Harty v. NORTH LAUDERDALE SUPERMARKET, INC
ORDER granting 16 Motion to Dismiss 1 Complaint; Dismissing Case for Lack of Subject Matter Jurisdiction; Closing Case. Signed by Judge Beth Bloom on 8/3/2015. (ls) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-CIV-62945-BLOOM/Valle
ORDER ON MOTION TO DIMISS
THIS CAUSE is before the Court upon the motion of Defendant North Lauderdale
Supermarket, Inc., d/b/a Sedanos Supermarket #35 (“Defendant”) to dismiss all claims brought
here by Plaintiff Owen Harty (“Plaintiff”) or, in the alternative, for summary judgment in its
favor on the same. ECF No.  (the “Motion”).
The Court has reviewed the Motion, all
supporting and opposing submissions, and the record in this case, and is otherwise fully advised.
For the reasons set forth below, the Court grants the Motion.
Plaintiff, on December 30, 2014, brought this action for declaratory and injunctive relief,
as well as an award of attorney’s fees, costs, and litigation expenses, against Defendant for its
maintenance of structural barriers in violation the Americans with Disabilities Act, 42 U.S.C. §
12181, et seq. (“ADA”).
Plaintiff, in his Complaint, ECF No. , lists the following specific
structural barriers which he encountered at Defendant’s retail grocery store:
The required clear floor space is not provided for hand sanitizers due to a trash
can or merchandise. Accessible features are not properly maintained in violation
of 28 CFR 36.211; 1991 ADAAG Sections 4.2.4; 4.27.2; 2010 ADAAG Sections
The seating/tables in the dining area do not provide toe clearance that extends 17”
minimum under the tables in violation of 1991 ADAAG Sections 4.1.3(18);
4.32.3; 2010 ADAAG Sections 226; 305.4; 306.2.3; 902.2.
Latch side clearance of 18” is not providing on the pull side of the restroom door
and a trash can is in the required maneuvering clearance. Accessible features are
not properly maintained in violation of 28 CFR 36.211; 1991 ADAAG Section
4.13.6; 2010 ADAAG Section 404.2.4.
The toilet compartment is not at least 60” by 59”. The toilet compartment door
lacks the required pull hardware on both sides and it is not self-closing in
violation of 1991 ADAAG Sections 4.13.9; 4.17.3; 4.17.5; 2010 ADAAG
Sections 604.8.1.1; 604.8.1.2.
The lavatory pipes are not properly insulated in violation of 1991 ADAAG
Section 4.19.4; ADAAG Section 606.5.
The clear width to enter the area where the urinal is located is less than 32” wide
in violation of 1991 ADAAG Section 4.3.3; ADAAG Section 403.5.1.
In the toilet compartment, the centerline of the water closet is more than 18” from
the side wall, the top of the gripping surface on the rear grab bar is higher than
36” above the finish floor, the side grab bar extends less than 52” from the rear
wall, and the toilet paper dispenser is mounted less than 12” above the side grab
bar in violation of 1991 ADAAG Sections 4.17.3; 4.17.6; Figure 30; 2010
ADAAG Sections 604.2; 604.5; 604.8.1.1; 604.8.1.5; 609.3; 609.4.
The paper towel dispenser requires tight grasping with both hands to operate in
violation of 1991 ADAAG Section 4.27.4; ADAAG Section 309.4.
On January 26, 2015, Defendant timely answered, generally denying Plaintiff’s
allegations in the absence of “strict proof.”
ECF No. . On February 11, 2015, the Court
entered a scheduling order, ECF No. , and the case proceeded apace. Defendant now
submits evidence that, as of June 5, 2015, none of the alleged barriers to entry stated in the
Complaint exist. See ECF No. [16-1] (Gross Decl.); ECF No. [16-2] (1st Valdes Decl.); ECF
No. [23-2] (2d Valdes Decl.).
After being served in this suit and in response to Plaintiff’s specific accessibility
allegations listed above, Defendant engaged Jeffrey Gross, a licensed architect and an expert
with regard to the ADA Standards for Accessible Design issued in 1991 and 2010, and his
architectural firm specializing in the accessible design requirements of Title III of the ADA, to
serve as a consultant on ADA accessibility issues and to evaluate the accessibility of Defendant’s
property that is the subject of this suit.
