Kelley v. Cafe Rio

Filing 29

MEMORANDUM DECISION AND ORDER: Defendant's 5 motion to dismiss is CONVERTED TO A MOTION FOR SUMMARY JUDGMENT UNDER RULE 56. Plaintiff's request for discovery is GRANTED pursuant to Rule 56(e). The parties shall be permitt ed to engage in limited fact discovery to allow Plaintiff to oppose Defendant's motion. Such discovery shall be completed by 12/4/2017; Plaintiff's request for an evidentiary hearing is DENIED; Defendant shall file a supplemental response o n the topic of the Court's subject-matter jurisdiction with affidavits and exhibits by 11/3/2017. This brief shall not exceed seven pages in length. Plaintiff's response, if any, is due Friday, 12/8/2017 and is subject to the same length requirement. There will be no reply brief. Signed by Judge Jill N. Parrish on 10/20/17. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
TREVOR KELLEY,
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
CAFE RIO, INC.,

Case No. 2:17-CV-00489
Defendant.

District Judge Jill N. Parrish

Before the Court is Defendant’s Rule 12(b)(1) motion to dismiss, filed July 14, 2017
(ECF No. 5). Plaintiff filed a response on August 10, 2017 (ECF No. 20), and Defendant replied
on August 24, 2017 (ECF No. 23). For the reasons below, the Court converts Defendant’s
motion to dismiss to a motion for summary judgment and grants both parties an opportunity to
submit additional evidence.
I.

BACKGROUND

Plaintiff Trevor Kelly has severe mobility issues due to Arthrogryposis Multiplex
Congenita. The condition results in limited or absent movement around small and large joints
known as contractures. Plaintiff is unable to walk and relies on a wheelchair for mobility.
On May 31, 2017, Plaintiff filed a complaint against Defendant Cafe Rio, Inc., alleging
violations of the Americans with Disabilities Act of 1990 (“ADA”). Specifically, the complaint
alleges that Defendant (1) failed to “provide a parking space identified with a sign that includes
the International Symbol of Accessibility”, (2) failed to “provide accessible parking space
identification signs 60 inches above the finish floor or ground surface, (3) failed to “provide

signs containing the designation ‘van accessible’ that identify van parking spaces, and (4) failed
to “provide toilet flush controls on the open side of the water closet.” ECF No. 2 at 6–7.
The Court notes that this is not Plaintiff’s only lawsuit pending in this district. From the
Court’s review, it appears that, from May 26, 2017 to August 28, 2017, Plaintiff brought 111
cases against Utah businesses, most alleging identical or nearly identical violations of the ADA.
II.

RULE 12(b)(1) STANDARD

Defendant’s motion alleges that Defendant has remediated the alleged violations of the
ADA, rendering them moot, and therefore the Court lacks subject-matter jurisdiction. “Article III
limits a federal court’s jurisdiction to ‘cases and controversies.’” See U.S. Const. art. III, § 2, cl.
1. “Mootness is a threshold issue because the existence of a live case or controversy is a
constitutional prerequisite to federal jurisdiction.” Disability Law Ctr. v. Milcreek Health Ctr.,
428 F.3d 992, 996 (10th Cir. 2005). “An actual controversy must be extant at all stages of
review, not merely at the time the complaint is filed.” Utah Animal Rights Coal. v. Salt Lake
City, 371 F.3d 1248, 1256 (10th Cir. 2004). Consequently, once a controversy ceases to exist,
“the action is moot and this court lacks jurisdiction to adjudicate the matter.” Wyoming v. Dept.
of Interior, 674 F.4d 1220, 1228 (10th Cir. 2012) (citing U.S. v. Seminole Nation, 321 F.3d 939,
943 (10th Cir. 2002)). When a party seeks only equitable relief, “[p]ast exposure to illegal
conduct does not in itself show a present case or controversy . . . if unaccompanied by any
continuing, present adverse effects.” Beattie v. United States, 848 F.2d 1092, 1094 (10th Cir.
1991). “The burden of establishing subject matter jurisdiction is on the party asserting
jurisdiction.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Motions to dismiss under Rule 12(b)(1) take two forms: facial and factual. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). Defendant’s motion constitutes a factual challenge.
In a factual challenge, “a party may go beyond allegations contained in the complaint and
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challenge the facts upon which subject matter jurisdiction depends.” Id.at 1003. District courts
“may not presume the truthfulness of the complaint’s factual allegations,” and they have “wide
discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1).” Id.
Still, district courts are required to convert Rule 12(b)(1) motions into Rule 12(b)(6)
motions to dismiss or Rule 56 motions for summary judgment “when resolution of the
jurisdictional question is intertwined with the merits of the case.” Id. “The jurisdictional question
is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same
statute which provides the substantive claim in the case.” Id.
III.

