United States District Court, E.D. Wisconsin
ORDER GRANTING MOTION TO DISMISS
William C. Griesbach, Chief Judge United States District
James Buckley brought this action against Defendants
Community Association of Retirees of Langlade County, Inc.
and Pat Kamps (collectively, CAR), alleging a public
accommodation claim under the Americans with Disabilities Act
of 1990 (ADA), 42 U.S.C. § 12101 et seq.,
(Count I) and state-law claims of negligent infliction of
emotional distress (Count II) and breach of
easement/conversion of property (Count III). Presently before
the court is the defendants' motion to dismiss Counts II
and III of Buckley's complaint for lack of supplemental
jurisdiction. Also before the court is Buckley's motion
for an extension of the discovery and expert disclosure
deadlines. For the reasons set forth below, the
defendants' motion to dismiss Counts II and III of the
complaint will be granted and Buckley's motion for an
extension of the discovery and expert disclosure deadlines
will be denied.
motion to dismiss that disputes whether claims derive from a
common nucleus of operative facts is properly reviewed under
the standards applicable to a Rule 12(b)(1) motion to dismiss
for lack of subject matter jurisdiction. See Berg v. BCS
Fin. Corp., 372 F.Supp.2d 1080, 1088-89 (N.D. Ill.
2005); Fed.R.Civ.P. 12(b)(1). “In considering a motion
to dismiss for lack of subject matter jurisdiction, the
district court must accept the complaint's well-pleaded
factual allegations as true and draw reasonable inferences
from those allegations in the plaintiff's favor.”
Transit Express, Inc. v. Ettinger, 246 F.3d 1018,
1023 (7th Cir. 2001) (citing Rueth v. EPA, 13 F.3d
227, 229 (7th Cir. 1993)). “When a defendant challenges
jurisdiction, the plaintiff bears the burden of establishing
the Court's jurisdiction.” Lewis v. Carrier
One, Inc., No. 15CV7402, 2016 WL 910522, at *2 (N.D.
Ill. 2016) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992)).
OF THE COMPLAINT
is a disabled individual who resides in Langlade County,
Wisconsin. CAR owns a lot adjacent to Buckley's
residence, where it operates a thrift store. CAR's
registered agent is Pat Kamps. Buckley, who uses a walker,
alleges that CAR's thrift store, which is a place of
public accommodation under the ADA, fails to provide full and
equal access to disabled individuals. Buckley specifically
lists the following “nonexclusive” deficiencies:
• Not enough maneuvering room for a wheelchair/walker in
• Bathroom layout does not comply with ADA regulations.
• Noncompliant door hardware on bathroom door.
• Bathroom door does not comply with ADA regulations.
• No proper signage on bathroom door and signage does
not comply with ADA regulations.
• Accessible pathway from parking area to [thrift
store's] front door is not level.
• Counter in CAR's retail business is not 36 inches
or lower ...