United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
Smith brings this action against Rachelle E. Morgan a.k.a.
Rachelle Wilson, Center Hill Enterprises, LLC, and Lewis
& Raulerson, Inc. for violations of Title III of the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12181
et seq., and related state law tort claims.
See docs. 1, 26. Wilson and Center Hill have jointly
moved to dismiss the ADA claims pursuant to Federal Rule of
Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction. Doc. 17. The motion, which is fully briefed and
ripe for review, docs. 17, 18, 31, 33, is due to be denied.
STANDARD OF REVIEW
12(b)(1) challenge for lack of subject matter jurisdiction
may take the form of a facial or factual attack on the
complaint. See McElmurray v. Consol. Gov't of
Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir.
2007). A facial attack “‘require[s] the court
merely to look and see if [the] plaintiff has sufficiently
alleged a basis of subject matter jurisdiction' taking
‘the allegations in [her] complaint . . . as
true.'” Id. (quoting 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 . . . are considered.'” Id.
(quoting Lawrence, 919 F.2d at 1529). “[W]hen
a defendant properly [raises a factual] challenge[ ] . . .
‘no presumptive truthfulness attaches to
plaintiff's allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of the jurisdictional
issue.'” Morrison v. Amway Corp., 323 F.3d
920, 925 (11th Cir. 2003) (quoting Lawrence, 919
F.2d at 1529). In a factual attack on subject matter
jurisdiction, “[t]he district court has the power to
dismiss for lack of subject matter jurisdiction on any of
three separate bases: (1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts.”
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.
a district court “should only rely on Rule 12(b)(1)
‘if the facts necessary to sustain jurisdiction do
not implicate the merits of plaintiff's cause of
action.'” Morrison, 323 F.3d at
925 (quoting Garcia v. Copenhaver, Bell &
Associates, 104 F.3d 1256, 1261 (11th Cir. 1997))
(emphasis in original). “When the jurisdictional basis
of a claim is intertwined with the merits, the district court
should apply a Rule 56 summary judgment standard when ruling
on a motion to dismiss which asserts a factual attack on
subject matter jurisdiction.” Lawrence, 919
F.2d at 1530. In other words, “the proper course of
action for the district court . . . is to find that
jurisdiction exists and deal with the objection as a direct
attack on the merits of the plaintiff's case.”
Morrison, 323 F.3d at 925 (quoting
Williamson, 645 F.2d at 413).
action arises out of an incident that occurred when Amber
Smith, her husband, Chad Smith, and their two daughters
visited an Exxon gas station and convenience store in
Hanceville, Alabama that is operated by Center Hill
Enterprises, LLC. Doc. 1 ¶¶ 6, 8, 13. Mrs. Smith is
deaf and has a service dog, Sassy, that assists her with
daily activities. Doc. 1 ¶ 3. On the day the Smiths and
Sassy stopped at the Hanceville Exxon, Ashleigh Chaffin, a
member of Center Hill Enterprises who works at the store,
informed the Smiths that Sassy was not permitted in the
convenience store. Docs. 1 ¶¶ 13-14; 31-1
¶¶ 3-5 (Chad Smith Aff.); 17-2 ¶ 4 (Ashleigh
Chaffin Decl.). When Mr. Smith explained that Mrs. Smith
was deaf and that Sassy was her service animal, Chaffin
requested proof. Docs. 1 ¶¶ 15-17; 31-1
¶¶ 5-7; 17-2 ¶ 4. After Mr. Smith lawfully
refused to provide such proof, Chaffin called the police.
Docs. 1 ¶ 20; 31-1 ¶¶ 6-10; 17-2 ¶ 4.
Allegedly, at this time, Chaffin did not allow the Smiths to
purchase items from the store, did not permit Mrs. Smith to
walk around the store with Sassy, and demanded that the
Smiths leave. Docs. 1 ¶¶ 16-20; 31-1 ¶¶
three Hanceville police officers, including Chief Bob Long,
responded to the store. Docs. 1 ¶ 22; 31-1 ¶ 12;
17-2 ¶ 5. Rachelle Wilson, a Center Hill manager, also
arrived at the store at some point after the police officers.
