Kelley v. Smith's Food & Drug Centers

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 27, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
TREVOR KELLEY,
Plaintiff - Appellant,
v. No. 19-4006
(D.C. No. 2:17-CV-00803-BSJ)
SMITH’S FOOD & DRUG CENTERS, (D. Utah)
INC.,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, HOLMES, and MORITZ, Circuit Judges.
_________________________________
Trevor Kelley, who is disabled and uses a wheelchair, sued Smith’s Food &
Drug Centers, Inc. (Smith’s) to compel it to bring its grocery store into compliance
with Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189(ADA). The district court dismissed the complaint as moot. We exercise jurisdiction
under 28 U.S.C. § 1291 and affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. BACKGROUND
Mr. Kelley complained about two barriers at Smith’s: (1) the soap dispensers
in the store’s restrooms were too high to reach from a wheelchair; and (2) the signs in
the parking lot identifying accessible parking spaces were not ADA-compliant so he
could not see the signs to find the accessible parking spaces, and the lack of
ADA-compliant signage failed to discourage parking by nondisabled shoppers. After
Smith’s produced evidence that it had permanently remediated these items, the
district court determined that Mr. Kelley’s claims were moot and dismissed the case
with prejudice. As a sanction for his attorney’s repeated failure to comply with the
court orders to complete a pretrial order, the court denied Mr. Kelley’s request for
attorney fees. Mr. Kelley does not dispute that the two architectural barriers raised in
his complaint have been remediated and that the remediation was permanent. He
contends, however, that the case is not moot because (1) while this litigation was
pending he, his ADA expert, and his attorney discovered between eight and a dozen
additional architectural barriers at Smith’s store that violated the ADA; and (2) once
this litigation ended, there was nothing to stop Smith’s from again violating the
ADA, since Smith’s did not have a policy to comply with the ADA in the future.
Mr. Kelley also challenges the ground for the district court’s denial of his request for
attorney fees and costs.
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II. ADA TITLE III
Title III of the ADA proscribes discrimination in places of public
accommodation against persons with disabilities. See 42 U.S.C. § 12182(a).
Discrimination includes “a failure to remove architectural barriers, and
communication barriers that are structural in nature, in existing facilities . . . where
such removal is readily achievable.” Id. § 12182(b)(2)(A)(iv). “The ADA provides a
private right of action for preventative relief, including an application for a
permanent or temporary injunction or restraining order for ‘any person who is being
subjected to discrimination on the basis of disability in violation of’ Title III.” Colo.
Cross Disability Coal. v. Hermanson Family Ltd. P’ship I, 264 F.3d 999, 1001-02
(10th Cir. 2001) (quoting 42 U.S.C. §§ 12182(a)(1), 2000a–3(a)).
III. MOOTNESS
“The constitutional mootness doctrine is grounded in the Article III
requirement that federal courts may only decide actual ongoing cases or
controversies. This court lacks subject matter jurisdiction if a case is moot.” Keller
Tank Servs. II, Inc. v. Comm’r, 854 F.3d 1178, 1192-93 (10th Cir. 2017) (citations,
brackets, and internal quotation marks omitted). To determine whether a party has
the requisite “personal stake in the outcome of the lawsuit at all stages of the
litigation,” the inquiry “is whether granting relief for the issues before the court will
have some effect in the real world.” Id. at 1193 (internal quotation marks omitted).
An action becomes moot when “an intervening circumstance deprives the plaintiff of
a personal stake in the outcome of the lawsuit.” Id. “[W]hen the defendant
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voluntarily stops the challenged conduct, . . . the claim will be deemed moot only if
two conditions exist: [1] [i]t is absolutely clear the allegedly wrongful behavior
could not reasonably be expected to recur, [and] [2] [i]nterim relief or events have
completely and irrevocably eradicated the effects of the alleged violation.” EEOC v.
CollegeAmerica Denver, Inc., 869 F.3d 1171, 1173-74 (10th Cir. 2017) (footnote
omitted) (internal quotation marks omitted). “We review de novo whether a claim is
moot.” Id. at 1173.
The district court dismissed the case as moot because the two architectural
barriers alleged in the complaint as violating the ADA were permanently remediated
while this litigation was pending. Nevertheless, Mr. Kelley argues that the court was
required to consider additional, unremediated conditions at Smith’s that he
discovered after filing his complaint. Although Mr. Kelley filed a motion to amend
his complaint to add the allegedly unremediated architectural barriers at Smith’s, he
does not challenge the denial of the motion to amend.1
To support his claim that he was entitled to relief for architectural barriers not
included in his complaint, Mr. Kelley relies on four cases from other circuits holding
that an ADA plaintiff has standing to seek relief for ADA violations that he or she
1
In the “Conclusion” section of his opening brief, Mr. Kelley asserts that the
district court erred by “not allowing the motion to amend the complaint” to add the
later-discovered ADA violations. Aplt. Opening Br. at 41-42. This is insufficient to
warrant appellate review. See Kerber v. Qwest Pension Plan, 572 F.3d 1135, 1146
(10th Cir. 2009) (rejecting appellate claim as inadequately briefed because the claim
was addressed in only conclusory fashion).
