Hillesheim v. Balance Point Properties, LLC

Filing 23

MEMORANDUM AND ORDER that Balance Point Properties, LLC's Motion to Dismiss the First Amended Complaint (Filing No. 18 ) is denied. Balance Point Properties, LLC shall serve a responsive pleading or other appropriate motion in response to the First Amended Complaint within fourteen days after the date of this Order. Ordered by Judge Robert F. Rossiter, Jr. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ZACH HILLESHEIM,
Plaintiff,

8:17CV144

vs.
BALANCE POINT PROPERTIES, LLC,

MEMORANDUM
AND ORDER

Defendant.
This matter is before the Court on defendant Balance Point Properties, LLC’s
(“Balance Point”) Motion to Dismiss the First Amended Complaint (Filing No. 18) with
prejudice for lack of subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1).

Plaintiff Zach Hillesheim (“Hillesheim”) has filed a Brief in

Opposition (Filing No. 21) to the Motion. For the reasons set forth below, the Court
denies Balance Point’s Motion to Dismiss.

I.

BACKGROUND
On February 12, 2017, Hillesheim attempted to patronize a multi-tenant

commercial building located at 7222 South 142nd Street in Omaha. The commercial
building holds several tenant businesses, including Mobility Motoring which specializes
in mobility solutions for handicapped drivers and passengers. After noticing Mobility
Motoring from a nearby restaurant, Hillesheim, who is paralyzed below the waist and
uses a wheelchair for mobility, became interested in visiting due to his upcoming move to
Omaha. Hillesheim foresaw himself needing to use Mobility Motoring’s services to
perform work on his car, which contains modifications that assist him in driving, and to
rent a vehicle with mobility enhancements.

When Hillesheim arrived at Mobility

Motoring he observed approximately sixty-nine parking spaces in the customer parking
lot, six of which were reserved as accessible parking spaces through paint on the ground.

Hillesheim contends none of these parking spaces were located near Mobility Motoring’s
accessible entrance leaving Hillesheim unable to access the business. Mobility Motoring
was closed that day, thus, Hillesheim would have been unable to patronize even if
sufficient accessible parking had been provided.

On April 25, 2017, Hillesheim filed a Complaint (Filing No. 1) against Balance
Point claiming discrimination in violation of the Americans with Disabilities Act of 1990
(“ADA”), 14 U.S.C. § 12101. Balance Point subsequently filed a Motion to Dismiss
(Filing No. 8), asserting this Court lacks subject matter jurisdiction because Hillesheim
does not have standing. On July 12, 2017, pursuant to Federal Rule of Civil Procedure
15(a)(1), Hillesheim filed his First Amended Complaint (Filing No. 16) to reflect his
move to Omaha. In this First Amended Complaint, Hillesheim states he now lives in an
apartment approximately fifteen miles from Balance Point’s property and intends to
return to the property to learn about and use the services of Mobility Motoring.
Hillesheim further alleges he frequently travels nearby Mobility Motoring but remains
unable to patronize due to architectural barriers.

Balance Point moved to dismiss

Hillesheim’s First Amended Complaint.

II.

DISCUSSION
For a court to “dismiss [a case] for lack of subject matter jurisdiction [based on

lack of standing] under Rule 12(b)(1), the complaint must be successfully challenged on
its face or on the factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593
(8th Cir. 1993).

