Boitnott v. Border Foods, Inc. et al
Filing
41
ORDER GRANTING 12 DEFENDANTS' MOTION TO DISMISS AND DENYING 27 PLAINTIFF'S MOTION TO AMEND. (Written Opinion) Signed by Judge Wilhelmina M. Wright on 2/21/2019. (RJE)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Jerald Boitnott,
Case No. 18-cv-1702 (WMW/ECW)
Plaintiff,
v.
Border Foods, Inc., doing business as Taco
Bell; and RALCO, LLC,
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS AND
DENYING PLAINTIFF’S MOTION TO
AMEND
Defendants.
Before the Court are Defendants’ motion to dismiss Plaintiff’s amended complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction
and Plaintiff’s motion to amend the complaint. (Dkts. 12, 27.) For the reasons addressed
below, Defendants’ motion to dismiss is granted, Plaintiff’s motion to amend the complaint
is denied, and this case is dismissed without prejudice.
BACKGROUND
Plaintiff Jerald Boitnott is a Minnesota resident who has a legal disability as defined
by the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. Defendant
Border Foods, Inc. (Border Foods), owns and operates a Taco Bell restaurant located in
Saint Paul, Minnesota (the restaurant). Defendant RALCO, LLC, owns and is the lessor
of the real property on which the restaurant is located.
Boitnott visited the restaurant in March 2018 and observed architectural barriers that
deterred him from patronizing the restaurant. These architectural barriers included a
parking stall aisle that did not adjoin an accessible route, an interior vestibule door that
could not be opened with less than five pounds of force, an insufficient number of
accessible seats, a restroom mirror located more than 40 inches above the floor, exposed
pipes below a lavatory that created a burn hazard, an improperly sized and positioned toilet
grab bar, and an improperly positioned toilet flush control. Although Boitnott lives near
and intends to patronize the restaurant in the future, these architectural barriers prevented
and deterred him from doing so. Boitnott asserts that he will return to and patronize the
restaurant when these architectural barriers have been removed or cured.
Boitnott commenced this action against Taco Bell of America, LLC, and two
individual defendants in Ramsey County District Court, Second Judicial District, on May
22, 2018. The complaint alleges violations of the ADA and seeks a declaratory judgment,
injunctive relief, a nominal monetary award, and attorneys’ fees and costs. The individual
defendants removed this action to this Court on June 20, 2018. Approximately two weeks
later, on July 2, 2018, Boitnott filed an amended complaint, which is now the operative
complaint. The amended complaint contains the same legal and factual allegations as the
original complaint but identifies only Border Foods and RALCO as defendants.
Although Border Foods was not named as a defendant in Boitnott’s original
complaint, Border Foods became aware of Boitnott’s lawsuit on May 22, 2018. According
to Border Foods’s Senior Vice President, as soon as Border Foods became aware of the
lawsuit it addressed the ADA violations alleged in Boitnott’s original complaint. Border
Foods hired an auditor who specializes in ADA compliance. The auditor visited the
restaurant on May 30, 2018, and provided a report with recommendations. Thereafter,
Border Foods took steps to correct the alleged architectural barriers, including (1) replacing
2
multiple doors, including the interior vestibule door, so that they can be opened with less
than five pounds of force; (2) adding accessible seating; (3) lowering restroom mirrors to
be no more than 40 inches above the floor; (4) installing pipe covers below the lavatory;
(5) correcting the size and location of restroom grab bars; and (6) correcting the location
of the toilet flush control in the men’s restroom. After completing these changes to the
restaurant property, the auditor visited the restaurant again and issued a second report
verifying that the architectural barriers identified in Boitnott’s original complaint had been
corrected. The auditor also advised Border Foods that the restaurant’s parking stall aisle
and routes do not violate the ADA. The auditor’s second report is dated June 19, 2018—
approximately two weeks before Boitnott amended his complaint and named Border Foods
as a defendant.
Border Foods and RALCO (collectively, Defendants) move to dismiss the amended
complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that this Court
lacks subject-matter jurisdiction over Boitnott’s claims because Boitnott lacks standing
under Article III of the United States Constitution and, alternatively, because Boitnott’s
claims are moot. In particular, Defendants contend that the architectural barriers identified
in the amended complaint were removed or cured before Boitnott filed the amended
complaint.
ANALYSIS
Defendants move to dismiss the amended complaint for lack of subject-matter
jurisdiction on two grounds—standing and mootness. See Fed. R. Civ. P. 12(b)(1). The
jurisdiction of federal courts extends only to actual cases or controversies. U.S. Const. art.
