Stewart v. Popeye's Chicken et al
ORDER granting 12 Defendants' Motion to Dismiss. The case is dismissed with prejudice and a separate judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (CCB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANNIE STEWART, Individually;
MEMORANDUM AND ORDER
POPEYE'S CHICKEN, EON
PROPERTIES, LLC, NIKHIL MEHTA,
AND JOHN DOE 1 AND 2 INCLUSIVE,
This matter is before the Court on the Motion to Dismiss, filed by Defendants
Popeye’s Chicken (“Popeye’s”), EON Properties, LLC (“EON”), and Nikhil Mehta
(“Mehta”) (collectively, “Defendants”) pursuant to Federal Rule of Civil Procedure
12(b)(1). ECF No. 12. For the reasons stated below, the Motion will be granted.
Plaintiff Annie Stewart (“Stewart”) patronized Popeye’s fast food restaurant
located at 5223 N. 30th Street in Omaha, Nebraska (the “restaurant”), on September
20, 2015. Comp. ¶ 9, ECF No. 1, Page ID 2. Stewart has limited mobility and alleges
she had difficulty accessing the restaurant because the restaurant facility failed to
comply with the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.,
requirements. Id. Specifically, Stewart alleges the restaurant did not provide a van
parking space compliant with the ADA Access Guidelines for Buildings and Facilities
(“ADAAG”)1 with regard to width, length, and signage. Id.; see 36 C.F.R. § 1191, App.
Public accommodations and commercial facilities must follow the requirements of the 2010
Standards for Accessible Design, comprised of both the Title III regulations at 28 C.F.R. § 36, subpart D;
and the 2004 ADA Access Guidelines at 36 C.F.R. § 1191, appendices B and D.
B & App. D. Stewart states she intends to return to the restaurant, but that “these
barriers” prevent her from doing so. Comp. ¶ 10-11, ECF No. 1, Page ID 2-3.
On October 19, 2015, Stewart filed a complaint (the “2015 Complaint”) alleging
Defendants discriminated against her on the basis of her disability in violation of Title III
of the ADA and its regulations. See 42 U.S.C. § 12182(a).2 The Court dismissed that
lawsuit for failure to prosecute. Stewart v. Popeye’s Chicken, et al., 8:15-cv-00381LSC-FG3, ECF No. 13 (D. Neb. Aug. 1, 2016). On October 25, 2016, Stewart filed this
action (the “2016 Complaint”), alleging the restaurant’s parking area violates 42 U.S.C.
§ 12182(a). Stewart seeks a declaration pursuant to 28 U.S.C. § 2201 that Defendants
are in violation of the ADA and requests an injunction requiring Defendants “make [the
restaurant] facility readily accessible to and usable by individuals with disabilities to the
extent required by the ADA.” Comp., ECF No. 1, Page ID 6. Stewart also requests
attorney’s fees, costs, and litigation expenses pursuant to 42 U.S.C. § 12205. Id.
On December 5, 2016, Defendants moved to dismiss this action pursuant to
Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. ECF No.
12. Defendants assert this case is moot because they brought the restaurant’s parking
area into compliance with the ADA’s requirements following Stewart’s initial lawsuit and
prior to her filing the instant lawsuit. Def.’s Brief Supp. Mot. to Dis., ECF No. 13, Page
Further, Defendants contend Stewart lacks standing under Article III of the
United States Constitution.
“No individual shall be discriminated against on the basis of disability in the full
and equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. §
Immediately after Stewart filed the 2015 Complaint, Defendants undertook to
determine their compliance, or lack thereof, with the ADA’s requirements. Def.’s Brief
Supp. Mot. to Dis., ECF No. 13, Page ID 31. Defendants do not dispute that when
Stewart visited the restaurant on September 20, 2015, the restaurant parking area
lacked a van-accessible parking space in violation of the ADA’s requirements. Id. On
November 11, 2015, however, counsel for Defendants sent a letter to Stewart’s counsel
informing her that an ADA compliant van parking space now existed at the restaurant
facility. Wentz Ltr., ECF No. 14-3. Stewart’s counsel did not respond. Again on March
18, 2016, in response to untimely service of process of the 2015 Complaint, counsel for
Defendants sent a letter to Stewart’s counsel informing her that the ADA violation had
been remedied. Wentz Ltr. ECF No. 14-4. Stewart’s counsel did not respond.
After Stewart filed the 2016 Complaint, counsel for Defendants sent a third letter
to Stewart’s counsel informing her an ADA compliant van parking space had been
added and requesting a dismissal of the lawsuit. Stewart’s counsel did not respond and
Defendants submit this motion to dismiss asserting mootness and lack of standing.
STANDARD OF REVIEW
“[M]ootness and standing are questions of subject matter jurisdiction.” Doe v.
