Burningham v. Costco Wholesale

Filing 35

MEMORANDUM DECISION and Order Dismissing Plaintiff's Amended Complaint Without Prejudice granting 28 Motion to Dismiss. Signed by Judge Jill N. Parrish on 12/19/2017. (jwt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
SAMUEL BURNINGHAM,
Plaintiff,
v.
COSTCO WHOLESALE CORPORATION,

MEMORANDUM DECISION AND
ORDER DISMISSING PLAINTIFF’S
AMENDED COMPLAINT WITHOUT
PREJUDICE

Defendant.
Case No. 2:17-cv-00578-JNP
District Judge Jill N. Parrish

Before the Court is Defendant’s Rule 12(b)(1) Motion to Dismiss for Lack of Subject
Matter Jurisdiction (ECF No. 28). For the reasons set forth below, the Court converts the motion
to dismiss into a motion for summary judgment and dismisses without prejudice Plaintiff’s
amended complaint.
I.

BACKGROUND

Plaintiff Samuel Burningham has severe mobility issues as a result of a multiple sclerosis.
He is unable to walk and relies primarily on a wheelchair for mobility. On June 13, 2017,
Burningham filed a complaint against Costco Wholesale Corporation, seeking relief under Title
III of the Americans with Disabilities Act of 1990 (the “ADA”).
Burningham claimed that he was prevented from the full and equal enjoyment of the
goods and services offered at Costco’s warehouse located in Spanish Fork, Utah (the “Spanish
Fork warehouse”). Compl. ¶ 34. Burninghman identified two violations of the ADA that
deprived him of equal access to the Spanish Fork warehouse:

1. Failure to locate mirrors over lavatories and countertops with the bottom edge of
the reflecting surface no greater than 40 inches (1015 mm) above the ground as
required by [Guideline] 603.3; and
2. Failure to insulate or otherwise configure water supply and drain pipes under
sinks to protect against contract as required by [Guideline] 606.5.
Compl. ¶ 34. Burningham withdrew the second allegation after Costco provided him with
evidence that it was factually incorrect. See Am. Compl. ¶ 34. Consequently, Burningham’s only
remaining alleged violation of the ADA is based on Costco’s failure to locate mirrors over
lavatories and countertops with the bottom edge no greater than 40 inches above the ground. Am.
Compl. ¶ 34.
Prior to this lawsuit, Costco was not aware that its mirrors violated the ADA. Fackrell
Decl. ¶ 3. After Burningham filed suit, Costco permanently installed full-length mirrors in the
men’s restroom at the Spanish Fork warehouse. Fackrell Decl. ¶ 5. Costco also installed fulllength mirrors in the women’s restroom and its unisex toilet room. Fackrell Decl. ¶¶ 6-7. Costco
contends that the case is now moot because it has remedied the only alleged violation.
II.

