United States District Court, D. Nebraska
MICHAEL D. NELSON UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff Zach
Hillesheim's Motion for Leave to Conduct Jurisdictional
Discovery (Filing No. 24) and Defendant Desert
Shops, LLC's Motion to Stay Proceedings (Filing No.
30). For the following reasons, the Court will deny
Desert Shops' motion to stay as moot, and deny
Plaintiff's motion for leave.
filed his original Complaint against Desert Shops on January
2, 2018, requesting injunctive relief for certain American
with Disabilities Act (“ADA”) violations.
(Filing No. 1 at p. 3). Plaintiff is paralyzed below
the waist and uses a wheelchair for mobility. Plaintiff
alleges that on September 26, 2017, he attempted to patronize
the “Kum & Go” service station and
convenience store located at 11111 Emmet Street in Omaha,
Nebraska, but encountered various architectural barriers in
the customer parking lot, primarily related to van accessible
parking spaces and appropriate curb ramps. (Filing No.
1). Desert Shops is the owner and lessor of the property
at 11111 Emmet Street.
Shops moved to dismiss Plaintiff's original Complaint,
arguing, among other things, that this Court does not have
jurisdiction because the Southern District of Iowa has
continuing jurisdiction over any ADA violations at Kum &
Go stores nationwide as part of a 2014 class action
settlement agreement in Gary McDermott et al. v. Kum
& Go, L.C., Case No. 3:13cv53-CRW-HCA (S.D. Iowa
2013)(hereinafter, “the McDermott
action”). (Filing No. 9; Filing No.
10). In response to Desert Shops' motion, Plaintiff
filed an amended complaint, (Filing No. 12), and the
Court denied Desert Shops' motion to dismiss without
prejudice to filing in response to Plaintiff's amended
complaint. (Filing No. 16). Plaintiff's amended
complaint is nearly identical in all respects to his original
Complaint, but adds the allegation that the property at 11111
Emmet Street contains two tenants, Kum & Go and Maple
Tailor & Cleaners, and replaces most specific references
to “Kum & Go” with “Subject
Property.” (Filing No. 12).
Shops has moved to dismiss Plaintiff's amended complaint
pursuant to Fed.R.Civ.P. 12(b)(1), (b)(2), (b)(3), and (b)(6)
for the same reasons alleged in its first motion. (Filing
No. 19; Filing No. 20). Specifically, Desert
Shops argues that Plaintiff is included in the class
previously certified in the McDermott action and is
therefore subject to the permanent injunction in that case
prohibiting class members from filing complaints or actions
arising out of ADA accessibility of any Kum & Go store
nationwide. (Filing No. 20 at pp. 4-5; Filing
No. 22-1). The McDermott action defines the
All persons in the United States who are disabled within the
meaning of the Americans With Disabilities Act and use
wheelchairs or scooters for mobility who have encountered or
may encounter architectural barriers or discriminatory
practices at any Kum & Go stores that are subject to the
(Filing No. 22-1 at p. 1). Because the claims in
Plaintiff's amended complaint are based solely on
architectural barriers encountered by Plaintiff in the Kum
& Go shared customer parking lot, Desert Shops argues
that Plaintiff's claims fall within the class defined in
the McDermott action.
Shops further argues that the Southern District of Iowa has
exclusive jurisdiction over any matters arising out of ADA
accessibility claims related to Kum & Go stores,
including the claims in this case, because the class
settlement agreement in the McDermott action
“accepts continuing jurisdiction over this matter to
interpret and enforce the provisions of the Settlement
Agreement throughout its term.” (Filing No. 20 at
p. 6). Desert Shops additionally argues that
Plaintiff's requested relief has already been granted, as
Kum & Go agreed in the McDermott action
Settlement Agreement to a schedule to improve its stores to
comply with ADA requirements, including requirements for
accessible parking space signage, location, width, curb
ramps, and maintenance. (Filing No. 22-1 at pp.
7-9). Finally, Desert Shops (alternatively) argues that
Plaintiff is collaterally estopped from bringing the instant
claims because the same claims were at issue in the
McDermott action. (Filing No. 20 at p. 8).
response to Desert Shops' renewed motion to dismiss,
Plaintiff filed a Motion for Leave to Conduct Jurisdictional
Discovery (Filing No. 24), asserting he needs to
conduct discovery related to the remediation plan in the
McDermott action in order to respond to Desert
Shops' jurisdictional challenges. Plaintiff also requests
leave to conduct discovery regarding the location and
allocation of responsibilities of the tenants at the Subject
Property. (Filing No. 25 at pp. 3-4). Desert Shops
filed a combined Motion to Stay and Brief in Opposition to
Plaintiff's Motion for Leave to Conduct Jurisdictional
Discovery. (Filing No. 30; Filing No.
30-1). Desert Shops asks that this Court stay all
proceedings “until such time as the United States
District Court for the Southern District of Iowa enters an
order on the pending Motion to Enforce Final Order and
Settlement Agreement and Enjoin District of Nebraska ADA
Litigation” filed by Kum & Go in the
McDermott action. (Filing No. 30 at p. 2).
Shortly after Desert Shops' Motion to Stay was fully
briefed, Plaintiff filed a Suggestion of Mootness (Filing
No. 33), and attached the Southern District of
Iowa's Order denying Kum & Go's motion to enjoin
this litigation. (Filing No. 33-1). Because the
Southern District of Iowa has entered an order on Kum &
Go's motion, Desert Shops' Motion to Stay Proceedings
(Filing No. 30) is moot. Remaining before the Court
is Plaintiff's Motion for Leave to Conduct Jurisdictional
Discovery (Filing No. 24).
is not limited to the merits of a case; ‘where issues
arise as to jurisdiction or venue, discovery is available to
ascertain the facts bearing on such issues.'”
Pudlowski v. The St. Louis Rams, LLC, 829 F.3d 963,
964 (8th Cir. 2016)(quoting Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 n. 13 (1978)). Jurisdictional
discovery is appropriate when “certain facts necessary
to resolving the jurisdictional inquiry are either unknown or
disputed.” Viasystems, Inc. v. EBM-Papst St.
Georgen GmbH & Co., KG, 646 F.3d 589, 598 (8th Cir.
2011). Courts may look to decisions under Fed.R.Civ.P. 56
“for guidance in determining whether to allow discovery
on jurisdictional facts.” Johnson v. United
States, 534 F.3d 958, 965 (8th Cir. 2008). A party
requesting discovery under Rule 56(f) “must file an
(1) what facts are sought and how they are to be obtained;
(2) how these facts are reasonably expected to raise a
genuine issue of material fact; (3) what efforts the affiant
has made to obtain them; and (4) why the affiant's
efforts were unsuccessful.
534 F.3d at 965. Plaintiff filed a Declaration identifying
six facts ...