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Mize v. Kai, Inc.

United States District Court, D. Colorado

November 9, 2017

VICKI MIZE, an individual, on her own behalf, Plaintiff,
KAI, INC., d/b/a Sa Wa Ra, Defendant.


          Nina Y. Wang United States Magistrate Judge.

         This matter is before the court on Defendant Kai, Inc.'s (“Defendant” or “Kai”) Motion to Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and Memorandum in Support Thereof (“Motion to Dismiss” or “Motion”). [#17, filed June 14, 2017]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(c) and the Order of Reference dated May 30, 2017 [#13]. Having reviewed the Motion and associated briefing, the entire docket, and the applicable case law, the court respectfully DENIES the Motion for the reasons stated herein.


         Plaintiff Vicki Mize (“Plaintiff” or “Ms. Mize”) initiated this action by filing her Complaint, pursuant to the Americans with Disabilities Act (“ADA” or “Act”), 42 U.S.C. § 12101 et seq., with the United States District Court for the District of Colorado on April 14, 2017.[1] [#1]. Ms. Mize “is an individual with disabilities which substantially limits major life activities.” [Id. at ¶ 7]. Because of her disabilities, Ms. Mize depends on the use of a wheelchair for her mobility; accordingly, she qualifies for and requires “reasonable accommodations to access and use” places of public accommodation (“PPA”). [Id.]. Defendant owns and/or operates one such PPA in Castle Rock, Colorado. [Id. at ¶ 1].

         On November 29, 2016, Plaintiff allegedly visited Defendant's PPA to enjoy its offered goods and services; however, Plaintiff “was denied full and equal access and full and equal enjoyment of the facilities, services, goods and amenities.” [Id. at ¶¶ 8-9, 31-32, 41]. Specifically, Kai failed to: (1) “provide a parking space identified with a sign that includes the International Symbol of Accessibility” (“Violation I”); (2) “provide accessible parking space identification signs 60 inches (1525mm) above the finish floor or ground surface” (“Violation II”); (3) “provide signs containing the designation ‘van accessible' that identify van parking spaces” (“Violation III”); (4) “locate mirrors over lavatories and countertops with the bottom edge of the reflecting surface no greater than 40 inches (1015 mm) above the ground” (“Violation IV”); and (5) “provide a toilet with a seat height between 17 inches (430 mm) minimum and 19 inches (485 mm) maximum above the floor as required” (“Violation V”). [Id. at ¶¶ 32a-e]. Plaintiff alleges that members of the public who do not suffer from physical disabilities can utilize Kai's PPA without any restrictions. [Id. at ¶ 9]. Plaintiff continues that, “should Defendant modify its PPA to accommodate her disabilities, she intends to avail herself of the goods and services offered at the PPA in the future.” [Id. at ¶ 10].

         Plaintiff asserts that Defendant has violated Title III of the ADA by discriminating against patrons with disabilities similar to Plaintiff. See [id. at ¶¶ 34-36, 38-41]; see also 42 U.S.C. § 12182(a). Plaintiff seeks declaratory relief; injunctive relief in the form of a preliminary and permanent injunction requiring Kai to remove all barriers to the use of its PPA by persons with disabilities and ordering Kai to undertake the necessary alterations to make its PPA accessible to individuals with disabilities; as well as attorney's fees and costs. [Id. at 8].

         Defendant filed the instant Motion on June 14, 2017. [#17]. Defendant seeks dismissal of Plaintiff's Complaint in its entirety because Plaintiff's claims are moot, as Kai completed remedial measures to ensure compliance with the Act, and Plaintiff's claims are either false or brought against the wrong person and/or entity. [Id. at 1-2]. Plaintiff filed a Response and Defendant a Reply. [#21; #22]. Upon receipt of Defendant's Reply, the court permitted Ms. Mize to file a sur-reply to address the new issues raised by Defendant in its Reply, as well as to help guide the court's determination as to whether the Motion to Dismiss should be converted to one for summary judgment. [#23]. Plaintiff filed her Sur-Reply on August 18, 2017. [#27].[2]Upon review of the Parties' briefs and the applicable case law, this court determines that oral argument would not materially assist in the resolution of the instant motion.


         I. Rule 12(b)(1)

         Federal courts are courts of limited jurisdiction and, as such, “are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party. 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).

         Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may bring either a facial or factual attack on subject matter jurisdiction, and a court must dismiss a complaint if it lacks subject matter jurisdiction. See generally Pueblo of Jemez v. United States, 790 F.3d 1143, 1147 n.4 (10th Cir. 2015). For a facial attack, the court takes the allegations in the Complaint as true; however, when reviewing a factual attack, the court may not presume the truthfulness of the Complaint's factual allegations and may consider affidavits or other documents to resolve jurisdictional facts. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). The burden of establishing jurisdiction rests with the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

         II. Mootness

         Mootness is a threshold issue as federal court jurisdiction depends on a live case or controversy-without a live, concrete controversy, the court cannot consider the plaintiff's claim(s) no matter how meritorious. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1110 (10th Cir. 2010). “If an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point during litigation, the action can no longer proceed and must be dismissed as moot.” Brown v. Buhman, 822 F.3d 1151, 1165 (10th Cir. 2016) (internal quotations omitted) (quoting Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1528 (2013)). Thus, the inquiry focuses on whether the court's determination of the issues will have “some effect in the real world.” Wyoming v. U.S. Dep't of Argic., 41 F.3d 1207, 1212 (10th Cir. 2005) (internal quotations and citation omitted).

         However, there is an exception to mootness when the defendant voluntarily ceases the challenged conduct for purposes of evading judicial review, but is free to continue the challenged conduct once the court dismisses the case as moot. Brown, 822 F.3d at 1166. The defendant bears the “formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Already, LLC v. Nike, Inc., 133 S.Ct. 721, 727 (2013) ...

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