court's finding finding that the district court erred in finding mr culture and lacked article three standing with respect to state law claim and if the district court did not air with respect to his standing finding whether the district court erred in dismissing health  instructions to return this case to the minnesota case state court for lack of federal jurisdiction as held by this court when it becomes clear a case originally filed in federal court does not belong there because the plaintiff lacks article three standing generally the appropriate remedy is to dismiss without prejudice further as in the instance case case which was removed to federal court by the defendant with respect to case i view you as as your client is raising three claims i want to be sure this is right they're all m h r a claims and there were eighty eight claims but a claim about the vertical signage that there was an adequate vertical signage at the holiday station store there was an adequate access file on one of the two disabled parking spots and then the trash can at the top of the ramp is that all inclusive heard the or is that all inclusive of the claims yes that is correct with respect to were alleged to give rise to my client standing so with respect where we draw issue with the district court's findings with respect to  what has been mooted and whether or not there was an injury in fact comes down primarily to the issue of where the trash can was placed and what the placement of the trash can in the  route what resulted from that ok now i want to get to that one in a second but the vertical signage and the access file i don't know that there's an entry in fact on either one of those because you haven't there's no allegations that your client was unable to find a parking spot or that somebody else had parked in that spot in the in the disabled parking spot there's no allegations of that nature for the vertical signage that fair well with respect particularly to the claim there's  requirement deviations from the standards caused my client not to be able to get inside for example or not be able to find the parking space on the particular day that he went there because  violation of those standards is a violation of the dignitary interests but he wasn't personally entered those days by i mean there's no allegation that was personally entered correct there's no allegation that he was unable to find a parking space ok and then on the access file there was a second space that had an adequate access file correct and so you know you may make the same sort of dignitary but he wasn't actually harmed because he had to park in a space without the without an adequate  he didn't actually park because of the trash i said you are correct because he knew that if you was to park in an attempt to go inside he wouldn't make it like looking at the whole picture of the location when he went there there it would have been futile for him to bother to park even if you could have used that access now because he wasn't going to be able to get from that access to the interior i see so then the claim becomes really i mean the claim of injury really becomes the trash can which i just want to tell and i understand that's is the fact that the curb ramp at this location is what is called the diagonal curb ramp so it is on the corner of the sidewalk and it goes up at an angle that when you get to the top there's supposed to be a landing that's clear that is clear for at least thirty six inches past the top of the ramp and i am for the with of the  possibility of wobbling or tipping over because of cross flow and the problem that mr hill shame had on the day that he went is that that clearly ending space had a garbage  can place right up there so that if my client was to attempt to go up the portion of the ramp that is intended for use by a person with a wheelchair or someone else to traverse and not the ramp flares he'd run into the he'd run into the garbage can and not be able to turn without going on to the roof layers alternatively his his alternative option which appears to what that generally speaking inaccessible route is supposed to have no cross slope or crossed off less than one to forty eight which is a very minimal amount of cross lope but because he's going up the curb and flowers which are sloped towards the ramp from it there's a significant amount of cross flow which would mean that my client's wheelchairs to the two wheels would be at different levels as he attempted to go up onto the sidewalk and that makes a very st reject i don't think that that was appropriate i think that especially since they specialise since it was we are we are the summary judgment states we're all inferences are supposed to be taken in favor of my client that it was inappropriate for the district court an appropriate inappropriate on summary judgment for the district court to find against my client on that issue because it was an issue of fact whether or not mr ellison would ultimately win a trial is a different issue obviously but when it completely blanking out a case name right now but i'll try to remember it look it up before i get back up here but there's been a holding that when bringing in an argument such as lack of injury in fact at the summary judgment stage because of the fact that it is summary judgment again the court cannot weigh the facts and it has to be the inferences most favorable to my client must be taken so why in the injury here just a follow up to question the injury here or the injury in fact was the fact that you pleaded that he looked at this situation and said you know i want to go on this holiday store but i can't get my wheelchair around it safely and that would be that that would be what would at least create a genuine issue of material fact on that that's correct but then you get to the next point which is what judge arnold was getting at which is that which is the merits and whether there was actually a claim and i have a slightly different question which is it's unclear from the record whether or it was actually before the district court and before us was the merits of the claim itself in other words did holiday consistently argue that even with respect to the trash can there's no claim because there are inadequate facts to create a genuine issue of material fact as to whether there is an eighty a or an m h r a violation i believe what they argued was that they had to the extent that there was a claim that they had mooted the claim you were to find that his findings were greeks were correct the case still nice theory manage to state court and in my in my experience right well as a statute i think has been interpreted to mean if it if it appears at any time that the court never had jurisdiction not if it if it loses the question of remove federal level only to turn around and say just kidding you'd