Davis v. Morris-Walker, Ltd. et al
ORDER denying as moot 40 Motion for Summary Judgment; denying 61 ORDER RE: APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge; granting 31 Motion to Dismiss. (Written Opinion) Signed by Senior Judge David S. Doty on 12/7/2017. (DLO)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 17-1270(DSD/FLN)
Morris-Walker, LTD, and
Orchard Park, LLC,
Padraigin Browne, Esq. and Browne Law LLC, 8530 Eagle Point
Blvd., Suite #100, Lake Elmo, MN 55042, counsel for plaintiff.
Edward Peter Sheu, Esq. and Best & Flanagan, LLP, 60 South 6th
Street, Suite 2700, Minneapolis, MN 55402, counsel for
This matter is before the court upon the motion to dismiss by
defendants Morris-Walker Ltd. and Orchard Park, LLC, the motion for
summary judgment by plaintiff Melanie Davis, and the appeal of
Magistrate Judge Noel’s denial of the motion to amend by Davis.
Based on a review of the file, record, and proceedings herein, and
for the following reasons, the motion to dismiss is granted, the
motion for summary judgment is denied as moot, and the appeal is
The court also summarily overrules defendants’ objection to
Davis’s declaration. ECF No. 47.
Davis’s attempts to access the Emma Krumbee’s restaurant in Belle
Plaine, Minnesota (the Restaurant), which is owned and operated by
defendants. Compl. ¶¶ 1, 10-11. Davis suffers from Cerebral Palsy
and uses a wheelchair for mobility.
Id. ¶ 9; Davis Decl. ¶ 2.
May 3, 2016, and March 4, 2017, Davis attempted to dine at the
Restaurant, but was deterred from doing so because there were only
three accessible parking spaces, one of which did not contain a
sign reserving the spot and the other two of which had signs that
were positioned too low to the ground to be visible at all times.
Compl. ¶¶ 13-16.
She also observed that there was no ramp from the
parking lot to the sidewalk, which would have required her to
travel through the parking lot to the front door of the Restaurant.
Id. ¶ 18.
Additionally, the nearest curb was in disrepair, which
made wheelchair access difficult.
Id. ¶ 19.
On April 20,
2017, Davis filed this suit alleging violations of the Americans
with Disabilities Act (ADA) and the Minnesota Human Rights Act
She seeks declaratory and injunctive relief and damages.
After receiving the complaint, defendants made several improvements
assistance of a certified accessibility specialist, a building
official for the City of Belle Plaine, and a lawyer to address the
specific concerns raised by Davis.2
Morris Decl. [ECF No. 36] ¶¶
12-17; McCarty Decl. ¶¶ 2-3, 7; Quarve-Peterson Decl. ¶¶ 2-3.
Davis concedes that the improvements redressed the alleged ADA and
MHRA violations, save the issue of whether there are a sufficient
number of accessible parking spaces for the Restaurant.
now moves to dismiss under Rule 12(b)(1) of the Federal Rules of
Civil Procedure and Davis moves for summary judgment.
the court is Davis’s appeal of Magistrate Judge Franklin L. Noel’s
order denying her motion to amend the complaint to add allegations
that the seating in the Restaurant does not accommodate wheelchair
ECF No. 59.
Motion to Dismiss
Standard of Review
In order to properly dismiss an action for want of subject
matter jurisdiction under Rule 12(b)(1), the challenging party must
successfully attack the complaint, either on its face or on the
factual truthfulness of its averments.
Titus v. Sullivan, 4 F.3d
590, 593 (8th Cir. 1993). In 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
Defendants also made other changes not requested in the
complaint to ensure ADA compliance.
Morris Decl. [ECF No. 36]
motion brought under Rule 12(b)(6).”
Branson Label, Inc. v. City
of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2010) (citations
“In a factual attack, the court considers matters
outside the pleadings, and the non-moving party does not have the
benefit of 12(b)(6) safeguards.”
Carlsen v. GameStop, Inc., 833
F.3d 903, 908 (8th Cir. 2016) (citation omitted). Here, defendants
have waged a factual attack by asserting that the changes made to
the parking lot redressed all of the ADA violations alleged in the
Defendants argue that the complaint should be dismissed given
the ADA-compliant changes made to the Restaurant’s accessible
Although Davis does not deny that her complaint is
largely moot, she argues that the issue of whether there are enough
accessible parking spaces remains, thereby precluding dismissal.
The record establishes that there are 88 parking spaces in the
parking lot for the Restaurant. See Quarve-Peterson Decl. ¶ 8; id.
Ex. 2, at 2, 6; Morris Decl. [ECF No. 52].
Under applicable ADA
standards, the Restaurant is thus required to have 4 accessible
Although framed by defendants as a question of standing,
the issue is really whether Davis’s claims are moot because
defendants have remedied the alleged ADA violations.
