314 F. Supp. 3d 1017
D. Me.2018Background
- Plaintiff Scott Smith, a wheelchair user, visited a Domino’s in Red Wing, MN (May 25, 2017) and alleged architectural barriers: insufficient accessible parking, the single marked accessible space lacked signage and an adjacent access aisle and was not on an accessible route, and an entry threshold exceeding 0.5 inches. He alleges deterrence and intends to return once accessible.
- Defendants: Bradley Pizza, Inc. (franchise operator) and Pamela M. Dahl (property owner). Smith sued under the ADA seeking injunctive and declaratory relief and fees.
- Procedural posture: Bradley Pizza answered then moved to dismiss (later construed as Rule 12(c)); Dahl moved to dismiss after service. Magistrate stayed non-mootness discovery; denied Smith leave to amend and denied his motion for service-of-process expenses and related fees (January 24 Order). Smith appealed that order.
- Defendants argued lack of standing and mootness, asserting they remedied barriers by adding accessible spaces and markings; Smith disputed remediation, particularly the slope of the space adjacent to Domino’s.
- Court treated Bradley’s late Rule 12(b)(1) motion as a motion for judgment on the pleadings and evaluated standing (facial) and mootness (factual). The court found Smith had pleaded intent to return and that a material barrier (excessive slope) remained, so claims were not moot.
- The magistrate judge’s denial of service-of-process expenses/fees was affirmed because Smith failed to comply with Rule 4(d) waiver/notice requirements; Smith is granted leave to amend within 21 days after this order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to seek injunctive relief | Smith alleged intent to return once premises are accessible, satisfying injury-in-fact | Defendants argued Smith lives 45 miles away and is unlikely to return, so no imminent injury | Court: at pleading stage Smith’s stated intent to return suffices; standing exists |
| Mootness (voluntary remediation) | Barriers remain (notably parking slope); dispute over whether remediation completed | Defendants contended they made the parking and access compliant; thus claim moot | Court: defendants did not meet heavy burden; evidence shows slope may still violate ADAAG, so claim not moot |
| Failure to state a claim (readily achievable defense) | Smith: not required to plead facts negating affirmative defense; discovery stayed so cannot address | Dahl: removal of barriers was "readily achievable," so dismissal warranted | Court: readily achievable is an affirmative defense; dismissal denied without discovery and factual development |
| Award of service-of-process expenses and attorneys’ fees | Smith sought fees under Rule 4(d) because Dahl’s counsel allegedly declined waiver | Defendants: Smith did not properly effectuate waiver; Dahl never authorized counsel to accept service | Court: magistrate correct — Smith failed to comply with Rule 4(d); fees and expenses denied |
Key Cases Cited
- Laidlaw Envtl. Servs. (TOC), Inc. v. Friends of the Earth, 528 U.S. 167 (mootness voluntary cessation standard; heavy burden on defendant)
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (standing requirements: injury, causation, redressability)
- Already, LLC v. Nike, Inc., 568 U.S. 85 (Article III case-or-controversy / mootness principles)
- Osborn v. United States, 918 F.2d 724 (distinction between facial and factual jurisdictional attacks)
- Branson Label, Inc. v. City of Branson, 793 F.3d 910 (pleading standards for facial challenges)
- Sawczyn v. BMO Harris Bank Nat’l Ass’n, 8 F. Supp. 3d 1108 (ADA standing: intent to return; factors for likelihood of return)
- St. Paul–Ramsey Cty. Med. Ctr. v. Pennington Cty., 857 F.2d 1185 (Rule 12 procedural treatment: converting late 12(b) into 12(c))
- Charleston Hous. Auth. v. U.S. Dep’t of Agric., 419 F.3d 729 (standing and mootness implicate subject-matter jurisdiction)