Smith v. RW's Bierstube, Inc. et al
Filing
142
ORDER granting in part and denying in part 96 Motion for Summary Judgment and to Exclude Expert Testimony; denying 113 Motion for Summary Judgment and to Exclude Expert Testimony. IT IS HEREBY ORDERED THAT: 1. Defendants' motion for sum mary judgment and to exclude expert testimony 96 is GRANTED IN PART and DENIED AS MOOT IN PART: a. The motion is GRANTED as to the issue of standing. b. The motion is DENIED AS MOOT in all other respects. 2. Plaintiff's motion for summary judgment 113 is DENIED. 3. Plaintiff's amended complaint 61 is DISMISSED WITHOUT PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Patrick J. Schiltz on 7/23/2019. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
SCOTT SMITH,
Case No. 17‐CV‐1866 (PJS/HB)
Plaintiff,
v.
ORDER
RW’S BIERSTUBE, INC. and YANZ
PROPERTIES, LLC,
Defendants.
Padraigin Browne, BROWNE LAW LLC, for plaintiff.
Edward P. Sheu, BEST & FLANAGAN LLP, for defendants.
Plaintiff Scott Smith (who uses a wheelchair) brought this action under Title III of
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., alleging that he
encountered architectural barriers while visiting Bierstube Bowl & Grill (“Bierstube”), a
bowling alley and restaurant operated by defendants. In his original complaint, Smith
alleged that Bierstube’s parking lot violated the ADA in the following ways: (1) it
lacked a sufficient number of accessible parking spaces; (2) none of the accessible spaces
were marked with signs; (3) one of the accessible spaces lacked an accessible route to
the sidewalk surrounding the building; and (4) one of the accessible spaces lacked an
adjacent access aisle. Compl. ¶¶ 14‐16, 23.
Bierstube moved to dismiss the complaint, arguing that the alleged problems had
been remedied and that Smith’s claims were therefore moot. ECF Nos. 31, 34. In
response, Smith filed an amended complaint alleging additional problems with the
parking lot. ECF No. 61. Bierstube withdrew its motion to dismiss, and the parties
engaged in discovery.
This matter is before the Court on the parties’ cross‐motions for summary
judgment and motions to exclude expert testimony. For the reasons that follow, the
Court grants Bierstube’s summary‐judgment motion in part and dismisses this case
without prejudice for lack of jurisdiction.
I. BACKGROUND
Smith lives in Burnsville, Minnesota, a large suburb of the Twin Cities. Smith
Dep. 13. Bierstube is located in Red Wing, Minnesota, a small town that is about
50 miles from Burnsville. Smith Dep. 39. Smith says that he travels through Red Wing
several times per year, including when he visits his brother in Stockton, Minnesota.
Smith Decl. ¶ 2. Stockton is about 110 miles from Burnsville and about 60 miles from
Red Wing.
On May 25, 2017, Smith was driven to Red Wing and then to nearby Winona by
Peter Hansmeier, a legal assistant employed by Smith’s attorney, Padraigin Browne.
Smith Dep. 31; Hansmeier Dep. 9‐10, 33‐34. Browne has represented Smith in roughly
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100 lawsuits challenging architectural barriers under the ADA. Peter Hansmeier is the
brother of Paul Hansmeier, who is Browne’s husband, and who represented Smith in
numerous ADA actions until he was disbarred in connection with his operation of a
“porn‐trolling” scheme.1
Peter Hansmeier did not drive Smith to various businesses in Red Wing and
Winona on May 25, 2017, because Smith intended to patronize those businesses. Smith
Dep. 39. Instead, Hansmeier and Smith were hunting for lawsuits. Hansmeier drove
Smith to various businesses so that Smith could observe whether each of the businesses
was ADA compliant. All told, Smith initiated 13 lawsuits against businesses in Red
Wing and Winona based on his May 25 drive with Hansmeier. Smith Dep. 41 (referring
to “ten other places” that he sued in addition to the three for which he was being
deposed).
