Nekouee v. LVP Depaul LLC

Filing 83

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Panera, LLCs Motion to Dismiss LVP DePaul, LLCs Third-Party Complaint 62 is GRANTED. IT IS FURTHER ORDERED that LVP DePaul, LLCs Third-Party Complaint is DISMISSED, without prejudice. Signed by Magistrate Judge Shirley Padmore Mensah on 10/31/18. (KEK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRED NEKOUEE,
Plaintiff,
v.
LVP DEPAUL, LLC,
Defendant/Third-Party
Plaintiff,
and
PANERA, LLC,
Third-Party Defendant.

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Case No. 4:17-CV-01465-SPM

MEMORANDUM AND ORDER
This matter is before the Court on the Motion to Dismiss LVP DePaul, LLC’s ThirdParty Complaint (Doc. 62), filed by Third-Party Defendant Panera, LLC. The motion has been
fully briefed. The parties have consented to the jurisdiction of the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636. (Doc. 76).
I.

FACTUAL BACKGROUND
LVP DePaul, LLC (“LVP”) is the owner of an outdoor retail shopping area located in

Bridgeton, Missouri known as The Plaza at DePaul (the “Shopping Center”). The Shopping
Center includes several stores and restaurants, as well as parking spaces. Panera, LLC (“Panera”)
currently operates a St. Louis Bread Company restaurant and several parking spaces located at
the Shopping Center (the “Current St. Louis Bread Location”). Panera leases the space for the
Current St. Louis Bread Location from LVP, pursuant to a lease agreement. Before moving to its

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current location, Panera operated a St. Louis Bread Company restaurant and parking spaces at
another location within the Shopping Center (the “Original St. Louis Bread Location”).
On May 8, 2017, Plaintiff Fred Nekouee filed a Complaint against LVP, alleging that
several aspects of the Original St. Louis Bread Location and several parking areas at the
Shopping Center (including parking areas not controlled by Panera) did not comply with the
Americans with Disabilities Act, 42 U.S.C. § 12181, et seq. (“ADA”). Panera was not named as
a defendant. On January 4, 2017, Plaintiff filed his First Amended Complaint, alleging that
several aspects of the Current St. Louis Bread Location and several parking areas at the
Shopping Center (again, including parking areas not controlled by Panera) did not comply with
the ADA. Panera was again not named as a defendant.
On May 11, 2018, LVP filed a third-party complaint against Panera. LVP asserted one
count of contribution, alleging that as part of the lease agreement, Panera was responsible for
compliance with all ADA requirements, assumed all liability for non-compliance, and is required
to indemnify, defend, and hold LVP harmless. Plaintiff also asserted one count of breach of
contract, alleging that Panera breached its lease agreement with LVP by failing to indemnify or
defend LVP in this action.
On July 11, 2018, Plaintiff filed a “Notice of Settlement of Claims Relating to St. Louis
Bread Co.” with the Court, stating that he had entered into a settlement agreement with Panera
that fully resolved all claims that he had in this lawsuit with regard to both the Original St. Louis
Bread Location and the Current St. Louis Bread Location. Plaintiff stated that he would “not be
seeking any relief . . . in this lawsuit relating to the St. Louis Bread Co. Locations from LVP
DePaul, LLC or any other party.” (Doc. 60). Plaintiff subsequently filed a Second Amended
Complaint against LVP in which he omitted any allegations related to the St. Louis Bread

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Locations and alleged only allegations of ADA violations in the parking lot at the Shopping
Center. 1
In the instant motion, Panera moves to dismiss LVP’s third-party complaint against it for
lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). LVP has
filed a response in opposition to the motion, and Panera has filed a reply.
II.

LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss an action

based on lack of subject matter jurisdiction. To survive a motion to dismiss for lack of subject
matter jurisdiction, the party asserting jurisdiction has the burden of establishing that subject
matter jurisdiction exists. V S Ltd. P’ship v. Dep’t of Hous. & Urban Dev., 235 F.3d 1109, 1112
(8th Cir. 2000).
III.

DISCUSSION
“Federal courts are courts of limited jurisdiction.” Myers v. Richland County, 429 F.3d

740, 745 (8th Cir. 2005) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994)). Federal district courts have original jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331, and over all civil actions
where the amount in controversy exceeds $75,000 and complete diversity of citizenship exists
between the parties, 28 U.S.C. § 1332. In addition, subject to certain exceptions, “in any civil