never had jurisdiction over in this first place because there was no standing there was an intervening event but they fixed it and that's what call it a lack of of stand it were they also argue make thank you ma'am please the court counsel my name is tamarin about me and i represent holiday station stars and want to pick up on some of the questions asked by a judge stross towards the end of the last argument holiday's motion to the underlying court essentially asked the district court to dismiss with respect to the minnesota human rights i claim both because there was no injury in fact as well as because there was no legal basis for allowing that claim to proceed so when judge arnold when he said you know the injury in fact kind of goes to the merits as well as to the standing issue i agree and we were kind of addressing both before determining was are there facts here is there evidence here that allows this case to go forward to the trial stage we've already talked about the fact that there really isn't any dispute that mr  parked in one of the handicapped parking spaces there was an extra one there he could use the adjacent access aisle to get out of his vehicle and there's nothing in the record to suggest that that parking space or that  sile were being used they were fully available for him to park in and to get out of his vehicle where there was the issue including on appeal is the argument over the garbage can and where it was located the district its opinion really make a finding one way or the other as to whether that garbage can i was properly located or not what the court found was there wasn't sufficient evidence presented of any sort of what makes a space compliant versus not compliant and where here's a little bit of a curveball question but i got i got stuck on this as the mh ira which seems to incorporate some of the a d a s requirements at least in some of the cases doesn't include any of those guidelines there's no guidelines attached the m h r n that says you have to have a with of up aisle of thirty six inches or you can't have too much are the requirements the same and if so what's the authority for that how do we then look to the a da and say ok this was or was not mat under the a d l when we're talking about a separate statute i agree with you the minnesota human rights act does not say anywhere that i'm aware of it expressly incorporate those guidelines but it seems together and obviously if you need to meet the requirement of the eighty you're going to look to those guidelines so it seems that the courts of kind of said well this is the gospel that we're going to follow even if we assume that is all correct and that's where we need to look issue for the district court in this court as well is the lack of any evidence that those very specific guidelines why not met again the difference between compliance and noncompliance can be a matter of inches or even less just talked about in colonial versus avenue grill where it was kind of a similar allegation where you know the bench doesn't feel right or i don't think this table's quite right but the courts have said you have to have some specific information to establish a violation or so go it go to the trash can and he drives up and he said as opposing counsel says and i think this undisputed i can't get up there i just think it's too dangerous i could tip over at least that's the allegations and that's probably enough for standing as as our discussion because you know he was deterred from going into the into the into the into the holiday station store but then when you get to the merits of the claim why isn't it enough why doesn't it create a genuine issue of material fact for him to look at that and say in my experience i don't think i can get up that safely because i don't think that it complies with the a da i think there's three things first of all this is not a situation where i think it was an obvious to timed there are those cases of course worse you know wheelchair user comes to a doorway and there's you know six or seven inches doubts that are clearly going to preclude their ability to get into a building or into facility there isn't that obvious did not present that kind of evidence to the district court there's nothing in his declaration that says for example that based on my years of experience i haven't encountered several sidewalks with obstacles on them and that i am able to eyeball and determine whether there's thirty six inches of versus thirty five inches of space one would be compliant and what would be compliant and in the strong case there was that background information submitted to the court by the point of two to say for example in that case he said you know i based on my experience i did countered i don't member  the particular obstacle was but with the slope i believe that he had it countered many times that he believed that were not compliant and that he in turn had taken it on himself to go out and actually measure those slopes and he was able to verify that in fact they weren't compliant there's nothing in the record here that the district court had or this court had were mr hill sham said for example i have encountered these obstacles i've encountered these diagonals but i have measured them and based on these several instances in his experiences i can tell whether or not they're in compliance there just wasn't that evidence submitted to the court and our motion was brought in a motion for s judgment not just a motion on the pleadings meaning you need to come back with some real specific evidence or motion was also brought at the conclusion of discovery so there is no if you don't have that specific information at the time of our motion you didn't have it from the time of trial and certainly there was nothing submitted to the court that actually said what any measurements were again under the guidelines you'd have to have at least thirty six inches of clear how does he do that you have a movable object and we can get into whether this is an architectural barrier or not i have some doubt about whether architectural is a is a is a trash can or not but nevertheless let's assume it as it could be in a different spot the next day it could be in a different spot the day after that and so aren't you're really asking a guy in a wheelchair to roll up the ramp with a ruler or you know measuring tape and try to measure the distance between to see if there's thirty six inches of available space as that really what we want to encourage in order to make out a claim well i would agree that at the pleading stage you know it's turning you know that the slope was excessive were perhaps turning that there was an permissibly narrow with for him to maneuver that get some pas you know the pleadings you know and we didn't bring a rule twelve motion for that reason because i would agree that we would get