Smith v. Bradley Pizza, Inc.

Decision Date14 May 2018
Docket NumberCase No. 17–cv–2032 (WMW/KMM)
Citation314 F.Supp.3d 1017
Parties Scott SMITH, Plaintiff, v. BRADLEY PIZZA, INC., and Pamela M. Dahl, Defendants.
CourtU.S. District Court — District of Minnesota

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

Edward Peter Sheu, John A. Sullivan, Best & Flanagan LLP, Minneapolis, MN, for Defendants.


Wilhelmina M. Wright, United States District Judge

Plaintiff Scott Smith alleges numerous violations of the Americans with Disabilities Act arising from architectural barriers located at a Domino's Pizza restaurant. Before the Court are the motions of Defendants Bradley Pizza, Inc., and Pamela M. Dahl to dismiss Smith's complaint. (Dkts. 29, 64.) Also before the Court is Smith's appeal of the January 24, 2018 Order of United States Magistrate Judge Katherine M. Menendez, which denied Smith's motion for service-of-process expenses and attorneys' fees, as well as his request for leave to amend the complaint. (Dkts. 72, 87.) For the reasons addressed below, the Court denies Defendants' motions to dismiss and affirms the January 24 Order.


Smith, who has a disability that requires him to use a wheelchair for mobility, visited a Domino's Pizza franchise (Domino's) located in Red Wing, Minnesota, on May 25, 2017. When he arrived at the location, Smith found that the parking lot did not contain enough accessible parking spaces, and the sole parking space marked as accessible was not designated by a sign, was not adjacent to an access aisle, and was not located on an accessible route to the Domino's entryway. Smith also alleges that the threshold to the entryway appeared to be higher than .5 inches. These architectural barriers deterred Smith from patronizing the Domino's, but he plans to return to the Domino's when the architectural barriers are removed.

Smith commenced this action against Defendant Bradley Pizza, Inc., a corporation that owns and operates the Domino's, and Defendant Pamela M. Dahl, who owns the property on which the Domino's is located (the property). Smith alleges that the architectural barriers listed in the complaint violate the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. , and he seeks a declaratory judgment, injunctive relief, and attorneys' fees and costs. Bradley Pizza answered the complaint on July 7, 2017. After Bradley Pizza advised the Court that it intended to move to dismiss Smith's complaint for mootness because it had brought the property into compliance with the ADA, the magistrate judge stayed all other pretrial litigation pending the resolution of the mootness issue. Shortly thereafter, Smith sought leave to move to amend his complaint. Because all matters unrelated to mootness had been stayed, the magistrate judge denied Smith's request, which this Court subsequently affirmed. Bradley Pizza moved to dismiss for lack of jurisdiction on November 10, 2017; and Dahl, who was not served with the complaint until December 14, 2017, moved to dismiss for lack of jurisdiction and failure to state a claim on January 4, 2018.

Smith subsequently moved for an award of service-of-process expenses, as well as the attorneys' fees he incurred filing the motion for expenses, because Dahl allegedly failed to waive service of process. Although the mootness issue had not been resolved and all other pretrial matters were stayed, Smith also sought leave to amend the complaint. In the January 24 Order, the magistrate judge denied both the motion for service-of-process expenses and attorneys' fees and the request for leave to amend the complaint. The magistrate judge reasoned that "the first thing that should be decided in this case is whether the Defendants have ... remedied the issues that were specifically identified in the complaint." The magistrate judge explained that, should this Court deny the motions to dismiss, Smith will be permitted to amend the complaint. Smith timely appealed the January 24 Order.


Bradley Pizza moves to dismiss the complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). However, any motion to dismiss under Rule 12(b)"must be made before pleading if a responsive pleading is allowed." Fed. R. Civ. P. 12(b). The Court generally construes a motion to dismiss filed after a responsive pleading as a motion for judgment on the pleadings. See Fed. R. Civ. P. 12(c) ; accord St. Paul Ramsey Cty. Med. Ctr. v. Pennington Cty. , 857 F.2d 1185, 1187 (8th Cir. 1988). Because Bradley Pizza filed an answer to Smith's complaint before moving to dismiss the complaint, the Court construes this motion to dismiss as a motion for judgment on the pleadings.

