good morning may it please the court my name is patrick brown and i represent the appellant miss melanie davis miss davis is asking this court to reverse the district court's findings of newness and to remand the case to the district court with instructions to one enter summary judgment in favor of turning to moon us generally speaking occurs when a defendant provides a plaintiff with everything demanded in her complaint regardless of the defendant's feeling about the merits of plaintiff demands in this case mr davis is complaint demanded five the evidence shows that there are one hundred thirty one spaces on the property that is owned by m a company's and that serves the rusher on whether or not the back parking facility is or the back parking lot is a separate parking facility first question on the merits but the only thing that that does is change how many spaces are needed it doesn't change whether or not an economist has a sufficient number if it's a situations related in a way here so i hadn't addressed ok well with respect to move ness whether regardless of the merits again should not have been entered because misty was asked for five and so whether or idea that regulations anticipate a situation like this where you have multiple parking lots that are considered separate parking facilities and putting spots in one of the parking facilities wouldn't be very useful because it would be far away from the  access one trance and it allows for business owners and property owners to put those spaces in a more accessible place so practically speaking what i'm a crummy should have done was put and frankly anyone similarly situated to her shouldn't be required to continue back to go back to the place same place over and over again until if they have four and they really need six they run into the situation where they need  respect to that issue the question of whether or not for sufficient for this building didn't exactly come up because the law is what governs what is sufficient and the law says that if there is to parking facilities what is sufficient is six so i want to ask you so one of the things you ask for on appeal and in terms of relief is you asked for the entry of summary judgment for your client but i think that's a bit premature in light of the colloquy we're having here in the sense that if the backlog if the district court was wrong in the back why it was before and i think it probably was based on the way you argued it i mean it was definitely an issue that you brought up during the during the course of the proceedings there's still a question as to wh they need five if we treated for as one lot there's a question if they need four in the front and two in the back we treated as two lots so aren't those things i mean we could vacate the summary judgment i'm not sure it's little premature to enter summary judgment i want to with your responses  well the court made the finding that those two parking facilities which would mean that they need six that's a finding that's already been made and miss davis did not appeal that finding and neither did b s and so the that there's two spaces don't have to be in the back and come to make you determine if they can make a decision to install them where it is most appropriate for accessibility so they don't have  trying to park their need for their well it serves the restaurant and she's asking for what she's allowed when she went there she found no what sensible parking and the re mediation what she's asking for is that they come into compliance with the law with respect to the amount so under the minister now says she's entitled to that and under mootness under the moon as analysis it cannot be dismissed but she's she's entitled to more because her her rights were violated and she's asking for the facts of coming spots in the front lot you're making the same kind are given you're saying they didn't fully remedy the issue she was harmed by the fact there weren't the legally required number of spots i just want to understand yes and so they haven't they haven't fully remedied what because it's a it was described as by both the expert and mr morris as being used for employees trucks and overflow parking but the only the only relevant exception would be if it was used appendix page one thirty nine showed that there's a car in that back parking lot which means it could possibly use solely for truck parking which means under the scoping requirements of the twenty one standards they have to provide spaces with respect to those spots unfortunately the expert got that wrong she got the l if a person comes to a building vission parking the person can challenge the parking but doesn't have standing to go beyond that and challenge things within the building the number two just like she didn't have one because miss davis encountered all of the parking she has alleged one hundred thirty spaces which is what is in both parking facilities now miss davis is unable to now at the time that she files her complaint whether or not the finding is going to be that this one parking space one parking facility or two so miss davis alleges while i went here i know that this this property has i encountered this property that is one hundred  thirty spaces and it had no accessible parking so she has encountered all of the parking and the fact that the judge later makes a finding that is to separate parking facilities doesn't negate the fact that she encountered the parking at this location and that it was deficient and not that deficiency crossed her an injury ask one additional question you mention that the judge never mention the affidavit from that the expert i'm just wondering if that also presents a fact question that the district  needs to figure out whether or not that that is open to customers or whether that's you know something that is is is not available to cost a man is only available to trucks or whatever the case may be or is that  know shown by the record i described i think that it is undisputed the affidavit is submitted by mr morris as was the description in the expert after expert report that the parking is not use only for truck parking and regardless  as long as his car is parking there they have to have accessible spaces for those spaces so and mr morris himself multiple times has described it as employee truck and overlook flow parking and if it's over that means that people are going to the restaurant are parking there during their spaces under the law they have to have a certain number of accessible parking spaces regardless of who uses them and ask if you have that's for trucks and if and if that was your only lot then my client would not have standing to your second love for them but if you didn't have that second wanting the employees would be parking in the same area as the as the restaurant patrons so when you when you're looking at the numbers there's no exception under the a t f are you saying it's only for employees in trucks it's the only exception is if you say it's truck only if it was a separate lot that was a lot this for employees only the  requires them to have excess of all spaces and that a customer can park their well first as an initial matter the description by the by emma companies consistently has been not that it's solely for trucks and employees but it's for truck my name is ashley leach i'm with a law firm best in flanagan and i'm representing a pallies to have article three standing appellant has the burden to prove that she suffered an actual injury in fact that is not  is in fact concrete and particularized in addition to having that injury be