Kelley v. Pei Wei Asian Diner LLC, 2:17-cv-00715

Plaintiff Trevor Kelley sued Pei Wei under Title III of the ADA seeking injunctive relief for two alleged barriers at a Sandy, Utah restaurant: parking signs mounted 57" above ground (vs. 60" required) and uninsulated under-sink plumbing in the men’s restroom.
After suit was filed, Pei Wei corrected both conditions (repositioned signs to 60" and added insulation) and submitted a manager’s declaration and photographs showing remediation.
Pei Wei moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction, arguing voluntary remediation mooted the injunctive claim; it also sought sanctions and attorneys’ fees.
Kelley argued the case was not moot because Pei Wei had not carried the burden of showing the violations were unlikely to recur.
The court treated Pei Wei’s motion as a factual 12(b)(1) challenge (permitting consideration of extrinsic evidence) because jurisdictional facts were not intertwined with the merits.
The court found the remediations appear permanent, granted dismissal for mootness, dismissed the action with prejudice, and awarded Pei Wei attorneys’ fees for the costs of pursuing the mootness motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether voluntary remediation moots plaintiff’s Title III injunctive claim	Kelley: remediation may not be permanent; defendant must prove no reasonable chance of recurrence	Pei Wei: it fixed the barriers and remediation is permanent, so no live controversy	Court: Moot — defendant met the heavy burden; remediations appear permanent and likelihood of recurrence is negligible
Whether sanctions/fees are appropriate after remediation	Kelley: opposition to dismissal was justified	Pei Wei: opposing a moot case and seeking monetary settlement was vexatious; fees warranted	Court: Fees awarded for work defending the mootness motion because opposition after remediation was unreasonable

Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004) (defendant bears formidable burden to show voluntary compliance makes prospective relief claims moot)
Bacon v. Walgreen Co., 91 F. Supp. 3d 446 (E.D.N.Y. 2015) (voluntary remediation can moot ADA claims when changes are permanent and recurrence unlikely)
Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) (Article III controversy must remain live through all stages of litigation)
Baca v. Berry, 806 F.3d 1262 (10th Cir. 2015) (28 U.S.C. § 1927 requires extreme conduct for fee-shifting; standard for awarding attorneys’ fees)
Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (courts may impose sanctions under inherent power for abusive litigation conduct)