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did not personally encounter as long as the violation was relevant to the plaintiff’s
disability. He characterizes this holding as the “Doran doctrine.” See Doran v. 7-
Eleven, Inc., 524 F.3d 1034, 1044 (9th Cir. 2008) (“Even if a disabled plaintiff did
not know about certain barriers when the plaintiff first filed suit, that plaintiff will
have a personal stake in the outcome of the controversy so long as his or her suit is
limited to barriers related to that person’s particular disability.” (internal quotation
marks omitted));2 Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 188 (2d Cir.
2013) (per curiam) (plaintiff who used a wheelchair had standing to pursue relief as
to the defendant diner’s lack of a ramp at the entrance, as well as barriers inside the
diner related to his disability that he had not yet encountered); Chapman v. Pier 1
Imports (U.S.) Inc., 631 F.3d 939, 950 (9th Cir. 2011) (en banc) (court has
“Article III jurisdiction to entertain requests for injunctive relief both to halt the
deterrent effect of a noncompliant accommodation and to prevent imminent
‘discrimination’ . . . against a disabled individual who plans to visit a noncompliant
accommodation in the future”); Steger v. Franco, Inc., 228 F.3d 889, 893-94 (8th Cir.
2000) (blind plaintiff had standing to challenge conditions at the defendant’s property
that presented risks to blind persons, including those he had not personally
encountered, but not those unrelated to blind persons). But see Davis v. Anthony,
Inc., 886 F.3d 674, 678 (8th Cir. 2018) (plaintiff who used a wheelchair did not have
2
Mr. Kelley erroneously asserts that the Doran district court converted
the proceedings from a Fed. R. Civ. P. 12(b)(1) motion based on mootness to a
Fed. R. Civ. P. 56(a) summary-judgment motion with limited discovery. See Aplt.
Opening Br. at 3 n.1. But there apparently was no claim of mootness in that case.
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standing to sue for unencountered violations inside the defendant steakhouse that
never injured her because she sued only for parking-space violations).
These cases, however, addressed only the plaintiff’s standing. They are
irrelevant to the issues presented here—what barriers were alleged in the complaint
and were they remediated. Federal Rule of Civil Procedure 8(a)(2) requires a
complaint to contain “a short and plain statement of the claim showing that the
[plaintiff] is entitled to relief.” “Rule 8 serves the important purpose of requiring
plaintiffs to state their claims intelligibly so as to inform the defendants of the legal
claims being asserted.” Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007).
Another purpose is to allow the court to determine whether, if the facts alleged were
proved, the plaintiff would be entitled to relief. See Monument Builders of Greater
Kan. City, Inc. v. Am. Cemetery Ass’n of Kan., 891 F.2d 1473, 1480 (10th Cir. 1989).
“In general, only disclosures of barriers in a properly pleaded complaint can
provide [the fair notice required by Rule 8]; a disclosure made during discovery,
including in an expert report, would rarely be an adequate substitute.” Oliver v.
Ralphs Grocery Co., 654 F.3d 903, 909 (9th Cir. 2011). “[F]or purposes of Rule 8, a
plaintiff must identify the barriers that constitute the grounds for a claim of
discrimination under the ADA in the complaint itself.” Id. The “Doran doctrine”
referenced above “does not help [Mr. Kelley], because . . . it sheds no light on what a
plaintiff’s complaint must include to comply with the fair notice requirement of
Rule 8.” Id.6
Mr. Kelley further contends that the district court erred by not allowing him to
conduct “discovery on the factual issues raised by [the] motion [to dismiss for lack of
jurisdiction].” Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1326
(10th Cir. 2002) (internal quotation marks omitted). But he has not pointed to any
discovery relevant to the mootness of the claims raised in his complaint. He
conceded that Smith’s had remediated the architectural barriers alleged in the
complaint, so there remained no factual issues. See id. (“[A] refusal to grant
discovery constitutes an abuse of discretion if the denial results in prejudice to a
litigant,” and “[p]rejudice is present [only] where pertinent facts bearing on the
question of jurisdiction are controverted.” (internal quotation marks omitted)).
In addition, Mr. Kelley suggests that his claims are not moot because Smith’s
may violate the ADA in other respects in the future. He argues that Smith’s was
required to have “policies and procedures in place[] to both prevent further barriers
and to quickly remedy further barriers as they arise.” Aplt. Opening Br. at 34. He
cites no authority requiring Smith’s to produce such a policy.3 Moreover, the
complaint did not include this claim and Mr. Kelley has not cited “the precise
references in the record where the issue was raised and ruled on,” 10th Cir. R.
3
The ADA defines one type of discrimination as “a failure to make reasonable
modifications in policies, practices, or procedures, when such modifications are
necessary to afford such goods, services, facilities, privileges, advantages, or
accommodations to individuals with disabilities, unless the entity can demonstrate
that making such modifications would fundamentally alter the nature of such goods,
services, facilities, privileges, advantages, or accommodations.” 42 U.S.C.
