Smith v. RW's Bierstube, Inc. et al
ORDER sustaining in part and overruling in part 28 APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge(Written Opinion). Signed by Judge Patrick J. Schiltz on November 8, 2017. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 17‐CV‐1866 (PJS/HB)
RW’S BIERSTUBE, INC. and YANZ
Padraigin Browne, BROWNE LAW LLC, for plaintiff.
Edward Peter Sheu and John A. Sullivan, BEST & FLANAGAN LLP, for
This is one of dozens of lawsuits brought by plaintiff Scott Smith and his
attorney, Padraigin Browne, against various businesses, alleging that Smith was
deterred from patronizing those businesses because of violations of the Americans with
Disabilities Act, 42 U.S.C. § 12181 et seq. In this case, Smith alleges that he was deterred
from patronizing “Bierstube Bowl & Grill”—a bowling alley and restaurant operated by
defendants—because none of the business’s parking spots reserved for persons with
disabilities were reserved through a sign (instead, all were reserved through surface
paint), one of those parking spots lacked an adjacent access aisle, and another was not
located on an accessible route to the building entrance. ECF No. 1 ¶¶ 14‐15, 23.
Defendants claim that they have remedied the problems with their parking lot,
and thus that this lawsuit is moot. Accordingly, Magistrate Judge Hildy Bowbeer
issued a pretrial scheduling order that permits limited discovery into whether
defendants have indeed remedied the problems with their parking lot. ECF No. 26.
The order restricts Smith to a targeted inspection of the parking lot. Further, the order
states that the Court will not entertain motions to amend the pleadings until after
defendants’ anticipated motion to dismiss is resolved.
This matter is before the Court on Smith’s objection to these restrictions in the
pretrial scheduling order. A magistrate judge’s ruling on nondispositive matters may
be reversed only if it is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A);
Fed. R. Civ. P. 72(a). Having reviewed the order, the Court sees no error, clear or
otherwise, in Judge Bowbeer’s discovery limitation, and that limitation is affirmed. The
Court finds, however, that it would be inconsistent with the liberal amendment policy
of Fed. R. Civ. P. 15(a) to categorically prohibit all motions to amend pending the
outcome of defendants’ anticipated motion to dismiss.
A. Site Inspection
Smith contends that, under Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000), he
has a right to conduct a full inspection of Bierstube Bowl & Grill—inside and out—in
order to hunt for other possible violations of the ADA of which he is not presently
aware. The Court disagrees.
In Steger, the plaintiff, a blind man, was unable to locate the restroom on the
defendant’s property because it lacked appropriate signage. Id. at 891‐92. The
defendant remedied the problem and moved for dismissal. Id. at 892. In the meantime,
the plaintiff’s expert had identified several other barriers that could injure the plaintiff
and other blind persons. Id. The district court nevertheless dismissed the lawsuit,
holding that the plaintiff’s injury had been redressed. Id. The Eighth Circuit reversed,
holding that the plaintiff did not need to personally encounter every barrier of which
the plaintiff was aware in order to have standing to seek injunctive relief. Id. at 894; see
also Doran v. 7‐Eleven, Inc., 524 F.3d 1034, 1043‐57 (9th Cir. 2008) (citing Steger and
holding that, so long as a disabled person has standing to pursue injunctive relief for
one alleged statutory violation, she could use discovery to uncover other potential
The Court does not agree that Steger gives Smith the right to conduct a full site
inspection of Bierstube Bowl & Grill. The issue in Steger was whether the plaintiff had
standing to seek relief for barriers of which he was aware but which he had not
personally encountered. But the issue in this case is not whether Smith has standing;
instead, the issue is whether his claims are moot because defendants have remedied
every barrier of which Smith is aware. See Hillesheim v. Buzz Salons, LLC, No. 16‐CV‐
2225 (MJD/TNL), 2017 WL 3172870, at *7 (D. Minn. June 19, 2017) (“The inquiry here is
not whether Hillesheim has standing to bring this lawsuit as it was in Steger, but
whether there is anything left for the Court to address at all.”), adopted, 2017 WL
3172751 (D. Minn. July 25, 2017).
