United States District Court, D. Minnesota
Padraigin Browne, BROWNE LAW LLC, for plaintiff.
Peter Sheu and John A. Sullivan, BEST & FLANAGAN LLP, for
Patrick J. Schiltz United States District Judge.
one of dozens of lawsuits brought by plaintiff Scott Smith
and his attorney, Padraigin Browne, against various
businesses, alleging that Smith was deterred from patronizing
those businesses because of violations of the Americans with
Disabilities Act, 42 U.S.C. § 12181 et seq. In this
case, Smith alleges that he was deterred from patronizing
“Bierstube Bowl & Grill”-a bowling alley and
restaurant operated by defendants-because none of the
business's parking spots reserved for persons with
disabilities were reserved through a sign (instead, all were
reserved through surface paint), one of those parking spots
lacked an adjacent access aisle, and another was not located
on an accessible route to the building entrance. ECF No. 1
¶¶ 14-15, 23.
claim that they have remedied the problems with their parking
lot, and thus that this lawsuit is moot. Accordingly,
Magistrate Judge Hildy Bowbeer issued a pretrial scheduling
order that permits limited discovery into whether defendants
have indeed remedied the problems with their parking lot. ECF
No. 26. The order restricts Smith to a targeted inspection of
the parking lot. Further, the order states that the Court
will not entertain motions to amend the pleadings until after
defendants' anticipated motion to dismiss is resolved.
matter is before the Court on Smith's objection to these
restrictions in the pretrial scheduling order. A magistrate
judge's ruling on nondispositive matters may be reversed
only if it is “clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P.
72(a). Having reviewed the order, the Court sees no error,
clear or otherwise, in Judge Bowbeer's discovery
limitation, and that limitation is affirmed. The Court finds,
however, that it would be inconsistent with the liberal
amendment policy of Fed.R.Civ.P. 15(a) to categorically
prohibit all motions to amend pending the outcome of
defendants' anticipated motion to dismiss.
contends that, under Steger v. Franco, Inc., 228
F.3d 889 (8th Cir. 2000), he has a right to conduct a full
inspection of Bierstube Bowl & Grill-inside and out-in
order to hunt for other possible violations of the ADA of
which he is not presently aware. The Court disagrees.
Steger, the plaintiff, a blind man, was unable to
locate the restroom on the defendant's property because
it lacked appropriate signage. Id. at 891-92. The
defendant remedied the problem and moved for dismissal.
Id. at 892. In the meantime, the plaintiff's
expert had identified several other barriers that could
injure the plaintiff and other blind persons. Id.
The district court nevertheless dismissed the lawsuit,
holding that the plaintiff's injury had been redressed.
Id. The Eighth Circuit reversed, holding that the
plaintiff did not need to personally encounter every barrier
of which the plaintiff was aware in order to have standing to
seek injunctive relief. Id. at 894; see also
Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1043-57 (9th
Cir. 2008) (citing Steger and holding that, so long
as a disabled person has standing to pursue injunctive relief
for one alleged statutory violation, she could use discovery
to uncover other potential barriers).
Court does not agree that Steger gives Smith the
right to conduct a full site inspection of Bierstube Bowl
& Grill. The issue in Steger was whether the
plaintiff had standing to seek relief for barriers of which
he was aware but which he had not personally encountered. But
the issue in this case is not whether Smith has standing;
instead, the issue is whether his claims are moot because
defendants have remedied every barrier of which Smith is
aware. See Hillesheim v. Buzz Salons, LLC, No.
16-CV- 2225 (MJD/TNL), 2017 WL 3172870, at *7 (D. Minn. June
19, 2017) (“The inquiry here is not whether Hillesheim
has standing to bring this lawsuit as it was in
Steger, but whether there is anything left for the
Court to address at all.”), adopted, 2017 WL
3172751 (D. Minn. July 25, 2017).
even if the Court were to view Smith's argument through
the prism of standing, Steger specifically stated
that, to show “injury in fact” (a requirement for
standing), a plaintiff “must at least prove
knowledge of the barriers and that they would visit
the building in the imminent future but for those
barriers.” Steger, 228 F.3d at 892 (emphasis
added). In other words, Steger addressed the
standing of a plaintiff to litigate over barriers of
which he was aware; nothing in Steger suggests
that a plaintiff who is aware of one barrier-say, a parking
spot that is reserved by surface paint instead of by a
sign-has the right to inspect the entire business, inside and
out, to hunt for violations of the ADA of which he is
objection to this aspect of Judge Bowbeer's order is
Motions to Amend
also objects to being barred from bringing a motion for leave
to amend until the Court rules on defendants' anticipated
motion to dismiss. The Court sympathizes with Judge
Bowbeer's reason for imposing this restriction. One
common characteristic of the dozens-if not hundreds-of ADA
lawsuits filed in this District by Browne and her stable of
clients is that they are moving targets. Often, a defendant
quickly remedies the violations cited by Browne in an effort
to render the cases moot, and Browne responds by attempting
to find other violations and amend her complaint. See
Buzz Salons, LLC, 2017 WL 3172870, at *6 (criticizing
Browne for employing “a litigation strategy designed to
draw out these proceedings” and noting ...