Juluke v. Sunnyland Props.

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JAMES JOSEPH JULUKE, JR Plaintiffs, v. SUNNYLAND PROPERTIES LTD AND GATOR SPRING VALLEY PARTNERS LLLP, Defendant.

No. 3:21-cv-2900-E

United States District Court, N.D. Texas, Dallas Division

February 2, 2024

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE

United States District Judge Ada Brown has referred two motions which were filed the same day, to the undersigned United States Magistrate Judge for findings, conclusions, and recommendation, see Dkt. No. 99.

Defendant Gator Spring Valley Partners LLLP has filed a motion to dismiss for lack of jurisdiction. See Dkt. No. 88. Plaintiff James Joseph Juluke, Jr. has filed a response see Dkt. No. 91, and Gator has filed a reply see Dkt. No. 97.

Plaintiff Juluke has filed an amended motion for summary judgment. See Dkt. No. 89. Gator has filed a response see Dkt. No. 93-1, and Juluke has filed a reply, see Dkt. No. 96.

For the following reasons, as explained below, the Court should grant the motion to dismiss for lack of subject matter jurisdiction and dismiss the motion for summary judgment.

Background

James Joseph Juluke, Jr., who is a disabled and uses a wheelchair, sued Gator Spring Valley Partners LLP and Sunnyland Properties, Ltd, to compel them to bring commercial property they own, lease or operate into compliance with Title III of the Americans with Disabilities Act (“ADA”). See Dkt. No. 17 (First Amended Complaint); 42 U.S.C. §§ 12181-12189 (ADA). Juluke later dismissed his claims against Sunnyland, see Dkt. No. 29, leaving Gator as the only defendant.

In his First Amended Complaint, Juluke complains about six barriers on the Gator Property that he observed or encountered during his visits to Spring Valley Crossing Shopping Center located in Dallas, Texas:

A. Plaintiff personally encountered/observed that several of the disabled use parking spaces near the El Rancho Supermercado have signage which is mounted too low (under 60 inches) where they are commonly obstructed by parked vehicles. This condition made it difficult for Plaintiff to identify the designated disabled parking areas.

B. Plaintiff personally encountered/observed that two (2) of the disabled use parking spaces near San Marcos Ice Cream have signage which is mounted too low (under 60 inches) where they are commonly obstructed by parked vehicles. This condition made it difficult for Plaintiff to identify the disabled parking areas.

C. Plaintiff personally encountered an inaccessible curb ramp serving suite 112 due to excessive running slopes over 1:12 and steep side flare slopes in excess of 1:10. These conditions made it more difficulty for Plaintiff to maneuver his wheelchair over this ramp and increased his risk of a fall.

D. Plaintiff personal encountered inaccessible curb ramp serving the disabled use parking spaces near San Marcos Ice Cream due to excessive running slopes over 1:12 and steep side flares in excess of 1:10. These conditions made it more difficulty for Plaintiff to maneuver his wheelchair over this ramp and increased his risk of a fall.

E. Plaintiff personally encountered an inaccessible curb ramp connecting the building including San Marcos Ice Cream (among others) with the public sidewalk and nearby bus stops on Coit Road due to excessive running slopes over 1:12 and steep side fare slopes in excess of 1:10. These conditions made it more difficult for Plaintiff to maneuver his wheelchair over the ramps and increased his risk of a fall.

F. Plaintiff personally encountered an inaccessible sidewalk route between Leslie's Pool Supplies and Ameritax due to running slopes in excess of 1:20 and a rise of over six (6) inches, but a failure to provide handrails. This condition made it more difficult for Plaintiff to maneuver his wheelchair over the sidewalk ramp and increased his risk of a fall.

Id. at 6-8 of 11.

Juluke's claims are based solely on the allegedly non-conforming structures. See id. at ¶¶ 11-19. He does not allege that Gator engaged in discriminatory conduct. He seeks a declaration that the property owned, leased, and/or operated by Gator is not ADA compliant and an order directing Gator to bring the property into compliance with the requirements of Title III of the ADA. See id. at 9-10 of 11.

