United States District Court, M.D. Florida, Orlando Division
G. BYRON UNITED STATES DISTRICT JUDGE
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
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). The Complaint requests injunctive
relief, attorneys' fees, and costs. (Id. at p.
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,  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).
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).
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.
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).
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
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.
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 ...