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The text of the Second Amended Complaint does not specify the parts of the Shopping Center
where the alleged ADA violations are located. However, the only allegation from the First
Amended Complaint that specifically mentioned the St. Louis Bread Company parking lot is not
included in the Second Amended Complaint. In light of Plaintiff’s Notice of Settlement stating
that he would not be seeking any relief relating to the St. Louis Bread Company Locations, the
Court concludes that the alleged violations are not located at areas that are leased or controlled
by Panera. The Court also notes that in its briefing on the instant motion, LVP does not dispute
Panera’s assertion that Plaintiff’s ADA claim against LVP now only involves barriers in areas of
the Shopping Center that have nothing to do with Panera.
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action of which the district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under Article III of
the United States Constitution.” 28 U.S.C. § 1367(a).
It is undisputed that this Court has original jurisdiction over Plaintiff’s ADA claim
against LVP pursuant to 28 U.S.C. § 1331, because that claim arises under a federal statute. It
also appears to be undisputed that this Court does not have original jurisdiction over LVP’s
third-party claims against Panera, because those claims arise under state law and because LVP
has not alleged facts supporting complete diversity of citizenship between the parties. 2 However,
the parties disagree about whether this Court has supplemental jurisdiction over LVP’s thirdparty claims against Panera pursuant to 28 U.S.C. § 1367(a).
As stated above, this Court has supplemental jurisdiction over LVP’s state-law claims
only if they “are so related to claims in the action . . . that they form part of the same case or
controversy . . .” 28 U.S.C. § 1367(a). Claims are part of the same case or controversy if they
“derive from a common nucleus of operative fact.” City of Chicago v. Int’l Coll. of Surgeons,
522 U.S. 156, 164-65 (1997). Accord Myers v. Richland Cty., 429 F.3d 740, 746 (8th Cir. 2005).
“A [party’s] claims derive from a common nucleus of operative fact if the ‘claims are such that
he would ordinarily be expected to try them all in one judicial proceeding.’” One Point Sols.,
LLC v. Borchert, 486 F.3d 342, 350 (8th Cir. 2007) (quoting United Mine Workers v. Gibbs, 383
U.S. 715, 725 (1966)).
The Court finds that Plaintiff’s ADA claim against LVP and LVP’s state-law contribution
and breach of contract claims against Panera do not derive from a common nucleus of operative
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In its Third-Party Complaint, LVP alleges that both LVP and Panera are Delaware Limited
Liability Companies, and LVP makes no allegations regarding the amount in controversy.
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fact. As Panera argues, Plaintiff’s ADA claim against LVP is now entirely directed toward areas
of the Shopping Center that have nothing to do with Panera or the St. Louis Bread Locations.
The litigation of Plaintiff’s ADA claim will involve inquiries into whether specific physical
conditions exist in the areas of the Shopping Center not controlled by Panera, whether those
physical conditions violate the ADA, and whether LVP is liable for any such violations. Those
inquiries are entirely unrelated to Panera, to any physical conditions that exist in the areas of the
Shopping Center controlled by Panera, and to the lease agreement between Panera and LVP. In
contrast, LVP’s third-party contribution and breach of contract claims against Panera will be
focused entirely on the terms of the lease agreement between LVP and Panera and whether
Panera complied with its obligations under that agreement. To extent that issues related to
specific physical conditions at the Shopping Center may need to be addressed as part of the thirdparty claims, those issues will be related to the Panera-controlled parts of the Shopping Center—
parts of the Shopping Center that are not at issue in Plaintiff’s ADA claim.
LVP’s arguments in favor of finding that the two sets of claims derive from a common
nucleus of operative fact are unpersuasive. LVP first argues that in Plaintiff’s ADA lawsuit
against LVP, the Court will determine the duties of LVP as owner of the property and the duties
of the lessees of the property LVP owns—duties that would be relevant to LVP’s claims against
Panera. That argument might have some merit if LVP were making third-party claims against the
lessee of the property that was the subject of Plaintiff’s ADA claim. Here, however, LVP’s thirdparty claims are being made against the lessee of property that is not the subject of Plaintiff’s
ADA claim. There is no reason why this Court would need to determine the respective duties of
LVP and Panera in Plaintiff’s ADA lawsuit, because Plaintiff is no longer seeking any relief for
ADA violations at the Panera-controlled parts of the Shopping Center. LVP also argues that

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“specific facts will be unearthed in the litigation that are central to LVP’s third-party claims . . . ”
However, LVP does not identify any examples of such facts, and it is not at all clear to the Court
what they would be.
For all of the above reasons, LVP has not met its burden of showing that this Court has
supplemental jurisdiction over LVP’s third-party claims against Panera. Plaintiff’s ADA claim
and LVP’s third-party claims involve distinct geographic locations, distinct factual inquiries, and
distinct legal inquiries. The Court concludes that these claims do not arise from a common
nucleus of operative fact and are not part of the same case or controversy. Thus, this Court does
not have supplemental jurisdiction over LVP’s third-party claims, and they must be dismissed.
III.

CONCLUSION

For all of the above reasons,
IT IS HEREBY ORDERED that Panera, LLC’s Motion to Dismiss LVP DePaul, LLC’s
Third-Party Complaint (Doc. 62) is GRANTED.
IT IS FURTHER ORDERED that LVP DePaul, LLC’s Third-Party Complaint is
DISMISSED, without prejudice.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 31st day of October, 2018.

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