Among the businesses that Smith visited on May 25—and eventually sued—was
Bierstube. Hansmeier drove Smith into the Bierstube parking lot at around 10:00 am,
and Smith observed various alleged architectural barriers in the parking lot. Smith
Dep. 128. Smith did not know if Bierstube was open, and he had not checked its hours
of operation before going there. Smith Dep. 39‐40. Again, Smith did not care whether
1
Paul Hansmeier ultimately pleaded guilty to fraud and money laundering and
was sentenced to 168 months in prison. See United States v. Paul R. Hansmeier, Case
No. 16‐CR‐0334 (JNE/KMM).
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Bierstube or the other businesses were open, as he had no interest in patronizing them
on that day.
As noted, Smith alleged in his initial complaint that there were an insufficient
number of accessible parking spots in the Bierstube parking lot. But as is clear from the
photographs that Hansmeier and Smith took on May 25, all of the accessible spots in the
Bierstube parking lot were available at the time of their visit, and all of them were easy
to identify. Smith Decl. ¶ 6 & Ex. A.
II. ANALYSIS
A. Standard of Review
Summary judgment is warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A dispute over a fact is “material” only if its resolution
might affect the outcome of the suit under the governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is “genuine” only if
“the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. “The evidence of the non‐movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Id. at 255.
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B. Standing
Bierstube argues that Smith lacks standing to seek injunctive relief, which is the
only kind of relief available to him under Title III of the ADA. 42 U.S.C. § 12188(a);
Disability Support Alliance v. Heartwood Enters., LLC, 885 F.3d 543, 546 (8th Cir. 2018).
“To demonstrate Article III standing, a plaintiff must prove (1) ‘injury in fact,’ (2) a
‘causal connection between the injury and the conduct complained of,’ and (3) that the
injury will be ‘redressed by a favorable decision.’” Id. at 545 (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560‐61 (1992)). “Standing is determined as of the commencement
of the lawsuit.”2 Id.
Beginning with Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000), the Eighth
Circuit has issued a number of decisions addressing the circumstances under which a
plaintiff has standing to bring an action for an alleged violation of Title III of the ADA.
In Steger, five plaintiffs sued over alleged barriers in a building containing retail and
office space. Id. at 891. So far as the record revealed, at the time the complaint was
filed, four of the five plaintiffs had never set foot in the building. Id. at 891‐93. The
2
Arguably, standing should be determined as of January 17, 2018, when Smith
filed an amended complaint. See ECF No. 61; Cty. of Riverside v. McLaughlin, 500 U.S. 44,
51 (1991) (discussing standing with reference to the time that the plaintiffs filed a
second amended complaint). In this case, however, it makes no difference; although
Smith offers evidence that he visited Bierstube a second time, he did not do so until
July 2018, well after he filed the amended complaint. Smith Decl. ¶ 7. The Court
therefore focuses its standing inquiry on Smith’s May 2017 visit.
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Eighth Circuit held that those four lacked standing. Id. at 893. The remaining plaintiff
(a blind man) had visited the building, and while in the building had been unable to
access the restroom due to the lack of ADA‐compliant signage. Id. at 891‐92. By the
time that the plaintiff sought injunctive relief, however, the problem had been
remedied. Id. at 892. Nevertheless, the Eighth Circuit held that the plaintiff had
standing to seek remediation of other barriers in the building that would affect blind
people, even though he had not personally encountered those barriers. Id. at 893‐94.
Eighteen years after Steger, the Eighth Circuit again analyzed Title III standing in
Disability Support Alliance v. Heartwood Enterprises, LLC, 885 F.3d 543 (8th Cir. 2018)
(“Heartwood”). In Heartwood, the plaintiff was driven to a small, locked office building
whose tenants met with clients by appointment only. Id. at 545. The plaintiff did not
have an appointment. Id. From the car, he saw that there were barriers that would
prevent him from reaching the front door; accordingly, he left without attempting to
access the building. Id. In response to the defendant’s summary‐judgment motion, the
plaintiff submitted a declaration stating that he had “an extremely strong interest in
revisiting the [building] once it attempts to bring itself into compliance with the law in
order to determine that [the defendant] is no longer discriminating against me and
other people with disabilities.” Id. at 546. The plaintiff had also testified at his
deposition that he was interested in seeing a doctor with an office in the building
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because that doctor offered therapies that could be helpful for the plaintiff’s condition.
Id.
