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Kahn v. Cleveland Clinic Florida Hospital

United States District Court, S.D. Florida

July 22, 2019

GARY KAHN, Plaintiff,




         THIS MATTER is before the Court on the Defendant's Motion to Dismiss (DE# 247, 3/4/19).


         The instant action involves a claim under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq, (hereinafter "ADA") (Count II). See Plaintiff's Second Amended Complaint (DE# 47, 3/30/17).

         On October 29, 2018, the Court issued an Order finding that”[t]he plaintiff's ADA claim [was] not moot with respect to the use of trash bins and linen bins which purportedly encroach[ed] on the clear floor space of accessible restrooms" at the defendant's facility. See Order (DE# 207 at 30, 10/29/18). The plaintiff's expert also found trash bins which encroached over the maneuvering clearance on the pull side of the door. See Exhibits 220 and 222.[1] On January 28, 2019, the Court held a one-day bench trial on the plaintiff's ADA claim. At the conclusion of the bench trial, the Court stated its intent to rule in favor of the plaintiff by issuing an injunction. See Trial Transcript (DE# 242 at 329-30, 2/19/19).[2]

         On March 4, 2019, the defendant filed the instant motion seeking to dismiss with prejudice the plaintiff's ADA claim. See Defendant's Motion to Dismiss (DE# 247, 3/4/19) (hereinafter "Motion"). The plaintiff filed his response in opposition on April 1, 2019. See Plaintiff's Response to Defendant's Motion to Dismiss (DE# 250, 4/1/19) (hereinafter "Response"). The defendant filed its reply on April 8, 2019. See Cleveland Clinic's Reply in Support of Motion to Dismiss (DE# 251, 4/8/19) (hereinafter "Reply").

         This matter is ripe for adjudication.


         Rule 12(b)(1) provides for the dismissal of a claim when the Court lacks subject matter jurisdiction. Fed. R. Civ. Pro. 12(b)(1). "Because a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case" Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2002).

         "Attacks on subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) come in two forms: 'facial attacks' and 'factual attacks.'" Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990)). In the instant case, the defendant seeks to rely on evidence outside the pleadings - the defendant's expert's most recent report - to challenge the jurisdiction of this Court. As such, the defendant has asserted a factual attack of this Court's subject matter jurisdiction. Id (stating that "[f]actual attacks challenge 'the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits are considered.'") (quoting Dunbar, 919 F.2d at 1529).

         "On a factual attack of subject matter jurisdiction, a court's power to make findings of facts and to weigh the evidence depends on whether the factual attack on jurisdiction also implicates the merits of plaintiff's cause of action." Garcia v. Cooenhaver. Bell & Assocs.. M.D.'s. P.A., 104 F.3d 1256, 1261 (11th Cir. 1997) (citing Dunbar, 919 F.2d at 1529). If the facts necessary to sustain jurisdiction do not implicate the merits of a plaintiff's cause of action, then "the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction - its very power to hear the case - there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the court from evaluating for itself the merits of jurisdictional claims." Id. (citing Dunbar, 919 F.2d at 1529 (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).

         Based on the foregoing, the Court will consider the evidence presented at the January 28, 2019 bench trial in addressing the instant Motion. For the reasons stated in this Order, the Court will also consider the photographs included in the defendant's new expert report.


         1. Defendant's Motion to Dismiss

         A. Overview

          The defendant argues that the plaintiff's ADA claim is now moot because the defendant has made additional modifications to its facility. Motion at 2. Specifically, the defendant: (1) has converted a former office into a changing room; (2) is in the process of building "an MRI and CT suite, and each of [those] areas will have designated male and female changing rooms;" (3) has recessed the trash bins in two accessible restrooms (WNH2-202 and WNH1-205A) and (4) has removed "the additional trash bin" from another accessible restroom (Main Lobby Building 2950A/Hallway Restroom 2058)[3] and "installed signage in this location in English and Spanish indicating that a trash bin is not to be placed in that space." Id. at 2-3, 5. The defendant asserts that "[b]ecause of these structural changes to Cleveland Clinic, it is absolutely clear that the remaining ADA violations in this case relating to linen bins and trash bins are not reasonably expected to recur." Id. at 10.

         B. Defendant's New Expert Report

         In support of the instant Motion, the defendant has filed a new report from its expert, Jeffrey Gross. See Second Supplemental Expert Report Dated February 28, 2019 (DE# 247-2, 3/4/19). The report includes photographs of the recessed trash bins in WNH2-202 and WNH1-205A and the sign in Main Lobby Building 2950A/Hallway Restroom 2058.

