United States Court of Appeals

For the Eighth Circuit

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No. 17-3143

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Zach Hillesheim

lllllllllllllllllllllPlaintiff - Appellant

v.

Holiday Stationstores, Inc.

lllllllllllllllllllllDefendant - Appellee

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Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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Submitted: June 12, 2018

Filed: August 17, 2018

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Before WOLLMAN, ARNOLD, and STRAS, Circuit Judges.

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STRAS, Circuit Judge.

Zach Hillesheim alleges that Holiday Stationstores discriminated against him

by failing to have an accessible parking lot at one of its stores. Hillesheim’s

complaint identifies three alleged problems with the parking lot, each giving rise to

a separate claim. For two of the three claims, Hillesheim suffered no injury, so we

vacate the district court’s decision and instruct the court on remand to return them to
state court. We remand the third claim, even though Hillesheimhas standing to assert

it, to allow the district court to consider whether to send it back to state court with the

others.

I.

Hillesheim is paralyzed from the waist down and uses a wheelchair for

mobility. When Hillesheim visited a Holiday store in Mankato, Minnesota, he

observed that the store’s two handicap-accessible parking spaces were not marked

with verticalsign posts. One of the spaces also lacked an adjacent access aisle, which

provides extra room for individuals with disabilities to move in and out of their

vehicles. Also present was a garbage can near the top of the curb ramp leading into

the store. Hillesheim claims that he could not have safely navigated the ramp in his

wheelchair, so instead of risking injury, he decided not to enter the store. These three

alleged defects are at the heart of this lawsuit.

Holiday inspected the parking lot and fixed the alleged defects. It removed the

handicap-accessible space lacking an access aisle because it determined that the

Americans with Disabilities Act (“ADA”) only required it to have one space, not two,

given the size of the parking lot. It also placed an ADA-compliant verticalsign above

the remaining space and removed the garbage can from the curb ramp out of an

“abundance of care.”

Before Holiday made these changes, however, Hillesheim filed a lawsuit in

state court, alleging violations of the ADA and the Minnesota Human Rights Act

(“MHRA”). Holiday removed the case to federal court. See 28 U.S.C. §§ 1331,

1367, 1441(a). After the close of discovery, Holiday filed a motion for summary

judgment in which it asked the district court to dismiss the case for lack of

subject-matter jurisdiction. Hillesheim conceded that Holiday’s remedial measures,

completed after Holiday removed the case to federal court, had mooted his ADA

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claims. He did not budge on his MHRA claims, however, arguing that he had

standing to assert them because the lack of access to the store had injured him. But

he nonetheless urged the district court to return the MHRA claims to state court

because no federal claims remained.

The district court granted Holiday’s motion for summary judgment. In addition

to dismissing Hillesheim’s ADA claims, the court dismissed Hillesheim’s MHRA

claims with prejudice rather than remanding them to state court. On appeal,

Hillesheim challenges the court’s treatment of his MHRA claims.

II.

We review de novo the district court’s determination that Hillesheim lacked

Article III standing. Park v. Forest Serv. of the U.S., 205 F.3d 1034, 1036 (8th Cir.

2000). To pursue state-law claims in federal court, a party must prove that it has

standing under Article III’s case-or-controversy requirement. U.S. Const. art. III, § 2,

cl. 1; Hughes v. City of Cedar Rapids, 840 F.3d 987, 993 (8th Cir. 2016).

To meet the “irreducible constitutional minimum” for Article III standing: (1) a

plaintiff must have suffered an “injury in fact,” (2) that is “fairly traceable to the

challenged conduct,” and (3) is “likely to be redressed by a favorable judicial

decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citation omitted). 

The parties dispute only the existence of the first requirement: whether Hillesheim

suffered an injury-in-fact that is sufficiently concrete and particularized, not

conjectural or hypothetical. See id. at 1547–48.

At summary judgment, Hillesheim had to do more than just rely on the

allegations from his complaint, because “[a] party invoking federal jurisdiction must

support each of the standing requirements with the same kind and degree of evidence

at the successive stages of litigation as any other matter.” Constitution Party of S.D.

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v. Nelson, 639 F.3d 417, 420 (8th Cir. 2011). Hillesheim accordingly had to offer

evidence in response to Holiday’s summary-judgment motion establishing that each

of the alleged parking lot defects had injured him. Id. at 421. The central question

in this case is whether he did so.

