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Buckley v. Kamps

United States District Court, E.D. Wisconsin

May 15, 2019

JAMES BUCKLEY, Plaintiff,
v.
COMMUNITY ASSOCIATION OF RETIREES OF LANGLADE COUNTY, INC. and PAT KAMPS, Defendants, GERMANTOWN MUTUAL INSURANCE COMPANY, Intervenor.

          ORDER GRANTING MOTION TO DISMISS

          William C. Griesbach, Chief Judge United States District Court

         Plaintiff 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.

         LEGAL STANDARD

         A 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)).

         ALLEGATIONS OF THE COMPLAINT

         Buckley 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 the bathroom.
• 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 ...

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