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Smith v. Morgan

United States District Court, N.D. Alabama, Northeastern Division

May 1, 2019

AMBER SMITH, Plaintiff,
v.
RACHELLE E. MORGAN, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE

         Amber 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.

         I. STANDARD OF REVIEW

         A 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. 1981).[1]

         However, 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).

         II. BACKGROUND

         This 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.).[2] 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 ¶¶ 6-10.

         Subsequently, 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, [3] 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.

         According 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.

         III. ANALYSIS

         A. Whether the Court Should Analyze the Defendants' Motion Under Federal Rule of Civil Procedure 12(b)(1) or 56

          As an 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.[4] 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);[5] (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);[6] and (3) denied Mrs. Smith “full and equal enjoyment” of the store in violation of 42 U.S.C. § 12182(a).[7] 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.

         The 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.

         B. Whether the ...


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