Miles v. Dom and Nate, Ltd.
Memorandum Opinion: Plaintiff's motion to conduct limited discovery and establish a briefing schedule is granted. The parties are to confer and submit a discovery plan and briefing schedule within fourteen days of this order. re 9 . Judge Jeffrey J. Helmick on 5/8/2017. (S,AL)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Case No. 16-cv-2161
Dom and Nate, Ltd.,
Defendant Dom and Nate, Ltd. moved to dismiss Plaintiff Michael Miles’s complaint on
grounds of subject matter jurisdiction under Rule 12(b)(1). (Doc. No. 7). In response, Plaintiff filed
a motion to conduct limited discovery and establish a briefing schedule on Defendant’s motion to
dismiss. (Doc. No. 9). Defendant opposed Plaintiff’s motion (Doc. No. 11), to which Plaintiff
responded. (Doc. No. 15). For the reasons stated below, Plaintiff’s motion is granted.
Plaintiff filed suit against Defendant alleging Defendant’s property, Jolly Rogers Seafood
House, was non-compliant with the ADA and Ohio disability discrimination law. (Doc. No. 1).
The complaint specifically alleges fourteen violations and states that it is not an exclusive list. Id. at
5-7. Defendant claims that all ADA violations have been remedied and Plaintiff’s claims are moot.
(Doc. No. 7). In support, Defendant attached several exhibits including an affidavit from the
independent firm Defendant hired to assess the facility’s ADA compliance, a letter listing the ADA
violations discovered by the firm, and the firm’s proposed alteration plan. (Doc. Nos. 7-2, 7-3, 7-6).
Affidavits from the construction companies who performed the remediation work were also
attached. (Doc. Nos. 7-4, 7-5).
Plaintiff now moves the court for limited discovery to “verify that the remedies were both
completed as indicated and done so in compliance with the ADA.” (Doc. No. 9 at 2). In
opposition, Defendant argues this court lacks subject matter jurisdiction because of the alleged
mootness of the claim. (Doc. No. 11).
Defendant challenges the factual existence of the court’s subject matter jurisdiction over this
claim. When deciding a Rule 12(b)(1) motion based on a factual attack, the district court:
is free to weigh the evidence and satisfy itself as to the existence of its power to hear
the case. 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. Moreover the plaintiff will
have the burden of proof that jurisdiction does in fact exist.
RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996) (quoting Mortensen v.
First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). “[A] trial court has wide discretion to
allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional
facts.” Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). Wright& Miller’s
Federal Practice and Procedure states:
Although a formal hearing on the matter is not required, the district court should not
dismiss the complaint on a Rule 12(b)(1) motion without giving the nonmoving party
the opportunity to be heard, except in the relatively unusual case … in which the
jurisdiction defect appearing on the face of the complaint clearly is irremediable.
5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (West 3d ed.). See,
e.g., Commodities Exp.Co. v. U.S. Custom Serv., 888 F.2d 431, 436 (6th Cir. 1989); Reynolds v. Army and
Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) (“[T]he party asserting jurisdiction must be
given an opportunity to be heard before dismissal is ordered.”); Local 336, Am. Fed’n of Musicians,
AFL-CIO v. Bonatz, 475 F.2d 433, 437 (3d Cir. 1973) (“[T]he record must clearly establish that after
jurisdiction was challenged the plaintiff had an opportunity to present facts by affidavit or by
deposition, or in an evidentiary hearing, in support of his jurisdictional contention.”).
Before making an informed decision on the issue of subject matter jurisdiction, the court
must give both parties the opportunity to gather and present evidence, especially Plaintiff who has
the burden of proof. Denying Plaintiff the ability to conduct limited discovery would effectively
deprive him of the right to meaningfully oppose Defendant’s Rule 12(b)(1) motion. Because lack of
subject matter jurisdiction is still at issue, it may not serve as grounds to deny Plaintiff’s motion for
discovery on that issue.
For the foregoing reasons, Plaintiff’s motion to conduct limited discovery and establish a
briefing schedule is granted. (Doc. No. 9). The parties are to confer and submit a discovery plan
and briefing schedule within fourteen (14) days of this order.
s/ Jeffrey J. Helmick
United States District Judge
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