3
III, § 2, cl. 1; accord Neighborhood Transp. Network, Inc. v. Pena, 42 F.3d 1169, 1172
(8th Cir. 1994). Questions of standing and mootness implicate the court’s subject-matter
jurisdiction. Charleston Hous. Auth. v. U.S. Dep’t of Agric., 419 F.3d 729, 739 (8th Cir.
2005) (mootness); Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002) (standing).
When deciding a motion to dismiss for lack of subject-matter jurisdiction, a court
“must distinguish between a ‘facial attack’ and a ‘factual attack.’ ” Osborn v. United
States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). A facial attack challenges the sufficiency of
a plaintiff’s pleadings. Branson Label, Inc. v. City of Branson, 793 F.3d 910, 914 (8th Cir.
2015). The district court, in turn, determines whether the pleadings allege sufficient facts
to support subject-matter jurisdiction. Id. In doing so, the court considers only the
pleadings, and the nonmoving party receives the same protections that it would receive if
a Rule 12(b)(6) motion to dismiss for failure to state a claim were before the court. Osborn,
918 F.2d at 729 n.6.
By contrast, a defendant’s factual attack challenges the existence of subject-matter
jurisdiction. Branson Label, 793 F.3d at 914. When ruling on a factual attack, the district
court considers matters outside the pleadings, and the nonmoving party proceeds without
“the benefit of [Rule] 12(b)(6) safeguards.” Osborn, 918 F.2d at 729-30 n.6; see also
Disability Support All. v. Geller Family Ltd. P’ship III, 160 F. Supp. 3d 1133, 1135-37 (D.
Minn. 2016) (applying factual attack standard in ADA case and considering declarations
attached to pleadings). Here, Defendants assert a factual challenge to the Court’s subjectmatter jurisdiction based on their contentions that Boitnott lacks standing and that Border
Foods voluntarily complied with the law, thus rendering Boitnott’s claims moot.
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Title III of the ADA prohibits discrimination against people with disabilities in
places of public accommodation. 42 U.S.C. § 12182(a). Discrimination includes the
“failure to remove architectural barriers, and communication barriers that are structural in
nature, in existing facilities . . . where such removal is readily achievable.” 42 U.S.C.
§ 12182(b)(2)(A)(iv). The ADA grants a private right of action to “any person who is
being subjected to discrimination on the basis of disability.” 42 U.S.C. § 12188(a); Steger
v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000). In a private enforcement action under
Title III of the ADA, a plaintiff may obtain only injunctive relief.
See 42 U.S.C.
§ 12188(a); Wojewski v. Rapid City Reg’l Hosp., Inc., 450 F.3d 338, 342 (8th Cir. 2006);
Stebbins v. Legal Aid of Ark., 512 F. App’x 662, 663 (8th Cir. 2013) (citing 42 U.S.C.
§ 12188(a)).
Defendants argue that, because none of the ADA violations alleged in the amended
complaint existed when Border Foods and RALCO were first named as defendants,
Boitnott lacked standing from the outset of his lawsuit against them.
Defendants
alternatively argue that, because the ADA violations alleged in the amended complaint do
not currently exist on the restaurant property, injunctive relief is unavailable. Therefore,
according to Defendants, Boitnott’s claims are moot. The Court addresses each argument
in turn.
I.
Standing
To satisfy the case-or-controversy requirement of Article III, a plaintiff must
establish standing as an “indispensable part of the plaintiff’s case.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992); accord Hargis v. Access Capital Funding, LLC, 674
5
F.3d 783, 790 (8th Cir. 2012). To meet this standing requirement, the plaintiff must
(1) have suffered an injury in fact, (2) establish a causal relationship between the contested
conduct and the alleged injury, and (3) show that a favorable decision would redress the
injury. Lujan, 504 U.S. at 560-61; accord Hargis, 674 F.3d at 790. Defendants argue that
when Boitnott filed and served his amended complaint, the alleged ADA violations no
longer existed. As there was no redressable injury at that time, Defendants contend,
Boitnott lacked standing.
Defendants advocate confining this Court’s standing analysis to the facts as of the
date Boitnott filed and served the amended complaint, rather than the facts when he filed
and served the original complaint. Generally, standing depends on the facts as they existed
when the lawsuit was filed. Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000).
Some courts have concluded that the date on which an amended complaint was filed is the
operative date when conducting a standing analysis. See, e.g., In re Patterson Cos., 479 F.