something that this court can remedy with a favorable decision we look at the allegations that appellant has made about the existed within the restaurant that she concedes she never visited she does not have an injury in those violations nor does she have an injury in fact that is concrete in particular  in a separate parking facility that again she does not allies in her complaint that she ever visited or entered nor does appellant have a redress will injury in the restaurant's parking lot remediated that lot but the problem i'm having with your argument is there's an allegation in the complaint that there's one hundred thirty parking spaces it's generally agreed that the back parking lot is used for customers as overflow on weekends and when when the when the orchard in the restaurant or particularly busy seems to me that there's a genuine dispute there because customers are using it and she didn't get all that she wanted she wanted five or six parking spots as the case may be depending on the district court's findings she got four so they're still alive dispute there and why does she have standing to you know if the parking lot is used by customers why isn't she in kind of the parking lot there wasn't sufficient parking had there been acce parking you know in light of that back parking lot she might have found the accessible parking why isn't there a why isn't there an injury there you know there's no injury there because she did not encounter the parking lot in which she's alleging she had record that she ever went into the the other vacant lot that was used for truck overflow employee parking that is a that was that used to serve and now vacant a truck stop there are there no signs directing patrons to park in that parking lot it's an example of looking at google maps if you pull up google maps you can then count out the parking lots but that's not sufficient to have an injury alleging that you went to a parking lot and it's a separate facility and within that separate facility you could not find a parking space that is an injury so it's a question of standing that right it's not a question i'm an a c when i read the district court's opinion i was like i'm not so sure about the midwest thing because there's still a lot of controversy she didn't get everything she wanted from your perspective the correct frame of analysis would've been standing that she didn't actually they're stuck with a separate facility finding and or the plaintiff stuck with a  place and that she encountered the parking problem and therefore she has standing to challenge whether each facility has adequate spac and i think there is where this court's recent decision in anthony incorporate davis b anthony incorporated is really controlling and dispositive because merely alleging that you were in the vicinity of of a violation and knowing that there and that there is a potential violation in a separate facility doesn't give you standing to then bring a fourth a claim about the separate facilities so here now it now that i'm hearing appellant say that they're accepting the district court's finding that there were two parking facilities we have three different kinds of claims we have claims in the restaurant lots that a pollen personally encountered we have cl the truck lot that she did not personally encounter and we have claims that she's alleging within the interior of the restaurant which again she did not personally encounter and just because she personally encountered claims in the restaurant parking lot under davis b anthony she doesn't then have standing to allege violations she did not encounter in the truck parking lot or the interior of the restaurant to get to that is the judge have to really in a way reach the merits of this facility's issue because how can you the premise of your argument is there are two parking facilities that's correct your honor goes you're saying had a factual attack on their twelve b one motion to dismiss against appellants complaint and under a factual attack as stated in oz born in the united states the district court gets to interrogate the facts they like get to look beyond the pleadings and they don't hold the pleadings as necessarily true because standing is such an important issue this court gets to look at the factual underpinnings of the complaint to ensure there is in fact standing and so here that's what the district were saying this isn't about how many parking facilities was part of the standing analysis correct it was a matter that the district court made it as a matter of law looking at the requirements under the two thousand and ten eighty a standards section two zero eight point two looking at the appellant's complaint and where she personally encountered a barrier the  five parking spaces because there are two facilities and you're only entitle to four in the first facility but opponent only had standing to bring forth her complaints that she was that she personally encountered one hundred thirty parking spots then i think this would look different but that's not what her complaint says and that's not what she has represented her or her visit so that i'm a crumby is restaurant in two thousand and sixteen and two thousand and seventeen to be and so she hasn't alleged that she actually went to the separate parking facility she has not alleged that she personally encountered any violations related to her disability in that parking lot and so she does not have standing under the anthony under the davis b anthony decision i would like to address one point that appellant raised about the futile gesture that she's saying that appellant is not forced to undergo a futile gesture to visit  discussion in that case is that although plaintiffs need not engage in the futile gesture of visiting a building containing known barriers that the owner has no intention of remedying they must at least prove knowledge of the barriers and that they would visit the building in the imminent future but for those has she brought forward evidence that she had plans to imminently return to either the truck rest to the truck parking lot or to the restaurants and so under the steamer standards detail about the interior in the complaint doesn't she there are details your honor but none of it is from personal knowledge what does that mean personal knowledge black's law dictionary defines personal knowledge as information derived from first hand experience or observation  are you saying she must actually enter the building and gain that knowledge before she can make a complaint is out there yes she must personally encounter and have personal knowledge of barriers he was an individual with a vision impairment and so he went to the first floor restroom and was not able so with it have what you're defining is personal knowledge about the flaws on the second floor but critically he had personal knowledge of th flaws on the first floor and therefore he had standing to then assert flaws throughout the building and that's totally different here we have three different facilities so i if if  pilot went back to the restaurant went back to the restaurant's parking lot and found that there were you know found that there were other violations she would have standing to assert those other violations or if she sent an expert states states that nothing in this section shall require a person with a disability to engage in a futile gesture if such a person has an actual notice that a person or an organization covered by the subject or does not intend to comply with the provisions the fact the mistake of us had actual notice that there was no