United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr., United States District Judge
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
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.
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
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.
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
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
Id. (internal quotations omitted).
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
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 ...