“In a facial challenge to jurisdiction, all the factual allegations

concerning jurisdiction are presumed to be true and the motion is successful if the
plaintiff fails to allege an element necessary for subject matter jurisdiction.” Id. When a
defendant brings a factual attack, “the court considers matters outside the
pleadings . . . and the non-moving party does not have the benefit of 12(b)(6)
safeguards.” Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). Balance
Point only brings a factual challenge to Hillesheim’s standing. As such, the Court may
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consider matters outside the pleadings when deciding this issue, and does not presume
Hillesheim’s factual allegations are true. Id.
Title III of the ADA proscribes discrimination in public places against persons
with disabilities. 42 U.S.C. § 12182(a). Included in the definition of discrimination is
the “failure to remove architectural barriers, and communication barriers that are
structural in nature, in existing facilities . . . where such removal is readily achievable.”
Id. at § 12182(b)(2)(A)(iv). Pursuant to the ADA, “any person who is being subjected to
discrimination on the basis of disability” may bring an action for injunctive relief. Id. at
§ 12188(a)(1). Hillesheim alleges he was subjected to discrimination on the basis of his
disability because Balance Point did not provide sufficient accessible parking near
Mobility Motoring. He further alleges he was unable to patronize the business due to this
lack of accessible parking.
To bring such a claim Hillesheim must have standing. Steger v. Franco, Inc., 228
F.3d 889, 892 (8th Cir. 2000) (explaining the case and controversy requirement in Article
III, § 2, of the United States Constitution makes “standing to sue the threshold question in
every federal case.” (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975))). The Supreme
Court has identified three requirements a plaintiff must meet to establish standing. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
First, the plaintiff must have suffered an injury in fact—an invasion of a
legally protected interest which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical. Second, there must
be a causal connection between the injury and the conduct complained
of . . . . Third, it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.
Id. (internal quotations omitted).
Balance Point argues Hillesheim’s First Amended Complaint fails to allege an
injury-in-fact. Balance Point urges the Court to apply the four-factor “likelihood of
return” test delineated in Brown v. Grandmother’s Inc., No 4:09-CV-3088, 2010 WL
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611002, at *6 (D. Neb. Feb. 17, 2010). For the reasons set forth below, under both the
traditional standing analysis and the four factor “likelihood of return test” Hillesheim has
alleged sufficient facts to establish standing.

A.

Injury-in-Fact

“An injury-in-fact is a harm that is ‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical.’” Steger, 228 F.3d at 892 (quoting Lujan, 504
U.S. at 560-61). A plaintiff seeking an injunction must establish that he or she “sustained
or is immediately in danger of sustaining some direct injury as a result of the
challenged . . . conduct and [that] the injury or threat of injury [is] both real and
immediate.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). A plaintiff must “at
least prove knowledge of . . . [architectural barriers] and that they would visit the building
in the imminent future but for those barriers.” Steger, 228 F.3d at 892; see also Lujan,
504 U.S. at 564 (stating an intention to return “someday” is insufficient). Hillesheim has
shown he had more than an intention of returning someday. In his original Complaint
Hillesheim indicated he planned on moving to Omaha.
Moreover, a plaintiff “need not engage in the ‘futile gesture’ of visiting a building
containing known barriers that the owner has no intention of remedy.” Steger, 228 F.3d
at 892 (citing 42 U.S.C. § 12188(a)(1)).

While dining at a nearby restaurant on

February 12, 2017, Hillesheim noticed Mobility Motoring and decided to visit the
business that same day. Upon arrival, Hillesheim discovered the business had no nearby
accessible parking spaces, and thus, was unable to access it. To this point, Balance Point
argues that, even if accessible parking had been provided, Hillesheim would have been
unable to patronize Mobility Motoring on February 12th because it was closed that day.
However, this does not change the fact Hillesheim was rendered unable to access the
business due to architectural barriers. Further, Balance Point has not alleged any facts
suggesting it intends to remedy the lack of accessible parking spaces, thus, Hillesheim

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need not continue visiting the premises to establish an injury-in-fact. Hillesheim has
provided sufficient evidence to establish standing under Lujan.
B.

“Likelihood of Return” Test

The Court next turns to the “likelihood of return” test put forth by Balance Point.
This test requires the Court to look at four separate factors which include:
(1) The proximity of the place of public accommodation to plaintiff’s
residence, (2) plaintiff’s past patronage of defendant’s business, (3) the
definitiveness of plaintiff’s plans to return, and (4) plaintiff’s frequency of
travel near defendant.
Brown, 2010 WL 611002, at *6 (D. Neb. Feb. 17, 2010). Applying these factors to
Hillesheim’s case, Hillesheim has established standing under this test as well.

1.

Proximity

At the time Hillesheim filed suit, he resided in Nicollet, Minnesota. Balance
Point’s business is located in Omaha, Nebraska.

The distance between the two is

approximately three-hundred miles. Balance Point argues, in part, this distance supports
the point that Hillesheim has failed to establish injury-in-fact. One court has held, “[a]s
the distance between a plaintiff’s residence and a public accommodation increases, the
likelihood of future harm decreases.” Steelman v. Rib Crib No. 18, 2012 WL 4026686, at
*3 (W.D. Mo. Sept. 12, 2012) (citing Molski v. Kahn Winery, 405 F. Supp. 2d 1160,
1163-64 (C.D. Cal. 2005) (stating a distance exceeding 100 miles often weighs against
the likelihood of future harm); Brother v. Tiger Partner, LLC, 331 F. Supp. 2d 1368,
1373 (M.D. Fla. 2004) (concluding a plaintiff failed to establish a likelihood of future
harm in part because he lived 280 miles from accommodation)). Hillesheim argues that
while he did live in Nicollet at the time he filed suit, he has since moved to Omaha and
lives within fifteen miles of Mobility Motoring. However, as Balance Point stated,
standing is determined at the time of the lawsuit’s commencement based on the facts as
they existed at that time. See Steger, 228 F.3d at 892. As such, this factor weighs in

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Balance Point’s favor, but it is not dispositive. Miller v. Ataractic Inv. Co., LLC, 2012
WL 2862883, at *3 n.2 (W.D. Mo. July 11, 2012).

