Burningham v. TVI, 2:17-cv-00363

Plaintiff Samuel Burningham, a wheelchair user, filed this ADA Title III suit against TVI, Inc. (Savers) alleging (1) accessible-parking signs were mounted below the 60-inch ADA height requirement and (2) uninsulated plumbing under restroom sinks.
Savers’ district manager inspected the Orem store, installed insulation under the sinks, and photographed the remediation.
The manager also measured the parking signs and concluded the signs in front of the store comply with the 60-inch requirement and that the allegedly noncompliant sign was not at the store.
Savers leases the store space in a shopping center; the lease assigns control of the common-area parking lot to the landlord.
Savers moved to dismiss: arguing the piping claim is moot due to remediation and the parking-sign claim fails because Burningham did not allege Savers owns, leases, or operates the parking lot.
Court dismissed the piping claim with prejudice as moot, dismissed the parking-sign claim without prejudice for failure to plead that Savers owned/leased/operated the lot, and denied sanctions without prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mootness of piping claim	Burningham contends remediation might be reversed and thus claim not moot	Savers contends adding insulation mooted the injunctive claim	Piping claim is moot; remediation not reasonably expected to be undone; dismissed with prejudice
Sufficiency of pleading re: parking signs	Burningham alleges signs in parking lot are noncompliant	Savers argues Burningham failed to allege Savers owns, leases, or operates the parking lot (so no Title III liability)	Parking-sign claim dismissed without prejudice for failure to plead ownership/lease/operation; may amend if can plead those facts
Use of factual materials on 12(b)(1) motion	Burningham argues jurisdictional facts are intertwined with merits so evidence conversion required	Savers submitted the manager's declaration and exhibits to challenge jurisdiction/mootness	Court considered the declaration for the mootness (12(b)(1)) issue but declined to resolve merits-based parking-sign evidence at this stage
Sanctions request	Burningham says complaint is legally proper and sanctions improper	Savers alleges abusive, commercially driven pattern (many similar suits) and seeks sanctions under inherent power and 28 U.S.C. § 1927	Court denied sanctions without prejudice, declining to hold an evidentiary hearing given dismissal of claims

Holt v. United States, 46 F.3d 1000 (10th Cir. 1995) (distinguishes factual vs. facial 12(b)(1) attacks and permits consideration of affidavits on factual attacks)
Beedle v. Wilson, 422 F.3d 1059 (10th Cir. 2005) (standard for pleading facts at Rule 12(b)(6) stage)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for complaints)
Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) (defendant must show wrongful behavior could not reasonably be expected to recur to establish mootness)
Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837 (9th Cir. 2004) (definition of "operate" under ADA Title III)
Kohler v. Bed Bath & Beyond of Cal., LLC, 780 F.3d 1260 (9th Cir. 2015) (tenant in shopping center not liable for defects in common parking lot absent ownership/lease/control)
Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (court's inherent power to impose sanctions for conduct abusing the judicial process)
City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (case-or-controversy and live-issues requirement for federal jurisdiction)