Supp. 2d 1014, 1042 (D. Minn. 2007) (citing Harley v. Zoesch, 413 F.3d 866, 872 (8th Cir.
2005)). But courts within the Eighth Circuit are not in clear agreement on this issue. See,
e.g., Battle Sports Sci., LLC v. Shock Doctor, Inc., 225 F. Supp. 3d 824, 833 (D. Neb. 2016)
(stating that, when analyzing standing, “the Court must examine the state of things at the
time of the action brought,” and concluding that standing existed when plaintiff filed
original complaint (internal quotation marks omitted)); Steger, 228 F.3d at 893 (providing
that standing is analyzed based on facts as of “the time the lawsuit was filed” (emphasis
added)).
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The Court need not resolve this disagreement in the case law, however, because
Boitnott’s amended complaint relates back to the original complaint. Fed. R. Civ. P.
15(c)(1); see, e.g., Osorio v. Minneapolis Hotel Acquisition Grp., LLC, 335 F. Supp. 3d
1141, 1144 (D. Minn. 2018). An amended complaint that adds a new defendant relates
back to the original complaint in certain circumstances. One such circumstance is when
(1) the amended complaint asserts a claim that arose out of the conduct set out in the
original complaint, (2) the added defendant received notice of the action within 90 days
after the original complaint was filed, (3) the added defendant will not be prejudiced by
defending the action on the merits, and (4) that defendant “knew or should have known
that the action would have been brought against it, but for a mistake concerning the proper
party’s identity.” Fed. R. Civ. P. 15(c)(1), 4(m).
These circumstances exist here. The claims in Boitnott’s amended complaint are
materially identical to the claims in his original complaint. Defendants concede that they
learned of this lawsuit on May 22, 2018—the day it was originally filed. And the record
establishes both that Defendants will not be prejudiced by defending this action on the
merits and that Defendants knew that this action would have been brought against them,
but for the mistake in the original complaint as to the parties’ identities. Defendants
promptly responded to eliminate the ADA violations alleged in the original complaint.
Accordingly, the Court’s standing analysis is based on the facts as they existed when the
original complaint was filed. See, e.g., Battle Sports Sci., LLC, 225 F. Supp. 3d at 833
(concluding that plaintiff “had standing when the Complaint was filed but made a simple
7
mistake in drafting its Complaint—a mistake [plaintiff] corrected in the Amended
Complaint”).
Defendants do not contend (nor could they) that Boitnott lacked standing when he
commenced this lawsuit on May 22, 2018. Defendants concede implicitly both that
multiple architectural barriers existed at the restaurant when Boitnott visited the property
in March 2018 and that those architectural barriers remained on May 22, 2018, in violation
of ADA requirements. As such, when Boitnott commenced this lawsuit, he had suffered
an injury in fact that was fairly traceable to Defendants’ conduct and redressable by a
favorable decision. For these reasons, the Court denies Defendants’ motion to dismiss for
lack of standing.
II.
Mootness
Defendants argue, in the alternative, that because the ADA violations alleged in the
amended complaint no longer exist, the amended complaint should be dismissed as moot.
Boitnott counters that this case is not moot because Defendants’ remedial efforts are merely
a litigation tactic and their ADA violations could recur. Boitnott also states that he
observed additional ADA violations at the restaurant property in August 2018.
“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for
purposes of Article III—when the issues presented are no longer live or the parties lack a
legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 133 S. Ct. 721,
726 (2013) (internal quotation marks omitted). As a general matter, when it becomes clear
that a federal court can no longer grant effective relief, the case is moot. Beck v. Mo. State
High Sch. Activities Ass’n, 18 F.3d 604, 605 (8th Cir. 1994) (per curiam). But when a
8
defendant voluntarily ceases a challenged practice, a federal court does not lose its power
to determine the legality of the practice. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000) (citing City of Mesquite v. Aladdin’s Castle, Inc.,
455 U.S. 283, 289 (1982)). And when a defendant asserts that its voluntary cessation of
allegedly unlawful conduct renders a case moot, it is the defendant’s heavy burden to
persuade the court that the challenged conduct cannot reasonably be expected to recur. Id.;
accord Strutton v. Meade, 668 F.3d 549, 556 (8th Cir. 2012).