2.

Past Patronage

Hillesheim admits to having only visited Balance Point’s premises once. One
court has found, “where a plaintiff visits a public accommodation ‘only once, the lack of
history of past patronage seems to negate the possibility of future injury at [that]
particular location.’” Brown, 2010 WL 489531, at *4 (quoting Disabled Patriots of Am.,
Inc. v. City of Tenton, 2008 WL 4416459, at *5 (D.N.J. Sept. 24, 2008)). However, as
previously stated, “plaintiff[s] need not engage in the futile gesture of visiting a building
containing known barriers that the owner has no intention of remedying, he must at least
prove knowledge of the barriers that he would visit the building in the imminent future
but for those barriers.” Steger, 228 F.3d at 891. In this instance Hillesheim visited
Balance Point’s property and saw the lack of accessible parking, thus establishing a
knowledge of the barriers, and he need not engage in the futile gesture of returning to the
premises. Moreover, Hillesheim stated he frequently travels to Omaha and would be
needing Mobility Motoring’s services upon his upcoming move to the city. Thus, this
factor weighs in Hillesheim’s favor.
3.

Definitiveness of Plans to Return

Although “[an] ADA plaintiff cannot manufacture standing to sue in a federal
court by simply claiming that he intends to return to the Facility,” Brown, 2010 WL
489531, at *3, an affidavit demonstrating a “real and immediate reason to visit a barrierfree [premises] is all that [is] needed to prevail on this issue.” Id. at *4. At the
commencement of this suit, Hillesheim indicated his intention to return to Mobility
Motoring the next time he visited Omaha provided the architectural barriers are removed.
He further indicated he was looking for accessible homes in the area and planned on
moving to Omaha in June 2017. Mobility Motoring specializes in mobility solutions for
handicapped individuals. Given that Hillesheim is paralyzed and requires such services,
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when coupled with his intention to return to Omaha, he has demonstrated a real and
immediate reason to visit Mobility Motoring.

As such, this factor also weighs in

Hillesheim’s favor.
4.

Frequency of Travel Near Business

To establish frequency of travel near a business, a plaintiff must allege more than
sporadic visits near, or to, the business. See Steelman, 2012 WL 4026686, at *4 (holding
visits in 2010, 2011, and 2012 absent an allegation of frequency weighed against
plaintiff). However, at least one other court has held a plaintiff’s allegations of visiting
the vicinity once or twice a year was enough to support plaintiff’s likelihood to return.
See Miller, 2012 WL 2862883, at *3 n.2; see also Betancourt v. 2 Combs Enter. Inc.,
2011 WL 846849, at *2 (W.D. Mo. Mar. 8, 2011) (holding that plaintiff’s travelling twice
yearly to where the defendant’s business was located supported likelihood of return under
the fourth Brown factor). Here, Hillesheim alleged he visited Omaha approximately once
a year prior to moving there. Upon filing suit, Hillesheim further alleged he expected to
travel by Mobility Motoring in the near future, and that when in town he enjoys a nearby
restaurant, walks his dog at a nearby park and that the business is close to where he was
expecting to, and now does, live.
III.

CONCLUSION
For the foregoing reasons, the Court finds Hillesheim has standing to sue Balance

Point, having shown injury-in-fact.

While Hillesheim may not have lived in close

proximity to Balance Point’s establishment at the commencement of this proceeding, he
has pled facts sufficient to establish a connection to the business, definitive plans to
return, and frequency of travel near the business.
Having fully reviewed the relevant documents, the Court finds Hillesheim
established standing. Accordingly,

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IT IS ORDERED:
1.

Balance Point Properties, LLC’s Motion to Dismiss the First Amended
Complaint (Filing No. 18) is denied.

2.

Balance Point Properties, LLC shall serve a responsive pleading or other
appropriate motion in response to the First Amended Complaint within
fourteen days after the date of this Order.

Dated this 18th day of October, 2017.
BY THE COURT:
s/ Robert F. Rossiter, Jr.
United States District Judge

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