Submitted: May 16, 2018
from United States District Court for the District of
Minnesota - Minneapolis
BENTON, KELLY, and STRAS, Circuit Judges.
BENTON, Circuit Judge.
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. 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.
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.").
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
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.
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.
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.
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. §
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 ...