Doc. 17-1 ¶¶ 3-5. The officers requested proof from
Mr. Smith that Sassy was a service animal,  docs. 1 ¶
23; 31-1 ¶¶ 12-14, which Mr. Smith eventually
provided, docs. 1 at 7; 31-1 ¶ 15. Despite the proof,
the officers and either Chaffin or Wilson allegedly
instructed Mr. Smith to tell Mrs. Smith “to stand at
the entrance with Sassy and not move[.]” Docs. 1 ¶
27; 31-1 ¶¶ 17-18. Ultimately, Mr. Smith paid for
food and drinks and the Smiths left. Docs. 1 ¶ 30; 31-1
¶¶ 17-18. Mrs. Smith has since filed the present
action seeking, in part, injunctive relief and attorney's
fees for alleged violations of Title III of the ADA.
See doc. 1 at 31.
to Wilson and Chaffin, Wilson convened the store's
employees immediately following the incident and explained
that they could not ask for proof that an individual's
animal is a service animal. Docs. 17-1 ¶ 7; 17-2 ¶
7. Subsequently, Wilson also printed and distributed to her
employees a bulletin from the Department of Justice's
website that explains the ADA's service animal-related
requirements, including that “businesses . . . that
serve the public generally must allow service animals to
accompany people with disabilities in all areas of the
facility where the public is normally allowed to go.”
Doc. 17-1 at 5, 11. In addition, after Mrs. Smith filed this
lawsuit, Wilson posted a sign in the front window of the
store that states, “Notice: Service Animals
Welcome.” Docs. 17-1 at 5, 8; 17-2 ¶ 9. Finally,
Wilson and Chaffin aver that, since the Smiths' visit,
the store's practice is to permit service animals without
asking for documentation, and no employees have asked any
questions about service animals or excluded any animal from
the store. Docs. 17-1 ¶¶ 8-10; 17-2 ¶¶
8-9. Wilson asserts that if the Smiths were to return with a
service animal, “they would be permitted in the store
and served without any issues.” Doc. 17-1 ¶ 8.
Whether the Court Should Analyze the Defendants'
Motion Under Federal Rule of Civil Procedure 12(b)(1) or
initial matter, the court must determine whether the motion
to dismiss “implicate[s] the merits of [Mrs.
Smith's] cause of action” and, therefore, should be
converted to a motion for summary judgment under Rule 56.
Morrison, 323 F.3d at 925. In her complaint, Mrs.
Smith alleges that the Defendants, who own and operate a
place of public accommodation, discriminated against her on
the basis of her disability in violation of 42 U.S.C. §
12182. See doc. 1. Allegedly, the
Defendants: (1) improperly inquired about her disability,
demanded proof of a service animal, and excluded Mrs. Smith
from the convenience store and areas within the store where
customers without disabilities were permitted in violation of
28 C.F.R. § 32.302(c)(1), (3), (6)-(7); (2) failed to
make reasonable modifications in their policies, practices,
and procedures to provide Mrs. Smith and individuals with
disabilities equal access to the store in violation of 42
U.S.C. § 12182(b)(2)(A)(ii); and (3) denied Mrs. Smith
“full and equal enjoyment” of the store in
violation of 42 U.S.C. § 12182(a). See
docs. 1 at 5-24; 31 at 7-8. For these alleged violations,
Mrs. Smith seeks an order directing the Defendants to: (a)
modify their policies and practices to comply with the
ADA's requirements for the treatment of individuals with
disabilities who have service animals, and (b) provide Mrs.
Smith “full and equal use and access” to the gas
station and convenience store. Doc. 1 at 31.
Defendants assert that Mrs. Smith's claims for injunctive
relief and attorney's fees are moot because, following
the discriminatory incident in question, they
“immediately modified their practices to comply with
ADA requirements for service animals and have consistently
complied with those requirements.” Doc. 18 at 2;
see docs. 17-1; 17-2. Because the Defendants rely on
witness declarations outside of the pleadings to support
their contentions, their motion is properly characterized as
a factual, rather than a facial, challenge to subject matter
jurisdiction. See McElmurray, 501 F.3d at 1251.
Furthermore, because the Defendants challenge the claims on
mootness grounds solely, this motion does not implicate the
merits of Mrs. Smith's cause of action. See Sheely v.
MRI Radiology Network, P.A., 505 F.3d 1173, 1182 (11th
Cir. 2007) (“[W]hen 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)[.]”); Myrick v. United
States Dep't of Veterans Affairs, No.
2:16CV555-MHT-WC, 2017 WL 1074362, at *6 (M.D. Ala. Mar. 1,
2017) (finding that defendant's motion to dismiss, which
contended that plaintiff's Bivens claim was
moot, did not implicate the merits of plaintiff's claim).
Accordingly, the court will analyze the motion as a factual
attack, considering both the complaint and the evidence in
the record. See Williamson, 645 F.2d at 413.
Whether the ...