Bacon v. Walgreen Co., 2015 U.S. Dist. LEXIS 35184

Asa Bacon, a paraplegic wheelchair user, sued Walgreens after his wheelchair reportedly struck narrow electronic security sensors at a Hempstead, NY Walgreens exit on Oct. 28, 2012, allegedly fracturing his tibia. Plaintiff alleged sensors were 32–33 inches apart and that ADA requires 36 inches.
Complaint (filed Jan. 21, 2014) sought injunctive and declaratory relief under Title III of the ADA and related New York claims; no federal monetary damages were sought.
Walgreens moved to dismiss for lack of subject‑matter jurisdiction, submitting affidavits that on April 29, 2014 it had bolted and permanently relocated the sensors so they are more than 36 inches apart.
Plaintiff moved for partial summary judgment; later raised (and then conceded) an unrelated challenge to the width of metal door poles and acknowledged current configuration complies with the ADA.
Court considered voluntary remediation and whether the ADA claim was moot; plaintiff argued recurrence was possible (e.g., sensors moved during future carpeting), supported by an architect’s affidavit. Walgreens countered with affidavits showing sensors historically bolted and not moved.
Court concluded Walgreens’ remedial measures rendered the ADA claim moot, declined supplemental jurisdiction over state law claims, denied plaintiff’s summary judgment motion, and allowed plaintiff 30 days to state whether diversity jurisdiction exists.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff’s Title III ADA claim is moot after Walgreens’ remediation	ADA claim remains live because sensor placement might recur (e.g., during future re‑carpeting)	Claim is moot because Walgreens permanently relocated and bolted sensors >36" apart, eliminating barrier	Moot; ADA claim dismissed for lack of subject‑matter jurisdiction
Whether voluntary remediation met the two‑part test for mootness (no reasonable expectation of recurrence; effects irrevocably eradicated)	Speculative recurrence (every ~5 years carpeting) undermines mootness	Remediation bolted sensors; no evidence Walgreens intends to move them; historically they were bolted and not moved	Walgreens met burden; plaintiff’s speculative risk insufficient to avoid mootness
Whether plaintiff is entitled to attorney’s fees despite mootness	Fees interest argued but tied to underlying claim	Voluntary remediation does not make plaintiff prevailing party; Buckhannon requires judicially‑sanctioned change	Plaintiff not prevailing party; no fee award basis
Whether the court should retain supplemental jurisdiction over state law claims	Plaintiff seeks injunctive/state relief in federal court	Defendant sought dismissal of federal claims; court may decline supplemental jurisdiction	Court declines to exercise supplemental jurisdiction and dismisses state claims without prejudice; invites letter on possible diversity jurisdiction

Aurecchione v. Schoolman Transp. Sys., 426 F.3d 635 (2d Cir. 2005) (plaintiff bears burden to prove subject‑matter jurisdiction)
Makarova v. United States, 201 F.3d 110 (2d Cir. 2000) (court may consider evidence outside pleadings in jurisdictional challenge)
Clear Channel Outdoor, Inc. v. City of New York, 594 F.3d 94 (2d Cir. 2010) (two‑part test for mootness after voluntary cessation)
Already, LLC v. Nike, Inc., 133 S. Ct. 721 (U.S. 2013) (case or controversy must exist throughout litigation; burden on defendant claiming voluntary compliance moots case)
Friends of the Earth, Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S. 167 (U.S. 2000) (defendant claiming mootness bears formidable burden)
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (U.S. 2001) (prevailing party for fee statutes requires judicially‑sanctioned change)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment standard)