we believe implicate the fundamentals of civil procedure the first issue is whether mistake this was entitled to discovery to the full extent of her standing under the a t a i with respect to remov barriers that affect of disability the second issue is whether she was entitled to discovery to into the changes that the defendants made defendant anthony's made after the initiation of the lawsuit so that she could evaluate the sufficiency of those changes for remediation and adequately respond to their motion to dismiss and the final issue is whether or not anthony's provide enough barriers that are readily she will to remove that affect her disability it didn't matter it doesn't matter if she encountered those barriers when she initially went to anthony's all that matters is that they exist and that they affect her disability but her though didn't wasn't it clear from the record that there were other barriers franco the timing went differently in this case the anthonys quickly made changes and filed the motion just missed pretty much immediately before this before the opening of discovery before ms davis had individual who's blind who he ate at the cafe there and he went to try to find a bathroom and he couldn't find the bathroom because they missed their missing signage his expert was able to go to the building and  that is when she discovered the that the issue that was on the first floor was also on other floors as well as other issues that affected his disability so although there was evidence in the record our position is that my client's entitle to be able to take the discovery to be able to put that evidence into the record when eyes are special way you get the effect of discovery here without calling it discovery and that is a so called osborne hearing did you ask for a so called osborne and you know what i'm talking about so we did ask we did ask for discovery with respect to their motion to dismiss that yes to be able to take for example of site inspection to  be able to challenge their measurements that they provided the evidence that they provided with respect to the parking lot issues which were in the original complaint well as i understand but how i was born hearing works you say there are certain facts that they had mooted my client's claims by making changes to the parking lot that brought the parking lot into compliance my client asked to be able to take discovery so that she could challenge those facts so she could so that the court wasn't just relying on what anthony said but that she could for example take measurements to see how wide the axis aisles are or if there's a sloping problem in those access files or in the parking spaces or or how high the signs are instead of so that the court had would have had two sets of measurements to look at and be better informed with respect to what the actual conditions work at the of the determination so that we could collect the evidence because we haven't had the opportunity to collect the evidence we can't have the hearing to present the evidence we the first thing we need to do is have permission to go to the defendant's property and collect the evidence that we would need to present at that hearing and we wouldn't actually need a hearing if we were able to collect evidence because he simply could have provided that in our in our briefing so we would have just just rice tracked and it's a factual attack so all the time this was for the district of just twelve b one yes that is that's correct so what we what we asked for was the ability to collect that evidence that was needed to be able to says intent to return to the place of injury some days insufficient you know that's on the same page is the birch you referred to yes what does that mean and in this case ok so in this case  well there the question would be has miss davis articulated a sufficient intent to return once the barriers are removed so she is the certain that she is she was deterred from going to the anthony's restaurant on the date that you've ever actually visited because she couldn't park in so she didn't get out and she couldn't go inside the restaurant and one of the reasons she wasn't able to determine if there were other barriers  in her complaint she says that she comes to at the time she didn't live in an omaha she does now but at the time she said you know we i come to omaha nebraska the basis i went to anthony's when i was a child i'd like to i tried to go when i went to visit at this time and i'd defendants it was a slightly different procedural step so again we were at we were at the motion to dismiss days was to just at the pleading stage and we would contend that what she put forth with respect to standing for that at that stage is sufficient because for example going to a restaurant is something that you do want to more spontaneous love basis then for example the case that you like on when you're going to another country those are so the concrete nature of your return visit it differs depending on where you're going for example if i say i intend to return to the local coffee shop i'm most likely you're most likely going to believe me it's down the street but if i'm saying i'm going to return to a hotel in another country and i've only been there once you might want a little bit more information about what my plans are to return there in this instance misty of assisted said you know i don't live in a home omaha but i come here in a pretty much regular basis and next time i want to come back when next time i come back to omaha to visit family etc i'd like to go to anthony's again so although it wasn't a date in the future a specific date it was a concrete plan to return and part of the reason that we my client can't provide a specific date in this instance is she doesn't know when things are going to be fixed so for example if she said she was going to be coming back to omaha in a month she's probably not going to go to anthony's at that time because the likelihood of them actually having to fix what is  ring her from going there is really low but if her plan was to return in a year then maybe it be more likely that she paid going back so i have a follow up question on the discovery issue that you've raised one is the ability to go inside of anthony's or have her expert go inside of anthony so that she can determine whether or not additional barriers exist at the premises that she w her expert getting that information from the parking lot without formal discovery i don't in the past i have run into problems with that personally with the court s not liking us doing that so we were hesitant to go and collect evidence without permission that would be potentially a way to collect evidence but again you're going on to somebody else's property and they may not be very happy to see you there so from pressure from practical purpose to make