Gross Decl. ¶¶ 1-3; 1st Valdes Decl. ¶¶ 7-8. Gross
inspected the store on February 2, 2015, April 17, 2-15 and May 20, 2015.
He identified several repairs and changes directed to improve accessibility.
Gross Decl. ¶ 4.
1st Valdes Decl. ¶
During his final inspection, Gross did not find any of the accessibility issues alleged in the
Complaint in existence any longer. Gross Decl. ¶¶ 5-13 (including pictures).
In addition to making those physical changes, Defendant has implemented – long before
initiation of this suit – policies to ensure that its personnel provide proper service to disabled
1st Valdes Decl. ¶¶ 12-14; 2d Valdes Decl. ¶¶ 6-7.
This includes signage
throughout the subject store which notifies mobility-impaired persons that Defendant’s
employees will assist them as needed upon request. Id.
Plaintiff admits that Defendant made changes to its property after this suit was
Plaintiff has submitted countervailing evidence as to only one issue:
the bathroom paper towel dispenser at Defendant’s property, which Gross determined was
compliant and did not require “tight grasping with both hands to operate,” requires pulling with
both hands. ECF No. [21-1] (Plaintiff’s Counter-Statement of Facts) ¶ H and Exh. B; compare
Gross Decl. ¶ 13.
That paper towel dispenser has itself been replaced with one that is
2d Valdes Decl. ¶ 8 (including pictures).
Defendant contends that Plaintiff’s claims must be dismissed because it has remedied all
accessibility barriers identified by Plaintiff as violating the ADA, rendering Plaintiff’s claims
moot and this court without subject matter jurisdiction.
Defendant urges dismissal pursuant to
Rule 12(b)(1).1 The Court agrees.
A Rule 12(b)(1) motion challenges the district court’s subject matter jurisdiction and
takes one of two forms:
a “facial attack” or a “factual attack.”
“A ‘facial attack’ on the
complaint ‘require[s] the court merely to look and see if [the] plaintiff has sufficiently alleged a
basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the
purposes of the motion.’” McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d
1244, 1251 (11th Cir. 2007) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.
“A ‘factual attack,’ on the other hand, challenges the existence of subject matter
jurisdiction based on matters outside the pleadings.”
Kuhlman v. United States, 822 F. Supp. 2d
1255, 1256-57 (M.D. Fla. 2011) (citing Lawrence, 919 F.2d at at 1529); see Stalley ex rel. U.S. v.
Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1233 (11th Cir. 2008) (“By contrast, a
factual attack on a complaint challenges the existence of subject matter jurisdiction using
material extrinsic from the pleadings, such as affidavits or testimony.”).
“In assessing the propriety of a motion for dismissal under Fed. R. Civ. P. 12(b)(1), a
district court is not limited to an inquiry into undisputed facts; it may hear conflicting evidence
and decide for itself the factual issues that determine jurisdiction.” Colonial Pipeline Co. v.
Collins, 921 F.2d 1237, 1243 (11th Cir. 1991).
As such, “[w]hen a defendant properly
challenges subject matter jurisdiction under Rule 12(b)(1), the district court is free to
independently weigh facts, and ‘may proceed as it never could under Rule 12(b)(6) or Fed. R.
Civ. P. 56.’” Turcios v. Delicias Hispanas Corp., 275 F. App’x 879, 880 (11th Cir. 2008)
(citing Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003)).
In the alternative, Defendant seeks summary judgment in its favor under Rule 56, which the Court need
Rule 12(b)(1) provides the proper framework for evaluating a motion to dismiss on
grounds of mootness.
See Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 (11th
Mootness In The ADA Context
“Article III of the Constitution limits the jurisdiction of the federal courts to the
consideration of ‘Cases’ and ‘Controversies.’” Mingkid v. U.S. Atty. Gen., 468 F.3d 763, 768
(11th Cir. 2006).
“A federal court has no authority ‘to give opinions upon moot questions or
abstract propositions, or to declare principles or rules of law which cannot affect the matter in
issue in the case before it.’” Harrell v. The Florida Bar, 608 F.3d 1241, 1265 (11th Cir. 2010)
(quoting Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, (1992)). “The doctrine
of mootness derives directly from the case-or-controversy limitation because ‘an action that is
moot cannot be characterized as an active case or controversy.’”