Defendants do not dispute that, when Boitnott commenced this lawsuit in May 2018,
the restaurant property did not comply with ADA requirements pertaining to the force
required to open the interior vestibule door, the amount of accessible seating, and the
restroom fixtures identified in both the original and the amended complaint. But after
Boitnott commenced this lawsuit, Border Foods hired an auditor who specializes in ADA
compliance. In response to the auditor’s assessment, Border Foods made remedial changes
to bring those aspects of the restaurant property into ADA compliance. The record includes
declarations from Border Foods’s senior vice president and the auditor, as well as exhibits
that include the auditor’s reports, photographs, and diagrams. The auditor’s June 19, 2018
report states that, based on inspection and testing, the doors, accessible seating, and
restroom fixtures have been made compliant with ADA requirements. The auditor’s report
also concludes that the allegedly noncompliant parking stall aisle does not violate the ADA
because the relevant provision of the 2010 ADA Standards for Accessible Design (2010
Standards) states that it is “preferable” (not required) that an accessible route not pass
behind parked vehicles.
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Boitnott does not dispute the evidence presented by Defendants. Instead, relying on
Sawczyn v. BMO Harris Bank National Ass’n, 8 F. Supp. 3d 1108 (D. Minn. 2014),
Boitnott argues that Defendants have not satisfied their burden to demonstrate mootness
because Defendants have not established that they have remedied all of the ADA violations
at the restaurant property. Boitnott’s reliance on Sawczyn is unavailing. In Sawczyn, the
defendant failed to present evidence that it had addressed each ADA violation identified in
the complaint. See id. at 1115. Boitnott cites no authority that supports his contention that
a defendant must demonstrate that it has remedied conditions that were not identified in
the complaint to establish that an ADA claim is moot. To the contrary, ADA claims are
moot when a defendant has presented evidence that modifications to its property have
remedied the ADA violations identified in the complaint. See, e.g., Bacon v. Walgreen
Co., 91 F. Supp. 3d 446, 451-53 (E.D.N.Y. 2015); Sharp v. Rosa Mexicano, D.C., LLC,
496 F. Supp. 2d 93, 97-99 (D.D.C. 2007). Only the specific architectural barriers identified
in Boitnott’s complaint are relevant to the Court’s analysis.
Cf. Thomas v. United
Steelworkers Local 1938, 743 F.3d 1134, 1140 (8th Cir. 2014) (concluding that a complaint
cannot be amended through a brief); Oliver v. Ralphs Grocery Co., 654 F.3d 903, 909 (9th
Cir. 2011) (explaining that “only disclosures of barriers in a properly pleaded complaint
can provide” fair notice as required by Federal Rule of Civil Procedure 8). Boitnott cannot
rely on purported ADA violations identified for the first time in a brief opposing a motion
to dismiss.
The record before the Court clearly demonstrates that Border Foods has remedied
the ADA violations alleged in the amended complaint with respect to the interior vestibule
10
door, the amount of accessible seating, and the restroom fixtures. These alleged ADA
violations will not recur unless Defendants take affirmative steps to remove or alter the
ADA-compliant doors, accessible seating, and bathroom fixtures Defendants installed,
which are permanent fixtures or features. The senior vice president of Border Foods attests
by sworn declaration that “Border Foods is committed to ensuring that its properties are
fully-compliant with the ADA, and has invested more than $11,000 in renovations at the
[restaurant] Property to-date to ensure such compliance.” Boitnott offers neither a factual
reason nor legal basis to assume that this statement is incorrect or that any of the nowcompliant fixtures at the restaurant property will be removed or altered.
While Boitnott does not refute that Defendants have remedied most of the ADA
violations alleged in the amended complaint, he asserts that Defendants have not corrected
one of the alleged ADA violations. This is the alleged failure to provide an “accessible
route” adjoining the access aisle between Defendants’ parking spaces. 1 Because an
individual must pass behind parked vehicles to travel from the access aisle to the building’s
accessible entrance, Boitnott argues that Defendants are in violation of Section 502.3 of
1
At the hearing on Defendants’ motion, counsel for both parties discussed the
photographs of the restaurant parking lot that Defendants submitted as Exhibit A to the
declaration of Barry M. Zelickson, the Senior Vice President of Border Foods. Counsel’s
arguments eliminated any lingering confusion as to the location of the inclined “curb cut”
connecting the parking lot to the sidewalk. By the conclusion of the hearing, the operative
facts had been clarified and it is undisputed that the only curb cut visible in these
photographs is located behind and to the left side of the two parking spaces pictured in the
photographs. The Court acknowledges the value of oral argument and the assistance of
counsel for Boitnott and Defendants in this matter.
