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 Alter or Amend
Judgment, ECF No. 92, filed by Plaintiff Zach Hillesheim.
Hillesheim asked the Court to reconsider its Findings of Fact
and Conclusions of Law and corresponding Judgment, ECF Nos.
90 & 91, in which the Court dismissed Hillesheim's
claims against Defendant O.J.'s Cafe, Inc., without
prejudice, for lack of standing. For the reasons stated
below, the Motion will be granted in part.
March 14, 2019, this Court entered Findings of Fact and
Conclusions of Law, ECF No. 90, dismissing Hillesheim's
claims without prejudice for lack of standing. A
corresponding Judgment was also entered, ECF No. 91.
Hillesheim now asks the Court to amend its Judgment for three
reasons: First, he contends the Court's analysis of
threat of future injury did not rely on the facts as they
existed at the time the lawsuit was commenced. Second, he
contends the Court shifted the burden to him to prove that
that his case was not moot. Third, he contends the ADA
entitles him to an accessible parking space and access aisle
that is fully compliant with the requirements of the ADA.
Court has broad discretion in determining whether to grant or
deny a motion to alter or amend judgment pursuant to Federal
Rule of Civil Procedure 59(e). United States v.
Metropolitan St. Louis Sewer Dist., 440 F.3d 930, 933
(8th Cir. 2006). Rule 59(e) motions serve a limited function
of correcting “manifest errors of law or fact or to
present newly discovered evidence.” Id.
(quoting Innovative Home Health Care v. P.T.-O.T. Assoc.
of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.
1998)). “Such motions cannot be used to introduce new
evidence, tender new legal theories, or raise arguments which
could have been offered or raised prior to entry of
Threat of future injury
argues that the Court's analysis of threat of future
injury did not rely on the facts as they existed at the time
the lawsuit was commenced. “In the case of complaints
for injunctive relief, the ‘injury in fact' element
of standing requires a showing that the plaintiff faces a
threat of ongoing or future harm.” Park v. Forest
Serv. of U.S., 205 F.3d 1034, 1037 (8th Cir. 2000)
(citing City of Los Angeles v. Lyons, 461 U.S. 95,
101-05 (1983)). However, “[b]ecause standing is
determined as of the lawsuit's commencement, [the Court]
consider[s] the facts as they existed at that time.”
Steger v. Franco, 228 F.3d 889, 892 (8th Cir. 2000)
(citing Park, 205 F.3d at 1038).
correctly points out that the Court's Findings of Fact
and Conclusions of Law, ECF No. 90, addressed the slopes as
they existed on September 12, 2018, after modifications were
completed by the O.J.'s Cafe, not as they existed as of
the lawsuit's commencement. Thus, the proper analysis was
one of mootness as opposed to standing, and Court will enter
an Amended Findings of Fact and Conclusions of Law and an
Burden of demonstrating mootness
argues that the Court improperly shifted the burden to him to
prove that that his case was not moot. The plaintiff has the
burden of demonstrating that jurisdiction exists; however,
“[t]he ‘heavy' burden of proving mootness
falls on the party asserting the case has become moot.”
Kennedy Bldg. Assocs. v. Viacom, Inc., 375 F.3d 731,
745 (8th Cir. 2004) (citing Cty. of Los Angeles v.
Davis, 440 U.S. 625, 631 (1979)). Because, as stated
above, the issue of the slopes remaining after O.J.'s
Cafe's modifications must be addressed as a matter of
mootness, O.J.'s Cafe bore the burden of demonstrating
that Hillesheim's claims had become moot. The Court will
enter an Amended Findings of Fact and Conclusions of Law and
Amended Judgment contemporaneous with this Memorandum and
Order allocating the burdens accordingly.
Entitlement to full ADA compliance
argues that the ADA entitled him to an accessible parking
space and access aisle that was fully compliant with the
requirements of the ADA and that his right to injunctive
relief was not limited to the portions of the parking lot he
might use. In support, Hillesheim cites to 42 U.S.C. §
12188(a)(2) which provides that ADA plaintiffs are entitled
to the remedy of an injunction ordering the facility to be
altered to make it readily accessible to and usable by
individuals with disabilities to the extent required by the
ADA. He further states that the only ...