National Alliance for Accessability, Inc. et al v. Walgreen Co.
Filing
33
ORDER granting in part and denying in part 26 Motion for dismissal or summary judgment; finding the action moot and dismissing for lack of jurisdiction. See Order for details. Signed by Judge Timothy J. Corrigan on 11/28/2011. (JMS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
NATIONAL ALLIANCE FOR
ACCESSABILITY, INC., and
DENISE PAYNE
Plaintiffs,
vs.
Case No. 3:10-CV-780-J-32-TEM
WALGREEN CO.,
Defendant.
ORDER
Plaintiffs, the National Alliance for Accessability, Inc. and Denise Payne, brought suit
pursuit to Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181, et. seq.,
claiming that Walgreen Co. (“Walgreens”) failed to provide reasonable access to individuals
with disabilities at its store in Lake City, Florida. This case is before the Court on Walgreens’
Motion for Dismissal Under Rule 12(b)(1), or, in the Alternative, for Summary Judgment,
which alleges that this case is moot because Walgreens is now in compliance with the ADA.
Doc. 26.1
I.
THE AMERICANS WITH DISABILITY ACT
Title III of the ADA provides:
No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any
place of public accommodation by any person who owns,
1
Because the Court finds that this case is due to be dismissed as moot, this Order does
not reach Walgreens’ alternative request for summary judgment under Rule 56.
leases, (or leases to), or operates a place of public
accommodation.
42 U.S.C. § 12182(a).
The ADA contains a number of requirements for places of public accommodation, and
a failure to comply with these requirements is often defined as discrimination. Most relevant
to this case, the ADA provides that discrimination includes “a failure to remove architectural
barriers . . . where such removal is readily achievable.” § 12182(b)(2)(A)(iv). If a place of
public accommodation is found to violate this provision, a court may issue an injunction
requiring the defendant “to alter facilities to make such facilities readily accessible to and
usable by individuals with disabilities.” § 12188(a)(2). A prevailing plaintiff is not entitled
to damages, but she may recover reasonable attorneys’ fees. §§ 12188(a), 2000a-3(b).
II.
BACKGROUND
The Complaint alleges that Payne, a member of the National Alliance for Accessability
who qualifies as an individual with disabilities under the ADA, visited Walgreens’ Lake City
store and “encountered architectural barriers at the subject property” that denied her “the
opportunity to participate and benefit from the goods, services, privileges, advantages,
facilities and accommodations at Defendant’s property.” Doc. 1 at 2-3. More specifically,
the Complaint alleges the parking spaces, entrance access, paths of travel, and restroom
facilities at Walgreens’ store are not in compliance with the requirements of the ADA. See
Doc. 1 at 4-5.2
2
The Complaint also alleges that these items violate the Florida Accessability Code
(“FAC”), the state complement to the ADA, though it does not reference any specific
provision of the FAC. Because the parties have not argued that the alleged violations of the
2
Walgreens was first made aware of its alleged violations of the ADA when Plaintiffs
filed suit in this case. Doc. 26-4 at 1. Soon thereafter, Walgreens hired a consultant, Jeffrey
Gross, to assist in making the store comply with the ADA. See Doc. 26 at 3. Plaintiffs also
hired an expert, Gene Mattera, who inspected the facility and submitted a report that detailed
instances of alleged noncompliance and listed recommendations to correct the identified
deficiencies. See Doc. 26-5. Based on the experts’ recommendations, Walgreens made a
number of repairs and adopted a new policy governing ADA accessibility. Id. After again
inspecting the facility after the completion of the repairs, Gross now asserts that “Walgreens
has addressed each and every ADA item at issue.” Doc. 26-2 at 5. Plaintiffs have not
challenged Gross’s conclusions or otherwise suggested that Walgreens remains in violation
of the ADA. See Doc. 29.3
III.
DISCUSSION
While both parties appear to agree that Walgreens is no longer in violation of the
ADA, the parties dispute whether Walgreens’ compliance renders this case moot. “[A] case
is moot when it no longer presents a live controversy with respect to which the court can give
meaningful relief.” Troiano v. Supervisor of Elections in Palm Beach Cnty., Fla., 382 F.3d
1276, 1282 (11th Cir. 2004). A federal court does not have jurisdiction to decide a moot
case because, “[u]nder Article III of the Constitution, federal courts may only hear cases or
FAC should be analyzed any differently than the alleged violations of the ADA, the mootness
analysis provided in this Order applies equally to any alleged violations of the FAC.
3
Moreover, Plaintiffs’ expert has not inspected the facility since the conclusion of the
repairs.
3
controversies.” DiMaio v. Democratic Nat’l Comm., 555 F.3d 1343, 1345 (11th Cir. 2009)
(quotations omitted). Walgreens argues this case does not present a live controversy—and
therefore is moot—because the Court can grant no meaningful relief now that the facility is
compliant with the requirements of the ADA.
In its Rule 12(b)(1) motion, Walgreens thus argues that this Court lacks subject matter
jurisdiction. The Eleventh Circuit has explained that:
Attacks on subject matter jurisdiction under Rule 12(b)(1) come
in two forms, “facial” and “factual” attacks. Facial attacks
challenge subject matter jurisdiction based on the allegations in
the complaint, and the district court takes the allegations as true
in deciding whether to grant the motion. Factual attacks
challenge subject matter jurisdiction in fact, irrespective of the
pleadings. In resolving a factual attack, the district court may
consider extrinsic evidence such as testimony and affidavits.
Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003) (quotations omitted).
Moreover, when resolving a factual attack, the district court “is free to weigh the evidence
and satisfy itself as to the existence of its power to hear the case.” Lawrence v. Dunbar, 919
F.2d 1525, 1529 (11th Cir. 1990). Walgreens’ motion is a factual attack “because it relie[s]
on extrinsic evidence and d[oes] not assert lack of subject matter jurisdiction solely on the
basis of the pleadings.” Morrison, 323 F.3d at 925.
