United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
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
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]. 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].
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].
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].
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].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
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)).
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).
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).
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) ...