sure to ensure her rights it is preferred ball that the court allow her to actually take that discovery and total it's not it's not a big thing but it is something that's necessary for my client i'm running from thing that is that you could make a request of coun yes you could ask them most of the time they say no because again unless the court has the prerogative and the information they're not about to let us go inside and look around talk about the parking lot yeah and i guess and again  opposing counsel from a pro practical standpoint that is up obviously an option but from a procedural standpoint it shouldn't be required my client should be able to get the court should give that hurt her the permission to get the formal discovery the information parking lot claim is moot because the parking lot has been brought into compliance yes so are you saying that there's a factual issue against that yes your honor i don't know any that the the appellant here was not given an opportunity to that is correct to contest that factual that is strict yes and that they didn't provide enough information regardless because under section five zero two of the eighty eight which deals with parking spaces their requirements with respect to sloping and there is no there's no evidence on the record with regarding slope and i'll say the it please the court john madsen jesson law firm on behalf of affably anthony inc and judge sheppard i think i'll just start real quick by answering a question that that you pose and that is regarding this  alleged disputed factual issue into whether or not there was compliant remediation is completed within the parking lot melanie davis did not read through counsel did not request an evidentiary hearing could have but did not request an eviden hearing that's in the record in the record it's not there there's no request for that there was a rule fifty six request for discovery so and that's what judge benton was getting at with this osborne hearing under our under that that precedent which is set forth in the briefing the there is a requirement that the requesting party submit an affidavit that has four elements in it again this is addressed in our briefing but our our position is that with at least respect to two of those elements what efforts were made to obtain the key facts and why the efforts were unsuccessful the those two elements were not addressed in melanie davis affidavit they just were not so in in the court's determination of whether or not to grant that additional discovery the court's has discretion on whether to grant that the prerequisites were not met and therefore there was no there was no prejudice and there's no error in what the court did it would also submit your honour's that under johnson versus the united states that a political standard there is an abuse of discretion so judge rosseter took a look at the record to look at what would have been some submitted to him there was no request for an evidentiary hearing the affidavit submitted was spoken generalities didn't didn't provide specifics and your honor benton started judge shepherd asked could they could you could they have reached out to opposing counsel could have taken some of these steps and put and counsel for davis indicated well you know practically maybe but there's no requirement i would argue your honor that under this present this ahs born hearing precedent and under johnson it is it is absolutely required you have to take reasonable steps and show the trial court here's here's what happened here's why we can we need this additional discovering here's why it can't be it hasn't been able to be obtained and furthermore your honour's  davis did not press the issue of whether there were mediations we made were sufficient all of slope was an issue before the district court the slope of all this was an issue yes your honor i'm i'm glad your honor asked i think that's a very important question if you look at the complaint so there are three specific allegations set forth in the complaint and three only they are access iles which is under eighty eight five zero two point slope is addressed in a separate section of the eighty eight this is and this is in our briefing it's under five of two point four so had the pleading just satisfied rule a just tell us the you know you're alleging the slopes might be an issue right so i cite the rule we would be on notice of what was allegedly wrong and would have addressed it ok so now now the problem i have is this was decided is twelve b one right yes or no jurisdiction basic motion right yes or the stegner case says that someone in this position has standing as to anything else any other place in the building so if there's a disputed fact about to that what was played in the complaint and there's just three there are just three violations that are alleged and then there's some catch all like it's i think the language is this is not to be considered all inclusive but again under you have to do more than say well there might be something else so if there's three allegations those are the three that were complained of those were the three at issue and when we under the voluntary suspicion doctrine and under the  in spent thousands of dollars to you know did the analysis on on the on the things that were specifically identified in the complaint made the changes and that's that those facts are undisputed before the court where there are any changes made to the slope if your honour's if you look at the pic there's bunch of pictures in the record the there was a hole our client ripped out all the concrete in the front of the building and relate relayed a whole brand new slab of concrete so this wasn't you know this wasn't a case where our client just said oh you know we got sued for a da noncompliance better go in and you know restrike this parking lot they understood hey look we don't have the right number of spaces we counsel out and did you know did it did it a complete fix of those issues that had been specifically identified only on appeal does the davis raise the issue of slope that was never addressed before the district court and we did and we'd argue your honour's that that is waived so there was no i'm assuming that slope was addressed in order to make it a da compliance and so you're saying that the district court the plaintiffs never said i really that's a new thing that's popped up as you've redone this whole parking lot i need some discovery to determine whether or not that aspect if you look through the start interrupter if you look through that if you look through the record there is no press no motion for further discovery no motion for jurisdictional discovery it's a it's  it was a five o two it was a fifty two request for for additional discovery there but there was never a specific allegation even post that we made said