Moreover, even if the Court were to view Smith’s argument through the prism of
standing, Steger specifically stated that, to show “injury in fact” (a requirement for
standing), a plaintiff “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
(emphasis added). In other words, Steger addressed the standing of a plaintiff to litigate
over barriers of which he was aware; nothing in Steger suggests that a plaintiff who is
aware of one barrier—say, a parking spot that is reserved by surface paint instead of by
a sign—has the right to inspect the entire business, inside and out, to hunt for violations
of the ADA of which he is not aware.
Smith’s objection to this aspect of Judge Bowbeer’s order is overruled.
B. Motions to Amend
Smith also objects to being barred from bringing a motion for leave to amend
until the Court rules on defendants’ anticipated motion to dismiss. The Court
sympathizes with Judge Bowbeer’s reason for imposing this restriction. One common
characteristic of the dozens—if not hundreds—of ADA lawsuits filed in this District by
Browne and her stable of clients is that they are moving targets. Often, a defendant
quickly remedies the violations cited by Browne in an effort to render the cases moot,
and Browne responds by attempting to find other violations and amend her complaint.
See Buzz Salons, LLC, 2017 WL 3172870, at *6 (criticizing Browne for employing “a
litigation strategy designed to draw out these proceedings” and noting “serious
concerns over what appears to be a moving litigation target”). The restriction imposed
by Judge Bowbeer is obviously intended to keep this lawsuit from becoming yet
another moving target.
That said, the Court believes that the Eighth Circuit would find an absolute
prohibition on motions to amend under these circumstances to be an abuse of
discretion. Cf. Roberson v. Hayti Police Dep’t, 241 F.3d 992, 995‐96 (8th Cir. 2001)
(denying leave to amend solely on the basis of a year‐long delay, in the absence of any
showing of prejudice, was an abuse of discretion). Under Fed. R. Civ. P. 15(a)(2), a
court “should freely give leave [to amend] when justice so requires.” As Smith notes,
plaintiffs commonly seek leave to amend in response to motions to dismiss. Indeed, the
Eighth Circuit has repeatedly cited a litigant’s failure to seek leave to amend in response
to a motion to dismiss to be a basis for denying a post‐judgment leave to amend. See
Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 963‐64 (8th Cir. 2015); United States v.
Mask of Ka‐Nefer‐Nefer, 752 F.3d 737, 742‐44 (8th Cir. 2014); Horras v. Am. Capital
Strategies, Ltd., 729 F.3d 798, 804‐05 (8th Cir. 2013). Prohibiting all motions to amend
pending the outcome of a motion to dismiss would therefore create an unfair Catch‐22
Although multiple failures to cure defects in a complaint can be a basis for
denying further amendments, Moore‐El v. Luebbers, 446 F.3d 890, 901‐02 (8th Cir. 2006),
this case is in its early stages. Smith is still proceeding under his original complaint,
and he has not previously sought leave to amend. Assuming that Smith acquires a
basis for alleging (consistent with Fed. R. Civ. P. 11) the existence of other specific
architectural barriers, the Court sees no legal basis for prohibiting him from seeking
leave to amend.1
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
Plaintiff’s objection [ECF No. 28] to the pretrial scheduling order [ECF
No. 26] is SUSTAINED IN PART and OVERRULED IN PART.
The Court cautions Smith and Browne that, should they conclude that they have
a proper basis to seek leave to amend the complaint, they must follow proper
procedures in doing so. See Thomas v. United Steelworkers Local 1938, 743 F.3d 1134, 1140
(8th Cir. 2014) (a plaintiff cannot amend his complaint by raising arguments in a brief).
Paragraph 7 of the order, which prohibits plaintiff from seeking leave to
amend until defendants’ anticipated motion to dismiss is resolved, is
The remainder of the order is AFFIRMED.
Dated: November 8, 2017
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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