United States District Court, D. Minnesota
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND
DENYING PLAINTIFF'S MOTION TO AMEND
Wilhelmina M. Wright United States District Judge
the Court are Defendants' motion to dismiss
Plaintiff's amended complaint pursuant to Federal Rule of
Civil Procedure 12(b)(1) for lack of subject-matter
jurisdiction and Plaintiff's motion to amend the
complaint. (Dkts. 12, 27.) For the reasons addressed below,
Defendants' motion to dismiss is granted, Plaintiff's
motion to amend the complaint is denied, and this case is
dismissed without prejudice.
Jerald Boitnott is a Minnesota resident who has a legal
disability as defined by the Americans with Disabilities Act
(ADA), 42 U.S.C. §§ 12101 et seq.
Defendant Border Foods, Inc. (Border Foods), owns and
operates a Taco Bell restaurant located in Saint Paul,
Minnesota (the restaurant). Defendant RALCO, LLC, owns and is
the lessor of the real property on which the restaurant is
visited the restaurant in March 2018 and observed
architectural barriers that deterred him from patronizing the
restaurant. These architectural barriers included a parking
stall aisle that did not adjoin an accessible route, an
interior vestibule door that could not be opened with less
than five pounds of force, an insufficient number of
accessible seats, a restroom mirror located more than 40
inches above the floor, exposed pipes below a lavatory that
created a burn hazard, an improperly sized and positioned
toilet grab bar, and an improperly positioned toilet flush
control. Although Boitnott lives near and intends to
patronize the restaurant in the future, these architectural
barriers prevented and deterred him from doing so. Boitnott
asserts that he will return to and patronize the restaurant
when these architectural barriers have been removed or cured.
commenced this action against Taco Bell of America, LLC, and
two individual defendants in Ramsey County District Court,
Second Judicial District, on May 22, 2018. The complaint
alleges violations of the ADA and seeks a declaratory
judgment, injunctive relief, a nominal monetary award, and
attorneys' fees and costs. The individual defendants
removed this action to this Court on June 20, 2018.
Approximately two weeks later, on July 2, 2018, Boitnott
filed an amended complaint, which is now the operative
complaint. The amended complaint contains the same legal and
factual allegations as the original complaint but identifies
only Border Foods and RALCO as defendants.
Border Foods was not named as a defendant in Boitnott's
original complaint, Border Foods became aware of
Boitnott's lawsuit on May 22, 2018. According to Border
Foods's Senior Vice President, as soon as Border Foods
became aware of the lawsuit it addressed the ADA violations
alleged in Boitnott's original complaint. Border Foods
hired an auditor who specializes in ADA compliance. The
auditor visited the restaurant on May 30, 2018, and provided
a report with recommendations. Thereafter, Border Foods took
steps to correct the alleged architectural barriers,
including (1) replacing multiple doors, including the
interior vestibule door, so that they can be opened with less
than five pounds of force; (2) adding accessible seating; (3)
lowering restroom mirrors to be no more than 40 inches above
the floor; (4) installing pipe covers below the lavatory; (5)
correcting the size and location of restroom grab bars; and
(6) correcting the location of the toilet flush control in
the men's restroom. After completing these changes to the
restaurant property, the auditor visited the restaurant again
and issued a second report verifying that the architectural
barriers identified in Boitnott's original complaint had
been corrected. The auditor also advised Border Foods that
the restaurant's parking stall aisle and routes do not
violate the ADA. The auditor's second report is dated
June 19, 2018- approximately two weeks before Boitnott
amended his complaint and named Border Foods as a defendant.
Foods and RALCO (collectively, Defendants) move to dismiss
the amended complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1), arguing that this Court lacks
subject-matter jurisdiction over Boitnott's claims
because Boitnott lacks standing under Article III of the
United States Constitution and, alternatively, because
Boitnott's claims are moot. In particular, Defendants
contend that the architectural barriers identified in the
amended complaint were removed or cured before Boitnott filed
the amended complaint.
move to dismiss the amended complaint for lack of
subject-matter jurisdiction on two grounds-standing and
mootness. See Fed. R. Civ. P. 12(b)(1). The
jurisdiction of federal courts extends only to actual cases
or controversies. U.S. Const. Art. III, § 2, cl. 1;
accord Neighborhood Transp. Network, Inc. v. Pena,
42 F.3d 1169, 1172 (8th Cir. 1994). Questions of standing and
mootness implicate the court's subject-matter
jurisdiction. Charleston Hous. Auth. v. U.S. Dep't of
Agric., 419 F.3d 729, 739 (8th Cir. 2005) (mootness);
Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th
Cir. 2002) (standing).
deciding a motion to dismiss for lack of subject-matter
jurisdiction, a court “must distinguish between a
‘facial attack' and a ‘factual attack.'
” Osborn v. United States, 918 F.2d 724, 729
n.6 (8th Cir. 1990). A facial attack challenges the
sufficiency of a plaintiff's pleadings. Branson
Label, Inc. v. City of Branson, 793 F.3d 910, 914 (8th
Cir. 2015). The district court, in turn, determines whether
the pleadings allege sufficient facts to support
subject-matter jurisdiction. Id. In doing so, the
court considers only the pleadings, and the nonmoving party
receives the same protections that it would receive if a Rule
12(b)(6) motion to dismiss for failure to state a claim were
before the court. Osborn, 918 F.2d at 729 n.6.
contrast, a defendant's factual attack challenges the
existence of subject-matter jurisdiction. Branson
Label, 793 F.3d at 914. When ruling on a factual attack,
the district court considers matters outside the pleadings,
and the nonmoving party proceeds without “the benefit
of [Rule] 12(b)(6) safeguards.” Osborn, 918
F.2d at 729-30 n.6; see also Disability Support All. v.
Geller Family Ltd. P'ship III, 160 F.Supp.3d 1133,
1135-37 (D. Minn. 2016) (applying factual attack standard in
ADA case and considering declarations attached to pleadings).
Here, Defendants assert a factual challenge to the
Court's subject-matter jurisdiction based on their
contentions that Boitnott lacks standing and that Border
Foods voluntarily complied with the law, thus rendering
Boitnott's claims moot.
III of the ADA prohibits discrimination against people with
disabilities in places of public accommodation. 42 U.S.C.
§ 12182(a). Discrimination includes the “failure
to remove architectural barriers, and communication barriers
that are structural in nature, in existing facilities . . .
where such removal is readily achievable.” 42 U.S.C.
§ 12182(b)(2)(A)(iv). The ADA grants a private right of
action to “any person who is being subjected to
discrimination on the basis of disability.” 42 U.S.C.
§ 12188(a); Steger v. Franco, Inc., 228 F.3d
889, 892 (8th Cir. 2000). In a private enforcement action
under Title III of the ADA, a plaintiff may obtain only
injunctive relief. See 42 U.S.C. § 12188(a);
Wojewski v. Rapid City Reg'l Hosp., Inc., 450
F.3d 338, 342 (8th Cir. 2006); Stebbins v. Legal Aid of
Ark., 512 Fed.Appx. 662, 663 (8th Cir. 2013) (citing 42
U.S.C. § 12188(a)).
argue that, because none of the ADA violations alleged in the
amended complaint existed when Border Foods and RALCO were
first named as defendants, Boitnott lacked standing from the
outset of his lawsuit against them. Defendants alternatively
argue that, because the ADA violations alleged in the amended
complaint do not currently exist on the restaurant property,
injunctive relief is unavailable. Therefore, according to
Defendants, Boitnott's claims are moot. The Court
addresses each argument in turn.