United States Court of Appeals

For the Eighth Circuit

___________________________

No. 18-2123

___________________________

Aaron Dalton

lllllllllllllllllllllPlaintiff - Appellant

v.

NPC International, Inc.

lllllllllllllllllllllDefendant - Appellee

____________

Appeal from United States District Court 

for the District of Minnesota - Minneapolis

____________

Submitted: May 14, 2019

Filed: July 31, 2019 

____________

Before BENTON, WOLLMAN, and GRASZ, Circuit Judges.

____________

BENTON, Circuit Judge.

Aaron Dalton sued NPC International, Inc., seeking declaratory and injunctive

relief for alleged violations of the Americans with Disabilities Act (ADA), 42 U.S.C.

§ 12181 et seq., and corresponding ADA Accessibility Guidelines (ADAAG). The

district court dismissed with prejudice. Having jurisdiction under 28 U.S.C. § 1291,

this court affirms in part, reverses in part, and remands.
Dalton has cerebral palsy and requires a wheelchair for mobility. He travels

in a van with a wheelchair lift. Dalton visited the Pizza Hut in Fergus Falls,

Minnesota, in June 2017. The customer parking lot had two parking spaces reserved

for persons with disabilities, but both lacked adjacent access aisles extending the full

length of the spaces, asrequired by ADAAG 502.3.2. Two months later, Dalton sued

NPC, Pizza Hut’s owner, alleging it failed to make its place of public accommodation

fully accessible to person with disabilities. NPC corrected the access aisles the next

month, and moved to dismiss the complaint as moot.

Dalton amended the complaint to allege three additional ADA violations: the

Pizza Hut lacked two fully accessible entrances and exits (ADAAG 206.4.1 and

207.1); no signs identified an accessible entrance and exit (ADAAG 216.6); and the

service counter was too tall (ADAAG 227.3 and 904.4). The district court dismissed

the amended complaint with prejudice. It concluded that Dalton’s claims about the

parking lot, signage, and service-counter violations were moot because NPC

remedied the alleged violations. It rejected Dalton’s argument that—because Dalton

had not independently verified the alleged remediation—the motion to dismiss was

premature. It dismissed the inaccessible entrance and exit claims because the relevant

ADA requirements apply only to more newly-constructed buildings, and Dalton’s

allegation was “vague and conclusory” for failing to specify which door

“constitute[d] this allegedly inaccessible entrance.” This court reviews de novo

dismissals under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Doe v.

Nixon, 716 F.3d 1041, 1051 (8th Cir. 2013) (lack of subject-matter jurisdiction for

mooted claims); Wong v. Minnesota Dep’t of Human Servs., 820 F.3d 922, 927 (8th

Cir. 2016) (failure to state a claim).

This court affirms the conclusion that the parking lot violations are moot. “A

case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes

of Article III—‘when the issues presented are no longer “live” or the parties lack a

legally cognizable interest in the outcome.’” Already, LLC v. Nike, Inc., 568 U.S.

-2-
85, 91 (2013), quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam). “A

defendant’s voluntary compliance with a plaintiff’s demands will moot a case if the

defendantshowsthat ‘it is absolutely clear the allegedly wrongful behavior could not

reasonably be expected to recur.’” Davis v. Morris-Walker, LTD, 922 F.3d 868, 870

(8th Cir. 2019), quoting Already, LLC, 568 U.S. at 91. Pizza Hut voluntarily

remedied the alleged parking lot violations. The district court concluded that these

remediations are “permanent” such that “the violations are not reasonably likely to

recur.” Dalton does not challenge these conclusions about the parking lot on appeal. 

His parking lot claim is moot.

BecauseDalton lacks standing to challenge the remaining architectural barriers,

this court affirms the dismissal of the other three claims. See Tony Alamo Christian

Ministries v. Selig, 664 F.3d 1245, 1248 (8th Cir. 2012) (“We may affirm based on

any grounds supported by the record.”). The district court erroneously concluded that

Dalton has standing to challenge all of the alleged barriers. This court reviews

standing de novo. Heglund v. Aitkin Cty., 871 F.3d 572, 577 (8th Cir. 2017).

