Burningham v. Costco Wholesale, 2:17-cv-00578

Burningham, who has multiple sclerosis and relies on a wheelchair, filed suit against Costco under Title III of the ADA for the Spanish Fork warehouse.
Plaintiff alleged two ADA violations: mirrors with bottom edge no greater than 40 inches above the ground (Guideline 603.3) and insulation of pipes under sinks (Guideline 606.5); the second allegation was later withdrawn.
Costco was unaware of ADA noncompliance prior to suit and, after litigation, permanently installed full-length mirrors in the men’s, women’s, and unisex restrooms.
The defendant argued the case was moot because the sole violation had been remedied.
The court treated Costco’s Rule 12(b)(1) motion as a factual challenge and converted it to a summary judgment motion because mootness depended on the merits.
Burningham sought discovery and an evidentiary hearing, which the court denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the case moot and thus subject to dismissal for lack of jurisdiction?	Burningham contends ongoing barriers exist and jurisdiction remains.	Costco argues the remediation of the sole violation ends the controversy and moots the case.	Yes; the case is moot; no ongoing controversy remains.
Does mootness require dismissal via summary judgment when jurisdiction is intertwined with merits?	Burningham argues against converting to summary judgment and for discovery.	Costco maintains conversion is proper when jurisdiction hinges on the merits.	Conversion to summary judgment is appropriate; merits and jurisdiction are intertwined.
May discovery or nominal damages salvage a not-moot claim?	Burningham requests discovery and nominal damages to avoid mootness.	Costco opposes discovery; nominal damages are not implicated under the ADA as argued.	Discovery denied; nominal damages not available under the ADA as argued; mootness stands.

Holt v. United States, 46 F.3d 1000 (10th Cir. 1995) (distinguishes facial and factual Rule 12(b)(1) challenges)
Wheeler v. Hurdman, 825 F.2d 257 (10th Cir. 1987) (notice required when converting 12(b)(1) to 56 unless material outside pleadings is submitted)
Chafin v. Chafin, 568 U.S. 165 (U.S. 2013) (standing and mootness require actual case or controversy)
Beattie v. United States, 949 F.2d 1092 (10th Cir. 1991) (voluntary cessation may moot a case if no continuing adverse effects)
Los Angeles County v. Davis, 440 U.S. 625 (U.S. 1979) (voluntary cessation can render a case moot if effects are eradicated and recurrence unlikely)