Plaintiffs contend this Court has jurisdiction because “[i]t is well settled that a
defendant’s voluntary cessation of a challenged practice does not deprive a federal court of
its power to determine the legality of the practice.” Sheely v. MRI Radiology Network, P.A.,
505 F.3d 1173, 1183 (11th Cir. 2007) (quoting Troiano, 382 F.3d at 1282). This “doctrine
of voluntary cessation provides an important exception to the general rule that a case is
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mooted by the end of the offending behavior.” Id. The standard for judging whether
voluntary conduct has mooted a case “is stringent:
A case might become moot if
subsequent events made it absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” Id. at 1184. In assessing whether this standard has been
met, the Eleventh Circuit has found the following three factors to be relevant: “(1) whether
the challenged conduct was isolated or unintentional, as opposed to a continuing and
deliberate practice; (2) whether the defendant’s cessation of the offending conduct was
motivated by a genuine change of heart or timed to anticipate suit; and (3) whether, in
ceasing the conduct, the defendant has acknowledged liability.” Id. Plaintiffs argue this case
is not moot because there is a reasonable possibility that Walgreens will violate the ADA in
the future. See Doc. 29.4
In a number of cases, however, “[f]ederal courts have dismissed ADA claims as moot
when the alleged violations have been remedied after the initial filing of a suit seeking
injunctive relief.” Norkunas v. Tar Heel Capital Wendy’s LLC, No. 5:09-cv-00116, 2011 WL
2940722, at *3 (W.D. N.C. July 19, 2009); see also Norkunas v. Seahorse NB, LLC, No.
3:09-cv-934-J-32MCR, 2011 WL 1988799, at *6 (M.D. Fla. May 23, 2011)(denying injunctive
relief and attorneys’ fees when the defendant voluntarily fixed all identified ADA violations
prior to trial), aff’d, No. 11-12402, 2011 WL 5041705 (11th Cir. Oct. 25, 2011). These courts
have generally found that the “alleged discrimination cannot reasonably be expected to recur
because ‘structural modifications are unlikely to be altered in the future.’” Sharp v. Rosa
4
Plaintiffs thus seek an injunction prohibiting any such future violations.
5
Mexicano, D.C., LLC, 496 F. Supp.2d 93, 99 (D.D.C. 2007) (quoting Indep. Living Res. v.
Oregon Arena Corp., 982 F. Supp. 698, 774 (D.Or.1997)); see also, e.g., Kallen v. J.R.
Eight, Inc., 775 F. Supp.2d 1374, 1379 (S.D. Fla. 2011) (“It is untenable for Plaintiff to
suggest that once the renovations are completed they could be undone.”)(quoting Access
4 All, Inc. v. Casa Marina Owner, LLC, 458 F. Supp. 2d 1359, 1366 (S.D. Fla.2006)); Grove
v. De La Cruz, 407 F. Supp.2d 1126, 1130-31 (C.D. Cal. 2005) (holding that the installation
of grab rails by a restaurant rendered moot plaintiff’s ADA complaint requesting installation
of such rails).
The Court likewise finds that, given the structural changes made to Walgreens’ Lake
City facility, coupled with its new ADA compliance policy and concomitant training, it is
“absolutely clear” that the ADA violations identified by Plaintiffs cannot “reasonably be
expected to recur.” Sheely, 505 F.3d at 1184. Walgreens made a number of repairs to its
facility, including fixing cracks in a curb ramp, installing electric door openers on the
restrooms, placing insulating wrap around the pipes in the restrooms, and installing ADAcompliant hardware on the doors of the stalls. See Doc. 26-3. Because Walgreens has
invested substantial resources to make its store ADA-compliant, it would be unreasonable
to think that Walgreens would remove the improvements or otherwise violate the ADA after
the case is dismissed.
Moreover, the factors identified by the Eleventh Circuit also suggest that Walgreens’
alleged violations are unlikely to recur. First, Walgreens’ violations of the ADA appear to
have been unknowing and unintentional (see Doc. 26-4 at 1), and there is no reason to think
that Walgreens would desire to violate the ADA in the future. Second, although the repairs
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were made in response to this lawsuit, Walgreens appears to have genuinely attempted to
comply with the law. See id. at 2. Finally, in its motion for summary judgment, Walgreens
does not argue that it was originally in compliance with the ADA. See Doc. 26 at 12 n.4.
The Court therefore holds that Walgreens’ voluntary compliance with the ADA has mooted
this case.
Plaintiffs’ claims for attorneys’ fees and costs must also be denied. Plaintiffs have
obtained no favorable ruling, and, under Title lII of the ADA, Plaintiffs “cannot . . . recover
their attorney's fees for serving as a ‘catalyst,’ i.e., that they caused [defendant] to implement
the changes they sought.” Am. Ass’n of People with Disabilities v. Harris, 605 F.3d 1124,
1137 n.26 (11th Cir. 2010).
Accordingly, it is hereby
ORDERED:
1.
Walgreen’s Motion for Dismissal Under Rule 12(b)(1) (Doc. 26) is GRANTED IN
PART AND DENIED IN PART. The motion is GRANTED to the extent that it seeks
dismissal of all claims brought by Plaintiffs, National Alliance for Accessability, Inc. and
Denise Payne as moot, and DENIED AS MOOT to the extent that it seeks summary
judgment.
2.
This action is MOOT and therefore DISMISSED for lack of jurisdiction.
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DONE AND ORDERED at Jacksonville, Florida this 28th day of November, 2011.
js.
Copies:
counsel of record
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