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Davis v. Ak-Sar-Ben Village, LLC

United States District Court, D. Nebraska

December 31, 2018



          Joseph F. Bataillon, Senior United States District Judge.


         Melanie 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.


         Melanie 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.

         In 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).

         On 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 jurisdiction.


         Jurisdiction 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.").


         Ak-Sar-Ben 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.[1]

         A. Standing

         "The 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.

         To 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 (8th ...

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