Westjohn v. Seldin Co.
| Docket Number | 8:21CV252 |
| Decision Date | 31 May 2022 |
| Parties | KARLA ANN WESTJOHN, Plaintiff, v. SELDIN CO., Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the Court on defendant Seldin Co.'s (“Seldin”) motion to dismiss for failure to state a claim and to strike portions of the plaintiff's amended complaint, Filing No. 23, and on Seldin's motion to strike the plaintiff's brief, Filing No 36.[1] This is a pro se action for civil rights violations brought by a blind plaintiff based on conditions in an apartment complex owned and/or operated by the defendant.[2] The plaintiff alleges she was unable to receive packages and unable to access her apartment. The plaintiff asserts jurisdiction based on a federal question under 28 U.S.C. § 1331.
In her 99-page First Amended Complaint, the plaintiff, a former tenant of defendant Seldin, alleges inaccessible package delivery and inaccessible entry to her premises. Filing No 22, First Amended Complaint. She asserts claims for violations of the Rehabilitation Act, 29 U.S.C. § 794, et seq., the Americans with Disabilities Act, 42 U.S.C. § 12102 et seq., the Fair Housing Act, 42 U.S.C. § 3605, the Nebraska Fair Housing Act, Neb. Rev. Stat. § 20-313 et seq. and the Nebraska Civil Rights Act, 20 Neb. Rev. Stat. § 20-127, and she also asserts state law claims for breach of contract and false imprisonment.
The plaintiff alleges that Seldin is a real estate company that owns thousands of apartment complexes in eight states, including Ontario Place in Omaha. Filing No. 22, First Amended Complaint at 3. She alleges that she is blind and moved into an apartment at Ontario Place in 2008. Id. She challenges defendant Seldin's use of Parcel Pending delivery service for packages beginning in 2020, and its implementation of Rently Keyless, a touchscreen keyless entry system, in 2021. Id. at 4-7, 17-18, 21. She contends she has been unable to register for the Parcel Pending service because it is inaccessible to screen readers. Id. at 4-5. She states that she suffered delayed delivery of packages. Id. at 8. Further, she alleges she is unable to register for and utilize the Rently Keyless computer application to gain entry to her apartment and has been locked out.[3] Id. at 17, 19. She states she would have been required to undergo the expense and aggravation of purchasing an iPhone and learning to use the Voice Over app to access the system. Id. at 17-19. She further alleges she could have suffered frostbite and loss of fingers and toes if she were locked out in winter. Id. at 21.
Westjohn states that Seldin did not discuss the Rently Keyless system with the her and the lease does not mention it. Id. at 88. She alleges that as a result of the installation of a new system, it was more difficult for her to gain entry to her building. Id. at 74. She does not allege that she was confined to her apartment.[4]
She also states she moved out of Ontario Place on March 13, 2021. Id. at 8, 22, 80. She currently resides at in Champaign, Illinois. Id. at 1. She acknowledges that she declined to renew her lease in 2021. Id. at 80, 81. She states she intends to return to Omaha because she does not intend to lose touch with friends, plans to attend legal conferences, remains in touch with members of her traditional Catholic parish, and plans to return for worship. Id. at 8-9, 22-23. She does not allege that she intends to return to Omaha to live or to move back to Ontario Place.
Seldin moves to dismiss Westjohn's ADA claims for lack of standing under Federal Rule of Civil Procedure 12(b)(1), and to dismiss the remaining claims, as well as the ADA claim, for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). It argues that the plaintiff lacks standing because she alleges on the face of her First Amended Complaint that she no longer resides at the subject apartment complex.
Further, Seldin argues Westjohn fails to state claims for which relief can be granted. It contends that that the apartment complex, its package delivery system, and access to the fitness room, pool, and clubhouse, are not public accommodations so as to come withing the purview of the ADA's public accommodation clauses. Seldin also argues that the plaintiff has not alleged the breach of any promise so as to state a claim for breach of contract and fails to allege any confinement in order to state a claim for false imprisonment. Further, Seldin contends that Westjohn cannot recover punitive damages for any violation of the state law claims and argues that Westjohn's prayer for punitive damages must be stricken.
For the court to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), “the complaint must be successfully challenged either on its face or on the factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). “In a facial challenge to jurisdiction, all of the factual allegations regarding jurisdiction would be presumed true and the motion could succeed only if the plaintiff had failed to allege an element necessary for subject matter jurisdiction.” Id.[5]“Because jurisdiction is a threshold issue for the court, the district court has broader power to decide its own right to hear the case than it has when the merits of the case are reached.” Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir. 1993) (quoting Osborn v. U.S., 918 F.2d 724 729 (8th Cir. 1990)).
If a plaintiff lacks standing, the district court has no subject matter jurisdiction. Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002). “A dismissal for lack of standing is a dismissal for lack of subject-matter jurisdiction.” Dalton v. NPC Int'l, Inc., 932 F.3d 693, 696 (8th Cir. 2019). Standing is a jurisdictional requirement that can be raised by the court sua sponte at any time during the litigation. Delorme v. United States, 354 F.3d 810, 815 (8th Cir. 2004).
The Constitution limits federal courts to deciding “Cases” and “Controversies.”
Art. III, § 2; see also Carney v. Adams, 141 S.Ct. 493, 498 (2020) (). That limitation requires a plaintiff to have standing. Carney, 141 S.Ct. at 498. The plaintiff has the burden of proving that jurisdiction does in fact exist. Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990).
The requisite elements of Article III standing are well established: A plaintiff must show (1) an injury in fact, (2) fairly traceable to the challenged conduct of the defendant, (3) that is likely to be redressed by the requested relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992); see also Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016). A threat of injury must be both real and immediate not conjectural and hypothetical. Bellecourt, 994 F.2d at 430 (quoting Osborn. 918 F.2d at 729. A plaintiff's “‘some day' intentions--without any description of concrete plans, or indeed even any specification of when the some day will be -- do not support a finding of the ‘actual or imminent injury' that our cases require.” Lujan, 504 U.S. at 564 (1992). Also, a statutory violation, absent concrete injury, does not confer standing. Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016); accord Trans Union LLC v. Ramirez, 141 S.Ct. 2190, 2205 (2021) ().
In addition to meeting Article III standing requirements, the prudential limits of the standing doctrine require that “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Potthoff v. Morin, 245 F.3d 710, 715 (8th Cir. 2001) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975). Prudential standing jurisprudence “represents a ‘healthy concern that if the claim is brought by someone other than one at whom the constitutional protection is aimed,' the courts might be called upon ‘to decide abstract questions” and to render advisory opinions. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004).
The equitable remedy of injunctive relief “is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again....” Los Angeles v. Lyons, 461 U.S. 95, 111 (1983); see also Tracie Park v. Forest Serv. of the United States, 205 F.3d 1034, 1037 (8th Cir. 2000) ( that to satisfy the “injury-in-fact” requirement of standing, a plaintiff must demonstrate a real and immediate threat that he or she would again suffer a similar injury in the future).
“A case becomes moot-and therefore no longer a ‘Case' or ‘Controversy' for purposes of Article III-‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.'” Dalton v. NPC Int'l, Inc., 932 F.3d 693, 695 (8th Cir. 2019) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013); see also Prowse v. Payne, 984 F.3d 700, 702 (8th Cir. 2021) (). A case is considered moot “[w]hen, during the course of litigation, the issues presented in a case ‘lose their life because of the passage of time or a change in circumstances . . . and a federal court can no longer grant effective relief.'” Young Am.'s Found. v. Kaler 14 F.4th 879, 886 ...
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