United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
PAUL W. GREENE, Magistrate Judge.
This is an action for declaratory and injunctive relief under Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq. Plaintiff Patrick Dunn, through his counsel of record, seeks redress from Defendants Eagle Holdings, LLC, and S&S Eagles, LLC,  for architectural barrier violations of the ADA. The property at issue in this litigation is located in Prattville, Alabama, and does business as Liberty Gas Station and Bama Package Store (hereinafter "Liberty"). It is undisputed that Defendants own and operate Liberty. Plaintiff alleges that he is a person with a qualifying disability who travels to Prattville every two weeks to visit his child, and that he desires to visit Liberty in the future. (Doc. 1 at ¶ 3). Plaintiff asserts that he is disabled within the meaning of the ADA because he "requires a wheelchair for mobility as well as suffering other disabilities...." (Doc. 1 at ¶ 3). He avers that he is barred from patronizing Liberty because of "barriers" that deny him "full, safe and equal access because of [Defendants'] continuous refusal to remove the barriers." ( Id. ).
The period for discovery and dispositive motions has expired, and the parties were unsuccessful in their attempts to settle their dispute through mediation. Before the court are the following motions: (1) Defendants' motion to dismiss or, in the alternative, motion for summary judgment and for a hearing (Doc. 26); (2) Plaintiff's motion to strike pursuant to Fed.R.Civ.P. 26(a)(2) "Exhibit G" to Defendants' motion to dismiss or, alternatively, for summary judgment (Doc. 32); (3) Plaintiff's motion for summary judgment (Doc. 33); and (4) Plaintiff's motion to strike expert testimony offered by Defendants and for leave to file a reply in opposition to "Defendant's Brief in Opposition to Plaintiff's Motion for Summary Judgment and Supplement to Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment" (Doc. 52). Plaintiff and Defendants also request an award of attorneys' fees and costs, but neither party has filed a motion to that end.
On January 29, 2015, with the written consent of the parties, this case was assigned to the undersigned to exercise jurisdiction over all matters pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. (Doc. 55). The aforementioned motions are deemed under submission on the record and without oral argument. Neither party contests Plaintiff's standing to bring this action, and the court finds sufficient allegations and evidence to support standing. Subject matter jurisdiction over this controversy, however, is in doubt.
A. Motions to Strike - Evidentiary Matters
Prior to proceeding to a discussion of the parties' motions, certain evidence of record must be properly cabined. Defendants submitted a limited report and a written form by an engineer purporting to address the condition of the Liberty property. Those exhibits speak directly to the engineer's impressions about the property's compliance or lack thereof with the ADA. Those submissions are referred to in Plaintiff's motions to strike as Exhibit G and the "ADA Checklist for Readily Achievable Barrier Removal, " which Defendants filed in opposition to Plaintiff's motion for summary judgment. (Docs. 26-7, 39-10, 39-11 & 39-12).
Plaintiff moves to strike both exhibits as improper expert testimony. The crux of Plaintiff's argument is that Defendants neglected to disclose the identity of the expert who prepared the documents in accordance with Federal Rule of Civil Procedure 26 and the court's scheduling order. In a manner inconsistent with Defendants' reliance on those exhibits in support of its argument that all ADA barriers at Liberty are remedied, Defendants respond to Plaintiff's motions to strike by conceding that they are not offering the evidence as expert testimony or evidence under Rule 702, Federal Rules of Evidence. (Doc. 53 at p. 3).
In Defendants' opposition to the motions to strike, Defendants expressly clarify that they offer Exhibit G to show only that an inspection of Liberty took place at Defendants' direction, "not for the information, opinions, or facts contained therein." (Doc. 53 at p. 3). The ADA Checklist for Readily Achievable Barrier Removal is offered as evidence of "facts relating to physical conditions" at Liberty with respect to certain measurements and physical conditions. (Doc. 53 at pp. 4-7).
Defendants do not dispute that they did not timely disclose an expert in keeping with Fed.R.Civ.P. 26 and the scheduling order. Accordingly, and in light of Defendants' concession that they are not offering the evidence as expert testimony, Plaintiffs' motions to strike are due to be GRANTED IN PART. The exhibits at issue will not be admitted as expert testimony establishing that Defendants are in compliance with the ADA.
B. Defendants' Motion to Dismiss Due to Mootness
Defendants' motion seeks dismissal for lack of subject matter jurisdiction based on mootness. While the motion is brought as a motion for summary judgment in the alternative, the Eleventh Circuit has "repeatedly said that when a district court disposes of a case on justiciability (mootness) grounds we will treat the district court's determination as if it was ruling on a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), even if the district court mistakenly has labeled its ruling a grant of summary judgment." Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 (11th Cir. 2007). Therefore, Defendants' motion will be assessed under the framework for a Rule 12(b)(1) challenge to subject matter jurisdiction due to mootness.
This district recently set forth the appropriate standard of review for a Rule 12(b)(1) motion as follows:
A Rule 12(b)(1) motion to dismiss may assert either a factual attack or a facial attack to jurisdiction. McElmurray v. Consol. Gov't of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007); Fed.R.Civ.P. 12(b)(1). Facial attacks challenge subject matter jurisdiction based on the complaint's allegations. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990). On the other hand, a factual attack challenges "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Id.
Professional Helicopter Pilots Ass'n Local 102 v. U.S. Dep't of the Army, 2013 WL 6837555, at *4 (M.D. Ala. Dec. 26, 2013). This case presents a factual attack such that examination of evidence and matters outside the pleadings is appropriate.
The Eleventh Circuit's holding in Sheely, an ADA case on the issue of mootness, is binding and directly on point to Defendants' motion. In Sheely, a district court granted summary judgment on the basis that the defendant voluntarily ceased activities that were alleged to be in violation of the ADA. See id. at 1177. The district court held that the voluntary cessation rendered the action moot and, thus, deprived the court of subject matter jurisdiction. Id. at 1182. The Eleventh Circuit reversed the district court's holding, and articulated the legal standard and burden of proof a defendant must navigate to succeed on a mootness challenge. Id. at 1177.
"Whether a case is moot is a question of law[.]" Sheely, 505 F.3d at 1182. A "case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief. If events that occur subsequent to the filing of a lawsuit... deprive the court of the ability to give the plaintiff... meaningful relief, then the case is moot and must be dismissed." Id. at 1183 (quoting ...