Relying on Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000), the

district court concluded that ADA plaintiffs “need not have encountered the alleged

obstacle,” so long as they “have actual knowledge of the barriers.” In Steger, this

court affirmed the dismissal of an ADA claimfor lack ofstanding because—when the

suit was filed—the plaintiff “had never been in the [challenged public facility] and

had no personal knowledge whether it was accessible to him.” Id. at 891. “Although

plaintiffs need not engage in the ‘futile gesture’ of visiting a building containing

known barriersthat 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 barriers.” Id. at 892, quoting 42 U.S.C. § 12188(a)(1).

Though lack of knowledge precludes standing, mere knowledge of barriers

does not create standing. In Davis v. Anthony, Inc., 886 F.3d 674 (8th Cir. 2018)

-3-
(Davis I), Melanie Davis, a wheelchair user with cerebral palsy, sued a restaurant

alleging ADA violations in the parking lot. Id. at 676. The district court dismissed

the case as moot after the restaurant remedied the alleged violations. Id. Davis

argued that the district court prematurely dismissed before allowing discovery about

other possible ADA violations at the restaurant. See id. at 677–78. This court held

that Davis lacked standing to challenge other possible ADA violations: “Davis

cannot use the violation encountered in the parking space to expand her standing to

sue for unencountered violations inside the [restaurant] that never injured her.” Id.

at 678. 

Later, the same plaintiffsued a different restaurant alleging ADA violations in

its parking lot. Davis, 922 F.3d at 869 (DavisII). She parked in the restaurant’s main

parking lot and alleged violationsin the overflow lot. Id. She argued that DavisI did

not control because here, she had detailed knowledge of the ADA violations. Id. at

871. This court rejected that argument, explaining that the prior decision “was not

premised on the plaintiff’s level of knowledge about alleged violations or her

interests in making a future entry; it turned on whether the plaintiff had suffered

injury by encountering a violation inside the restaurant.” Id. at 872. “A plaintiff who

encounters an alleged violation in a parking lot outside a building does not have

standing to sue over violations inside the building.” Id. at 871. Davis lacked

standing “to sue over violations inside a building that she never entered.” Id. at 872. 

Likewise, Dalton lacks standing to sue over building violations when he never

entered it. He has no standing to challenge the accessibility of Pizza Hut’s entrances

and exits, the signage, and the service counter height because he did not suffer injury

by encountering these violations.

The district court erred by dismissing with prejudice. A dismissal for lack of

standing is a dismissal for lack of subject-matter jurisdiction. Carlsen v. GameStop,

Inc., 833 F.3d 903, 908 (8th Cir. 2016). “A district court is generally barred from

-4-
dismissing a case with prejudice if it concludes subject matter jurisdiction is absent.” 

County of Mille Lacs v. Benjamin, 361 F.3d 460, 464–65 (8th Cir. 2004) (reversing

portion ofjudgment dismissing with prejudice on jurisdictional grounds and directing

district court to enter judgment without prejudice). See also Hart v. United States,

630 F.3d 1085, 1091 (8thCir. 2011) (modifying jurisdictional dismissal to be without

prejudice). The dismissal with prejudice is reversed.

1

* * * * * * *

The judgment is affirmed in part, reversed in part, and the case remanded

for further proceedings consistent with this opinion.

______________________________

Dalton requests this court to assign a new judge for remand. To prevail, 1

Dalton “was required to show that [the judge’s] behavior in the context of the whole

case, was ‘so extreme as to display clear inability to render fair judgment.’” Perkins

v. Astrue, 648 F.3d 892, 903 (8th Cir. 2011), quoting Rollins v. Massanari, 261 F.3d

853, 858 (9th Cir. 2001), quoting Liteky v. United States, 510 U.S. 540, 551 (1994). 

Dalton has not made this showing. See Liteky, 510 U.S. at 555–56 (“[E]xpressions

of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds

of what imperfect men and women, even after having been confirmed as federal

judges, sometimes display” do not establish bias or partiality.).

-5-