Nixon, 716 F.3d 1041, 1047 (8th Cir. 2013). “In a facial challenge to jurisdiction, the
court presumes all of the factual allegations concerning jurisdiction to be true and will
grant the motion only if the plaintiff fails to allege an element necessary for subject
matter jurisdiction.” Young America Corp. v. Affiliated Comput. Servs., 424 F.3d 840,
843-44 (8th Cir. 2005) (citing Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In a
factual challenge to jurisdiction, “there is substantial authority that the trial court is free
to weigh the evidence and satisfy itself as to the existence of its power to hear the
case.” Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990).
“In short, no
presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed
material facts will not preclude the trial court from evaluating for itself the merits of
jurisdictional claims.” Iowa League of Cities v. EPA, 711 F.3d 844, 861 (8th Cir. 2013)
(citing Osborn, 918 F.2d 724, 730). The plaintiff has the burden of proving jurisdiction
exists; “[h]owever, the ‘heavy’ burden of proving mootness falls on the party asserting
the case has become moot.” Kennedy Building Associates v. Viacom, Inc., 375 F.3d
731, 745 (8th Cir. 2004) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631
“Once the evidence is submitted, the district court must decide the
jurisdictional issue, not simply rule that there is or is not enough evidence to have a trial
on the issue.” Osborn, 918 F.2d 724.
“As no statute or rule prescribes a format for evidentiary hearings on jurisdiction,
‘any rational mode of inquiry will do.’” Brown, 2010 WL 489531, at *2 (citing Osborn,
918 F.2d 724, 730). “So long as the court has afforded the parties notice and a fair
opportunity to be heard, an evidentiary hearing is unnecessary.”
Brown, 2010 WL
489531, at *2 (citing Johnson v. United States, 534 F.3d 958, 964-65 (8th Cir. 2008)).
Defendants have submitted sworn declarations and other documentary evidence
in support of their Motion and Stewart has submitted no such evidence or brief in
opposition. See ECF Nos. 14-1 to 14-6. Neither Stewart nor Defendants requested an
evidentiary hearing and the Court finds such a hearing unnecessary. See Johnson, 534
F.3d 958, 964-65 (determining district court did not abuse its discretion in deciding Rule
12(b)(1) motion on affidavits and briefs where neither party requested a hearing). The
evidence submitted is not part of or “necessarily embraced” by the pleadings. Osborn,
918 F.2d 724 at 730. As such, the Court will treat Defendants’ Motion as a factual
challenge to jurisdiction and weigh the evidence to determine whether jurisdiction exists.
“The exercise of judicial power under Art. III of the Constitution depends on the
existence of a case or controversy.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975).
“[A]n actual controversy must exist at all stages of review, and not simply at the date the
action is initiated.” Associated Gen. Contractors of Minn. v. Int’l Union of Operating
Eng’rs Twin City Local No. 49, 519 F.2d 269, 271 (8th Cir. 1975). “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., ___U.S.___133 S. Ct. 721, 726727 (2013).
“If circumstances change over the course of litigation so that the issues in the
case lose their life and a federal court can no longer grant effective relief, the case is
In re Search Warrants Issued in Connection with Investigation of S. Cent.
Career Ctr., W. Plains, Mo., 487 F.3d 1190, 1192 (8th Cir. 2007). “A defendant claiming
that its voluntary compliance moots a case bears the formidable burden of showing that
it is absolutely clear the allegedly wrongful behavior could not reasonably be expected
to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
It is clear from the facts and circumstances of this case that Defendants’ ADA
violations have been remedied and cannot reasonably be expected to recur. The 2016
Complaint alleges Defendants’ restaurant failed to provide a van accessible parking
space that satisfied the ADAAG requirements for length, width, and signage. Comp. ¶
9, ECF No. 1, Page ID 2. Defendants’ restaurant facility provides fewer than 25 parking
spaces. Mehta Decl., ECF No. 14-1, Page ID 41. For parking areas of 25 or fewer
parking spaces, the ADAAG requires that such parking areas include at least one vanaccessible parking space. 36 C.F.R. § 1191, App. B. The parking space must have a
width of 132 inches, or 96 inches if the access aisle is also 96 inches wide, and vertical
clearance of 98 inches. 36 C.F.R. § 1191, App. D. It must also have an identification
sign displaying the International Symbol of Accessibility and a designation of “van
accessible,” and be 60 inches above the ground surface.
Mehta’s sworn declaration which certifies that a van accessible space now exists at the
restaurant facility. Mehta Decl., ECF No. 14-1, Page ID 41. It further states,
[t]he accessible space is 18 feet long, and the width of the parking space
and access aisle totals 198 inches. The space is marked with a sign
bearing the symbol of accessibility. There is a Van Accessible sign
immediately below the symbol of accessibility. The bottom of the sign is
more than 60” from the ground.
