Kelley v. Smith's Food & Drug Centers

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 27, 2019
• Docket: 19-4006
• Status: Unpublished

Opinion

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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

2 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

3 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).

4 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. 5 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. 7 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

8 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

9 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

10 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