United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Plaintiff's Motion for
Leave to File His First Amended Class Action Complaint. (Doc.
# 26). In the motion, Plaintiff seeks leave to amend his
Complaint pursuant to Federal Rule of Civil Procedure
15(a)(2). Defendant opposes the motion on the grounds that
amendment is futile because this case is moot. The court
disagrees. And, because the case is not moot, justice
requires the court to “freely give leave” for
Plaintiff to amend his Complaint. Fed.R.Civ.P. 15(a)(2).
Plaintiff's motion to amend is therefore due to be
Willie Moody, Jr. commenced this action against Circle K
Stores, Inc. (“Circle K”) on March 20, 2018,
asserting a single claim under Title III of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §
12181 et seq., and seeking declaratory and
injunctive relief. (Doc. # 1). On August 1, 2018, the court
held a scheduling conference in this case. (Doc. # 25).
Following the scheduling conference, the court ordered the
parties to meet to inspect Defendant's premises and gave
the parties until September 14, 2018 to join additional
parties and to amend the pleadings. (Id.). On
September 14, 2018, Plaintiff moved for leave to file his
First Amended Class Action Complaint (“Amended
Complaint”). (Doc. # 26). Defendant opposes the motion.
(Doc. # 30).
proposed Amended Complaint, Moody and three other named
plaintiffs seek relief on behalf of themselves and a class of
similarly situated individuals who use wheelchairs for
mobility. (Doc. # 26-1 at ¶ 73). Specifically,
Plaintiffs seek a permanent injunction directing Circle K and
its parent company, Alimentation Couche-Tard, Inc., to remove
the architectural barriers described in the Amended Complaint
and to bring their facilities into full compliance with the
ADA. (Doc. # 26-1 at 62). The architectural barriers
described in the Amended Complaint include both barriers
outside of Circle K Stores and barriers within the interiors
of the stores. (Id. at 25-53). For example,
Plaintiff seeks the remediation of external barriers such as
the lack of an accessible route from the nearest fuel
dispenser to the store entrance, the non-level surfaces of
designated handicap-accessible parking spaces, and the
distance of some designated handicap-accessible parking
spaces from the store entrance. (Id.). Additionally,
Plaintiff seeks the remediation of internal barriers such as
self-service beverage dispensers that exceed maximum
reach-range requirements, counters and self-service shelves
for food, condiments, and tableware that exceed maximum
reach-range requirements, and cashier counters that exceed
maximum reach-range requirements. (Id.).
to this litigation, Circle K entered into a settlement
agreement to resolve a previous ADA lawsuit against it:
Badger v. Circle K Stores, Inc., No.
2:16-cv-01185-DSC-RCM (W.D. Pa. filed Aug. 8, 2016). Under
the terms of the agreement (the “Badger
Agreement”), Circle K agreed to “spend up to
$500, 000.00 per year to maintain or achieve substantial
compliance with the ADA related to accessibility of common
areas, parking lots, and access routes, as well as, interior
accessibility features, of its Retail Stores in the United
States . . . .” (Doc. # 30-1 at 8, § 4.1). The
settlement agreement provided for a compliance period of
fifteen years from the agreement's effective date
(Id. at 9, §§ 4.3, 4.4), and the district
court retained jurisdiction to enforce the settlement,
see Badger, No. 2:16-cv-01185-DSC-RCM (Doc. # 19).
Circle K argues the Badger Agreement renders
Plaintiff's proposed Amended Complaint moot and thus that
leave to amend should be denied as futile.
Standard of Review
federal court “should freely give leave” to amend
a pleading “when justice so requires.”
Fed.R.Civ.P. 15(a)(2). This standard requires district courts
to grant leave to amend a judicial complaint “[i]f the
underlying facts or circumstances relied upon a by a
plaintiff may be a proper subject of relief.” Foman
v. Davis, 371 U.S. 178, 182 (1962). The denial of an
opportunity to amend a pleading must be justified by some
reason, “such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of amendment.” Id. A
district court may deny leave to amend a complaint because of
futility if it concludes that the proposed amended complaint
would not survive a motion to dismiss. Coventry First,
LLC v. McCarty, 605 F.3d 865, 870 (11th Cir. 2010).
K claims Plaintiff's proposed Amended Complaint is futile
because it is moot and thus urges the court to deny Plaintiff
leave to amend. In particular, Circle K contends that
Plaintiff's Amended Complaint is rendered moot by the
settlement of a previous ADA lawsuit against Circle K:
Badger v. Circle K Stores, Inc., No.