The Eighth Circuit held that, to have standing to bring a Title III action, a plaintiff
must prove that architectural barriers caused him “actual injury” at the time that he
commenced the action and that he would visit the building in the “imminent future” but
for those barriers. Id. (citation and quotation marks omitted). There was evidence in
the record suggesting that the plaintiff had not suffered an injury; in particular, there
was evidence that the plaintiff’s “professed intentions to consult Dr. Raich on
December 3, 2014, and to visit Heartwood Offices in the imminent future are not
credible.” Id. But because a court must credit the non‐moving party’s evidence at
summary judgment, the Eighth Circuit held that the district court had correctly denied
summary judgment on the issue of standing (although the district court went on to
grant summary judgment on the merits). Id. at 546‐47. The Eighth Circuit emphasized
that the denial of summary judgment did not establish that the plaintiff had standing;
instead, had the case proceeded to trial, the plaintiff would have had to prove standing.
Id. at 547.
The Eighth Circuit next addressed Title III standing in Davis v. Anthony, Inc., 886
F.3d 674 (8th Cir. 2018) (“Anthony”). In Anthony, the plaintiff alleged that she was
unable to visit a restaurant due to architectural barriers in the parking lot. Id. at 676.
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The defendant submitted evidence that it had removed the barriers, and the district
court dismissed the case as moot. Id. On appeal, the plaintiff argued that, under Steger,
she was entitled to discovery to determine if there were architectural barriers inside the
restaurant. Id. at 677‐78. Anthony rejected this argument, explaining that Steger
“expands standing only when the plaintiff encounters a violation in a building” and
that, as a result, the plaintiff could not “use the violation encountered in the parking
space to expand her standing to sue for unencountered violations inside the steakhouse
that never injured her.” Id. The court also expressly declined to adopt the “deterrent
effect doctrine,” under which a disabled individual suffers an Article III injury “‘if he is
deterred from visiting a noncompliant public accommodation because he has
encountered barriers related to his disability there.’” Id. at 678 (quoting Chapman v. Pier
1 Imports (U.S.) Inc., 631 F.3d 939, 949 (9th Cir. 2011)).
The Eighth Circuit again addressed standing in Hillesheim v. Holiday Stationstores,
Inc., 900 F.3d 1007 (8th Cir. 2018), albeit in the context of claims under the Minnesota
Human Rights Act (“MHRA”). In Hillesheim, the plaintiff identified three barriers in a
store parking lot: (1) there were no signs marking the two accessible parking spots;
(2) one of the two accessible spots lacked an adjacent access aisle; and (3) there was a
garbage can near the top of the curb ramp leading to the store. Id. at 1009. Because the
store remedied the problems after the plaintiff filed suit, the plaintiff conceded that his
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ADA claims were moot, but he continued to press his claims under the MHRA. Id.
at 1009‐10. The district court granted summary judgment to the store, finding that the
plaintiff had suffered no injury and therefore lacked standing. Id. at 1010. The Eighth
Circuit agreed that the plaintiff lacked standing with respect to two of the three
violations, namely, the signage and access‐aisle defects. As the Eighth Circuit
explained:
On the access‐aisle and vertical‐signage claims, [the
plaintiff’s] declaration did little more than describe the
alleged violations, other than stating that he was deterred
from visiting the store in the future. It did not explain how
the lack of an access aisle or insufficient vertical signage
injured him. It made no mention, for example, of whether
he had difficulty identifying which spots were handicap
accessible or even whether the alleged defects caused him to
leave without entering the store. Alleging bare violations of
the ADA without evidence of an actual injury is insufficient
to establish Article III standing.
Id. (footnote omitted). The Eighth Circuit again rejected the argument that being
deterred from visiting in the future is sufficient, by itself, to confer standing. Id. n.1.
With respect to the placement of the garbage can, however, the Eighth Circuit
found that the plaintiff had offered sufficient evidence of an injury:
In contrast to the other claims, Hillesheim’s declaration
connected the placement of the garbage can to his decision to
leave. It stated that he could not safely navigate the ramp
without risking injury because the garbage can blocked his
path of travel and trying to maneuver around it could have
caused his wheelchair to tip over. By offering specific
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evidence that the allegedly dangerous circumstances caused
him not to enter the store, Hillesheim did enough to
establish an injury‐in‐fact.