Al Najjar v. Ashcroft, 273
F.3d 1330, 1335 (11th Cir. 2001) (quoting Adler v. Duval County Sch. Bd., 112 F.3d 1475, 1477
(11th Cir. 1997)).
“If events that occur subsequent to the filing of a lawsuit or an appeal
deprive the court of the ability to give the plaintiff or appellant meaningful relief, then the case is
moot and must be dismissed.
Indeed, dismissal is required because mootness is jurisdictional.
Any decision on the merits of a moot case or issue would be an impermissible advisory opinion.”
Troiano v. Supervisor of Elections in Palm Beach Cnty., Fla., 382 F.3d 1276, 1282 (11th Cir.
“A case is moot when the issues presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.” Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t
of Health & Rehabilitative Servs., 225 F.3d 1208, 1216-17 (11th Cir. 2000) (quoting Powell v.
McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)).
“Put another way, ‘[a]
case is moot when it no longer presents a live controversy with respect to which the court can
give meaningful relief.’”
Id. (quoting Ethredge v. Hail, 996 F.2d 1173, 1175 (11th Cir. 1993)).
“[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power
to hear and determine the case, i.e., does not make the case moot.” Nat’l Adver. Co. v. City of
Miami, 402 F.3d 1329, 1333 (11th Cir. 2005) (quotation omitted); see also Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 (2000). “Otherwise a party
could moot a challenge to a practice simply by changing the practice during the course of the
lawsuit, and then reinstate the practice as soon as the litigation was brought to a close.” Jews
for Jesus, Inc. v. Hillsborough Cnty. Aviation Auth., 162 F.3d 627, 629 (11th Cir.1998).
voluntary-cessation doctrine is an exception to the general rule that a case is mooted by the end
of the offending behavior.” Houston v. 7-Eleven, Inc., 2014 WL 351970, at *2 (S.D. Fla. Jan.
31, 2014) (citing Sheely, 505 F.3d at 1183). Under this exception, “the voluntary cessation of
challenged conduct will only moot a claim when there is no ‘reasonable expectation’ that the
accused litigant will resume the conduct after the lawsuit is dismissed.” Nat’l Ass’n of Boards
of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1310 (11th Cir.2011)
(quoting Jews for Jesus, 162 F.3d at 629).
“In other words, when a party abandons a
challenged practice freely, the case will be moot only if it is ‘absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.’” Harrell, 608 F.3d at 1265
(emphasis in original; quoting Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1131
(11th Cir. 2005)).
Under the voluntary-cessation doctrine, a court must evaluate a defendant’s assertion that
the case is moot because the offending behavior has ceased by analyzing three factors:
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.” Sheely, 505 F.3d at 1184. .
“ADA-architectural-barrier cases are a unique subset of voluntary cessation-doctrine
Houston, 2014 WL 351970 at *2.
Several courts have found that where structural modifications have been
undertaken to make the facility ADA compliant the case is moot. The
fundamental rationale supporting these cases is that the alleged discrimination
cannot reasonably be expected to recur since structural modifications permanently
undo the offending conduct.
See Kallen v. J.R. Eight, Inc., 775 F. Supp. 2d 1374, 1379 (S.D. Fla. 2011) (Because . . .
Defendant has remedied . . . the deficiencies alleged in the Amended Complaint, the Court finds
that those  claims are rendered moot and subject to dismissal for lack of jurisdiction. . . . If an
ADA plaintiff has already received everything to which he would be entitled, i.e., the challenged
conditions have been remedied, then these particular claims are moot absent any basis for
concluding that plaintiff will again be subjected to the same wrongful conduct by this defendant.”);
Access 4 All, Inc. v. Bamco VI, Inc., 2012 WL 33163, at *6 (S.D. Fla. Jan. 6, 2012) (“[F]ederal
courts have found ADA claims moot when the alleged discrimination cannot reasonably be
expected to recur because structural modifications are unlikely to be altered in the future.”)
