Hillesheim v. Myron's Cards and Gifts, Inc.
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that: 1. Myron's Cards Motion to Dismiss 7 is GRANTED; 2. Hillesheim's Motion to Amend 12 is DENIED as futile; and 3. Hillesheim's Complaint 1 is DISMISSED with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by The Hon. Paul A. Magnuson on 01/26/2017. (LLM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 16-cv-3809 (PAM/SER)
MEMORANDUM AND ORDER
Myron’s Cards and Gifts, Inc.,
This matter is before the Court on Defendant Myron’s Cards’ Motion to Dismiss
and Plaintiff Zach Hillesheim’s Motion to Amend. For the reasons stated at the hearing
and discussed more fully below, Myron’s Cards’ Motion to Dismiss is granted and
Hillesheim’s Motion to Amend is denied as futile.
Hillesheim is paralyzed below the waist and uses a wheelchair for mobility.
(Compl. (Docket No. 1) ¶ 9.) Myron’s Cards owns and operates a retail Hallmark store
in Mankato, Minnesota. (Compl. ¶ 10.) On October 6, 2016, Hillesheim visited the
Hallmark store and found it difficult to shop because excess merchandise obstructed the
aisles. (Id. ¶ 12-14.) As a result, Hillesheim was deterred from visiting the Hallmark
store and has been ever since. (Id. ¶ 16-17.)
On November 2, 2016, Hillesheim filed this lawsuit and alleges that Myron’s
Cards violated the Americans with Disabilities Act (“ADA”) and the Minnesota Human
Rights Act (“MHRA”) by failing to make the Hallmark store fully accessible to persons
Myron’s Cards filed a Motion to Dismiss on November 30, 2016. Instead of
responding to the Motion, Hillesheim filed an untimely Motion to Amend the Complaint
three weeks after the deadline to amend as a matter of course, and one week after his
response to the Motion to Dismiss was due.
Rule 15 of the Federal Rules of Civil Procedure allows a plaintiff to amend his
complaint once as a matter of course within 21 days after service of a Rule 12(b) motion
to dismiss. Fed. R. Civ. P. 15(a)(1)(B). In all other cases, a party may amend its
pleading only with the opposing party’s written consent or the Court’s leave. The Court
should freely give leave when justice so requires. Fed. R. Civ. P. 15(a)(2). “[D]enial of
leave to amend pleadings is appropriate only in those limited circumstances in which
undue delay, bad faith on the part of the moving party, futility of the amendment, or
unfair prejudice to the non-moving party can be demonstrated.” Roberson v. Hayti
Police Dep’t, 241 F.3d 992, 995 (8th Cir. 2001) (citation omitted). But courts may deny
leave to amend when the amended complaint could not withstand a motion to dismiss.
Holloway v. Dobbs, 715 F.2d 390, 392 (8th Cir. 1983); see also Geier v. Missouri Ethics
Comm’n, 715 F.3d 674, 678 (8th Cir. 2013).
Myron’s Cards served Hillesheim with its Motion to Dismiss on November 30,
2016. Hillesheim could have therefore amended his complaint as a matter of course until
December 21. He did not. After December 21, Hillesheim could only amend with the
opposing party’s written consent or the Court’s leave. Hillesheim attempted to get the
opposing party’s consent, but failed. (Docket No. 16.) On January 12, Hillesheim filed
the instant Motion to Amend the Complaint. Hillesheim may therefore only amend his
Complaint if the Court is convinced his proposed amended complaint can withstand a
motion to dismiss. It cannot.
To survive a motion to dismiss for failure to state a claim, a complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ. P. 12(b)(6). A claim
bears facial plausibility when it allows the Court “to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. When evaluating a motion to
dismiss, the Court must accept factual allegations as true, Gomez v. Wells Fargo Bank,
N.A., 676 F.3d 655, 660 (8th Cir. 2012), but it need not give effect to those that simply
assert legal conclusions, McAdams v. McCord, 584 F.3d 1111, 1113 (8th Cir. 2009).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements,” are insufficient to support a claim. Iqbal, 556 U.S. at 678.
The ADA and MHRA each prohibit disability discrimination by any person who
owns or operates a place of public accommodation. 42 U.S.C. § 12182(a); accord Minn.
Stat. 363A.11. Because the MHRA parallels the ADA, it is proper to treat these two
claims as co-extensive. Fenney v. Dakota, Minnesota & E. R. Co., 327 F.3d 707, 711 n.5
(8th Cir. 2003).
A plaintiff alleging discrimination must show that they have a disability under the
ADA, the defendant owns or operates a place of public accommodation, and the
defendant discriminated against the plaintiff based on that disability. See 42 U.S.C.
§ 12182(a); see also Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir. 1999);
Roberts v. Royal Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008). The parties do not dispute
that Hillesheim has a disability under the ADA and that Myron’s Cards is a place of
public accommodation. The issue here is whether Myron’s Cards discriminated against
Hillesheim on the basis of his disability.
The ADA includes five definitions for discrimination, two of which are relevant
First, discrimination includes “a failure to make reasonable modifications in
policies, practices, or procedures, when such modifications are necessary to afford such
goods, services, facilities, privileges, advantages, or accommodations to individuals with
disabilities . . ..” 42 U.S.C. § 12182 (b)(2)(A)(ii). Second, discrimination includes “a
failure to remove architectural barriers . . . in existing facilities . . . where such removal is
readily available.” 42 U.S.C. 12182(b)(2)(A)(iv).
In his original Complaint, Hillesheim alleges that, on a single day in October,
Hillesheim encountered discrimination in the form of excess merchandise blocking the
aisles in the Hallmark store.
(Compl. ¶ 30.)
But temporary objects like excess
merchandise blocking a store’s aisles is not an ADA violation. See 28 C.F.R. § 36.211;
see also Sharp v. Island Rest., 900 F. Supp. 2d 1114, 1126-27 (S.D. Cal. 2012).
Therefore, Hillesheim cannot prove discrimination and his original Complaint fails to
state a claim upon which relief may be granted.
Hillesheim’s proposed amended complaint merely adds two paragraphs to his
previous complaint which state that, before Hillesheim’s October visit, he had visited the
Hallmark store at least 15 times over the last four years and that each time he visited
excess merchandise obstructed the aisles. (Browne Decl. Ex. B (Docket No. 15) at 4.)
But this new factual allegation does not save his meritless claims. Even taking this new
allegation as true, Hillesheim continues to allege that he only encountered temporary
obstructions. (Id.) Encountering temporary obstructions more often does not change the
fact that temporary obstructions do not violate the ADA.
amended complaint therefore fails state a claim upon which relief may be granted and
cannot survive Myron’s Cards’ Motion to Dismiss.
Accordingly, IT IS HEREBY ORDERED that:
Myron’s Cards Motion to Dismiss (Docket No. 7) is GRANTED;
Hillesheim’s Motion to Amend (Docket No. 12) is DENIED as
Hillesheim’s Complaint (Docket No. 1) is DISMISSED with
LET JUDGMENT BE ENTERED ACCORDINGLY
Dated: January 26, 2017
s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge
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