Id. at 1011.
Finally, and most recently, the Eighth Circuit addressed Title III standing in
Davis v. Morris‐Walker, Ltd., 922 F.3d 868 (8th Cir. 2019) (“Morris‐Walker”). In Morris‐
Walker, the plaintiff alleged that the defendant restaurant lacked a sufficient number of
accessible parking spaces in a separate overflow parking lot and sought to amend her
complaint to add allegations of violations inside the restaurant. Id. at 870‐71. The
Eighth Circuit held that the plaintiff lacked standing to sue for alleged violations in the
overflow lot because she never claimed that she had entered the overflow lot or sought
to park there. Id. at 871. The Eighth Circuit further held that she lacked standing to sue
for alleged violations in the restaurant because she had never entered the restaurant and
therefore never encountered any of the alleged violations. Id. at 871‐72. This was true
even though the plaintiff alleged that she had detailed knowledge of the violations and
intended to return. Id.
From these cases one can glean a couple of general rules regarding standing in
Title III cases. First, the Eighth Circuit has made clear that knowledge of a barrier,
coupled with an intent to visit the establishment in the future, is insufficient to establish
standing. See Morris‐Walker, 922 F.3d at 871‐72; Hillesheim, 900 F.3d at 1010 & n.1. At
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first glance, this may seem inconsistent with Steger, in which the Eighth Circuit stated
that “[a]lthough plaintiffs need not engage in the ‘futile gesture’ of visiting a building
containing known barriers that the owner has no intention of remedying, see 42 U.S.C.
§ 12188(a)(1), they must at least prove knowledge of the barriers and that they would
visit the building in the imminent future but for those barriers.” Steger, 228 F.3d at 892.
At the time of the filing of the complaint in Steger, however, none of the four
plaintiffs who were dismissed from the action for lack of standing had ever been inside
the building, and none of them knew whether the building was ADA‐compliant. Id.
at 891, 893. Steger therefore did not have to resolve the question of whether a plaintiff
who knows of a barrier in a building, but who has never actually visited the building,
has standing to sue to remove the barrier. By contrast, when the Eighth Circuit was
confronted with that question in Morris‐Walker, it squarely held that the plaintiff’s
knowledge of the barrier and intent to visit the building in the future were insufficient.
Morris‐Walker, 922 F.3d at 871‐72; cf. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996)
(“When an opinion issues for the Court, it is not only the result but also those portions
of the opinion necessary to that result by which we are bound.”). It is therefore clear
that a plaintiff must go to the establishment and encounter a barrier in order to have
standing to bring a Title III action against the establishment.
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Second, the Eighth Circuit cases make clear that, at least in the context of an
exterior barrier (such as a non‐compliant parking lot), visiting an establishment and
encountering an exterior architectural barrier are not sufficient to confer standing to
bring a Title III claim regarding the exterior barrier. See Hillesheim, 900 F.3d at 1010
(rejecting standing where the plaintiff failed to explain how barriers that he had
observed affected him); Heartwood, 885 F.3d at 547 (holding that the plaintiff, who had
observed exterior barriers, had offered sufficient evidence to establish standing for
purposes of summary judgment, but leaving open the question whether the plaintiff
could establish standing at trial). Instead, to establish “actual injury” in this context, a
plaintiff must intend to enter or otherwise access the business but be hindered from
doing so by the architectural barrier. See Hillesheim, 900 F.3d at 1011 (evidence that a
third barrier had caused the plaintiff not to enter the store was sufficient evidence of
actual injury).3
3
Hillesheim (which held that the plaintiff had standing with respect to only one of
three barriers) is in some tension with Steger (which held that a plaintiff who has
encountered one barrier has standing to challenge all barriers that could potentially
affect him). This tension could be reconciled in various ways. Perhaps Hillesheim is
only applicable to parking lots and other exterior barriers and not to interior barriers.
Or perhaps the distinction lies in the nature of the relief being sought; in Hillesheim, the
plaintiff could only have been seeking monetary damages, whereas in Steger the
plaintiff was (apparently) only seeking injunctive relief. Or, perhaps, Hillesheim found it
significant that the plaintiff had actually encountered all three barriers but could not
produce evidence that two of the three had affected him. At any rate, the Court need
not attempt to resolve this tension because Smith cannot show that he was injured by
(continued...)
