a). Stewart seeks a declaration pursuant to 28 U.S.C. § 2201 that Defendants are in violation of the ADA and requests an injunction requiring Defendants “make [the restaurant] facility readily accessible to and usable by individuals with disabilities to the extent required by the ADA.” Comp., ECF No. 1, Page ID 6. Stewart also requests attorney's fees, costs, and litigation expenses pursuant to 42 U.S.C. § 12205. Id.

         On December 5, 2016, Defendants moved to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. ECF No. 12. Defendants assert this case is moot because they brought the restaurant's parking area into compliance with the ADA's requirements following Stewart's initial lawsuit and prior to her filing the instant lawsuit. Def.'s Brief Supp. Mot. to Dis., ECF No. 13, Page ID 35. Further, Defendants contend Stewart lacks standing under Article III of the United States Constitution.

         Immediately after Stewart filed the 2015 Complaint, Defendants undertook to determine their compliance, or lack thereof, with the ADA's requirements. Def.'s Brief Supp. Mot. to Dis., ECF No. 13, Page ID 31. Defendants do not dispute that when Stewart visited the restaurant on September 20, 2015, the restaurant parking area lacked a van-accessible parking space in violation of the ADA's requirements. Id. On November 11, 2015, however, counsel for Defendants sent a letter to Stewart's counsel informing her that an ADA compliant van parking space now existed at the restaurant facility. Wentz Ltr., ECF No. 14-3. Stewart's counsel did not respond. Again on March 18, 2016, in response to untimely service of process of the 2015 Complaint, counsel for Defendants sent a letter to Stewart's counsel informing her that the ADA violation had been remedied. Wentz Ltr. ECF No. 14-4. Stewart's counsel did not respond.

         After Stewart filed the 2016 Complaint, counsel for Defendants sent a third letter to Stewart's counsel informing her an ADA compliant van parking space had been added and requesting a dismissal of the lawsuit. Stewart's counsel did not respond and Defendants submit this motion to dismiss asserting mootness and lack of standing.

         STANDARD OF REVIEW

         “[M]ootness and standing are questions of subject matter jurisdiction.” Doe v. Nixon, 716 F.3d 1041, 1047 (8th Cir. 2013). “In a facial challenge to jurisdiction, the court presumes all of the factual allegations concerning jurisdiction to be true and will grant the motion only if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Young America Corp. v. Affiliated Comput. Servs., 424 F.3d 840, 843-44 (8th Cir. 2005) (citing Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In a factual challenge to jurisdiction, “there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). “In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Iowa League of Cities v. EPA, 711 F.3d 844, 861 (8th Cir. 2013) (citing Osborn, 918 F.2d 724, 730). The plaintiff has the burden of proving jurisdiction exists; “[h]owever, the ‘heavy' burden of proving mootness falls on the party asserting the case has become moot.” Kennedy Building Associates v. Viacom, Inc., 375 F.3d 731, 745 (8th Cir. 2004) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). “Once the evidence is submitted, the district court must decide the jurisdictional issue, not simply rule that there is or is not enough evidence to have a trial on the issue.” Osborn, 918 F.2d 724.

         “As no statute or rule prescribes a format for evidentiary hearings on jurisdiction, ‘any rational mode of inquiry will do.'” Brown, 2010 WL 489531, at *2 (citing Osborn, 918 F.2d 724, 730). “So long as the court has afforded the parties notice and a fair opportunity to be heard, an evidentiary hearing is unnecessary.” Brown, 2010 WL 489531, at *2 (citing Johnson v. United States, 534 F.3d 958, 964-65 (8th Cir. 2008)).

         DISCUSSION

         Defendants have submitted sworn declarations and other documentary evidence in support of their Motion and Stewart has submitted no such evidence or brief in opposition. See ECF Nos. 14-1 to 14-6. Neither Stewart nor Defendants requested an evidentiary hearing and the Court finds such a hearing unnecessary. See Johnson, 534 F.3d 958, 964-65 (determining district court did not abuse its discretion in deciding Rule 12(b)(1) motion on affidavits and briefs where neither party requested a hearing). The evidence submitted is not part of or “necessarily embraced” by the pleadings. Osborn, 918 F.2d 724 at 730. As such, the Court will treat Defendants' Motion as a factual challenge to jurisdiction and weigh the evidence to determine whether jurisdiction exists.

         I. ...


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