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Davis v. Anthony, Inc.

United States Court of Appeals, Eighth Circuit

March 29, 2018

Melanie Davis Plaintiff - Appellant
v.
Anthony, Inc. Defendant-Appellee

          Submitted: November 15, 2017

          Appeal from United States District Court for the District of Nebraska - Omaha

          Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

          BENTON, Circuit Judge

         Melanie Davis sued Anthony, Inc., seeking declaratory and injunctive relief for alleged violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. The district court[1] dismissed the lawsuit. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         I.

         Davis has cerebral palsy and uses a wheelchair for mobility. She tried to eat at an Omaha steakhouse owned and operated by Anthony.

         In her complaint, Davis alleges she could not access the steakhouse "due to the physical barriers to access" that fail "to comply with the requirements of the ADA and the ADAAG."[2] First, "The accessible parking spaces in the [steakhouse's] customer parking lot lacked adjacent access aisles, in violation of ADAAG 502.2." Second, "Despite having approximately 250 total parking spaces, the [steakhouse's] customer parking lot has only 4 parking spaces reserved as accessible parking spaces, in violation of ADAAG 208.2." Third, "Two accessible parking spaces in the [steakhouse's] customer parking lot were not reserved through posted signage, in violation of ADAAG 216.5 and 502.6." She also alleges that these are "not to be considered all-inclusive of the barriers and violations of the ADA encountered by [her] or which exist at" the steakhouse. The complaint says she needs "an inspection of [the steakhouse] in order to photograph and measure all such barriers to access and violations of the ADA and the ADAAG."

          Anthony moved to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction. It asserted mootness, claiming it remediated the violations. Anthony submitted affidavits, pictures, and invoices. The district court agreed and dismissed the case as moot.

         "Article III of the Constitution grants the Judicial Branch authority to adjudicate 'Cases' and 'Controversies.'" Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013). "A case becomes moot-and therefore no longer a 'Case' or 'Controversy' for purposes of Article III-'when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome.'" Id. at 91, quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam). "[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Id., quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). Questions of mootness are matters of subject-matter jurisdiction that this court reviews de novo. Doe v. Nixon, 716 F.3d 1041, 1051 (8th Cir. 2013).

         II.

         Davis says that the lawsuit is not moot because Anthony's remediation evidence is "utterly silent as to the slopes of the newly-installed spaces." Slope is governed by ADAAG 502.4. Davis does not mention ADAAG 502.4 in her complaint. She raises violations of only ADAAG 208.2, 216.5, 502.2, and 502.6. Davis says her complaint sufficiently alleges an ADAAG 502.4 violation. She believes that the complaint's allegation that "[t]he accessible parking spaces in the [steakhouse's] customer parking lot lacked adjacent access aisles, in violation of ADAAG 502.2, " includes an ADAAG 502.4 violation because, according to her brief, what "qualifies as an access aisle is determined by reference to the [ADAAG], which includes requirements for, inter alia, location, width, slope, and length."

         Her access-aisle allegation, however, focuses only on ADAAG 502.2, which does not mention slope. A reference to ADAAG 502.2 does not state a plausible claim for a violation of ADAAG 502.4. See In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1063 (8th Cir. 2017) (en banc) ("A plausible claim must plead 'factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'"), quoting Bell ...


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