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Hillesheim v. Myron's Cards and Gifts, Inc.

United States Court of Appeals, Eighth Circuit

July 27, 2018

Zach Hillesheim Plaintiff- Appellant
Myron's Cards and Gifts, Inc. Defendant-Appellee

          Submitted: May 16, 2018

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before BENTON, KELLY, and STRAS, Circuit Judges.

          BENTON, Circuit Judge.

         Zach Hillesheim sued Myron's Cards and Gifts, Inc., seeking declaratory and injunctive relief for alleged violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and the Minnesota Human Rights Act, Minn. Stat. chapter 363A.[1] He also seeks state-law damages. Myron's moved to dismiss. Hillesheim did not respond to the motion, instead moving to amend his complaint. The district court ruled that amendment would be futile and dismissed the lawsuit. Hillesheim v. Myron's Cards & Gifts, Inc., 2017 WL 379408 (D. Minn. Jan. 26, 2017). Having jurisdiction under 28 U.S.C. § 1291, this court reverses and remands.


         Paralyzed from the waist down, Hillesheim uses a wheelchair. He alleged that in October 2016, he visited a store owned and operated by Myron's. He encountered "displays and excess merchandise" in boxes that obstructed the aisles in the store. This was, he concluded, discrimination under the ADA because the aisles had "a clear width of less than 36 inches," violating the ADA Accessibility Guidelines (ADAAG)-"a comprehensive set of structural guidelines that articulates detailed design requirements to accommodate persons with disabilities." Davis v. Anthony, Inc., 886 F.3d 674, 676 n.2 (8th Cir. 2018), quoting Daubert v. Lindsay Unified Sch. Dist., 760 F.3d 982, 986 (9th Cir. 2014); see also 36 C.F.R. pt. 1191, app. D, § 403.5.1 ("the clear width of walking surfaces shall be 36 inches (915 mm) minimum.").

         Moving to dismiss, Myron's argued the displays and excess merchandise were only temporary or removable obstructions that do not violate the ADA. Hillesheim proposed an amended complaint, alleging he visited the store "approximately 15 times over the last four years. To the best of his recollection, the aisles were obstructed by displays and excess merchandise each of the times he visited." He again pled that "temporary displays and excess merchandise" caused the aisles to have a width less than 36 inches, violating the ADAAG. He also alleged "extra displays near the entrance of the store narrow[ed] the path of travel."

         Myron's countered that amendment was futile because, like the original, the proposed complaint alleged that Hillesheim encountered only temporary or removable obstructions that (according to Myron's) do not violate the ADA. The district court agreed: "temporary objects like excess merchandise blocking a store's aisles is not an ADA violations." Hillesheim, 2017 WL 379408, at *2. It also concluded that Hillesheim's allegation that he encountered the barriers "approximately 15 times over the last four years" was inconsequential: "Encountering temporary obstructions more often does not change the fact that temporary obstructions do not violate the ADA." Id.


         "[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), citing Foman v. Davis, 371 U.S. 178, 182 (1962). "A district court's denial of leave to amend a complaint may be justified if the amendment would be futile." Geier v. Missouri Ethics Comm'n, 715 F.3d 674, 678 (8th Cir. 2013). An amendment is futile if the amended claim "could not withstand a motion to dismiss under Rule 12(b)(6)." Silva v. Metropolitan Life Ins. Co., 762 F.3d 711, 719 (8th Cir. 2014) (citation omitted). "To survive a motion to dismiss for failure to state a claim, the complaint must show the plaintiff 'is entitled to relief,' Fed.R.Civ.P. 8(a)(2), by alleging 'sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1063 (8th Cir. 2017) (en banc), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This court reviews "the district court's denial of the motion to amend a complaint for an abuse of discretion and issues regarding an amendment's futility de novo." Geier, 715 F.3d at 677.

         Hillesheim argues that amendment is not futile because some temporary obstructions to store's aisles are ADA discrimination. "Title III of the ADA prohibits discrimination against the disabled in the full and equal enjoyment of public accommodations." Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005), citing 42 U.S.C. § 12182(a) ("No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."). An ADA discrimination claim "requires that a plaintiff establish that (1) he or she is disabled within the meaning of the ADA; (2) that the defendants own, lease, or operate a place of public accommodation; and (3) that the defendants discriminated against the plaintiff within the meaning of the ADA." Roberts v. Royal Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008). Only the third element is at issue here.

         One form of ADA discrimination occurs when a public accommodation is not "readily accessible to and usable by individuals with disabilities." 42 U.S.C. § 12183(a)(1). "A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part." 28 C.F.R. § 36.211(a).

         That regulation, however, "does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs." 28 C.F.R. § 36.211(b). In addition to maintenance and repairs, section 36.211(b) permits "a temporary interruption that blocks an accessible route, such as restocking of shelves." Nondiscrimination on the Basis of Disability by Public Accommodations ...

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