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The Midwest Disability Initiative v. JANS Enterprises, Inc.

United States Court of Appeals, Eighth Circuit

July 8, 2019

The Midwest Disability Initiative; Gerald Doyen Plaintiffs - Appellants
v.
JANS Enterprises, Inc., d/b/a Nico's Taco & Tequila Bar, et al. Defendants - Appellees

          Submitted: February 13, 2019

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

          LOKEN, CIRCUIT JUDGE

         Title III of the Americans with Disabilities Act (ADA) proscribes discrimination by places of public accommodation against persons with disabilities, defining discrimination to include "failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities . . . where such removal is readily achievable." 42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(iv). The ADA grants a private right of action for injunctive relief to "any person" subject to disability discrimination. § 12188(a)(1). In this circuit, a person with a qualifying disability has standing to seek injunctive relief to remedy ADA structural barrier violations that affect "his specific disability" if he shows that a place of public accommodation has "caused him actual injury at the time he commenced this action, and 'that [he] would visit the building in the imminent future but for those barriers.'" Disability Support Alliance v. Heartwood Enterprises, LLC, 885 F.3d 543, 546 (8th Cir. 2018), quoting Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000). This appeal raises recurring issues regarding successive claims for such injunctive relief.

         The Midwest Disability Initiative (MDI) is a Minnesota nonprofit organization that has filed numerous ADA Title III suits as a co-plaintiff with one of its members against various Twin Cities retail establishments. In March 2017, MDI and member Paul Testa filed an ADA Title III action seeking declaratory and injunctive relief against Nico's Taco & Tequila Bar and its landlord, JC LLC. Plaintiffs alleged that Testa is a disabled individual who is fully dependent upon the use of a wheelchair or motor scooter and, in December 2016, Testa visited Nico's and encountered unlawful and discriminatory architectural barriers, "including, but not necessarily limited to," nine identified ADA violations. On August 2, 2017, MDI, Testa, and defendants entered into a Stipulation agreeing that "all claims in the above-captioned action are hereby dismissed with prejudice, and on the merits." By Order dated August 8, 2017, the district court dismissed the action with prejudice.

         Ten days later, MDI and member Gerald Doyen filed this Title III action seeking declaratory and injunctive relief against the same defendants. Plaintiffs alleged that Doyen is a disabled individual who is fully dependent on the use of a wheelchair or motor scooter and, on August 14, 2017, Doyen visited Nico's and encountered multiple unlawful and discriminatory architectural barriers. Like the first suit, the MDI-Doyen suit identified nine alleged violations of the ADA, which were "not to be considered all inclusive" of Nico's violations. Seven were functionally identical to barriers identified in the MDI-Testa complaint. The MDI-Doyen Complaint additionally identified "an inaccessible public entrance in the back of the facility including a noncompliant ramp," and "an inadequately maintained parking lot with broken, patched, littered, and deteriorated surface."

         Defendants timely filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing plaintiffs' claims are barred by res judicata. In support, defendants submitted judicial records from the MDI-Testa suit and a summary of prior actions filed by MDI and Doyen obtained from District of Minnesota filing records. The district court, [1] stating that it was considering only the MDI-Doyen Complaint and the public records submitted by defendants, granted the Rule 12(b)(6) motion to dismiss. Plaintiffs appeal. We affirm.

         I. Res Judicata Issues.

         "[A] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Yankton Sioux Tribe v. U.S. Dep't of Health & Human Servs., 533 F.3d 634, 639 (8th Cir. 2008) (quotation omitted). To establish that the MDI-Doyen claims are precluded by the prior MDI-Testa suit, Nico's must show that "(1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involve the same parties (or those in privity with them); and (4) both suits are based upon the same claims or causes of action." Id. (quotation omitted). A district court may properly grant a motion to dismiss based on the affirmative defense of res judicata when the defense "is apparent on the face of the complaint." C.H. Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758, 764 (8th Cir. 2012). We review the grant of a motion to dismiss de novo. Yankton Sioux Tribe, 533 F.3d at 639.

         Here, it is undisputed that the MDI-Testa suit resulted in a final judgment based on proper jurisdiction. But Doyen was not a party to the MDI-Testa lawsuit, Doyen visited Nico's after that lawsuit was dismissed, and the MDI-Doyen Complaint identifies two specific alleged barrier violations not alleged in the MDI-Testa Complaint. Thus, the third and fourth res judicata prerequisites are at issue.

         A. Privity.

         "The application of claim and issue preclusion to nonparties . . . runs up against the deep-rooted historic tradition that everyone should have his own day in court." Taylor v. Sturgell, 553 U.S. 880, 892-93 (2008) (quotation omitted). But one exception to the general rule against nonparty preclusion is that, "'in certain limited circumstances,' a nonparty may be bound by a judgment because she was 'adequately represented by someone with the same interests who [wa]s a party' to the suit." Id. at 894, quoting Richards v. Jefferson County, 517 U.S. 793, 798 (1996). The Court gave a partial definition of this adequate representation requirement:

A party's representation of a nonparty is 'adequate' for preclusion purposes only if, at a minimum: (1) The interests of the nonparty and her representative are aligned; and (2) either the party understood herself to be acting in a representative capacity or the ...

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