§ 12182(b)(2)(A)(ii). Mr. Kelley did not allege this type of discrimination.
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28.1(A). Without a specific reference, we will not search the record to determine if
an issue has been preserved for appeal. Cf. Gross v. Burggraf Constr. Co., 53 F.3d
1531, 1546 (10th Cir. 1995) (declining to search the record for “dormant evidence
which might require submission of the case to a jury”). Because Mr. Kelley “did not
raise this argument below and does not provide a compelling reason for us to address
it on appeal,” we decline to consider it. Brigance v. Vail Summit Resorts, Inc.,
883 F.3d 1243, 1254-55 (10th Cir. 2018). In any event, there is no dispute that
Smith’s remediation of the two ADA violations alleged in the complaint are
permanent corrections.
IV. SANCTION—DENIAL OF COSTS AND ATTORNEY FEES
Mr. Kelley also challenges the district court’s order denying his request for
costs and attorney fees as a sanction for his attorney’s repeated failure to comply
with court orders concerning filing a pretrial order. Mr. Kelley contends that his
attorney complied with the district court’s directives to file a pretrial order and that
the district court should not have imposed the sanction without giving counsel an
opportunity to cure or show cause.
“A successful [ADA Title III] plaintiff may . . . be entitled to attorney fees and
costs.” Colo. Cross Disability Coal., 264 F.3d at 1002 (citing 42 U.S.C.
§ 2000a-3(b)). Section 2000a-3(b) permits the district court to award reasonable
attorney fees to the prevailing party at the district court’s discretion. But the term
prevailing party does not include “a party that has failed to secure a judgment on the
merits or a court-ordered consent decree, but has nonetheless achieved the desired
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result because the lawsuit brought about a voluntary change in the defendant’s
conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human
Res., 532 U.S. 598, 600 (2001); accord Moseley v. Bd. of Educ. of Albuquerque Pub.
Sch., 483 F.3d 689, 694 (10th Cir. 2007) (“[B]ecause the underlying substantive
claims are moot, [the plaintiff] cannot recover attorney’s fees and costs.”). “A
defendant’s voluntary change in conduct, although perhaps accomplishing what the
plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on
the change.” Buckhannon, 532 U.S. at 605. Therefore, we affirm the district court’s
denial of costs and attorney fees, albeit for reasons other than those stated by the
district court. See Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878-79 (10th Cir.
2017) (appellate court may affirm the district court’s “ruling on any grounds
adequately supported by the record, even grounds not relied upon by the district
court” (internal quotation marks omitted)).
Mr. Kelley acknowledges that “the law [does] not allow for an award of costs
and fees” when a case is dismissed as moot. Aplt. Opening Br. at 36. Instead, he
objects to the district court’s characterization of the denial of fees as a sanction. He
argues that the district court failed to follow the prescribed procedure before issuing
sanctions, and asserts that the sanctions order “was utter[ly] superfluous and
prejudicial,” id. at 42. But he has not explained how any action by this court could
provide him any relief or how the sanctions order prejudiced him or his attorney,
given his concession that he is not entitled to attorney fees and costs. “[A] federal
court has neither the power to render advisory opinions nor to decide questions that
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cannot affect the rights of litigants in the case before them.” Preiser v. Newkirk,
422 U.S. 395, 401 (1975) (internal quotation marks omitted). Therefore, we do not
address Mr. Kelley’s claim that the district court erred in characterizing the order
denying attorney fees and costs as a sanction.
V. MISCELLANEOUS ISSUES
Smith’s devotes almost five pages of its ten-page appellate argument to
(1) explaining that an Arizona business funded Mr. Kelley’s litigation, (2) describing
the other litigation the business has funded, and (3) comparing the other litigation to
this case. These matters are not relevant to the issues on appeal. In addition, the five
pages of legal arguments do not even mention several of Mr. Kelley’s appellate
arguments—whether discovery was required, whether the “Doran doctrine” applied,
whether Smith’s was required to have an ADA policy, or whether the attorney-fee
sanction was appropriate. Smith’s briefing is unhelpful.
In his appellate reply brief, Mr. Kelley asserts that in arguing he was an agent
of the Arizona business—an argument he claims the district court rejected—Smith’s
“made multiple baseless allegations, [made] logic[al] fallacies, and cast multiple
aspersions, amounting to ad hominem attacks on Kelley and his [c]ounsel.” Aplt.
Reply Br. at 12. He includes in his appellate reply brief a request that this court
award attorney fees for Smith’s allegedly sanctionable argument.
“We must deny this request because [Mr. Kelley] failed to file a separate
motion or notice requesting sanctions.” Abeyta v. City of Albuquerque, 664 F.3d 792,
797 (10th Cir. 2011). “[Federal Rule of Appellate Procedure 38] requires that before
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a court of appeals may impose sanctions, the person to be sanctioned must have
notice and an opportunity to respond. A separately filed motion requesting sanctions
constitutes notice. A statement inserted in a party’s brief that the party moves for
sanctions is not sufficient notice.” Id. (ellipsis and internal quotation marks omitted).
VI. CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Harris L Hartz
Circuit Judge
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