During discovery, Juluke produced an expert report and supplemental expert report that identified 15 “items” as purported ADA violations at the property. He did not amend his complaint to add additional violations that were not included in the First Amended Complaint.

After the lawsuit was filed, Gator voluntarily hired a contractor to address, remediate, or remove the six alleged structural barrier violations that Juluke identified in his original and amended complaints.

Gator moves to dismiss the case for lack of subject matter jurisdiction, alleging that there is no longer a case or controversy between the parties. See Dkt. No. 88.

Gator argues that, first, as a threshold matter, Juluke may only rely on allegations of barriers to access asserted in a properly pleaded complaint and that he cannot rely on unpled allegations of alleged violations. Gator contends that any unpled claims asserted by Juluke as ADA violations, including those in the report and supplement of Juluke's expert, cannot support jurisdiction because they were not plead in the First Amended Complaint as required by Federal Rule of Civil Procedure 8.

Second, Gator argues that Juluke's claims in the First Amended Complaint, to the extent that they were based on his enjoyment of the San Marcos Ice Cream store, are now moot because that store has been permanently closed.

And, third, Gator argues that an ADA claim based on structural barriers in a properly pleaded complaint becomes moot if a defendant removes or remedies those barriers before the case reaches final judgment. Gator contends that Juluke's case is now moot because Gator has addressed, removed, or remediated the alleged barriers identified in Juluke's live pleading.

Juluke filed a response contending that he may recover for all ADA violations identified by his experts or during discovery, in addition to those alleged in his live pleading. Juluke does not differentiate between the pled and unpled barriers.

Legal Standards

“Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims.” Stockman v. Fed. Election Comm=n, 138 F.3d 144, 151 (5th Cir. 1998). The Court “must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” FED. R. CIV. P. 12(h)(3).

The Court must dismiss a complaint for lack of subject matter jurisdiction “when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass=n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (cleaned up). The Court will not assume it has jurisdiction. Rather, “the basis upon which jurisdiction depends must be alleged affirmatively and distinctly and cannot be established argumentatively or by mere inference.” Getty Oil Corp. v. Ins. Co. of N.A., 841 F.2d 1254, 1259 (5th Cir. 1988) (citing Ill. Cent. Gulf R. Co. v. Pargas, Inc., 706 F.2d 633, 636 & n.2 (5th Cir. 1983)).

“The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist” in any case originally filed in federal court. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (citations omitted). The plaintiff must demonstrate standing for each claim and form of relief sought. See DaimlerChrysler Corp. v. Duno, 547 U.S. 332, 352 (2006) (noting that “our standing cases confirm that a plaintiff must demonstrate standing for each claim he seeks to press” and that “[w]e have insisted ... that a plaintiff must demonstrate standing separately for each form of relief sought” (cleaned up)).

The United States Court of Appeals for the Fifth Circuit recognizes a distinction between a “facial” attack to subject matter jurisdiction, which is based only on the pleadings, and a “factual” attack to jurisdiction, which is based on affidavits, testimony, and other evidentiary material. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981); accord Ramming, 281 F.3d at 161 (“Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.”). Regardless of the nature of the attack, the plaintiff seeking a federal forum “constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming, 281 F.3d at 161.

Where, as here, a defendant files a Rule 12(b)(1) motion to dismiss, the attack is presumptively facial, and the Court need look only to the sufficiency of the allegations of plaintiff's complaint, or on the complaint as supplemented by undisputed facts, all of which are presumed to be true. See Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1989); Paterson, 644 F.2d at 523.

But, on a factual attack, the Court “is empowered to consider matters of fact which may be in dispute,” Ramming, 281 F.3d at 161, and, to oppose the Rule 12(b)(1) motion, “a plaintiff is also required to submit facts through some evidentiary method and has the burden of proving by a...