United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon, Senior United States District Judge.
Davis is suing Ak-Sar-Ben Village, L.L.C. under the Americans
with Disabilities Act ("ADA"), 42 U.S.C. §
12101. Ms. Davis alleges that Ak-Sar-Ben Village maintained a
parking lot that failed to meet ADA standards. Ak-Sar-Ben
Village has moved to dismiss this case for lack of
subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1).
Filing No. 28.
Davis has cerebral palsy. Filing No. 22, ¶10. Her
cerebral palsy "substantially limits her ability to walk
and stand." Filing No. 22, ¶ 10. Because it is hard
for her to walk and stand, Ms. Davis uses a wheelchair.
See Filing No. 22, ¶ 38.c.
February 2018, Ms. Davis visited "Shoppes at
Aksarben," a shopping center in Omaha. Filing No. 22,
¶ 12. When she visited Shoppes at Aksarben, Ms. Davis
intended to patronize its stores but allegedly encountered
several ADA violations in its parking lot. These ADA
violations included: low handicap signs (Filing No. 22,
¶ 38.b), narrow access aisles (Filing No. 22, ¶
38.c), steep curb ramps (Filing No. 22, ¶ 38.e), and
unlevel curb-ramp landings (Filing No. 22, ¶38.d).
March 2, 2018, Ms. Davis sued Ak-Sar-Ben Village-the limited
liability company that owns Shoppes at Aksarben. Ak-Sar-Ben
Village moved to dismiss this case on May 15, 2018. Between
March 2 and May 15, Ak-Sar-Ben Village tried to fix its
parking lot so that it would comply with the ADA. Ak-Sar-Ben
Village retained an architecture-and-engineering firm to
audit Shoppes at Aksarben for ADA violations and retained a
contractor to fix the ADA violations. Filing No. 30-1, ¶
6-7. Ak-Sar-Ben Village argues that by fixing its parking
lot, it vitiated Ms. Davis's standing to sue and mooted
this case, divesting this Court of subject-matter
STANDARD OF REVIEW
is a threshold issue for this Court. See Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 94-96
(1998); see also Arbaugh v. Y & H Corp., 546
U.S. 500, 507 (2006) ("The objection that a federal
court lacks subject-matter jurisdiction . . . may be raised
by a party, or by a court on its own initiative, at any stage
in the litigation, even after trial and the entry of
judgment."). The party seeking to invoke federal
jurisdiction carries the burden of proof on that issue.
See DaimlerChrystler Corp. v. Cuno, 547 U.S. 332,
342 (2006); V S Ltd. P'ship v. Dep't of Hous.
& Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000). A
complaint can be challenged under Fed.R.Civ.P. 12(b)(1)
either "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 of 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.
In a factual attack on the jurisdictional allegations of the
complaint, however, the court can consider competent evidence
such as affidavits, deposition testimony, and the like in
order to determine the factual dispute. Id. In
reviewing a pleading, the court may generally consider
documents attached to it. Brown v. Green Tree Servicing
LLC, 820 F.3d 371, 372 n.1. (8th Cir. 2016) (regarding
mortgage and notice); Great Plains Trust Co. v. Union
Pac. R.R., 492 F.3d 986, 990 (8th Cir. 2007) (stating
the court may consider documents attached to the complaint
and matters of public and administrative record referenced in
the complaint); see also Fed. R. Civ. P. 10(c)
("A copy of a written instrument that is an exhibit to a
pleading is a part of the pleading for all purposes.").
Village asks the Court to dismiss this case on two
jurisdictional grounds: standing and mootness. Each party has
presented evidence on the two jurisdictional issues. The
Court accordingly treats them as factual, not facial,
attacks. The Court disagrees with Ak-Sar-Ben Village on both
grounds and denies its motion to dismiss.
issue of standing involves constitutional limitations on
federal court jurisdiction under Article III of the
Constitution, which confines the federal courts to
adjudicating actual 'cases and controversies.'"
See Potthoffv. Morin, 245 F.3d 710, 715 (8th Cir.
2001); Oti Kaga v. South Dakota Hous. Dev. Auth.,
342 F.3d 871, 878 (8th Cir. 2003). To gain Article III
standing, a plaintiff must satisfy three elements:
"First, a party must have suffered an 'injury in
fact,' an actual or imminent concrete and particularized
invasion to a legally protected interest; second, the injury
must be fairly traceable to the challenged action of the
defendant; and third, the injury must be redressable by a
favorable decision." Jewell v. United States,
548 F.3d 1168, 1172 (8th Cir. 2008) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
Ak-Sar-Ben Village challenges the first and third elements:
Injury and Redressability.
establish an injury in fact, an ADA plaintiff must show: (1)
that the architectural barriers actually injured her and (2)
that she would return to the property "in the imminent
future but for those barriers." Disability Support
Alliance v. Heartwood Enters., LLC, 885 F.3d 543, 546