DISCUSSION

A. FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1)
Motions to dismiss under Rule 12(b)(1) take two forms: facial and factual. Holt v. United
States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). Costco’s motion constitutes a factual challenge
to subject matter jurisdiction. On a factual challenge, the defendant goes beyond the allegations
in the complaint to “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.
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Despite this discretion, district courts must 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 depends on the same
statute that provides the substantive claims in the case. Id.
Normally, district courts must provide notice to the non-movant before converting a Rule
12(b)(1) motion into a motion for summary judgment. Wheeler v. Hurdman, 825 F.2d 257, 25960 (10th Cir. 1987). This ensures that there is no unfair surprise. Id. at 260. But a district court
need not provide notice when the non-movant “submits material beyond the pleadings in support
of or opposing a motion to dismiss.” Id.
B. COSTCO’S MOTION IS CONVERTED INTO A MOTION FOR SUMMARY JUDGMENT
Costco contends that the case is moot because it has voluntarily remedied the only
alleged ADA violation. Specifically, Costco claims that it has permanently installed a full-length
mirror in the men’s restroom so that it is no longer in violation of the ADA. In support of this
claim, Costco attached the declaration of Derek Fackrell, the assistant general manager of the
Spanish Fork warehouse. Costco attached photos to the declaration showing that a full-length
mirror has been installed in the men’s restroom. Fackrell Decl. ¶ 5.
Accordingly, the Court must convert Costco’s Rule 12(b)(1) motion into a motion for
summary judgment because resolution of the jurisdictional question is intertwined with the
merits of the case. That is, the Court must determine whether Costco is in compliance with the
ADA to determine whether the case has been rendered moot by Costco’s actions. Thus, the Court
converts the Rule 12(b)(1) motion to dismiss into a motion for summary judgment.
The Court need not provide Burningham notice that it has converted the motion into a
motion for summary judgment because he submitted material beyond the pleadings to oppose
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Costco’s motion. See ECF No. 30-1. In fact, Burningham even asks the Court to convert the
motion to dismiss into a motion for summary judgment.
Burningham also asks for an “opportunity to discover material pertinent to [Costco’s
motion].” But the time for this discovery has passed. Burningham was free to visit the Spanish
Fork warehouse to inspect the full-length mirror. He chose not to. There is no reason to grant
Burningham an opportunity for discovery when he already had the chance to discover whether
Costco had remedied the past violation. Accordingly, the Court denies Burningham’s request for
additional discovery. 1
C. THE COURT LACKS SUBJECT MATTER JURISDICTION
Article III of the Constitution limits the jurisdiction of federal courts to those matters that
present an actual case or controversy. Chafin v. Chafin, 568 U.S. 165, 171 (2013). When
subsequent events render the dispute before a federal court moot, there is no justiciable
controversy and the matter must be dismissed. Id. at 172. And when a party seeks only equitable
relief, as is the case here, “[p]ast exposure to illegal conduct does not in itself show a present

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Burningham has also failed to make an appropriate request for discovery under Rule 56(d).
Under that rule, a non-movant may request additional time for discovery if the non-movant
shows by affidavit or declaration that he or she cannot present facts essential to justify its
opposition. Fed. R. Civ. P. 56(d). The affidavit or declaration must: (1) identify the probable facts
not available, (2) state why those facts cannot be presented currently, (3) state the steps taken to
obtain those facts, and (4) state how additional time will permit the non-movant to obtain the
facts and rebut the motion for summary judgment. Gutierrez v. Cobos, 841 F.3d 895, 908 (10th
Cir. 2016). As such, “it is insufficient for the party opposing the motion to merely assert that
additional discovery is required to demonstrate a factual dispute.” Id. (citation omitted). In short,
requests for Rule 56(d) relief “will not be granted if made in passing mention in a brief.” Ford v.
H Unit Five, Inc., No. 2:16-cv-780-TC, 2017 WL 4271433, at *6 (D. Utah Sept. 25, 2017).
Burningham submitted no such affidavit or declaration. He only mentions in passing that he
should be given the opportunity for additional discovery. Tellingly, Buringham does not identify
the facts that he hopes to discover or explain why he could not obtain such evidence before filing
his opposition. Consequently, the Court denies Burningham’s request for additional discovery on
these grounds as well.
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case or controversy . . . if unaccompanied by any continuing, present adverse effects. Beattie v.
United States, 949 F.2d 1092, 1094 (10th Cir. 1991) (citation omitted).
As a general rule, voluntary cessation of unlawful conduct does not render a case moot.
Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979). But a defendant’s voluntary actions do
render a case moot if the court determines: (1) interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation; and (2) there is no reasonable
expectation that the alleged violation will recur. Id.
Here, Costco has satisfied the first prong of the mootness analysis because it has
remedied the only alleged violation. Under the ADA, there is no requirement to provide mirrors
in restrooms. But “[w]here mirrors are provided, at least one shall comply with [Guideline]
603.3.” 36 C.F.R. Pt. 1191, App’x C, Guideline 213.3.5. Guideline 603.3 provides:
Mirrors located above lavatories or countertops shall be installed with the bottom
edge of the reflecting surface 40 inches (1015 mm) maximum above the finish
floor or ground. Mirrors not located above lavatories or countertops shall be
installed with the bottom edge of the reflecting surface 35 inches (890 mm)
maximum above the finish floor or ground.
Pt. 1191, App’x D, Guideline 603.3.
Costco has remedied the only alleged violation by installing a full-length mirror in the
men’s restroom. The mirror is not located above a lavatory or countertop, and the bottom edge of
the reflecting surface is less than 35 inches above the ground. Fackrell Decl. ¶ 5. Thus, one of the
mirrors in the men’s restroom complies with Guideline 603.3. Costco has removed the sole
“barrier” that denied Burningham equal access to the Spanish Fork warehouse. Accordingly, the
Court holds that the first prong of the mootness analysis is satisfied because Costco has remedied
the only alleged violation, thereby ensuring that Burningham (and those similarly situated) will
enjoy equal access to the Spanish Fork warehouse. Cf. Balt. Neighborhoods, Inc. v. LOB, Inc., 92

