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National Alliance For Accessability, Inc., and Denise Payne v. Walgreen Co

November 28, 2011



Plaintiffs, the National Alliance for Accessability, Inc. and Denise Payne, brought suit pursuit to Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181, et. seq., claiming that Walgreen Co. ("Walgreens") failed to provide reasonable access to individuals with disabilities at its store in Lake City, Florida. This case is before the Court on Walgreens' Motion for Dismissal Under Rule 12(b)(1), or, in the Alternative, for Summary Judgment, which alleges that this case is moot because Walgreens is now in compliance with the ADA. Doc. 26.*fn1


Title III of the ADA provides:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a).

The ADA contains a number of requirements for places of public accommodation, and a failure to comply with these requirements is often defined as discrimination. Most relevant to this case, the ADA provides that discrimination includes "a failure to remove architectural barriers . . . where such removal is readily achievable." § 12182(b)(2)(A)(iv). If a place of public accommodation is found to violate this provision, a court may issue an injunction requiring the defendant "to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities." § 12188(a)(2). A prevailing plaintiff is not entitled to damages, but she may recover reasonable attorneys' fees. §§ 12188(a), 2000a-3(b).


The Complaint alleges that Payne, a member of the National Alliance for Accessability who qualifies as an individual with disabilities under the ADA, visited Walgreens' Lake City store and "encountered architectural barriers at the subject property" that denied her "the opportunity to participate and benefit from the goods, services, privileges, advantages, facilities and accommodations at Defendant's property." Doc. 1 at 2-3. More specifically, the Complaint alleges the parking spaces, entrance access, paths of travel, and restroom facilities at Walgreens' store are not in compliance with the requirements of the ADA. See Doc. 1 at 4-5.*fn2

Walgreens was first made aware of its alleged violations of the ADA when Plaintiffs filed suit in this case. Doc. 26-4 at 1. Soon thereafter, Walgreens hired a consultant, Jeffrey Gross, to assist in making the store comply with the ADA. See Doc. 26 at 3. Plaintiffs also hired an expert, Gene Mattera, who inspected the facility and submitted a report that detailed instances of alleged noncompliance and listed recommendations to correct the identified deficiencies. See Doc. 26-5. Based on the experts' recommendations, Walgreens made a number of repairs and adopted a new policy governing ADA accessibility. Id. After again inspecting the facility after the completion of the repairs, Gross now asserts that "Walgreens has addressed each and every ADA item at issue." Doc. 26-2 at 5. Plaintiffs have not challenged Gross's conclusions or otherwise suggested that Walgreens remains in violation of the ADA. See Doc. 29.*fn3


While both parties appear to agree that Walgreens is no longer in violation of the ADA, the parties dispute whether Walgreens' compliance renders this case moot. "[A] case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief." Troiano v. Supervisor of Elections in Palm Beach Cnty., Fla., 382 F.3d 1276, 1282 (11th Cir. 2004). A federal court does not have jurisdiction to decide a moot case because, "[u]nder Article III of the Constitution, federal courts may only hear cases or controversies." DiMaio v. Democratic Nat'l Comm., 555 F.3d 1343, 1345 (11th Cir. 2009) (quotations omitted). Walgreens argues this case does not present a live controversy-and therefore is moot-because the Court can grant no meaningful relief now that the facility is compliant with the requirements of the ADA.

In its Rule 12(b)(1) motion, Walgreens thus argues that this Court lacks subject matter jurisdiction. The Eleventh Circuit has explained that:

Attacks on subject matter jurisdiction under Rule 12(b)(1) come in two forms, "facial" and "factual" attacks. Facial attacks challenge subject matter jurisdiction based on the allegations in the complaint, and the district court takes the allegations as true in deciding whether to grant the motion. Factual attacks challenge subject matter jurisdiction in fact, irrespective of the pleadings. In resolving a factual attack, the district court may consider extrinsic evidence such as testimony and affidavits.

Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003) (quotations omitted). Moreover, when resolving a factual attack, the district court "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Walgreens' motion is a factual attack "because it relie[s] on extrinsic evidence and d[oes] not ...

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