Dalton v. NPC International, Inc.

Filing 39

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Dismiss 27 is GRANTED and the Amended Complaint 19 is DISMISSED with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by The Hon. Paul A. Magnuson on 3/20/2018. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Aaron Dalton,

Civ. No. 17-4012 (PAM/LIB)
Plaintiff,

v.

MEMORANDUM AND ORDER

NPC International, Inc.,
Defendant.

This matter is before Court on Defendant’s Motion to Dismiss. For the following
reasons, the Motion is granted.
BACKGROUND
Plaintiff Aaron Dalton, who resides in Burnsville suffers from cerebral palsy.
(Am. Compl. (Docket No. 19) ¶¶ 8-9.) He uses a wheelchair and a van with a wheelchair
lift. (Id. ¶ 11.) He alleges that the Pizza Hut restaurant in Fergus Falls has failed to
remove architectural barriers in violation of the Americans with Disabilities Act
(“ADA”). In his original Complaint, he alleged that he was prevented from eating at the
Pizza Hut in June 2017 because the reserved disabled parking spaces “lacked adjacent
access aisles that extended the full length of the parking spaces.” (Compl. (Docket No. 1)
¶ 15.) After the owner of the Pizza Hut, Defendant NPC International, Inc., fixed the
parking spaces and filed a motion to dismiss, Dalton filed an Amended Complaint adding
several more alleged architectural barriers, none of which he personally encountered. In
addition to the original access-aisles claim (Am. Compl. ¶ 15), Dalton now alleges that

the Pizza Hut has two public entrances, one of which is not on an accessible path and is
not an accessible means of egress 1 (id. ¶ 17); that there is no signage to identify an
accessible entrance/exit (id.); and that the service counter is too tall. (Id. ¶ 18.) Dalton
alleges that he was deterred from visiting the Pizza Hut as a result of these alleged
architectural barriers. (Id. ¶ 21.) He seeks an injunction and attorney’s fees under 42
U.S.C. § 12188(a)(1).
NPC now moves to dismiss, contending that it has remedied three of the five
alleged architectural barriers and that Dalton has failed to state a claim with respect to the
remaining two barriers.
DISCUSSION
NPC raises two distinct challenges to Dalton’s claims. One is a factual attack
under Rule 12(b)(1), asserting that some of Dalton’s claims are moot. The other is a
contention under Rule 12(b)(6) that two of Dalton’s claims are legally untenable.
A.

Standards of Review
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.

42 U.S.C.

§ 12182(a); Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir. 1999). The ADA
defines discrimination, in relevant part, as “a failure to remove architectural barriers . . .

1

An “accessible means of egress” claim is a claim that there is no accessible emergency
exit. (See Def.’s Supp. Mem. (Docket No. 29) at 19.)
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in existing facilities . . . where such removal is readily available.”

42 U.S.C.

12182(b)(2)(A)(iv).
There is no dispute that Dalton has a disability under the ADA and that the Fergus
Falls Pizza Hut is a place of public accommodation. The only issue is whether the Pizza
Hut’s alleged architectural barriers constitute discrimination against Dalton on the basis
of his disability in violation of the ADA.
A motion under Rule 12(b)(1) seeks dismissal of a complaint for lack of subjectmatter jurisdiction. NPC avers that three of the five alleged barriers specified in the
Amended Complaint have been remedied, and thus NPC challenges the factual
truthfulness of the Amended Complaint.

In a factual challenge, “no presumptive

truthfulness attaches to [plaintiff’s] allegations.” Iowa League of Cities v. EPA, 711 F.3d
844, 861 (8th Cir. 2013) (citation omitted).

It is Dalton’s burden to prove that

jurisdiction exists. Kennedy Bldg. Assocs. v. Viacom, Inc., 375 F.3d 731, 745 (8th Cir.
2004) (citation omitted).
But to survive a motion to dismiss under Rule 12(b)(6), a complaint need only
“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.” Iqbal, 556 U.S. at 678. When
evaluating a motion to dismiss under Rule 12(b)(6), the Court must accept factual
allegations as true. Gomez v. Wells Fargo Bank, N.A., 676 F.3d 655, 660 (8th Cir.
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2012). But “[t]hreadbare 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.
A.

Rule 12(b)(1)
NPC alleges that it has remedied the parking lot, signage, and service-counter

violations that Dalton asserts in the Amended Complaint. Thus, according to NPC,
Dalton’s claims about these violations are moot and the Court lacks jurisdiction over
them. Dalton counters that the Motion is premature because Dalton has not yet had the
opportunity to take discovery on the remediation, or on NPC’s policies regarding ADA
compliance. But as NPC points out, Dalton has not attempted, in any of the months since
he was first notified that NPC had remedied the alleged parking-lot violation, to inquire
about the remediation efforts or to verify those efforts on his own. And other Judges in
this District have repeatedly rejected the contention that a jurisdictional challenge is
premature. See Hillesheim v. Buzz Salons, LLC, No. 16cv2225, 2017 WL 3172870, at
*2 (June 19, 2017) (Leung, M.J.) (citing cases).
“[A] defendant’s voluntary removal of alleged [architectural] barriers prior to trial
can have the effect of mooting a plaintiff’s ADA claim.” Id. (alterations in original)
(quoting Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011)).

