The Midwest Disability Initiative; Gerald Doyen Plaintiffs - Appellants
JANS Enterprises, Inc., d/b/a Nico's Taco & Tequila Bar, et al. Defendants - Appellees
Submitted: February 13, 2019
from United States District Court for the District of
Minnesota - Minneapolis
LOKEN, COLLOTON, and KELLY, Circuit Judges.
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.
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.
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."
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,
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
Res Judicata Issues.
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.
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.
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
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 ...