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Hillesheim v. Balance Point Properties, LLC

United States District Court, D. Nebraska

October 18, 2017



          Robert F. Rossiter, Jr., United States District Judge

         This matter is before the Court on defendant Balance Point Properties, LLC's (“Balance Point”) Motion to Dismiss the First Amended Complaint (Filing No. 18) with prejudice for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiff Zach Hillesheim (“Hillesheim”) has filed a Brief in Opposition (Filing No. 21) to the Motion. For the reasons set forth below, the Court denies Balance Point's Motion to Dismiss.

         I. BACKGROUND

         On February 12, 2017, Hillesheim attempted to patronize a multi-tenant commercial building located at 7222 South 142nd Street in Omaha. The commercial building holds several tenant businesses, including Mobility Motoring which specializes in mobility solutions for handicapped drivers and passengers. After noticing Mobility Motoring from a nearby restaurant, Hillesheim, who is paralyzed below the waist and uses a wheelchair for mobility, became interested in visiting due to his upcoming move to Omaha. Hillesheim foresaw himself needing to use Mobility Motoring's services to perform work on his car, which contains modifications that assist him in driving, and to rent a vehicle with mobility enhancements. When Hillesheim arrived at Mobility Motoring he observed approximately sixty-nine parking spaces in the customer parking lot, six of which were reserved as accessible parking spaces through paint on the ground. Hillesheim contends none of these parking spaces were located near Mobility Motoring's accessible entrance leaving Hillesheim unable to access the business. Mobility Motoring was closed that day, thus, Hillesheim would have been unable to patronize even if sufficient accessible parking had been provided.

         On April 25, 2017, Hillesheim filed a Complaint (Filing No. 1) against Balance Point claiming discrimination in violation of the Americans with Disabilities Act of 1990 (“ADA”), 14 U.S.C. § 12101. Balance Point subsequently filed a Motion to Dismiss (Filing No. 8), asserting this Court lacks subject matter jurisdiction because Hillesheim does not have standing. On July 12, 2017, pursuant to Federal Rule of Civil Procedure 15(a)(1), Hillesheim filed his First Amended Complaint (Filing No. 16) to reflect his move to Omaha. In this First Amended Complaint, Hillesheim states he now lives in an apartment approximately fifteen miles from Balance Point's property and intends to return to the property to learn about and use the services of Mobility Motoring. Hillesheim further alleges he frequently travels nearby Mobility Motoring but remains unable to patronize due to architectural barriers. Balance Point moved to dismiss Hillesheim's First Amended Complaint.


         For a court to “dismiss [a case] for lack of subject matter jurisdiction [based on lack of standing] under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). “In a facial challenge to jurisdiction, all the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Id. When a defendant brings a factual attack, “the court considers matters outside the pleadings . . . and the non-moving party does not have the benefit of 12(b)(6) safeguards.” Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). Balance Point only brings a factual challenge to Hillesheim's standing. As such, the Court may consider matters outside the pleadings when deciding this issue, and does not presume Hillesheim's factual allegations are true. Id.

         Title III of the ADA proscribes discrimination in public places against persons with disabilities. 42 U.S.C. § 12182(a). Included in the definition of discrimination is the “failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities . . . where such removal is readily achievable.” Id. at § 12182(b)(2)(A)(iv). Pursuant to the ADA, “any person who is being subjected to discrimination on the basis of disability” may bring an action for injunctive relief. Id. at § 12188(a)(1). Hillesheim alleges he was subjected to discrimination on the basis of his disability because Balance Point did not provide sufficient accessible parking near Mobility Motoring. He further alleges he was unable to patronize the business due to this lack of accessible parking.

         To bring such a claim Hillesheim must have standing. Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000) (explaining the case and controversy requirement in Article III, § 2, of the United States Constitution makes “standing to sue the threshold question in every federal case.” (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975))). The Supreme Court has identified three requirements a plaintiff must meet to establish standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of . . . . Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Id. (internal quotations omitted).

         Balance Point argues Hillesheim's First Amended Complaint fails to allege an injury-in-fact. Balance Point urges the Court to apply the four-factor “likelihood of return” test delineated in Brown v. Grandmother's Inc., No 4:09-CV-3088, 2010 WL 611002, at *6 (D. Neb. Feb. 17, 2010). For the reasons set forth below, under both the traditional standing analysis and the four factor “likelihood of return test” Hillesheim has alleged sufficient facts to establish standing.

         A. Injury-in-Fact

         “An injury-in-fact is a harm that is ‘concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'” Steger, 228 F.3d at 892 (quoting Lujan, 504 U.S. at 560-61). A plaintiff seeking an injunction must establish that he or she “sustained or is immediately in danger of sustaining some direct injury as a result of the challenged . . . conduct and [that] the injury or threat of injury [is] both real and immediate.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). A plaintiff must “at least prove knowledge of . . . [architectural barriers] and that they would visit the building in the imminent future but for those barriers.” Steger, 228 F.3d at 892; see also Lujan, 504 U.S. at 564 (stating an ...

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