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Smith v. Bradley Pizza, Inc.

United States District Court, D. Minnesota

June 12, 2019

Scott Smith, Plaintiff,
Bradley Pizza, Inc., and Pamela M. Dahl, Defendants.

          Padraigin Browne, Browne Law LLC, Lake Elmo, MN, for Plaintiff Scott Smith.

          Edward P. Sheu and Brian J. Linnerooth, Best & Flanagan, LLP, Minneapolis, MN, for Defendants Bradley Pizza, Inc. and Pamela M. Dahl.


          Eric C. Tostrud United States District Judge

         Plaintiff Scott Smith has a disability that requires him to use a wheelchair. Defendant Bradley Pizza owned and operated a Domino's Pizza franchise in Red Wing, Minnesota, and Defendant Pamela Dahl owns the commercial property in which the Domino's is located. Smith alleges that Defendants violated and are violating Title III of the Americans with Disabilities Act (“ADA”) and the Minnesota Human Rights Act (“MHRA”) by failing to make the Domino's Pizza “fully accessible to and independently usable by individuals with disabilities.” Under both the ADA and MHRA, Smith seeks declaratory and injunctive relief and attorney's fees. Under just the MHRA, he seeks damages and an order requiring Defendants to pay a civil penalty to the State of Minnesota. The Parties have presented several matters for decision. Defendants move for summary judgment and the exclusion of expert testimony relied on by Smith. Smith moves for summary judgment and the exclusion of fact and expert testimony relied on by Defendants. Smith also objects to and seeks review of orders concerning non-dispositive pretrial matters entered by Magistrate Judge Katherine Menendez. Defendants' summary-judgment motion will be granted because the record evidence construed most favorably to Smith does not show that he suffered an injury sufficient to give him Article III standing. Magistrate Judge Menendez's orders will be affirmed because they are very reasonable.


         Defendants' summary-judgment motion is premised on several arguments. Defendants argue Smith lacks standing to sue at all because he has suffered no Article III injury. Defs.' Mem. in Supp. at 15-22 [ECF No. 178]. They argue Smith lacks standing to seek injunctive relief in particular because he cannot show he faces a threat of future injury. Id. at 18-22. Assuming Smith has standing, Defendants argue that some of Smith's alleged ADA violations are not ADA violations as a matter of law. Id. at 23-30. To the extent Smith has identified bona fide ADA violations, Defendants argue that those violations either have been remedied or cannot be remedied because remediation is not “readily achievable, ” a defense to ADA liability. Id. Defendants argue that summary judgment should be entered against Smith's claims under the MHRA for these same reasons and because Smith failed to provide a pre-suit notice required by the MHRA. Id. at 31-32.


         The basic rules governing consideration of a summary-judgment motion are settled but worth repeating here. Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” only if its resolution “might affect the outcome of the suit” under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is “genuine” only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255 (citation omitted).

         Rule 56(c)(1) requires parties “asserting that a fact cannot be or is genuinely disputed” either to “support the assertion by . . . citing to particular parts of materials in the record” or to “show[] that the materials cited [by an adverse party] do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ P. 56(c)(1)(A)-(B). A district court “need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). A federal court facing a party's failure to cite “particular parts of materials in the record, ” Fed.R.Civ.P. 56(c)(1)(A), may elect from several options in the reasonable exercise of discretion. These include “consider[ing] the fact undisputed for purposes of the motion, ” “grant[ing] summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it, ” or “issu[ing] any other appropriate order.” Fed.R.Civ.P. 56(e)(2)-(4).


         Defendants' argument that Smith cannot establish standing as a matter of law implicates subject-matter jurisdiction, so it must be considered first. And Defendants' decision to challenge subject-matter jurisdiction via a summary-judgment motion raises procedural issues that deserve explanation. There are material-and perhaps dispositive- differences between challenging subject-matter jurisdiction through a “factual-attack” dismissal motion under Rule 12(b)(1) and a summary-judgment motion under Rule 56. In a Rule 12(b)(1) motion asserting a factual attack, the district court considers matters outside the pleadings and resolves disputed facts, applying no presumption of truth to the non-moving party's allegations or evidence (or, for that matter, to the moving party's evidence). Branson Label, Inc. v. City of Branson, 793 F.3d 910, 914-15 (8th Cir. 2015); Osborn v. United States, 918 F.2d 724, 729-30 (8th Cir. 1990). And while a district court's ultimate decision whether there is subject-matter jurisdiction in response to a factual-attack Rule 12(b)(1) motion is reviewed de novo on appeal, a district court's factual findings are reviewed for clear error. Branson Label, 793 F.3d at 915 (citation omitted). In a summary-judgment motion, as noted above, the court generally must believe the non-movant's evidence and draw all reasonable inferences from the evidence in the non-movant's favor. Tolan v. Cotton, 572 U.S. 650, 651 (2014) (per curiam). And a district court's order granting summary judgment for want of subject-matter jurisdiction is reviewed de novo in its entirety. U.S. ex rel. Minn. Ass'n of Nurse Anesthetists v. Allina Health Sys. Corp., 276 F.3d 1032, 1040 (8th Cir. 2002). The nature of the subject-matter jurisdiction inquiry and the functions served by Rule 12(b)(1) and Rule 56 have prompted courts to conclude that the question of subject-matter jurisdiction should not be resolved on summary judgment. See, e.g., Capitol Leasing Co. v. Fed. Deposit Ins. Corp., 999 F.2d 188, 191 (7th Cir. 1993) (per curiam) (“In short, the question of jurisdiction is inappropriate for summary judgment, and discussing the interplay of Rule 12(b)(1) and Rule 56 verges on non sequitur.” (citations omitted)).

