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Wagner v. Sobik

United States District Court, M.D. Florida, Orlando Division

May 15, 2018

TAVIA WAGNER, Plaintiff,
v.
IZABELA B. SOBIK and SOBIK'S SANDWICH SHOPS, INC., Defendants.

          ORDER

          PAUL G. BYRON UNITED STATES DISTRICT JUDGE

         This cause is before the Court on Defendants' Motion to Dismiss for Lack of Jurisdiction (Doc. 16), filed December 22, 2017. Plaintiff responded in opposition on January 16, 2018. (Doc. 19). With briefing complete, the matter is ripe for review.

         I. BACKGROUND

         Plaintiff, Tavia Wagner, sues Defendants, Izabela B. Sobik (“Ms. Sobik”) and Sobik's Sandwich Shops, Inc. (“Sobik's”), to vindicate her rights under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189. Plaintiff suffers from a “qualified disability” as defined by the ADA, relies on a wheelchair for mobility, and has limitations walking, standing, grabbing, grasping, and/or pinching. (Doc. 1, ¶ 4 (“Complaint”)). According to the Complaint, Ms. Sobik, owns and/or leases the Subject Property, 1905 South French Avenue, Sanford, Florida 32771. (Id. ¶ 4). There, Sobik's transacts business as Lee's Famous Recipe Country Chicken. (Id. ¶ 5). Plaintiff observed several ADA violations during her September 25, 2017, visit to the Subject Property, described in Paragraph 19 of the Complaint. (Id. ¶ 19).[1] The Complaint requests injunctive relief, attorneys' fees, and costs. (Id. at p. 9).

         After learning of the alleged ADA violations, Defendants undertook to bring the Subject Property into conformance with the ADA. (Doc. 16-1, ¶¶ 6-8). After completing the necessary repairs, [2] Defendants retained David Goldfarb, “ADA Compliance Specialist, ” to inspect the Subject Property for continuing violations. (Id. ¶ 7; Doc. 16-2). Mr. Goldfarb completed his inspection on December 19, 2017, and submitted a report attesting that the Subject Property was ADA compliant. (Doc. 16-2, p. 1). Mr. Goldfarb's report specifically found that each of the ADA violations alleged in the Complaint had been corrected, and supported his findings with photographic exhibits. (Id. at pp. 1-8).

         Defendants answered the Complaint on November 27, 2017 (Doc. 14), and moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) on December 22, 2017. (Doc. 16). Defendants contend this matter is now moot, thus the Court lacks subject matter jurisdiction, because Defendants have corrected the alleged ADA violations. (Id.). In support, Defendants submit the affidavit of Deborah Young, Vice President of Sobik's, and Mr. Goldfarb's ADA Inspection Report. (Docs. 16-1, 16-2).

         II. DISCUSSION

         Rule 12(b)(1) attacks on subject matter jurisdiction may be facial or factual. Carmichael v. Kellogg, Brown & Root Servs., 572 F.3d 1271, 1279 (11th Cir. 2009). For facial attacks, the Court accepts the complaint's allegations as true. Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys. Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). Factual attacks, in contrast, allow a court “to consider extrinsic evidence such as deposition testimony and affidavits.” Carmichael, 572 F.3d at 1279.

         Defendants' motion is a factual attack because it “relie[s] on extrinsic evidence and d[oes] not assert lack of subject matter jurisdiction solely on the basis of the pleadings.” See Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003).

         Mootness is an important aspect of a federal court's subject matter jurisdiction. See Fla. Ass'n of Rehab. Facilities, Inc. v. Fla. Dep't of Health & Rehab. Servs., 225 F.3d 1208, 1227 n.14 (11th Cir. 2000) (identifying mootness as a jurisdictional issue). “[A]n action that is moot cannot be characterized as an active case or controversy.” Adler v. Duval Cty. Sch. Bd., 112 F.3d 1475, 1477 (11th Cir. 1997). Moot cases must be dismissed, Sierra Club v. EPA, 315 F.3d 1295, 1299 (11th Cir. 2002), because Article III requires a live case or controversy at all stages of the litigation. BankWest, Inc. v. Baker, 446 F.3d 1358, 1364 (11th Cir. 2006) (per curiam).

         “The doctrine of voluntary cessation provides an important exception to the general rule that a case is mooted by the end of the offending behavior.” Troiano v. Supervisor of Elections in Palm Beach Cty., 382 F.3d 1276, 1283 (11th Cir. 2004). Courts weighing mootness in voluntary cessation cases apply a stringent standard: “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir. 2007) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). Courts in this Circuit consider the following factors in deciding whether this standard is met:

“(1) whether the challenged conduct was isolated or unintentional, as opposed to a continuing and deliberate practice; (2) whether the defendant's cessation of the offending conduct was motivated by a genuine change of heart or timed to anticipate suit; and (3) whether, in ceasing the conduct, the defendant has acknowledged liability.”

Id. The party asserting mootness bears the burden of persuading the Court that the wrongful conduct could not be expected to recur. Id.

         In the ADA context, however, a number of “[f]ederal courts have dismissed ADA claims as moot when the alleged violations have been remedied after the initial filing of a suit seeking injunctive relief.” Nat'l All. for Accessability, Inc. v. Walgreen Co., No. 3:10- CV-780, 2011 WL 5975809, at *3 (M.D. Fla. Nov. 28, 2011) (quoting Norkunas v. Tar Heel Capital Wendy's LLC, No. 5:09-cv-00116, 2011 WL 2940722, at *3 (W.D. N.C. July 19, 2009)) (collecting cases). “These courts have generally found that the ‘alleged discrimination cannot reasonably be expected to recur because ...


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