United States District Court, D. Nebraska
DR. FRANKLIN THOMPSON, Director of the Omaha Human Rights and Relations Department, on behalf of Nathan M. Bird; Plaintiff,
MORGAN PROPERTIES MANAGEMENT COMPANY, LLC; ROSEMARY SPOHN, Esq.; REGENCY LAKESIDE ASSOCIATES, LLC; and NICOLE VOGEL, Property Manager for Regency Lakeside Apartments; Defendants.
MEMORANDUM AND ORDER
SMITH CAMP SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on the Motion to Dismiss, ECF No.
7, submitted by Defendants Morgan Properties Management
Company, LLC (Morgan Properties); Rosemary Spohn, Esq;
Regency Lakeside Associates, LLC (Regency); and Nicole Vogel.
For the following reasons, the Motion is granted.
following facts are those alleged in the Complaint, ECF No.
1, and the Determination of Reasonable Cause (DRC), ECF No.
1-1, and are assumed true for purposes of this motion.
M. Bird suffers from a disability that leaves him permanently
paralyzed and wheelchair bound. On or about December 13,
2018, Nathan and his wife, Jessey, met with a representative
of Regency, owner and operator of an apartment complex in
Omaha, Nebraska, regarding the possibility of renting an
apartment. The Birds were made aware of a fully accessible
unit, but chose not to view it. After viewing a different
ground-floor unit, the Birds informed Regency that Nathan
would need a ramp to access the building, due to the steps
leading from the sidewalk to the entrance. Regency's
representative indicated that the ramp “would not be a
problem.” Compl. ¶ 15, ECF No. 1. The Birds then
applied to rent the apartment. On or about December 28, 2018,
the Birds met again with a representative of Regency and
signed a lease for the apartment. On or about January 10,
2019, the Birds moved into the apartment.
about January 12, 2019, Jessey submitted a written request to
Regency- specifically requesting a ramp be installed on the
outside of the building. Defendants replied to the Birds in a
letter dated January 28, 2019, that they would make other
modifications as requested but were “unable to permit
installation of a ramp at the front entrance as it is a
shared entrance used by other residents.” Compl. ¶
19, ECF No. 1. The letter did, however, permit Nathan to use
a temporary ramp that was to be removed and stored in the
Birds' unit when it was not in use.
learned that the Birds were not removing the ramp when it was
not in use. On January 30, 2019, Defendants sent the Birds a
letter demanding that the ramp be removed when not in use.
The letter also informed the Birds that failure to abide by
Defendants' conditions would result in the removal and
disposal of the ramp by Defendants.
March 11, 2019, Defendants sent another letter demanding that
the ramp be removed when not in use and offered to transfer
the Birds to a fully accessible unit. This letter warned that
Defendants would remove and dispose of the ramp if it was not
removed by the Birds in two days. It also stated that failure
to do so was a violation of the Birds' lease and grounds
for termination. A similar letter was sent by Defendants on
March 12, 2019.
temporary ramp was not removed, and there was no further
dialogue between the Birds and Defendants. On May 29, 2019,
Defendants installed a ramp at the entrance to the Birds'
building at no charge to the Birds.
Properties is the corporate owner and manager of Regency.
Nicole Vogel is Regency's property manager. Rosemary
Spohn is an attorney who was employed or retained by Morgan
Franklin Thompson is the Director of the Omaha Human Rights
and Relations Department (OHRD) and brought this action on
behalf of Nathan Bird on October 10, 2019. Defendants filed
this Motion to Dismiss on December 12, 2019.
order to properly dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), the complaint must be
successfully challenged on its face or on the factual
truthfulness of its averments.” Titus v.
Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citing
Osborn v. United States, 918 F.2d 724, 729 n.6 (8th
Cir. 1990)). “[M]ootness and standing are questions of
subject matter jurisdiction.” Doe v. Nixon,
716 F.3d 1041, 1047 (8th Cir. 2013). “In a facial
challenge to jurisdiction, the court presumes all of the
factual allegations concerning jurisdiction to be true and
will grant the motion only if the plaintiff fails to allege
an element necessary for subject matter jurisdiction.”
Young Am. Corp. v. Affiliated Comput. Servs., 424
F.3d 840, 843-44 (8th Cir. 2005) (citing Titus, 4
F.3d at 593). In a factual challenge to jurisdiction,
“there is substantial authority that the trial court is
free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case.”
Osborn, 918 F.2d at 730. “In short, no
presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims.” Iowa League
of Cities v. EPA, 711 F.3d 844, 861 (8th Cir. 2013)
(citing Osborn, 918 F.2d 724, 730).
a facial attack, ‘the court restricts itself to the
face of the pleadings, and the non-moving party receives the
same protections as it would defending against a motion
brought under Rule 12(b)(6).'” Carlsen v.
GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016)
(quoting Osborn, 918 F.2d at 729 n.6). In other
words, the Court must “accept as true all facts
alleged in the complaint” and consider only the
materials that are “necessarily embraced by the
pleadings and exhibits attached to the complaint.”