Submitted: November 14, 2017
from United States District Court for the District of
Nebraska - Omaha
BENTON, SHEPHERD, and KELLY, Circuit Judges.
BENTON, Circuit Judge
2013 to 2016, Jabari N. Wright visited the RL Liquor store
several times. Wright, paralyzed from the waist down and
confined to a wheelchair, encountered barriers at the store:
the parking lot had no van-accessible parking spots or signs,
the entryway threshold's slope was not ADA-compliant, and
the counter's height was higher than the ADA standard.
Wright sued RL Liquor, Ruth L. Dailey, and R2, D2, Inc. (RL
Liquor) for violating Title III of the Americans with
Disabilities Act (ADA). After receiving the complaint, RL
Liquor designated accessible parking and posted signs
offering assistance, but did not change the threshold or
counter top. After a bench trial, the district
court dismissed as moot the claims about the
parking-lot barriers. On the remaining claims, the court
ruled that Wright failed to meet his burden to prove a
readily achievable barrier removal method. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
believes the district court erred in dismissing as moot the
parking-lot claims. This court reviews de novo whether claims
are moot. Keup v. Hopkins, 596 F.3d 899, 904 (8th
emphasizes that the voluntary cessation of an illegal
practice does not make a case moot, citing Sheely v. MRI
Radiology Network, P.A., 505 F.3d 1173, 1183-84 (11th
Cir. 2007). There, the defendant's policy prohibited
guide dogs in the facility. Id. at 1180. After
plaintiff sued, the defendant revoked the policy; the
district court ruled the case moot. Id. at 1181-82.
Reversing the district court, the Eleventh Circuit relied on
the Supreme Court's rule: "A defendant's
voluntary cessation of a challenged practice" moots a
case only if it is "absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to
recur." Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC) Inc., 528 U.S. 167, 169-70 (2000). Applying
this standard, the district court here found that the
parking-lot violations cannot reasonably be expected to
voluntary-cessation doctrine does not apply when
"defendants' compliance with the ADA . . . is far
'more than a mere voluntary cessation of alleged illegal
conduct, where we would leave [t]he defendant[s] . . . free
to return to [their] old ways.'" Hickman v.
State of Mo., 144 F.3d 1141, 1143-44 (8th Cir. 1998),
quoting Preiser v. Newkirk, 422 U.S. 395, 402
(1975). In Hickman, the defendant made structural
changes to remove barriers. Id. at 1144. Here, after
RL Liquor became aware of the lack of van-accessible parking,
the store placed a handicap parking sign and painted a
van-accessible parking spot. Unlike Sheely, where
the defendant could capriciously reinstate its no-dogs
policy, the sign and spot here are "far 'more than a
mere voluntary cessation'" that leaves the defendant
free to return to its wrongful behavior. See id. The
district court did not err in dismissing as moot the
of public accommodation shall not discriminate against people
with disabilities. § 42 U.S.C.
12182(a). Discrimination includes "failure to
remove architectural barriers . . . in existing facilities .
. . where such removal is readily achievable."
§ 12182(b)(2)(A)(iv). Removal is
readily achievable if it is "easily accomplishable and
able to be carried out without much difficulty or
expense." § 12181(9). In
determining whether removal is readily achievable, courts
consider: (1) nature and cost of the action; (2) overall
financial resources of the facility involved; (3) number of
persons employed at the facility; (4) effect on expenses and
resources; (5) impact of the action on the facility's
operation; (6) overall financial resources of the covered
entity; (7) overall size of the business of a covered entity
in terms of the number of its employees; (8) the number,
type, and location of the facilities; (9) type of operation
of the covered entity, including composition, structure, and
functions of the workforce; and (10) geographic separateness,
administrative or fiscal relationship of the facility to the
covered entity. § 12181(9)(A)-(D).
does not state whether the plaintiff or the defendant has the
initial burden of production that removal is readily
achievable. The district court relied on the Tenth
Circuit's framework: "Plaintiff must initially
present evidence tending to show that the suggested method of
barrier removal is readily achievable under the particular
circumstances. If Plaintiff does so, Defendant then bears the
ultimate burden of persuasion that barrier removal is not
readily achievable under subsection (iv) [of §
12182(b)(2)(A)]." Colorado Cross Disability Coal. v.
Hermanson Family Ltd., 264 F.3d 999, 1002-03 (10th Cir.
2001). Other circuits, though somewhat modifying the Tenth
Circuit's framework, also place the initial burden on the
plaintiff. See, e.g., Roberts v. Royal Atl.
Corp., 542 F.3d 363, 373 (2d Cir. 2008) ("When
evaluating a claim under [§ 12182(b)(2)(A)(iv)], we
require a plaintiff to articulate a plausible proposal for
barrier removal, 'the costs of which, facially, do not
clearly exceed its benefits'");
Gathright-Dietrich v. Atlanta Landmarks, Inc., 452
F.3d 1269, 1274 (11th Cir. 2006) (holding the district court
properly placed the initial burden on the plaintiff and
adopting the burden shifting framework of Colorado
Cross). But see Molski v. Foley Estates Vineyard and
Winery, LLC, 531 F.3d 1043, 1048 (9th Cir. 2008)
(allocating the burden of production to the defendant in
cases arising under 28 C.F.R. § 36.405-alterations to
historic buildings); cf. Vogel v. Rite Aid Corp.,
992 F.Supp.2d 998, 1011 n. 35 (C.D. Cal. 2014) (limiting
Molski to historic buildings).
argues that the district court erred by placing the initial
burden of production on him instead of RL Liquors. Following
the Tenth, Second, and Eleventh Circuits, this court holds
that the district court properly required Wright to initially
present evidence tending to show that the suggested method of
barrier removal was readily achievable under the
circumstances. See Colorado Cross, 264 F.3d at
1002-03; Roberts, 542 F.3d at 373 & n. 6;
Gathright-Dietrich, 452 F.3d at 1274.
objects to the amount and specificity of evidence required to
meet his initial burden. He, however, failed to offer a
plausible proposal for barrier removal. See Roberts,
542 F.3d at 373 & n. 6. As the district court found,
"Wright presented no suggested modifications of his own
and no expert testimony to counter Fleming's expert
opinion that modifications were not readily achievable."
The district court did not clearly err in making these
findings. The district court concluded that Wright did not
present evidence for "a reasoned evaluation of the
factors relevant to the 'readily achievable'