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This does not mean that the plaintiff must risk injury or embarrassment by
making a physical attempt to overcome the barrier. But it does mean that the barrier
must have actually deterred or thwarted the plaintiff from entering the business. This,
in turn, necessarily means that the plaintiff must have intended to enter the business at
the time of his visit, because (as noted) it is clear that merely visiting a site and
observing a barrier is not sufficient to establish standing. Without an intent to enter or
otherwise access the business, the plaintiff is in the same position as a plaintiff who
alleges merely that she knows of a barrier and, as a result, is deterred from visiting in
the future—a theory of standing that the Eighth Circuit has repeatedly declined to
adopt.
Applying these principles to this case, Smith clearly fails to offer sufficient
evidence of actual injury to establish standing. In his deposition, Smith agreed that
when Hansmeier drove him to Red Wing, Smith was not “actually looking to patronize
the premises,” but rather was simply “testing it to see if it’s ADA compliant[.]” Smith
Dep. 39. Smith’s admission that he did not intend to go inside Bierstube is further
bolstered by his admissions that he did not check Bierstube’s hours of operation before
undertaking the 50‐mile drive to Red Wing and does not know whether it was open on
the day of his visit. Smith Dep. 39‐40. Because Smith did not intend to go into
3
(...continued)
any of the barriers that he observed during his May 2017 visit.
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Bierstube, but simply traveled to Bierstube to check if there were architectural barriers
in its parking lot, he did not suffer actual injury.4
That resolves the issue of standing. The Court further notes, however, that even
if Smith had offered evidence showing that he intended to enter Bierstube during his
May 2017 visit, Smith still would not have standing because he failed to offer evidence
that any of the barriers that he observed actually deterred him from entering the
restaurant on that date.5 Smith’s own photographs from that day show that all three of
Bierstube’s accessible parking spots were easy to identify and available at the time of
his visit. Smith Decl. ¶ 6 & Ex. A. Although his declaration describes the general
problems that lack of signage and inadequate parking can cause for disabled people,
Smith does not claim that he had difficulty identifying the accessible spots during his
May 2017 visit—and, given that all three spots were open, Smith obviously does not
claim that no accessible parking was available to him. See also Smith Dep. 77 (admitting
that the accessible spots were not all filled on May 25, 2017). True, Smith alleges that
4
The Court notes that, even if Smith had offered sufficient evidence to survive
summary judgment, there is ample evidence in the record from which a factfinder could
conclude that Smith suffered no actual injury during his May 2017 visit. As a result, the
Court could not possibly grant summary judgment in Smith’s favor; instead, Smith
would have to establish standing at trial.
5
As noted, Smith has filed an amended complaint alleging additional violations.
Smith did not identify these alleged violations in his original complaint, however, and
he cites no evidence that he personally observed or even knew of them on May 25, 2017.
As a result, they cannot have caused him any injury on that date.
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one of the accessible parking spaces lacked an accessible ramp and an adjacent access
aisle.6 But there were two other accessible spots that were available and that were
compliant with the ADA (except for the lack of proper vertical signage, which, again,
did not prevent Smith from identifying the spots as accessible).
In sum, Smith did not suffer actual injury when he visited Bierstube on May 25,
2017 for two reasons: First, he had no intent to enter Bierstube. Second, even if he had
intended to enter Bierstube, none of the alleged ADA violations would have deterred
him from doing so. Each of these reasons is sufficient, in and of itself, to establish that
Smith does not have standing to pursue this lawsuit.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1.
Defendants’ motion for summary judgment and to exclude expert
testimony [ECF No. 96] is GRANTED IN PART and DENIED AS MOOT
IN PART.
a.
b.
2.
The motion is GRANTED as to the issue of standing.
The motion is DENIED AS MOOT in all other respects.
Plaintiff’s motion for summary judgment [ECF No. 113] is DENIED.
6
Smith’s declaration indicates that it was the same parking spot that had both of
these defects. Smith Decl. ¶ 13.
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3.
Plaintiff’s amended complaint [ECF No. 61] is DISMISSED WITHOUT
PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 23, 2019
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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