But

voluntary cessation does not always moot a claim, and NPC “carries a ‘heavy burden’ of
demonstrating not only that it has voluntarily ceased the offending conduct but also that it
is ‘absolutely clear’ the offending conduct ‘could not reasonably be expected to recur.’”
Sawczyn v. BMO Harris Bank Nat’l Ass’n, 8 F. Supp. 3d 1108, 1113 (D. Minn. 2014)

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(Kyle, J.) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 189 (2000)).
Dalton does not argue that NPC’s remediation efforts are somehow temporary. He
contends instead, for example, that because he has not independently verified the slope of
the new parking spaces, NPC has not met its “heavy burden.” But Dalton has known
about the new parking spaces since late September 2017. In the intervening six months,
he could have measured the slope of the spaces and evaluated NPC’s other remedial
measures, but he chose not to do so. His failure to inspect NPS’s remediation efforts
does not establish that NPC has somehow failed to meet its burden here.
Dalton can point to no further relief he is due for the alleged ADA violations
regarding parking, signage, and service-counter height, and given that the changes NPC
implemented are permanent ones, the violations are not reasonably likely to recur.
Moreover, “although it would be prudent for [NPC] to have a policy regarding ADA
compliance, the absence of such a policy alone does not, as [Dalton] contends, ‘seriously
undermine[] a finding of mootness’ when considering the uncontroverted evidence that
the conduct complained of has been remedied.” Buzz Salons, 2017 WL 3172870, at *6
(alteration in original) (citations omitted).
Dalton’s claims related to three of the alleged architectural barriers are moot.
B.

Rule 12(b)(6)
NPC brings two separate challenges under Rule 12(b)(6) to Dalton’s claims

regarding the allegedly inaccessible second entrance and inaccessible emergency exit.
First, NPC argues that, because Dalton did not personally observe these alleged
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architectural barriers, he has no standing to bring claims about them. The Amended
Complaint makes clear that Dalton did not enter the restaurant because he felt that he
could not park in the parking lot. (Am. Compl. ¶ 19.) He thus did not personally observe
these two remaining architectural barriers. Dalton amended his pleadings to include
these barriers after only NPC remediated the only barrier pled in the original Complaint. 2
The Amended Complaint does not explain how Dalton discovered the other alleged
barriers, and the exhibits attached to the Amended Complaint do not provide any physical
evidence regarding the barriers.
Dalton contends that an ADA plaintiff has standing to complain about all
architectural barriers that might affect him or her, whether or not the plaintiff personally
observed the barriers. An ADA plaintiff need not have encountered the alleged obstacle
to bring suit to correct it. Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000).
Rather, the plaintiff need only have actual “knowledge of the barriers” and that the
barriers would deter the plaintiff from using the building. Id. Although NPC correctly
notes that the Amended Complaint nowhere alleges how Dalton came to be informed of
these architectural barriers, it is clear that Dalton now has the requisite knowledge.
Under Steger, he has standing to raise claims about those barriers.
NPC also argues that, because the Pizza Hut building was built before 1992, the
ADA requirements on which Dalton relies do not apply. See 28 C.F.R. § 36.304. Dalton
2

The Court notes, as have other Judges in this District, Dalton’s counsel’s habit of
creating a “moving litigation target” with ADA claims. Buzz Salons, 2017 WL 3172870,
at *6. As Magistrate Judge Leung stated, the addition of more alleged barriers says less
about the defendant’s alleged recalcitrance and more about the plaintiff’s “litigation
strategy designed to draw out these proceedings.” Id.
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did not respond to NPC’s argument as it relates to the allegedly inaccessible emergency
entrance, thus conceding that this portion of his claim should be dismissed.
With regard to the allegedly inaccessible second entrance, the Amended
Complaint’s allegations are so vague and conclusory as to make a response impossible.
In fact, Dalton has not plausibly alleged even the existence of this second inaccessible
entrance, despite being given two chances to do so. NPC presented photographs of every
door on the building, and still Dalton’s attorney did not specify which of the three doors
constitutes this allegedly inaccessible second entrance. Because it is evident that there is
no such second inaccessible entrance, allowing Dalton to amend the Amended Complaint
to include additional allegations in this regard would be futile. See Roberson v. Hayti
Police Dep’t, 241 F.3d 992, 995 (8th Cir. 2001) (“[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.”) (citation omitted).
appropriately dismissed with prejudice.

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This portion of Dalton’s claim is

CONCLUSION
Dalton’s claims regarding three of the alleged architectural barriers are moot, he
failed to oppose NPC’s Motion with respect to a fourth barrier, and his claim regarding
the fifth barrier, even if well pled, would not survive a motion to dismiss. Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (Docket No. 27) is
GRANTED and the Amended Complaint (Docket No. 19) is DISMISSED with
prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: March 20, 2018

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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