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F. Supp. 2d 456, 462 (D. Md. 2000) (effects of ADA violations were eradicated because the sales
office that violated the ADA was closed and the plaintiffs could not recover damages or civil
penalties under the ADA).
The Court now turns to the question of whether there is no reasonable expectation that
the alleged violation will recur. Costco was unaware that its mirrors were not in compliance with
the ADA prior to this lawsuit—this was an isolated, inadvertent violation as opposed to a
deliberate one. Fackrell Decl. ¶ 3. Costco admits that it mirrors were not in compliance with the
ADA, but it promptly took action to remedy the violation once it was made aware of it. Fackrell
Decl. ¶ 5. Fackrell, in his declaration, states that the full-length mirror was “permanently affixed”
to the wall in the men’s restroom. Fackrell Decl. ¶ 5 (emphasis added).
Based on this, the Court is convinced that there is no reasonable expectation that the
alleged violation will recur. The Court sees no reason why Costco would expend the time and
resources to remove a mirror that has been permanently affixed to the wall of the men’s
restroom. Indeed, Costco installed the mirror, and removing it would simply expose Costco to
the very type of liability that it seeks to avoid. Notably, Burningham offers no reason as to why
Costco would willingly violate the ADA after bringing itself into compliance.
Buringham’s argument that he has standing to sue for yet-undiscovered barriers at Costco
is without merit. Burningham identified a single barrier in his amended complaint. That barrier
has been removed. Burningham is more than welcome to return to the Spanish Fork warehouse
to investigate whether Costco complies with other provisions of the ADA, but he will need to file
a subsequent lawsuit if he discovers further violations.
Burningham’s argument that the Court should award him nominal damages to render his
claim not moot is likewise without merit. Buringham did not seek nominal damages in his

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amended complaint. And even if he did, he has not cited a single case in which a court held that
Congress, by limiting the relief available to equitable relief, intended to allow for nominal
damages under the ADA. See 42 U.S.C. § 12188(a)(2).
Finally, Buringham’s argument that the case is not moot because Costco does not have a
policy to prevent or remove barriers also fails. Costco is required to build its facilities to comply
with the ADA—there is no requirement that it have a policy in place to prevent or remove
barriers. In short, if Costco complies with the requirements of the ADA, then it is irrelevant
whether it has a policy on prevention or removal of architectural barriers.
Accordingly, the Court concludes that Costco has remedied the past violation and now
shows that there is no reasonable expectation that the violation will recur. Burningham requests
only equitable relief, and there is no evidence that he suffers from any present adverse effect as a
result of the past violation. The case is now moot, and the Court therefore dismisses it without
prejudice on the grounds that the Court lacks subject matter jurisdiction.
III.

CONCLUSION AND ORDER

For the reasons set forth above,
1. Defendant’s Rule12(b)(1) Motion to Dismiss for Lack of Subject Matter
Jurisdiction is CONVERTED into a Motion for Summary Judgment Under Rule
56;
2. Plaintiff’s request for additional discovery is DENIED;
3. Plaintiff’s request for an evidentiary hearing is DENIED;
4. Defendant’s now-converted Motion for Summary Judgment is GRANTED;
5. Plaintiff’s amended complaint is DISMISSED WITHOUT PREJUDICE on the
grounds that the Court lacks subject matter jurisdiction; and
6. The clerk of the court is directed to close the case.
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Signed December 19, 2017
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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