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the 2010 Standards. Defendants characterize the portion of Section 502.3 on which
Boitnott relies as an advisory preference, not a requirement.
Section 502.3 of the 2010 Standards provides that “[a]ccess aisles shall adjoin an
accessible route.” The advisory comment following Section 502.3 states:
Accessible routes must connect parking spaces to accessible entrances. In
parking facilities where the accessible route must cross vehicular traffic
lanes, marked crossings enhance pedestrian safety, particularly for people
using wheelchairs and other mobility aids. Where possible, it is preferable
that the accessible route not pass behind parked vehicles.
(Emphasis added.) Here, the parties do not dispute that the restaurant parking lot contains
an “access aisle” as required by the ADA. It also is undisputed that an “accessible route”
connects the parking lot to an accessible entrance. However, Boitnott contends that the
restaurant’s access aisle does not “adjoin” the accessible route because an individual must
traverse a portion of the parking lot before reaching the inclined “curb cut” in the sidewalk.
This argument presumes that an accessible route cannot, as a matter of law, include a
portion of the parking lot that must be traversed. But Boitnott cites no legal authority for
the proposition that an “accessible route” must begin at the curb cut and cannot include a
portion of the parking lot that passes behind parked vehicles. To the contrary, the advisory
comment to Section 502.3 of the 2010 Standards contemplates that an accessible route may
“pass behind parked vehicles” or even “cross vehicular traffic lanes.” That the 2010
Standards express a preference to avoid such configurations is prudent. However, that
preference does not establish that it is a violation of the ADA for an accessible route to
pass behind parked vehicles. Boitnott’s argument to the contrary is unavailing.
12
Boitnott also contends that his claims cannot be moot to the extent that he seeks an
award of nominal monetary damages. But as addressed above, Title III of the ADA does
not permit a private plaintiff to recover damages. See Wojewski, 450 F.3d at 342; Stebbins,
512 F. App’x at 663 (citing 42 U.S.C. § 12188(a)). Boitnott’s reliance on Bayer v. Neiman
Marcus Group, Inc., 861 F.3d 853 (9th Cir. 2017), is misplaced. The holding in Bayer is,
at most, persuasive authority—but nonetheless, inapposite. The holding in Bayer is limited
to alleged violations of Section 12203(b) of the ADA, which makes it “unlawful to coerce,
intimidate, threaten, or interfere with any individual in the exercise or enjoyment of . . .
any right granted or protected” by the ADA. 42 U.S.C. § 12203(b). A Section 12203(b)
claim, for which the ADA provides a different remedial scheme than a Title III claim, is
not alleged here. Boitnott is a private plaintiff asserting a violation of Title III of the ADA.
As such, the only relief that the Court could award him is an injunction requiring
Defendants to correct architectural barriers. 2 See 42 U.S.C. § 12188(a). But they have
already been corrected.
Boitnott argues that his claims cannot be moot to the extent that he seeks an order
directing Defendants to modify their policies, practices, and procedures to ensure ongoing
ADA compliance.
The ADA defines discrimination to include “a failure to make
reasonable modifications in policies, practices, or procedures, when such modifications are
2
“For the same reasons that injunctive relief is not available, a declaratory judgment
also is not available” because it “would serve no purpose” given the absence a continuing
violation or practice. S. Utah Wilderness All. v. Smith, 110 F.3d 724, 730 (10th Cir. 1997);
accord Voyageurs Nat’l Park Ass’n v. Norton, 381 F.3d 759, 765 (8th Cir. 2004) (adopting
same reasoning).
13
necessary to afford such goods, services, facilities, privileges, advantages, or
accommodations to individuals with disabilities.” 42 U.S.C. § 12182(b)(2)(A)(ii). And
Boitnott’s amended complaint generally alleges that Defendants have “fail[ed] to adopt
and implement adequate ADA related policies, procedures, and practices.” But Boitnott
does not identify any particular policy, practice, or procedure that Defendants have failed
to reasonably modify. He instead relies on inferences derived from claimed architectural
barriers that have undisputedly been remedied. This reasoning is unavailing. The record
reflects that Border Foods promptly and comprehensively acknowledged and remedied not
only the ADA violations Boitnott identified in his complaint, but also ADA violations that
Boitnott did not identify. To the extent that Defendants’ policies, practices, or procedures
may have been inadequate when Boitnott commenced this lawsuit, the record reflects that
Defendants voluntarily remedied those inadequacies.