DISCUSSION

A. CONVERTING DEFENDANT’S MOTION
Defendant argues that it has “voluntarily remediated any alleged ADA violations in the
Complaint that actually exist, and has established an ongoing monitoring program such that the
violations are not reasonably expected to recur.” ECF No. 5 at 8. Specifically, Defendant avers
that it has taken the following remedial actions:
1. It installed an automatic flush control mechanism, with a secondary flush button,
on the front of the toilet.
2. It contacted the landlord to demand that the parking lot signs be investigated and
installed if necessary. The landlord installed new signs on June 9, 2017.
3. It implemented a procedure including ADA compliance audits to weekly facility
team visits of Utah Cafe Rio locations.
Id. at 8–9.
As evidentiary support for these allegations, Defendant filed declarations of Jordan Hill,
Director of Facilities at Cafe Rio. Attached to Mr. Hill’s declarations are photos of the allegedly
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now-compliant toilet and parking signs, as well as a copy of Cafe Rio’s lease terms. See ECF
Nos. 6 & 24.
Evaluating whether Defendant’s remedial actions have mooted Plaintiff’s claims would
require this Court to interpret the ADA—the statute on which this Court’s jurisdiction is based
and which provides for the substantive claim in the case. Consequently, under the rule of Holt,
the jurisdictional question is intertwined with the merits, and the Court must convert Defendant’s
motion to a Rule 12(b)(6) motion to dismiss or a Rule 56 motion for summary judgment.1
B. MOTION FOR SUMMARY JUDGMENT
Because evidence beyond that contained in the pleadings will be required to resolve this
action, the Court converts Defendant’s motion to a Rule 56 motion for summary judgment.
Defendant’s declarations establish that it has remediated the alleged toilet issue. See ECF
No. 6 at 2 (“Upon investigation, I determined that an ADA-compliant automatic toilet flush
mechanism on the front of the toilet should be installed. . . . The installation of the ADAcompliant flush control occurred on June 12, 2017.”). However, the declarations do not
demonstrate that Defendant has addressed the three parking lot issues alleged by Plaintiff: (1)
failure to provide a parking space with a sign that includes the International Symbol of
Accessibility; (2) accessible parking space identification signs sixty inches above the finish floor
or ground surface; and (3) failure to provide “van accessible” signs identifying van parking
spaces. In fact, Defendant’s first declaration indicates only that the declarant is “currently in the
process of verifying handicap parking signage compliance.” Id. at 3. Defendant’s second
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Defendant argues that the Tenth Circuit’s holding in Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004),
provides this Court with discretion to ignore the intertwinement analysis of Holt because the Tandy court upheld
dismissal on mootness grounds when the defendant had voluntarily complied. However, the Tandy court found the
plaintiff’s prospective claims moot because he died. Id. at 1290. Here, Plaintiff likewise brought claims for
prospective relief—the same claims that Defendant believes are now mooted by remedial action. But to the Court’s
knowledge, Plaintiff is not dead. Therefore, mootness depends upon whether Defendant’s remedial action made it
clear that the alleged wrongful action cannot reasonably be expected to recur. The intertwinement analysis applies.

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declaration only avers that the provided photograph “is a true and accurate depiction of the
current parking lot sign(s) at the Jordan Landing Cafe Rio.” ECF No. 24 at 2. The photograph
attached as Exhibit A depicts part of a tape measure in front of a “van accessible” sign, but the
Court cannot and will not infer from this incomplete documentation that Defendant has
remediated all three of Plaintiff’s alleged parking lot signage violations.
While it appears that Defendant may have remedied the alleged ADA parking violations,
the evidence before the Court is insufficient to support such a conclusion. Pursuant to Rule 56(e),
the Court will give Defendant two weeks to re-file affidavits that comply with 28 U.S.C. § 1746
and attach well-founded, authenticated exhibits. Fed. R. Civ. P. 56(e) (“If a party fails to
properly support an assertion of fact or fails to properly address another party’s assertion of fact
as required by Rule 56(c), the court may . . . give an opportunity to properly support or address
the fact . . . .”).
Plaintiff argues that Defendant’s motion should not be granted without sufficient time for
Plaintiff to conduct discovery and an evidentiary hearing. In the interest of fairness, the Court
will provide Plaintiff with forty-five days from entry of this order in which to oppose the factual
underpinnings of Defendant’s motion by inspecting the toilet and/or parking lot signage or
conducting other limited discovery. See Russell v. United States, 2009 WL 2929426, at *2–3 (D.
Ariz. Sep. 10, 2009) (granting time for additional discovery related to subject-matter
jurisdiction); see also Fed. R. Civ. P. 56(e). Plaintiff’s request for an evidentiary hearing is
denied inasmuch as this motion has been converted to one for summary judgment, in which an
evidentiary hearing would be inappropriate.
C. PLAINTIFF’S MOTIONS TO STRIKE AND FOR FEES
Plaintiff’s response to Defendant’s motion contained motions to strike and for attorney’s
fees. See ECF No. 20 at 4–6, 15. However, in this district, a response memorandum is not the
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appropriate medium for these or any motions. See DUCivR 7-1(b)(1)(A). Furthermore, under
Rule 12(f), a motion to strike applies only to the pleadings. See Fed. R. Civ. P. 12(f). The Court
disregards both motions because they are not properly before it. 2
IV.

ORDER

For the reasons above,
1. Defendant’s motion to dismiss is CONVERTED TO A MOTION FOR
SUMMARY JUDGMENT UNDER RULE 56.
2. Plaintiff’s request for discovery is GRANTED pursuant to Rule 56(e). The
parties shall be permitted to engage in limited fact discovery to allow Plaintiff to
oppose Defendant’s motion. Such discovery shall be completed by Monday,
December 4, 2017.
3. Plaintiff’s request for an evidentiary hearing is DENIED.
4. Defendant shall file a supplemental response on the topic of the Court’s subjectmatter jurisdiction with affidavits and exhibits by Friday, November 3, 2017. This
brief shall not exceed seven pages in length. Plaintiff’s response, if any, is due
Friday, December 8, 2017, and is subject to the same length requirement. There
will be no reply brief.

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Both parties object to the admissibility of certain exhibits. Because the Court expects additional exhibits and
additional objections after issuing this opinion, it will address any remaining evidentiary issues at that time.

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Signed October 20, 2017
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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