something like this post remediation is there the restaurant this case clear he survives and under state or right i would argue you know about the hill bear you know i'm referring to the whole barry testimony your savior yes your honor and i think let me answer in two ways one is i think you've got to go back to the complaining the well played allegations of complaint even giving way now as burns's of facts or just be to start having hearings and all kinds of stuff have it go ahead i think under under rule eight we were there stuck with the allegations that are pla complaint the three that were specific anger doesn't do that does it i think i think under state or you're on the court took a look at under rule eight what the up well played allegations were yeah but you notice that crunch time over here they refer to what hill's very testimony hill barry testified to are you following what i'm saying maybe they don't refer to complaints they refer to what you know barry identified as giving the as giving the standing in getting past the jurisdiction problem and i think maybe your honor the i guess my my gut would be on that they're probably there may have been a factual dispute there in state or that just is absent in our case again they did davis did not make the wreck requisite request for an evidentiary hearing could of absolutely could have but didn't so that's waived could made a request for rule fifty two discovery there are four elements under osborne and johnson that we're not all satisfied those are requirements so we look to whether judge rosser abused his discretion in denying that discovery so because that because of that analysis i don't think there is an analogous factual dispute at issue here that brings this case to a closely analogous situation to steger but i'd also point your attention to your honor under steger and you pointed out judge benton in your questions previously but it says quote the intent to return some day is insufficient undercity notice they don't apply that test on that page this court we don't apply that test to the birch person we only applied to the other plane leaves but the person th to you notice that i guess what what i would point your honor to is that in this case judge roster just never got to the standing issue at all but that's a separate to the analyses are completely separate if if davis does not have standing just because there's no injury in fact and there's no this isn't a quote unquote intent to return sunday as in is insufficient that's that's one issue completely had a completely separate now has just been it's not germane right whereas here in in this case there's abundant authority with the from district courts all throughout the eighth circuit that apply and  davis does not disagree with the with the standing test that should be applied here so those four elements your honors our proximity to plaintiff's home past patronage and tests all sorts of the cillit is like this so i'm inviting eighty violators go ahead yeah yeah so in terms in terms of in terms of proximity there's the undisputed and you can't look as as counsel for davis pointed out what's gone on today whether she lives here today or what's gone on in the last three months it's irrelevant understanding analysis the question is what were the facts when the complaint was filed and the facts were that davis lived four and a half hours away so under element one proximity to plaintiff's home that would weigh strongly against finding standing past patronage i think the complaint said that you know when she was younger she may have it came to anthony by the way who are you getting your because and there's some disputes amongst the different not disputes but i think there are different rules applied amongst the circuits like the ninth circuit applies a different rule that's never been applied but as far as i know by any of the district courts within the eighth circuit but i don't think the  don't think the circuit has squarely ruled on this proximity and now this analysis that i'm talking about so sort of minnesota district cases aren't they that you're referring yeah and i think a few other district courts your honor have have applied those as well  and counsel for davis really it does not dispute that these are the pertinent back tears so again you know past patronage we would argue weighs in favor against the airways againstand ing definitive of plans to return i it is true there is a statement in the affidavit i want to return that's that's a that is one fact that is before the your honour's and then frequency of travel by the accommodation again it's a restaurant is four and a half hours away from your home and that factor is going to weigh against standing so i guess the point the point is judge us are never got to that analysis but under this court's precedent that's an independent standing issue that is very much implicated by the facts of this case and we would ask the court to affirm on that basis to the extent it found for whatever reason that the movement issue was too close to call this with respect to whether or not slope was adequately in the complaint the defendants in their motion motions to dismiss where it was able to figure out that if i were to applies with respect to for example how w access need to be despite the fact that that's not a five o two point two that's a five o two point three which was not particularly specifically laid out plus as i said to a point two which is cited in the brief are in the complaint six to five o two in general and lays out what is necessary for a spot to be and a parking space lot in general to be compliant and one of those things is five or two point four which says that both parking spaces and access files to be considered and accessible kept parking space and access i'll have to meet sloppy requirements it is squarely within the complaint and they did not address that in their rudeness with respect to any evidence of that on the record that there may be other barriers in the in her experience when there's significant problems in the next year there are problems on the interior as well and i can represent to the court that she has been back and there are problems on the interior and so if again if it's not reminded tell me tell me what your best statement was all the problems on the interior what is your strong mysterious stated that in her experience when a when a place of public accommodation has problems on the exteriors they also have problems on the interior and that's similar to what happened in seven eleven where the person could not go inside in the ninth circuit acknowledge that again somebody that doesn't bother to comply with their parking spaces probably hasn't looked at what their interior looks like either thank you for your argument number sixteen dash forty fifty one is submitted for decision