The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff David C. Sharp brings this action against defendant Rosa Mexicano, D.C., LLC ("Rosa Mexicano") pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq (2000). He alleges that a wash basin fixture in the men's restroom at the Rosa Mexicano restaurant in the District of Columbia contains several barriers to wheelchair access that fail to meet minimum ADA requirements. Pending before the Court are defendant's motion to dismiss for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment, and plaintiff's cross-motion for summary judgment.*fn1 Both parties also seek attorney's fees and costs. The undisputed record evidence shows that the restroom at issue currently includes a wheelchair-accessible wash basin and stand in compliance with the ADA. The Court thus concludes that, although the record is unclear on the status of the wash basin at the time of plaintiff's earlier visits, there is no case or controversy at the present time, and plaintiff's ADA claim, which only seeks prospective injunctive relief, is moot. Accordingly, the Court will dismiss plaintiff's complaint for lack of subject matter jurisdiction.
The factual allegations in support of the complaint, construed in the light most favorable to plaintiff, are as follows. On April 29, 2006, plaintiff patronized the Rosa Mexicano restaurant in the District of Columbia. Compl. ¶ 6. Plaintiff entered the men's restroom to wash his hands, but was prevented from doing so because of the design of the wash basin and accompanying stand. Plaintiff alleges three barriers to wheelchair access: first, a bar under the washstand prevented a wheelchair from rolling underneath; second, the height of the washbasin exceeded the ADA's maximum height standard; and third, the faucet apparatus could not be used by an individual with limited use of his upper limbs. Id. ¶ 7.
Defendant has submitted declarations and photographs showing that, at least since October 30, 2006, the men's restroom has included a private stall accessible to handicapped persons and free from the barriers to access alleged by plaintiff. The declaration of Raymond Fischer, director of development for Rosa Mexicano, and the attached photographs show that, as of October 30, 2006, the sink in the private stall was free of any bar that would prevent a handicapped person from rolling his wheelchair under the sink; that the height of the sink is less than 34 inches, the maximum allowable height for wheelchair access; and that the faucet apparatus is a lever-operated mechanism that permits access by persons with limited hand-control. First Decl. of Raymond Fischer ¶¶ 5-9 (Nov. 15, 2006) (Def.'s Mot., Ex. A) ("First Fischer Decl."). Defendant contends that this design has been in place since the original buildout of the Rosa Mexicano restaurant in 2003, but that plaintiff simply did not see the sink in the private stall at the time of his April 26, 2006 visit. Supplemental Decl. of Raymond Fischer ¶¶ 3, 6, 7, 9 (Dec. 14, 2006) (Def.'s Reply Mem., Ex. A) ("Suppl. Fischer Decl."); see also Def.'s Reply Mem. at 3.
Plaintiff concedes that there is currently a wash basin in the private stall free from the defects alleged in the complaint, but contends that it was not in place at the time of his earlier visit on April 26, 2006. See Pl.'s Mem. at 3 (conceding in the statement of undisputed facts that "[t]he sink, which was installed after April 29, 2006, and after the complaint was filed, is a handicapped wheelchair accessible sink," but raising the new issue of whether the sink lacks insulation); Decl. of David C. Sharp ¶ 6 (Dec. 1, 2006) (averring that the sink described by Fischer "appears to have been installed after the complaint was filed," and not contesting Fischer's description of the sink as it appeared on October 30, 2006).
Defendant's motion to dismiss for failure to state a claim upon which relief can be granted necessarily raises the issue of mootness insofar as it is based on the contention that the restroom wash basin at issue is presently in compliance with the ADA. Therefore, the Court will consider whether the complaint must be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1).*fn2
The party seeking to invoke the jurisdiction of a federal court -- plaintiff here -- bears the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000)) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04 (1998)); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) ("[A] Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). Although a court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), "'plaintiff[s'] factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1990)). At the stage of litigation when dismissal is sought, a plaintiff's complaint must be construed liberally, and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharmaceuticals, Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); St. Francis Xavier Parochial Sch., 117 F.3d at 624-25 n.3; Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987).
Defendant contends that plaintiff's complaint must be dismissed because its men's restroom contained a handicap-accessible, ADA-compliant sink within its handicap-accessible stall when plaintiff visited the restaurant on April 29, 2006, and that it still does to this day. See Def.'s Mem. at 3-4; see also Def.'s Reply Mem. at 2-3. Plaintiff moves for summary judgment based on his own declaration stating that "[a]t the time [plaintiff] went to use the restroom [on April 29, 2006], . . . there was no handicap sink in the handicap accessible stall," which he contends is unrebutted by the photographs taken by Fischer months after his visit to the restaurant.*fn3 See Pl.'s Mem. at 2-4; First Sharp Decl. ¶ 6. Plaintiff acknowledges that the sink photographed by Fischer on October 30, 2006, is "a handicapped wheelchair accessible sink," but contends that his own declaration establishes that the "restroom did not appear in this manner on April 26, 2006." Pl.'s Mem. at 3.
Thesubject matter jurisdiction of the Court is constitutionally limited, and the Court has an obligation under these constitutional limits to address its jurisdiction to hear a case, raising the issue sua sponte if necessary. See Ruhrgas AG v. Marathon Oil Corp., 526 U.S. 574, 583 (1999); Watts v. SEC, 482 F.3d 501, 505 (D.C. Cir. 2007). The Court abides by this duty by raising the issue of subject matter jurisdiction on its own motion before proceeding to the merits of the claim. See Steel Co., 523 U.S. at 94 ("This question [of jurisdiction] the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it."); Loughlin v. United States, 393 F.3d 155, 170 (D.C. Cir. 2004) (noting jurisdiction must be the first issue considered by a federal court).
Although neither party has expressly raised the question of jurisdiction, the Court recognizes that mootness may be a limit on its jurisdiction in this case, and it is "appropriate for the Court to evaluate mootness based on its own assessment of the record where . . . the record contains adequate information to enable that assessment to occur." Isenbarger v. Farmer, 463 F. Supp. 2d 13, 22 n.5 (D.D.C. 2006). A case is moot when "events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future." Pharmachemie B.V. v. Barr Laboratories, Inc., 276 F.3d 627, 631 (D.C. Cir. 2002) (quoting Clarke v. United States, 915 F.2d 699, 700-01 (D.C. Cir. 1990)). ...