shot down if we tried to do that but we're past discovery and we're we're now determine are we going to trial are we not going to trial i know with counsel in other cases there have been side inspections for example where they have taking many many many and measurements to try and figure out exactly what the slope is and doesn't meet their requirements and this garbage to about over his personal i think it's vastly different you know would be better no doubt but i mean the question here is whether it's a well again the requirement the difference between holiday being compliant and not being are the terms the difference between holidays story being in compliance and not in compliance is literally a matter of inches or less so for mr hill shyam to say that he could just eyeball you know what this lope was and in fact i think in that you know you're going to get to hear from us again after this on our next case counselled knowledge is in that brief when talking about a slope and in both situations it's supposed to be one to forty eight when counsel says it's beyond  one to forty slope or that he could look at and determine from his cardinal last that he had not even parked into the spot that he could determine whether this was thirty six inches or thirty five and three quarters and that's the difference between compliance and not compliance between having a claim and not having a claim why did you mention the next case and leave the next case for the next jurors but but why did and why didn't this case why didn't they raise the affirmative defense we fixed it because their record seems under the mh or a their records you just suggested the trash cans no longer in the same place which means that it was fixed and i'm just wondering why if it did get raised i wonder if that's an alternative basis for a firm answer and you try to figure out where that is nice case are you are you referring to the affirmative defense under the mh are iraq the one that says if you're mediated it's a defense to the client quite simply the statute wasn't enacted yet i say so we would have loved to have what we didn't have that option so we were able to raise the minutes argument on the seven applies here at all you know that generally is going to apply you know if the removal was procedurally improper or if the court never had subject matter jurisdiction to begin with and clearly in this case and there's no dispute there begin with because one had never been served with a notice of the speeding violation that was at issue and the other one it was his wife that had been served here there's no question that mr hillshire at least you know went to the store and encountered what these conditions are but again damages and you know he bears the burden of proving that there was a violation and there simply wasn't that evidence in the court's record you know with respect to mr hill sherm's declaration and you know  not acknowledging that he's got this disability and he very well may based on his years because parents be able to tell to some extent whether there's a violation or not but what he actually submitted to the record for the court's consideration differs and if you look at the strong case that they do do science support of that argument there was a lot more there again that particular plaintive not only just based on his experience in counter violations but he took the next step of actually going and measuring to determine whether you know when i feel like this is off is it really off is it really a violation and he had done that work and there isn't that information ever save i understand your point and it's not that  of conditions it's that day for bed certain kinds of conditions that they deem to be dangerous in other words there's part of the claim has to be the actual violation and not just some sort of  hazard that absolutely that the rover that's why the declaration is yes of vision right the guidelines are i mean if you read the guidelines like a so they are in painstaking detail in terms of you know you need x amount of inches and there know the more space the better for any military use or you know a completely flat surface would certainly be more ideal than having to face any ramp but it's not what his own personal comfort level is i cited by my in my client's briefing as well as the case cited in that one constitution party south dakota which is six thirty nine f thirty four seventeen from two twenty eleven and in that case it was at the summary judgment stage that it was  d that there was no standing and it will and the court found that it had to be remanded and so i want to just ask you about the merits question which is that the argument is look these are very specific requirements and there's always the possibility that your client is overly cautious perhaps sees a trash can and says i don't really want to take the chance here or maybe he has a larger wheelchair i mean i don't know there i can think of twenty different situations where that could happen and come back and said you didn't give me anything specific that shows that any of these specific requirements were violated and they are and so where is the genuine issue of material fact on the trash can ok well there's two two things one are the statements that he made in the second is the photograph of what the location looked like when he was there my client and just looking at the photograph you can tell that the trash can is very close to the top there's this isn't a situation where visually for him it was he was it was clear that there it was thirty six inches or maybe thirty five and a half it's very clear it was very clear to him and it's clear from the photograph there is less than three feet at the top of that ramp and then  it is very very clear based on the photograph and his experience and also based on the regulations that the cross slope if you was to go up the ramp flare is nowhere near one to forty seven this is not a situation where my client is trying to determine between if it's one to forty seven or one to forty eight where you might need measurements to be a compliant ramp flair to the ram pradhan which is what he needed to go he would have had to go up it needs to be one to twelve or less so the cross slope for the proposed path of travel by the district court would have been if it was a compliant round flare would have been one to twelve is there evidence on that is there a decoration expert is there some sort of measurement that sa no but i'm just i'm saying if we take it we assume that they have a compliant ramp absent the the parking garbage can at the top that ramp player has to be have a slope of less than one to twelve and because it's a ramp player it's going to be close to that and so this isn't this is not a situation where like the next case where it's going to be looking out really close together thing