United States District Court, D. Minnesota
MEMORANDUM AND ORDER
A. MAGNUSON UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Defendant Myron's
Cards' Motion to Dismiss and Plaintiff Zach
Hillesheim's Motion to Amend. For the reasons stated at
the hearing and discussed more fully below, Myron's
Cards' Motion to Dismiss is granted and Hillesheim's
Motion to Amend is denied as futile.
is paralyzed below the waist and uses a wheelchair for
mobility. (Compl. (Docket No. 1) ¶ 9.) Myron's Cards
owns and operates a retail Hallmark store in Mankato,
Minnesota. (Compl. ¶ 10.) On October 6, 2016, Hillesheim
visited the Hallmark store and found it difficult to shop
because excess merchandise obstructed the aisles.
(Id. ¶ 12-14.) As a result, Hillesheim was
deterred from visiting the Hallmark store and has been ever
since. (Id. ¶ 16-17.)
November 2, 2016, Hillesheim filed this lawsuit and alleges
that Myron's Cards violated the Americans with
Disabilities Act (“ADA”) and the Minnesota Human
Rights Act (“MHRA”) by failing to make the
Hallmark store fully accessible to persons with disabilities.
Cards filed a Motion to Dismiss on November 30, 2016. Instead
of responding to the Motion, Hillesheim filed an untimely
Motion to Amend the Complaint three weeks after the deadline
to amend as a matter of course, and one week after his
response to the Motion to Dismiss was due.
of the Federal Rules of Civil Procedure allows a plaintiff to
amend his complaint once as a matter of course within 21 days
after service of a Rule 12(b) motion to dismiss. Fed.R.Civ.P.
15(a)(1)(B). In all other cases, a party may amend its
pleading only with the opposing party's written consent
or the Court's leave. The Court should freely give leave
when justice so requires. Fed.R.Civ.P. 15(a)(2).
“[D]enial of leave to amend pleadings is appropriate
only in those limited circumstances in which undue delay, bad
faith on the part of the moving party, futility of the
amendment, or unfair prejudice to the non-moving party can be
demonstrated.” Roberson v. Hayti Police
Dep't, 241 F.3d 992, 995 (8th Cir. 2001) (citation
omitted). But courts may deny leave to amend when the amended
complaint could not withstand a motion to dismiss.
Holloway v. Dobbs, 715 F.2d 390, 392 (8th Cir.
1983); see also Geier v. Missouri Ethics Comm'n,
715 F.3d 674, 678 (8th Cir. 2013).
Cards served Hillesheim with its Motion to Dismiss on
November 30, 2016. Hillesheim could have therefore amended
his complaint as a matter of course until December 21. He did
not. After December 21, Hillesheim could only amend with the
opposing party's written consent or the Court's
leave. Hillesheim attempted to get the opposing party's
consent, but failed. (Docket No. 16.) On January 12,
Hillesheim filed the instant Motion to Amend the Complaint.
Hillesheim may therefore only amend his Complaint if the
Court is convinced his proposed amended complaint can
withstand a motion to dismiss. It cannot.
survive a motion to dismiss for failure to state a claim, a
complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see
also Fed.R.Civ.P. 12(b)(6). A claim bears facial
plausibility when it allows the Court “to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. When evaluating a
motion to dismiss, the Court must accept factual allegations
as true, Gomez v. Wells Fargo Bank, N.A., 676 F.3d
655, 660 (8th Cir. 2012), but it need not give effect to
those that simply assert legal conclusions, McAdams v.
McCord, 584 F.3d 1111, 1113 (8th Cir. 2009).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, ” are
insufficient to support a claim. Iqbal, 556 U.S. at
and MHRA each prohibit disability discrimination by any
person who owns or operates a place of public accommodation.
42 U.S.C. § 12182(a); accord Minn. Stat.
363A.11. Because the MHRA parallels the ADA, it is proper to
treat these two claims as co-extensive. Fenney v. Dakota,
Minnesota & E. R. Co., 327 F.3d 707, 711 n.5 (8th
plaintiff alleging discrimination must show that they have a
disability under the ADA, the defendant owns or operates a
place of public accommodation, and the defendant
discriminated against the plaintiff based on that disability.
See 42 U.S.C. § 12182(a); see also Amir v.
St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir. 1999);
Roberts v. Royal Atl. Corp., 542 F.3d 363, 368 (2d
Cir. 2008). The parties do not dispute that Hillesheim has a
disability under the ADA and that Myron's Cards is a
place of public accommodation. The issue here is whether
Myron's Cards discriminated against Hillesheim on the
basis of his disability.
includes five definitions for discrimination, two of which
are relevant here. First, discrimination includes “a
failure to make reasonable modifications in policies,
practices, or procedures, when such modifications are
necessary to afford such goods, services, facilities,
privileges, advantages, or accommodations to individuals with
disabilities . . ..” 42 U.S.C. § 12182
(b)(2)(A)(ii). Second, discrimination includes “a
failure to remove architectural barriers . . . in existing
facilities . . . where such removal is readily
available.” 42 U.S.C. 12182(b)(2)(A)(iv).
original Complaint, Hillesheim alleges that, on a single day
in October, Hillesheim encountered discrimination in the form
of excess merchandise blocking the aisles in the Hallmark
store. (Compl. ¶ 30.) But temporary objects like excess
merchandise blocking a store's aisles is not an ADA
violation. See 28 C.F.R. § 36.211; see also
Sharp v. Island Rest., 900 F.Supp.2d 1114, 1126-27 (S.D.
Cal. 2012). Therefore, ...