(quotation omitted); Nat’l Alliance for Accessability, Inc. v. Walgreen Co., 2011 WL 5975809,
*3 (M.D. Fla. Nov. 28, 2011) (explaining that “federal courts have dismissed ADA claims as
moot when the alleged violations have been remedied after the initial filing of a suit seeking
injunctive relief,” and collecting cases).
This stands in contrast to the “stringent” standard a
defendant must meet to moot a case based on the defendant’s voluntary cessation of
discriminatory conduct which violates the ADA.
See Bamco VI, 2012 WL 33163, at *5
(distinguishing Sheely, 505 F.3d at 1181-88 on that basis).
Plaintiff’s Claims Are Moot
Defendant has demonstrated, and Plaintiff cannot dispute, that the architectural barriers at
Defendant’s property, alleged by Plaintiff in the Complaint to violate the ADA, no longer exist.
Consequently, Plaintiff’s claims are moot and subject to dismissal.
Defendant’s ADA violations at the retail facility, the subject of this suit, were both
isolated and unintentional.
First, Defendant has demonstrated, and Plaintiff has not refuted, that
Defendant generally maintains adequate policies and practices to ensure that physically
challenged or mobility impaired persons are provided proper services at its facility in accordance
with the ADA. Those policies pre-date and were not implemented in response to or to avoid this
suit. Second, while Plaintiff has identified a separate lawsuit against Defendant based on similar
allegations of ADA-non-compliance at other grocery store locations, see Plaintiff’s
Counter-Statement of Facts ¶¶ B-D and Exh. A, that suit does not evidence a pattern of repeated
or intentional misconduct.
Putting aside the fact that the previous suit settled and that this
Court would not credit bare allegations made elsewhere, Plaintiff’s argument – that Defendant
has twice been notified of ADA non-compliance in the form of structural barriers and has twice
rapidly remedied those issues – indicates that Defendant’s non-compliance is unintentional and
militates in favor of dismissal for mootness. See Brahe v. Publix Super Markets, Inc., 2014 WL
1400657, at *3 (M.D. Fla. Apr. 10, 2014) (acknowledgement of liability for similar violations in
separate suits did not bar dismissal for mootness).
Defendant’s actions appear to be motivated by a genuine desire to conscientiously
comply with ADA’s architectural requirements, and not merely a desire to avoid liability.
Defendant learned about the specific barriers at the subject property alleged in this suit when
served with Plaintiff’s Complaint. See 1st Valdes Decl. ¶ 7.
Defendant promptly retained an
ADA accessible design and remediation expert. That expert inspected the facility three times.
Defendant expended resources for those inspections and to make the recommended changes.
Within five months of initial service, Defendant has permanently corrected all of the
architectural defects which had posed a barrier to Plaintiff’s use of the facility.
“These are the
actions of an entity that is highly motivated, and genuinely interested in complying with the full
breadth of the ADA.”
Houston, 2014 WL 351970 at *3; see also Bamco VI, 2012 WL 33163,
at *5 (“[E]ven if the repairs were motivated by the pending lawsuit, the record reflects that
Defendant acted promptly with a genuine desire to comply with the law.”); Walgreen, 2011 WL
5975809, at *3 (same).
Finally, Defendant has specifically acknowledged liability for any architectural barriers
which did not conform to ADA requirements by correcting them.
See ECF No.  (Reply) ¶
“The essential question that must be answered under the voluntary-cessation doctrine is
Is it absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” Houston, 2014 WL 351970 at *4. The Court is convinced – in the context
of Plaintiff’s allegations of ADA architectural-barrier violations and when presented with the facts
of Defendant’s full remediation and compliance – that they could not. It would be absurd to
expect Defendant to spend money to undo the structural modifications it just paid to implement.
Plaintiff’s claims are, accordingly, moot and this Court is divested of subject matter jurisdiction to
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Defendant’s
Motion, ECF No. , is GRANTED and this case is DISMISSED for lack of subject matter
jurisdiction. The Clerk is directed to CLOSE this matter. Any pending motions are DENIED
Any impending deadlines are TERMINATED.
DONE AND ORDERED in Miami, Florida this 3rd day of August, 2015.
UNITED STATES DISTRICT JUDGE
counsel of record
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?