United States District Court, D. Minnesota
Patrick W. Michenfelder, Esq. and Throndset Michenfelder Law
Office, LLC, One Central Avenue, counsel for plaintiff.
Chelsea Ahmann, Esq., Joseph M. Windler, Esq. and Winthrop
& Weinstine, counsel for defendants.
S. Doty, Judge
matter is before the court upon the motion to dismiss by
defendants TCF Banking & Savings, F.A. and TCF National
Bank (collectively, TCF). Based on a review of the file,
record, and proceedings herein, and for the following
reasons, the motion to dismiss is granted.
civil rights dispute arises from plaintiff Jerald
Boitnott's attempts to access the TCF Bank located at
1503 Robert Street in St. Paul, Minnesota. It is undisputed
that Boitnott is disabled within the meaning of the Americans
with Disabilities Act (ADA). See Compl. ¶ 15.
In July and September 2018, Boitnott attempted to enter the
bank, but was unable to so because (1) the disabled parking
signs were positioned too low to the ground and did not
identify van accessible spaces; (2) the parking lot surface
was broken, patched, and deteriorated; (3) the curb ramp and
flared sides of the curb ramp projected into the parking
aisles; and (4) the slope of the accessible parking space and
access aisle was too steep. Id. ¶¶ 21, 22.
September 27, 2018, Boitnott filed this suit in Dakota County
alleging violations of the ADA and seeking declaratory and
injunctive relief and nominal damages. TCF timely removed to
receiving the complaint, TCF immediately made several
improvements to the bank's parking lot with the
assistance of a certified accessibility specialist, Julee
Quarve-Peterson, to address the specific concerns raised by
Boitnott and to ensure ADA compliance. Nelson Decl.
¶¶ 5-7; Quarve-Peterson Decl. ¶¶ 4-8.
Quarve-Peterson determined, however, that the curb ramp and
flared side to the curb ramp did “not obstruct or
project into the parking access aisle and therefore did not
violate the ADA as they existed.” Quarve-Peterson Decl.
¶ 6; id. Ex. B at 7. On November 4, 2018,
Quarve-Peterson returned to the bank to audit for ADA
compliance after TCF completed the recommended improvements.
Id. ¶ 7. She concluded that “all of the
architectural barriers identified” by Boitnott were
removed and that the property was ADA compliant. Id.
¶ 8; see id. Ex. C. Boitnott submits no
evidence to the contrary, effectively conceding that all of
the architectural barriers identified in his complaint have
moves to dismiss under Rule 12(b)(1) of the Federal Rules of
Standard of Review
order to properly dismiss an action for want of subject
matter jurisdiction under Rule 12(b)(1), the challenging
party must successfully attack the complaint, either on its
face or on the factual truthfulness of its averments.
Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993).
In a facial attack, “the court restricts itself to the
face of the pleadings, and the non-moving party receives the
same protections as it would defending against a motion
brought under Rule 12(b)(6).” Branson Label, Inc.
v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir.
2010). “In a factual attack, the court considers
matters outside the pleadings, and the non-moving party does
not have the benefit of 12(b)(6) safeguards.”
Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th
Cir. 2016) (citation omitted). Here, TCF has waged a factual
attack by asserting that the changes made to the parking lot
redressed all of the ADA violations alleged in the complaint.
argues that the complaint should be dismissed as moot given
the certified ADA-compliant changes made to the bank's
parking lot. Although Boitnott does not deny that his
complaint is largely moot, he argues that he still has a
viable claim for relief because he seeks ...