In summary, the record establishes that Defendants have satisfied their heavy
burden to demonstrate both their compliance with the ADA and that the challenged conduct
is unlikely to recur. See Friends of the Earth, 528 U.S. at 189. For the foregoing reasons,
Boitnott’s ADA claim is moot, and Defendants’ motion to dismiss on that basis is granted.
III.
Plaintiff’s Motion to Amend the Complaint
Three weeks after the hearing on Defendants’ motion to dismiss, Boitnott filed a
motion for leave to amend his complaint. In particular, Boitnott seeks to allege one
additional purported ADA violation to his complaint—namely, that the restaurant has
“[a]ccessible parking that is not on the shortest accessible route from parking to an entrance
in violation of the 2010 ADA Standards 208.3.”
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Boitnott has amended his complaint once, and Defendants do not consent to Boitnott
filing his proposed second amended complaint. In such circumstances, a plaintiff may
amend the complaint again “only with . . . the court’s leave.” Fed. R. Civ. P. 15(a)(2). A
district court should “freely give leave when justice so requires.” Id. But a district court
does not abuse its discretion when it denies a motion to amend a complaint because the
amendment is futile or will unduly prejudice the nonmoving party. Popoalii v. Corr. Med.
Servs., 512 F.3d 488, 497 (8th Cir. 2008). A motion to amend is properly denied as futile
when “the proposed amended complaint cannot survive a motion to dismiss for failure to
state a claim.” Lunsford v. RBC Dain Rauscher, Inc., 590 F. Supp. 2d 1153, 1158 (D.
Minn. 2008) (citing In re Senior Cottages of Am., LLC, 482 F.3d 997, 1001 (8th Cir. 2007)).
To survive a motion to dismiss for failure to state a claim, a complaint must allege
sufficient facts such that, when accepted as true, a facially plausible claim to relief is stated.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fed. R. Civ. P. 12(b)(6). When
determining whether a complaint states a facially plausible claim, a district court accepts
the factual allegations in the complaint as true and draws all reasonable inferences in the
plaintiff’s favor. Blankenship v. USA Truck, Inc., 601 F.3d 852, 853 (8th Cir. 2010).
Factual allegations must be sufficient to “raise a right to relief above the speculative level”
and “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 570 (2007). Mere “labels and conclusions” are insufficient, as is a
“formulaic recitation of the elements of a cause of action.” Id. at 555. And legal
conclusions couched as factual allegations may be disregarded. See Iqbal, 556 U.S. at 679.
15
Defendants contend that the new allegation in Boitnott’s proposed second amended
complaint fails to state an ADA claim and, therefore, amending the complaint would be
futile. The Court agrees. Section 208.3 of the 2010 Standards states that accessible parking
spaces “that serve a particular building or facility shall be located on the shortest accessible
route from parking to an [accessible] entrance.” (Emphasis omitted.) As addressed in Part
II of this Order, the record reflects that the restaurant’s accessible parking adjoins an
accessible route, which includes a portion of the parking lot between the access aisle and
the inclined “curb cut” in the sidewalk. This accessible route also is the shortest accessible
route—indeed, on this record, it appears to be the only accessible route.
And the
restaurant’s two accessible parking spaces are the two spaces nearest to this route. Boitnott
contends that this is not the “shortest accessible route” because it could, conceivably, be
made even shorter. But Boitnott cites no legal authority—and the Court is aware of none—
establishing that the ADA requires a business to create a new, shorter accessible route when
the property already includes accessible parking spaces that adjoin the shortest existing
accessible route to the accessible building entrance. 3
Because Boitnott’s proposed amendment to his complaint would be futile, his
motion to amend is denied.
3
Boitnott relies on federal regulations providing that “[e]xamples of steps to remove
barriers include . . . [m]aking curb cuts in sidewalks and entrances” and “[c]reating
designated accessible parking spaces.” 28 CFR § 36.304(b)(2), (18). But these examples
presuppose the existence of an architectural barrier, such as the complete absence of an
accessible route or accessible parking. As addressed above, Boitnott has not shown that
such an architectural barrier exists at the restaurant.
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ORDER
Based on the foregoing analysis and all the files, records and proceedings herein, IT
IS HEREBY ORDERED:
1.
Defendants’ motion to dismiss, (Dkt. 12), is GRANTED.
2.
Plaintiff’s amended complaint, (Dkt. 8), is DISMISSED WITHOUT
PREJUDICE for lack of subject-matter jurisdiction.
3.
Plaintiff’s motion to amend the complaint, (Dkt. 27), is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 21, 2019
s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge
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