2:16-cv-01185-DSC-RCM (W.D. Pa. filed Aug. 8, 2016). The
Badger Agreement required Circle K to “spend
up to $500, 000.00 per year to maintain or achieve
substantial compliance with the ADA related to accessibility
of common areas, parking lots, and access routes, as well as,
interior accessibility features, of its Retail Stores in the
United States . . . .” (Doc. # 30-1 at 8, § 4.1).
Because the settlement covered all of Circle K's
U.S. stores, Circle K argues the settlement provides
Plaintiff with all the relief he seeks in this lawsuit and
therefore renders this case moot. See Troiano v.
Supervisor of Elections, 382 F.3d 1276, 1282 (11th Cir.
2004) (“[A] case is moot when it no longer presents a
live controversy with respect to which the court can give
case is controlled by Haynes v. Hooters of Am., LLC,
893 F.3d 781 (11th Cir. 2018). There, a visually impaired
plaintiff who used software to read and navigate internet
websites sued Hooters restaurants under the ADA because its
website was not compatible with the plaintiff's software.
Hooters, 382 F.3d at 782-83. The plaintiff sought an
injunction requiring Hooters to (1) alter its website to make
it accessible to, and usable by, individuals with
disabilities to the full extent required by the ADA and (2)
continually update and maintain its website to ensure that it
remains fully accessible to, and useable by, visually
impaired individuals. Id. at 783. Hooters argued the
plaintiff's case was moot because of a prior settlement
agreement that resolved an earlier lawsuit against Hooters.
Id. The settlement agreement required Hooters to
place an accessibility notice on its website within six
months and to improve access on its website within twelve
months to conform to the recognized industry standard for
website accessibility. Id. Based on the prior
settlement agreement, the district court dismissed the
plaintiff's complaint as moot. Id.
Eleventh Circuit reversed, holding that the case was not moot
for three separate reasons. First, though Hooters may well
have been in the process of updating its website to comply
with the ADA, there was “nothing in the record
demonstrating that Hooters [had] successfully done so.”
Id. at 384. The court thus concluded that “it
cannot be said that the issues are no longer ‘live'
or that the parties lack a legally cognizable interest in the
outcome.” Id. Second, some of the relief the
plaintiff sought in the instant lawsuit was different from
the relief afforded by the prior settlement. Id.
Nothing in the prior settlement required Hooters to
“continually update and maintain its website
to ensure that it remains fully accessible, ” as the
injunction the plaintiff sought would have. Id.
(emphasis in original). Thus, even if the prior settlement
supplied the plaintiff with much of the relief he sought,
there was “still a live controversy about whether [the
plaintiff could] receive an injunction to force Hooters to
make its website ADA compliant or to maintain it as
such.” Id. Third and finally, the plaintiff
was not a party to the prior settlement agreement and thus
could not enforce the agreement if Hooters chose not to
remediate its website in accordance with the agreement.
the reasons explained in Hooters, Plaintiff's
proposed Amended Complaint is not moot. There is nothing in
the record indicating that Circle K has fully remediated the
specific alleged ADA violations at the particular stores
mentioned in Plaintiff's Amended Complaint. (And indeed,
it would be surprising if Circle K had, given the
fifteen-year compliance period in the Badger
Agreement.) Moreover, the Badger Agreement only
requires Circle K to spend up to $500, 000 annually to
remediate ADA violations at its stores, which does not in any
way guarantee that the specific violations at particular
stores Plaintiff complains of will be remedied within the
fifteen-year compliance period. The Badger Agreement did
not “‘grant the precise relief sought by
[Plaintiff] in this case'” and therefore does not
moot this case. Id. (quoting Wright v.
Giuliani, 230 F.3d 543, 547 (2d Cir. 2000)). Finally,
Plaintiff was not a party to the Badger Agreement
and so cannot enforce the agreement should Circle K fail to
comply with it.
K attempts to distinguish the Badger Agreement from
the prior settlement agreement in Hooters on the
grounds that the Badger court retained jurisdiction
to enforce the settlement whereas the prior district court in
Hooters did not. Hooters, 382 F.3d at 783.
But though the Hooters court noted in its statement
of the facts that the district court overseeing the prior
settlement did not retain jurisdiction to enforce the
settlement, it did not rely on that fact in its analysis
section at all. Id. at 783-84. Instead, the court
relied solely on the fact that the plaintiff was not a party
to the prior settlement agreement and thus could not enforce
the agreement (even if the district court had retained
jurisdiction) in concluding that the case was not moot.
Id. at 784-85. And in any event, the first two
reasons given by the Hooters court (a lack of record
evidence showing that the ...