Hillesheim’s evidence was thin. On the access-aisle and vertical-signage

claims, his declaration did little more than describe the alleged violations, other than

stating that he was deterred from visiting the store in the future. It did not explain

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how the lack of an access aisle or insufficient vertical signage injured him. It made

no mention, for example, of whether he had difficulty identifying which spots were

handicap accessible or even whether the alleged defects caused him to leave without

entering the store. Alleging bare violations of the ADA without evidence of an actual

injury is insufficient to establish Article III standing. See Braitberg v. Charter

Commc’ns, Inc., 836 F.3d 925, 929–30 (8th Cir. 2016).

The district court drew the wrong conclusion, however, when it dismissed both

claims with prejudice. If it turns out after removal that a plaintiff lacks standing to

bring a claim in federal court, as happened here, then a district court must remand the

claim to state court. 28 U.S.C. § 1447(c) (“If at any time before final judgment it

appears that the district court lacks subject matter jurisdiction, the case shall be

remanded.”); Hughes, 840 F.3d at 993; Wallace v. ConAgra Foods, Inc., 747 F.3d

1025, 1033 (8th Cir. 2014). We accordingly vacate the district court’s judgment

dismissing these two claims and instruct the court on remand to return them to state

court.

Under Davis v. Anthony, Inc., 886 F.3d 674, 678 (8th Cir. 2018), we do not

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recognize the theory that being deterred from visiting a place of public

accommodation in the future rises to the level of an injury-in-fact.

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Hillesheim’s garbage-can claim is a different story. In contrast to the other

claims, Hillesheim’s declaration connected the placement of the garbage can to his

decision to leave. It stated that he could not safely navigate the ramp without risking

injury because the garbage can blocked his path of travel and trying to maneuver

around it could have caused his wheelchair to tip over. By offering specific evidence

that the allegedly dangerous circumstances caused him not to enter the store,

Hillesheimdid enough to establish an injury-in-fact. He was not required, as Holiday

suggests, to have a go of it to establish Article III standing. See Disability Support

All. v. Heartwood Enters., LLC, 885 F.3d 543, 546–47 (8th Cir. 2018); Steger v.

Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000).

In reaching a contrary conclusion, the district court made two errors. First, by

faulting Hillesheim for failing to provide sufficient detail about the width and slope

of the ramp, the court confused the standing inquiry with the merits. To establish

Article III standing, all that Hillesheim was required to show was that he suffered an

injury, not that the placement of the garbage can violated the MHRA. See Red River

Freethinkers v. City of Fargo, 679 F.3d 1015, 1023 (8th Cir. 2012) (“The standing

inquiry is not . . . an assessment of the merits of a plaintiff’s claim.”).

Second, the district court erred in treating a photograph that Hillesheim

submitted along with his declaration as definitive proof that he had plenty of room

to maneuver around the garbage can. To be sure, there are rare instances in which

overwhelming photographic or video evidence may point to the absence of a genuine

issue of material fact at summary judgment. See Scott v. Harris, 550 U.S. 372,

379–80 (2007). But this is not one of them. Hillesheim made clear in his declaration

that the placement of the garbage can left only a narrow and dangerously sloped path

up the ramp, and the photograph does not disprove his claim. In fact, it does not

show how much space remained on each side of the garbage can or the slope of the

incline that a person in a wheelchair would have faced to reach the top. Put simply,

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the court’s evaluation of the photograph failsto draw all inferencesfromthe evidence

in the light most favorable to Hillesheim.

One loose end remains. Now that we have concluded that the district court

erred when it dismissed the garbage-can claim for lack ofsubject-matter jurisdiction,

the question is what to do with it. Under 28 U.S.C. § 1367(c), when a “district court

has dismissed all claims over which it has original jurisdiction,” it may decline to

exercise supplemental jurisdiction over any remaining claims.

The landscape has changed since the district court first exercised its discretion

under the supplemental-jurisdiction statute. Now only one claim remains. When it

granted summary judgment, the court dismissed Hillesheim’s ADA claims. We have

now instructed the district court to return two of Hillesheim’s state-law claims to state

court. The district court is entitled to determine on remand whether it still wishes to

exercise its discretion in the same way. See generally Brown v. Mortg. Elec.

Registration Sys., Inc., 738 F.3d 926, 933 (8th Cir. 2013).

III.

We vacate the district court’s judgment with instructions to remand

Hillesheim’s access-aisle and vertical-signage claims to state court and to consider

whether to exercise supplemental jurisdiction over the remaining claim.

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