Defendants have, therefore, addressed and remedied the discriminatory ADA
violations contained in Stewart’s 2016 Complaint.
Mehta’s declaration concludes with the statement that “[w]e consider these
modifications to be permanent in nature, and the modifications have existed since early
There is no reason to believe the modifications are not
permanent and Stewart has offered no evidence or argument suggesting otherwise.
Within one month of discovering that the restaurant’s parking area did not comply with
the ADAAG and nearly a year prior to Stewart’s 2016 Complaint, Defendants achieved
Therefore, “the wrongful behavior could not reasonably be
expected to recur.” Friends of the Earth, Inc., 528 U.S. 167, 190 (2000).
The evidence indicates Defendants brought the restaurant parking area into
compliance with the ADAAG and there is no expectation that the ADA violation Stewart
complained of will recur. The absence of any evidence or argument to the contrary
leads the Court to find that Stewart’s request for declaratory and injunctive relief is moot
and presents no live case or controversy for purposes of Article III. Hummel v. St.
Joseph Cty. Bd. Of Comm’rs, 817 F.3d 1010, 1022 (7th Cir. 2016) (finding defendant
brought facilities into compliance with ADA, and thus “provided plaintiffs the relief they
sought,” “eliminated any need for injunctive relief,” and deprived them of a present
“interest in maintaining th[eir] claim”). Thus, “the federal court no longer has jurisdiction
to hear it.” Neighborhood Transp. Network, Inc. v. Pena, 42 F.3d 1169, 1172 (8th Cir.
Because “[f]ederal jurisdiction is limited by Article III, § 2, of the U.S. Constitution
to actual cases and controversies,” a plaintiff must also have standing to sue. Steger v.
Franco, Inc. 228 F.3d 889, 892 (8th Cir. 2000). Article III standing requires a plaintiff to
prove: (1) he or she suffered an “injury-in-fact,” (2) the injury and the challenged
This case can be dismissed on mootness alone. See Davis v. Anthony, Inc., 8:16CV140-RFRTDT, ECF No. 19 (D. Neb. Sept. 26, 2016). Stewart, however, also lacks the standing to sue in this
conduct are causally related, and (3) the injury is likely to be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
The injury Stewart alleges would not be redressed by a favorable decision from
this Court. Title III of the ADA entitles a plaintiff only to injunctive relief, not damages.
Stebbins v. Legal Aid of Ark., 512 F. App’x 662, 663 (8th Cir. 2013) (citing 42 U.S.C. §
12188(a)). Stewart requests an injunction requiring Defendants “make [the restaurant]
facility readily accessible to and usable by individuals with disabilities to the extent
required by the ADA.”
Comp. 6, ECF No. 1.
The evidence submitted indicates
Defendants remedied the ADA violation Stewart complained of and brought the
restaurant parking area into full compliance with the ADAAG before Stewart filed the
“Obviously, then, a favorable resolution of [Stewart]'s ADA claim
cannot do anything to ‘redress’ these problems because these problems do not exist—
and have not existed since before [Stewart] commenced this litigation.” Davis v. Queen
Nelly, LLC, No. 16-CV-2553 (PJS/SER), 2016 WL 5868066, at *1 (D. Minn. Oct. 6,
2016) (finding plaintiff lacked standing where defendant modified its parking area to
comply with ADA requirements before plaintiff commenced the lawsuit).
Stewart’s injury would not be redressed by a favorable decision, she lacks standing to
sue. As such, her request for injunctive relief presents no live case or controversy and
this Court lacks Article III jurisdiction.
III. Attorney’s Fees
Stewart also requests an award of attorney’s fees pursuant to 42 U.S.C. § 12205.
Section 12205 grants the court discretion to award the “prevailing party” attorney’s fees,
litigation expenses, and costs. 42 U.S.C. § 12205. Stewart may perceive herself to be
a “prevailing party” because her 2015 Complaint prompted Defendants to remedy an
apparent ADA violation. The United States Supreme Court, however, has held “[a]
defendant’s voluntary change in conduct, although perhaps accomplishing what the
plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the
change” in the parties’ legal relationship to classify the plaintiff as a “prevailing party”
under § 12205. Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health &
Human Res., 532 U.S. 598, 605 (2001). Stewart’s request for an award of attorney’s
fees is, therefore, denied. Accordingly,
IT IS ORDERED:
1. The Defendants’ Motion to Dismiss, ECF No. 12, is granted;
2. The above-captioned action is dismissed with prejudice; and
3. A separate judgment will be entered.
Dated this 13th day of January, 2017.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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