United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion to Dismiss, ECF No.
10, filed by Defendant RVD Real Estate Properties LLC. For
the reasons stated below, the Court will convert the Motion
to a motion for summary judgment under Rule 56 of the Federal
Rules of Civil Procedure.
following facts are those alleged in Plaintiff Zach
Hillesheim's Complaint, ECF No. 1, and those contained in
the parties' affidavits, ECF Nos. 11, 16, 19.
7, 2018, Plaintiff Zach Hillesheim visited Fort Street Plaza,
a multi-tenant commercial building owned by RVD and located
in Omaha, Nebraska. Compl. ¶ 2, ECF No. 1, Page ID 1.
Hillesheim uses a wheelchair for mobility and, during his
July 7, 2018, visit, he encountered several architectural
barriers in Fort Street Plaza's parking lot which impeded
his ability to access the building. Specifically, Hillesheim
alleged that Fort Street Plaza's forty-space parking lot
lacked at least two ADAAG compliant accessible parking
July 7, 2018, three of Fort Street Plaza's forty parking
spaces were designated as accessible by a painted symbol on
the surface of each space. Hillesheim's Complaint alleged
none of the three designated accessible spaces complied with
ADAAG vertical-signage and slope regulations in violation of
the Americans with Disabilities Act, 42 U.S.C. § 12101
Hillesheim filed his Complaint, RVD repainted the lines and
symbols and added vertical signage on two of its accessible
parking spaces. Compare Compl., ECF No. 1-1, Page ID
15 (depicting accessible parking spaces on July 7, 2018),
with Foral Aff., Ex. A, ECF No. 11, Page ID 36
(depicting accessible parking spaces following remedial
work). RVD also hired a construction company to measure the
slope of these parking spaces, and the construction company
determined that neither of the spaces exceeded the
ADAAG's slope restrictions. Donahoo Aff., ECF No. 19. RVD
then filed the pending motion to dismiss under Rule 12(b)(1)
of the Federal Rules of Civil Procedure arguing
Hillesheim's ADA claim is now moot.
Court finds that this case is not moot and will convert
RVD's Motion under Rule 12(b)(1) into a motion for
summary judgment under Rule 56.
III of the ADA prohibits discrimination on the basis of
disability in a place of ‘public accommodation,
'” Disability Support All. v. Heartwood
Enters., 885 F.3d 543, 545 (8th Cir. 2018) (quoting 42
U.S.C. § 12182(a)), and “‘[d]iscrimination
includes ‘failure to remove architectural barriers . .
. in facilities . . . where such removal is readily
achievable, '” id. “The ADAAG is a
comprehensive set of structural guidelines that articulates
detailed design requirements to accommodate persons with
disabilities.” Davis, 886 F.3d at 676 n.2
(quoting Daubert v. Lindsay Unified Sch. Dist., 760
F.3d 982, 986 (9th Cir. 2014)). The ADA provides a private
right of action for injunctive relief to any person being
subjected to discrimination on this basis. Steger v.
Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000) (citing
42 U.S.C. § 12188).
on two affidavits submitted with its Motion, RVD argues this
case is moot because RVD remedied all the ADAAG violations
alleged in Hillesheim's Complaint. See Foral Aff., ECF
No. 11; Donahoo Aff., ECF No. 19. Hillesheim concedes that
RVD remedied the alleged signage violations but argues
RVD's Motion under Rule 12(b)(1) must be denied because
RVD took no remedial measures with respect to the alleged
slope violations and only challenges the merits of
Hillesheim's alleged slope violations.
case becomes moot-and therefore no longer a ‘Case'
or ‘Controversy' for purposes of Article III-when
the issues presented are no longer live or the parties lack a
legally cognizable interest in the outcome.”
Davis, 886 F.3d at 677 (quoting Already, LLC v.
Nike, Inc., 568 U.S. 85, 91 (2013)). “A defendant
claiming that its voluntary compliance moots a case bears the
formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected
to recur.” Id.
evidence shows RVD repainted the lines and added vertical
signage on two of its previously-designated accessible
parking spaces but took no steps to remedy the alleged slope
violations. See Foral Aff., Ex. A, ECF No. 11;
Donahoo Aff., ECF No. 19, Page ID 61. Rather, according to
RVD's evidence and brief, a construction company measured
the slope of the parking spaces in all directions and
determined that they were ADAAG compliant. Def.'s Br.,
ECF No. 20, Page ID 64; see also Donahoo Aff., ECF
No. 19, Page ID 61. Thus, with respect to the alleged slope
violations, RVD's Motion challenges the merits of
Hillesheim's claim, not the Court's subject-matter
jurisdiction on the basis that RVD's voluntary compliance
renders this case moot. As such, this case is not moot, and
the Court may convert RVD's Motion under Rule 12(b)(1)
into a motion for summary judgment under Rule 56.
the Court may consider matters outside the pleadings when
deciding a Rule 12(b)(1) motion does not, itself,
“convert the 12(b)(1) motion to one for summary
judgment.” Harris v. P.A.M. Transp., Inc., 339
F.3d 635, 637 n.4 (8th Cir. 2003). However, district courts
may, under appropriate circumstances, convert a Rule 12(b)(1)
motion into a Rule 56 motion for summary judgment. Simes
v. Huckabee, 354 F.3d 823, 826 n.2 (8th Cir. 2004)
(commenting that the district court's conversion of a
12(b)(1) motion into a motion for summary judgment appeared
to fit with the exception noted in Van Leeuwen v. United
States Postal Serv., 628 F.2d 1093, 1095 (8th Cir. 1980)
“as both parties submitted exhibits apart from the
pleadings, and ...