Hillesheim v. Buzz Salons, LLC, No. 16–2225, 2017 WL 3172870, at *7
(D. Minn. June 19, 2017) (“The inquiry here is not whether
Hillesheim has standing to bring this lawsuit ... but whether there
is anything left for the Court to address at all.”), adopted, 2017
WL 3172751 (D. Minn. July 25, 2017); Smith v. RW’s Bierstube, Inc.,
No. 17-1866, 2017 WL 5186346, at *2 (D. Minn. Nov. 8, 2017) (same).
parking spaces in a “parking facility”4 that has 76-100 spaces.
2010 ADA Standards § 208.2.
Davis argues that the adjacent truck,
calculating the total number of spaces in the parking facility,
which would increase the total number of spaces to 130 and the
required number of accessible parking spaces to 5.
The adjacent lot is physically separate from the
Restaurant parking lot, and is therefore properly considered a
separate “facility” within the meaning of the standard.5
§ 208.2 (emphasis removed) (“When more than one parking facility is
provided on a site, the number of accessible spaces provided on the
site shall be calculated according to the number of spaces required
for each parking facility.”); see also Quarve-Peterson Decl. ¶ 8;
id. Ex. 2, at 6.
Indeed, the adjacent lot - which is an empty lot
shared with the City of Belle Plaine that used to serve a now-gone
truck stop - is used for truck, oversized, employee, and overflow
parking, not parking for the Restaurant. Morris Decl. [ECF No. 36]
¶ 4; Morris Decl. [ECF No. 52].
As a result, defendants have
provided a sufficient number of accessible parking spaces for the
The 2010 ADA Standards use the term “parking facility” to
make clear that the requirements apply to both parking lots and
parking structures. 2010 ADA Standards § 208.2 Advisory.
The separate question of whether the adjacent lot must
independently comply with § 208.2 is not before the court.
Because none of the violations alleged in the complaint
remain, the complaint is moot.
The court is not concerned - nor
does Davis contend - that the alleged violations will recur given
the defendants’ expeditious and thorough efforts to redress the
See Sawczyn v. BMO Harris Bank Nat’l Ass’n, 8 F. Supp.
3d 1108, 1113 (D. Minn. 2014) (citation and internal quotation
demonstrating not only that it has voluntary ceased the offending
conduct but also that it is absolutely clear the offending conduct
could not reasonably be expected to recur.”).
State law claim
Although the court concludes that Davis’s ADA claim is moot,
she may still have a viable claim for damages under the MHRA if she
Restaurant. The court is not persuaded that Davis has sufficiently
jurisdiction over the MHRA claim in any event.
Where, as here, the court dismisses the sole federal claim,
and there is no basis for diversity jurisdiction, the court no
longer has original jurisdiction over the action and must consider
whether to exercise supplemental jurisdiction over the state-law
28 U.S.C. § 1367(c)(3).
“[I]n the usual case in which all
The complaint merely alleges that Davis was “deterred” from
visiting the Restaurant, not that she was denied access to the
Restaurant. Compl. ¶¶ 22, 23.
federal-law claims are eliminated before trial, the balance of
factors to be considered under the pendent jurisdiction doctrine
... will point toward declining to exercise jurisdiction over the
remaining state-law claims.”
Carnegie–Mellon Univ. v. Cohill, 484
U.S. 343, 350 n.7 (1988). Therefore, the court declines to exercise
jurisdiction over Davis’s MHRA claim.
Motion for Summary Judgment
Because the court has concluded that the complaint must be
dismissed, the court denies Davis’s motion for summary judgment as
III. Motion to Amend
As noted, Magistrate Judge Noel recently denied Davis’s motion
to amend the complaint to add allegations regarding the seating
area in the restaurant, concluding that Davis lacks standing to
bring such a claim because she admitted to never having been inside
the Restaurant and presented no evidence that she planned to do so
in the future.
ECF No. 59, at 2.
The standard of review applicable to an appeal of a magistrate
judge’s order on nondispositive matters is “extremely deferential.”
Reko v. Creative Promotions, Inc., 70 F. Supp. 2d 1005, 1007 (D.
The court will reverse such an order only if it is
clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); D.
Minn. LR 72.2(a)(3).
Davis has failed to meet this standard.
The proposed amended
complaint states “on information and belief” that certain barriers
exist inside the Restaurant, which might preclude her from dining
ECF No. 20-1 ¶¶ 21, 32.
She neither alleges to have ever
been inside, nor does she allege present plans to visit, the
Under these circumstances, Magistrate Judge Noel
correctly concluded that Davis has not sufficiently established her
standing to pursue such claims. The appeal is denied and the order
Accordingly, based on above, IT IS HEREBY ORDERED that:
The motion to dismiss [ECF No. 31] is granted;
The ADA claim is dismissed with prejudice;
The MHRA claim is dismissed without prejudice;
The motion for summary judgment [ECF No. 40] is denied as
The appeal of the Magistrate Judge’s Order [ECF No. 61]
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: December 7, 2017
s/David S. Doty
David S. Doty, Judge
United States District Court
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