I. Subject–Matter Jurisdiction

Defendants move to dismiss and for judgment on the pleadings for lack of subject-matter jurisdiction on two grounds—standing and mootness. 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) ; Faibisch v. Univ. of Minn. , 304 F.3d 797, 801 (8th Cir. 2002).

When deciding a motion for dismissal or judgment on the pleadings 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 defendant's 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 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 motion to dismiss for failure to state a claim were before the court. Osborn , 918 F.2d at 729 n.6. By contrast, a defendant's factual attack challenges the existence of subject-matter jurisdiction. Branson Label , 793 F.3d at 914–15. When ruling on a factual attack, the court considers matters outside the pleadings, and the nonmoving party proceeds without "the benefit of 12(b)(6) safeguards." Osborn , 918 F.2d at 729 n.6 ; see also Disability Support All. v. Geller Family Ltd. P'ship III , 160 F.Supp.3d 1133, 1135–39 (D. Minn. 2016) (applying factual attack standard in an ADA case and considering declarations attached to pleadings). Here, Dahl asserts a facial challenge to Smith's standing because her challenge concerns, in part, the sufficiency of the pleadings. And Defendants both assert a factual challenge to subject-matter jurisdiction on mootness grounds, arguing that Defendants adequately remedied the barriers to access identified in the complaint.

A. Standing

Dahl argues that Smith lacks standing because he is unlikely to return to the property and, therefore, he does not face any imminent threat of future harm. Smith relies on the pleadings to counter this argument. In the complaint, Smith states his intention to return to this Domino's location as soon as it complies with the ADA.

To satisfy the case-or-controversy requirement of Article III, a plaintiff must establish standing as an "indispensable part of the plaintiff's case." Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; accord Hargis v. Access Capital Funding, LLC , 674 F.3d 783, 790 (8th Cir. 2012). To meet this standing requirement, the plaintiff must (1) have suffered an injury in fact, (2) establish a causal relationship between the contested conduct and the alleged injury, and (3) show that a favorable decision would redress the injury. Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130 ; accord Hargis , 674 F.3d at 790. Because Dahl does not contest the causality or redressability prongs of the standing inquiry, only the injury-in-fact requirement is at issue.

To allege an "injury in fact" that confers standing to seek injunctive relief, a plaintiff must face a threat of ongoing or future harm. Park v. Forest Serv. of the U.S. , 205 F.3d 1034, 1037 (8th Cir. 2000). For an ADA claim, a party's intention to return to a facility that allegedly contains architectural barriers is a threat of future harm that is an injury in fact. See Sawczyn v. BMO Harris Bank Nat'l Ass'n , 8 F.Supp.3d 1108, 1111 (D. Minn. 2014). When determining whether a plaintiff intends to return to a property that contains architectural barriers, courts consider factors such as the plaintiff's proximity to the facility, the frequency of the plaintiff's nearby travel, the plaintiff's past patronage, and the definiteness of the plaintiff's plans to return. Id. at 1112. "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice...." Lujan , 504 U.S. at 561, 112 S.Ct. 2130.

Smith lives in Burnsville, Minnesota, which is approximately 45 miles from the Domino's in Red Wing, Minnesota. Smith does not allege that he visited the Domino's prior to the May 2017 visit, nor does he allege that he frequently travels to Red Wing. However, Smith alleges that he "plans to return and patronize ‘Domino's Pizza’ when he learns that the premises have been made fully accessible to persons who use wheelchairs for mobility." At this early stage in the litigation, a general allegation of intent to return can meet the requirement for threat of future harm, even when a plaintiff pleads no facts indicating regular or frequent patronage. See Sawczyn , 8 F.Supp.3d at 1112 (explaining that plaintiff's allegations need only support an inference "that he might reasonably be expected to visit [the facility] again"). Because Smith asserts that he intends to return to the Domino's at a specific point in...

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