         The plaintiff argues that the defendant cannot rely on Mr. Gross' post-trial, expert report because the Court previously limited Mr. Gross' bench trial testimony to only those opinions which were included in his prior, timely disclosed, expert report. See Response at 3, see also Trial Transcript (DE# 242 at 246, 248-49, 2/19/19). While the Court agrees with the plaintiff that Mr. Gross cannot submit a new expert report (post-trial and outside the time limitations set forth in Fed.R.Civ.P. 26), the Court will nonetheless take judicial notice of the photographs attached to Mr. Gross' report which show the existence of recessed trash bins in WNH2-202 and WNH1-205A and a sign in Main Lobby Building 2950A/Hallway Restroom 2058. The plaintiff has not challenged the authenticity of these photographs and has not offered to conduct an inspection and submit his own photographs of the new modifications to the defendant's facility.

         The plaintiff also notes that Mr. Gross' new report is unsworn and unverified, Response at 3, but does not cite to any case law or rule which would prohibit the filing of an unsworn and unverified expert report. In any event, the Court is not relying on the opinions expressed in Mr. Gross' new report and is only taking judicial notice of the attached photographs.

         C. Timeframe for Determining Mootness

         The plaintiff argues that the instant case is not moot because '"the jurisdiction of the court depends upon the state of things at the time of the action brought.' This time-of-filing ... measures all challenges to subject-matter jurisdiction against the state of facts that existed at the time of filing-whether the challenge [was] brought shortly after filing, after the trial, or even for the first time on appeal." Response at 4 (quoting Mollan v. Torrance, 9 Wheat. 537, 539 (1824)).

         The plaintiff's argument is not well taken. As previously explained in the Court's October 29, 2018 Order:

Article Ill's live case or controversy requirement "subsists through all stages of federal judicial proceedings, trial and appellate." Horton v. City of St. Augustine Florida, 272 F.3d 1318, 1326 (11th Cir. 2001) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). "If events that occur subsequent to the filing of a lawsuit... deprive the court of the ability to give the plaintiff... meaningful relief, then the case is moot and must be dismissed." Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1183 (11th Cir. 2007) (Quoting Troiano v. Supervisor of Elections, 382 F.3d 1276, 1281-82 (11th Cir. 2004)).

Order (DE# 207 at 3, 10/29/18) (emphasis added).

         The Court will consider the issue of mootness at the present time and take into account the additional modifications described in the instant Motion.

         D. Plaintiffs Speculation Concerning New ADA Violations

         The plaintiff also argues that the case is not moot because there has been no new inspection of the defendant's facility and "it is unknown what violations of the ADA may now exist as a result of th[e] alleged 'modifications'" described in the Motion. Response at 5. The plaintiff notes that his experts found ADA violations during each of the five prior inspections and that the defendant's "'modifications' to date have failed to create a facility free of ADA violations." Id at 5-6. In its reply, the defendant states that "Plaintiff's counsel ... never contacted Cleveland Clinic's counsel to ask if Plaintiff's expert could re-inspect the property." Reply at 4.

         Mr. Herrera's May 3, 2018 report contained several violations that had asterisks next to them. See Exhibit 220. At the bench trial, Mr. Herrera explained that those asterisks meant that the defendant had corrected a prior ADA violation cited in Mr. Herrera's original February 26, 2018 report and, in doing so, had created a new violation. Thus, while it is true that, in the past, the defendant created new ADA violations when it corrected old ones, the plaintiff has not offered to conduct a new inspection of the facility. The Court will not entertain the plaintiff's speculation that because additional modifications were made to the facility, new ADA violations may now exist.

         E. Mootness

         For the reasons discussed below, the Court finds that the defendant's additional modifications[4] to the facility do not moot the plaintiff's ADA claim.

         The Court previously found that the plaintiff pled both architectural barriers and policies, practices and/or procedures which violate the ADA. See Order (DE# 207 at 5-6, 10/29/18). With respect to those policies, practices and/or procedures, this Court found that:

the plaintiff's ADA claim include[d] the defendant's policy, practice or procedure of using accessible restrooms as changing rooms resulting in the encroachment of clear floor space by linen bins and the defendant's policy, practice or procedure of placing trash bins in certain locations which also resulted in the encroachment of clear floor space.

Id at 7-8. The plaintiff's expert also found trash bins which encroached over the maneuvering clearance on the pull side of the door. See Exhibits 220 and 222.

         At the bench trial, the plaintiff sought injunctive relief prohibiting the defendant's policy, practice and/or procedure of placing linen bins and trash bins[5] in locations in its accessible restrooms which result in clear floor space or maneuvering clearance (on the pull side of the door) violations under the ADA.

         i. Defendant's Practice of Placing Linen Bins and Trash Bins in Locations which Encroached Over the Clear Floor Space and/or Maneuvering Clearance in Accessible Restrooms

         The evidence presented at the bench trial[6] established that the defendant had a long-standing practice of using the accessible restrooms as changing rooms. This practice began as a cost saving measure. Patients would sometimes use the accessible restrooms to change out of their hospital gowns. The patients would throw the hospital gowns in the trash bin and it would cost the defendant money to replace the hospital gowns. To address this problem, the defendant placed linen bins inside the ...

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