         It seems nonetheless appropriate here to adjudicate Defendants' challenge to subject-matter jurisdiction under Rule 56 for three reasons. First, the United States Supreme Court has at least implied (and perhaps said outright) that summary judgment is an appropriate process by which to assess the presence of subject-matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992). Second, though our Eighth Circuit Court of Appeals has approved of a district court recharacterizing a summary-judgment motion challenging subject-matter jurisdiction as a motion to dismiss under Rule 12(b)(1), Osborn, 918 F.2d at 728, it has not announced a general rule requiring that to be done and, in fact, has reviewed district-court orders entering summary judgment for want of subject-matter jurisdiction without questioning the propriety of that procedure, see, e.g., Hillesheim v. Holiday Stationstores, Inc., 900 F.3d 1007, 1009-10 (8th Cir. 2018). Third, on the record presented here, the result would be the same if the question of subject-matter jurisdiction were adjudicated under Rule 12(b)(1).


         The general rules governing Article III standing are settled:

Federal jurisdiction is limited by Article III, § 2, of the U.S. Constitution to actual cases and controversies. Therefore, the plaintiff's standing to sue “is the threshold question in every federal case, determining the power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975). To show Article III standing, a plaintiff has the burden of proving: (1) that he or she suffered an “injury-in-fact, ” (2) a causal relationship between the injury and the challenged conduct, and (3) that the injury likely will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560- 61 (1992).

Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000). An injury-in-fact is the “invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (citations and internal quotation marks omitted). Moreover, to have standing to obtain injunctive relief, the plaintiff also must show that he is likely to suffer future injury by the defendant and that the sought-after relief will prevent that future injury. See City of L.A. v. Lyons, 461 U.S. 95, 102-03 (1983). “[S]tanding is based on the facts as they existed at the time the lawsuit was filed.” Steger, 228 F.3d at 893. Standing “must exist not only at the time the complaint is filed, but through all stages of the litigation.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (citations and internal quotation marks omitted). By the summary judgment stage, a plaintiff must set forth “specific facts” establishing standing. Lujan, 504 U.S. at 561.

         Eighth Circuit cases describe what a plaintiff must show to establish that he suffered an injury-in-fact to assert disability-discrimination claims under the ADA and MHRA. “To meet the injury-in-fact requirement, ‘the party seeking review [must] be himself among the injured.'” Steger, 228 F.3d at 893 (alteration in original) (quoting Lujan, 504 U.S. at 560). To show injury, there must be a connection between the nature of a plaintiff's disability and the alleged violations; granting an individual with a particular disability or class of disabilities “standing to seek relief on behalf of all disabled individuals would expand the standing doctrine beyond the limits of Article III.” Steger, 228 F.3d at 893 (citation omitted). To be injured, as a general rule a plaintiff must have entered or visited the facility where the violations are alleged to have occurred. Davis v. Morris-Walker, Ltd., 922 F.3d 868, 871 (8th Cir. 2019). Where a facility contains “known barriers that the owner has no intention of remedying, ” a plaintiff “need not engage in the ‘futile gesture' of visiting [the] building, [but] must at least prove knowledge of the barriers and that [he] would visit the building in the imminent future but for those barriers.” Steger, 228 F.3d at 892 (quoting 42 U.S.C. § 12188(a)(1)); see also Hillesheim, 900 F.3d at 1011 (recognizing that a plaintiff “was not required to have a go of it” by attempting to traverse an allegedly inaccessible ramp to establish Article III standing). Having visited a building or facility, a plaintiff “need not encounter” every challenged barrier “to obtain effective relief.” Steger, 228 F.3d at 894 (citation omitted). Thus, in Steger, the court permitted a blind plaintiff who had encountered at least one ADA violation in one part of a building to challenge several alleged “violations that could injure blind persons” in parts of the building the plaintiff never had been. Id. at 893-94.

         Hillesheim is particularly instructive regarding what is necessary to establish injury-in-fact stemming from disability discrimination in the summary-judgment context. There, a wheelchair-using plaintiff alleged that three parking lot defects-the absence of vertical signs marking two handicap-accessible parking spaces, the lack of an adjacent access aisle in one of the spaces, and the presence of a garbage can near the top of an access ramp-violated the ADA and the MHRA. Hillesheim, 900 F.3d at 1009-11. On appeal, the plaintiff challenged the district court's entry of summary judgment against his MHRA claims for lack of injury-in-fact. Id. at 1010. The Eighth Circuit determined that the plaintiff's evidence of injury with respect to the access-aisle and vertical-signage claims was insufficient because it “did little more than describe the alleged violations, other than stating [the plaintiff] was deterred from visiting the store in the future.” Id. (footnote omitted). The plaintiff “did not explain how the lack of an access aisle or insufficient vertical signage injured him. [He] made no mention, for example, of whether he had difficulty identifying which spots were handicap accessible or even whether the alleged defects caused him to leave without entering the store.” Id. The court reached a different result with respect to the plaintiff's garbage-can claim:

Hillesheim's garbage-can claim is a different story. In contrast to the other claims, Hillesheim's declaration connected the placement of the garbage can to his decision to leave. It stated that he could not safely navigate the ramp without risking injury because the garbage can blocked his path of travel and trying to maneuver around it could have caused his wheelchair to tip over. By offering specific evidence that the allegedly dangerous circumstances caused him not to enter the store, Hillesheim did enough to establish an injury-in-fact.

Id. at 1011. The lessons of Hillesheim seem clear. A disabled individual does not suffer a cognizable injury merely by observing alleged barriers the individual thinks violate the ADA or MHRA; “specific evidence” must be identified explaining how the barrier or barriers injured that individual, and that evidence must show something more than that the individual was “deterred from visiting the store in the ...

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