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Dunn v. Eagle Holdings, LLC

United States District Court, M.D. Alabama, Northern Division

February 23, 2015

PATRICK DUNN, Plaintiff,
EAGLE HOLDINGS, LLC, et al., Defendants.


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, [1] 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...."[2] (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."[3] ( 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[4] and for a hearing (Doc. 26); (2) Plaintiff's motion to strike pursuant to Fed.R.Civ.P. 26(a)(2) "Exhibit G"[5] 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"[6] (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, "[7] 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.[8] (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 Troiano v. Supervisor of Elections in Palm Beach County, Fla., 382 F.3d 1276, 1281-82 (11th Cir. 2004)).

However, "[t]he doctrine of voluntary cessation provides an important exception to the general rule that a case is mooted by the end of the offending behavior, " [ Troiano, 832 F.3d] at 1282... It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. If it did, the courts would be compelled to leave the defendant free to return to his old ways. In accordance with this principle, the standard we have announced for determining whether a case has been mooted by the defendant's voluntary conduct is stringent: A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.

Sheely, 505 F.3d at 1183-84 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)) (emphasis in original).

"The formidable, ' heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.'" Id. at 1184 (quoting Laidlaw, 528 U.S. at 189, 190). "A defendant's assertion that it has no intention of reinstating the challenged practice does not suffice to make a case moot and is but one of the factors to be considered in determining the appropriateness of granting an injunction against the now-discontinued acts." Id. (internal citations and marks omitted).

Defendants miss their heavy burden by a wide margin. In the motion to dismiss, Defendants assert and provide evidence that they employed a contractor to "remove the alleged architectural barriers"; however, Defendant explains that those barriers were not removed at the time of the filing of the motion and were not expected to be remediated for some months. (Doc. 26 at ¶¶ 22-24). Defendants have not met their basic burden under Sheely to show that the "challenged conduct cannot reasonably be expected to start up again" as they had not yet remedied the conduct that Plaintiff complains of at the time the motion was filed.[9] As it was absolutely clear that this action was not moot at the time the motion was brought, Defendants' motion to dismiss for lack of subject matter jurisdiction is due to be DENIED.

C. Plaintiff's Motion for Summary Judgment

Plaintiff moves for summary judgment on his claim that Defendants have violated and continue to violate Title III of the ADA at Liberty. Plaintiff addresses the merits of his claim, seeks entry of summary judgment declaring Defendants in violation of the ADA, and requests the entry of an injunction to bring Liberty into compliance.

Title III of the ADA provides that:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a). "Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals." PGA Tour, Inc. v. Martin, 531 U.S. 661, 674 (2001). The purpose of the ADA is, therefore, remedial and not punitive.

In light of Defendant's decision not to oppose the motion for summary judgment on its merits, Plaintiff's evidence in support of the motion, and Defendants' admissions and evidence of record that they have sought to remove architectural barriers at Liberty in an effort to provide Plaintiff all the relief he seeks in this litigation, there is quite probably not a dispute of material fact that Defendants were not in compliance with the ADA at the time Plaintiff filed this case or his motion for summary judgment. However, because Defendants' opposition to Plaintiff's motion for summary judgment challenges the subject matter jurisdiction of this court, the merits of Plaintiff's motion are not reached herein.

Defendants only challenge to Plaintiff's motion for summary judgment is a repetition that this case is moot. Defendants assert that, as of December 30, 2014, they are satisfied that "all of the Plaintiff's alleged barriers to entry" have been remediated. (Doc. 39 at p. 4). According to Plaintiff, Defendants did not notify Plaintiff's counsel of the completion of remediation efforts until December 31, 2014. (Doc. 43). All discovery in this action was due to be completed that same day, and this matter was previously set for a final pretrial conference on January 23, 2015. The timing of Defendants' determination that Liberty is presently ADA compliant did not allow Plaintiff an opportunity to make an independent assessment of conditions at the property within the discovery deadline.[10]

The evidence Defendants rely upon in support of their assertion that they removed or repaired all barriers at Liberty is the aforementioned Exhibit G and ADA Checklist, which are limited to providing measurements and photographs purporting to represent conditions at Liberty, and an affidavit from the store manager at Liberty. Plaintiff notes that the ADA Checklist and photographs are inconsistent with his evidence of record, which includes Plaintiff's expert's opinions and Plaintiff's affidavit that ADA violations at Liberty have not been remediated.

Despite the disputed evidence and the court's reservations that Defendants can meet their high burden to show mootness on the record at this juncture, because subject matter jurisdiction is a threshold matter, the court must first assure itself of jurisdiction before reaching the merits of the Plaintiff's claim. See Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005); Univ. of S. Ala. v. The Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). Moreover, as the purpose of the ADA is remedial and the presumed goal of this case is to bring Liberty into compliance with the ADA, the proper course of action is to defer ruling on Plaintiff's motion for summary judgment to allow an assessment of the present conditions at Liberty. This course of action is necessary so that the court can satisfy itself of subject matter jurisdiction over this controversy before reaching the merits. To that end, discovery will be reopened for the limited purpose of gathering evidence on the issue of mootness.


Consistent with the foregoing, it is ORDERED as follows:

(1) Plaintiff's motions to strike (Docs. 32 & 52) are GRANTED to the extent that the exhibits will not be permitted as expert testimony or for any other purpose than that discussed supra.

(2) To the extent that Plaintiff's second motion to strike (Doc. 52) requests leave of court to file a reply brief in support of his motion for summary judgment, that request is MOOT as Plaintiff subsequently filed such a brief.

(3) Defendants' motion to dismiss or, in the alternative, motion for summary judgment (Doc. 26) and motion for a hearing (Doc. 27) are DENIED.

(4) The court DEFERS ruling on Plaintiff's motion for summary judgment (Doc. 33) until subject matter jurisdiction over this action can be assured.

(5) The Plaintiff's and Defendants' requests for an award of prevailing party's attorney's fees and costs are premature. The parties are ORDERED to refrain from filing a motion for attorney's fees under the theory that the party is a prevailing party until final judgment has been entered by the court.[11]

(6) Defendants' request for attorney's fees and costs based on allegations of bad faith by Plaintiff's counsel are not properly before the court in that they have not been submitted in the form of a separate motion, but are embedded in the body of briefing related to the motion to dismiss and motion for summary judgment.[12] As such, the request will not be considered.

(7) Consistent with the court's inherent authority to control the pretrial management of litigation in accordance with Fed.R.Civ.P. 16 and on consideration of the material issues presented in this case and Defendants' renewed challenge to the court's subject matter jurisdiction, a short period of limited discovery to ascertain the effects of Defendants' ADA remediation efforts at Liberty is appropriate and necessary. Such discovery, in addition to assuring the court's subject matter jurisdiction, may very well limit the matters in dispute between the parties or could lead to the resolution of this case altogether. Plaintiff and his retained expert are granted leave to inspect Liberty by March 16, 2015, for the purpose of determining what, if any, ADA violations remain at issue in this litigation in light of Defendants' counsels' representations that the property is ADA compliant and that all relief requested by Plaintiff has been satisfied. Defendants shall attend the inspection, and shall make the subject property available at a time mutually convenient and agreeable to the parties, Plaintiff's counsel, and counsel of record. If the parties cannot agree on a date and time for the inspection, the parties are ORDERED to inspect Liberty at 10:00 a.m. on March 16, 2015.

(8) The parties are ORDERED to confer face-to-face and to file a joint status report, by March 30, 2015, setting forth their areas of agreement, if any, regarding the ADA compliance status of Liberty as it relates to Plaintiff's Title III ADA claim and his requests for injunctive relief. Where the parties disagree, they shall set forth, in separate sections, their points of disagreement and the factual and legal basis of that party's position. The parties shall also state whether they believe further mediation efforts will assist them to resolve any remaining issues presented in this litigation. If a party wishes to submit additional briefing on the issue of mootness, the party must file a motion seeking leave from the court to submit such a brief.

After the joint status report is filed, the court will issue a separate order on the issue of subject matter jurisdiction.


A copy of this checklist is available at the website for the USCA, 11th Circuit at Effective on December 1, 2013, the new fee to file an appeal will increase from $455.00 to $505.00.


1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:

(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions..." and from "[i]nterlocutory decrees... determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).

2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:

(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD-no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.

4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

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