                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3774
                         ___________________________

                                     Melanie Davis,

                         lllllllllllllllllllllPlaintiff - Appellant,

                                             v.

                     Morris-Walker, LTD; Orchard Park, LLC,

                       lllllllllllllllllllllDefendants - Appellees.
                                        ____________

                      Appeal from United States District Court
                     for the District of Minnesota - Minneapolis
                                    ____________

                           Submitted: November 13, 2018
                               Filed: April 29, 2019
                                  ____________

Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
                         ____________

COLLOTON, Circuit Judge.

       Melanie Davis sued the owner of a restaurant and the owner of real property
where the restaurant is located, alleging violations of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101 et seq. Davis uses a wheelchair and claims that
deficiencies in the restaurant parking lot deprived her of full and equal enjoyment of
the restaurant. After the owners made changes to the lot, the district court1 dismissed
Davis’s complaint as moot and denied her motion for leave to amend the complaint.
Davis appeals, and we affirm the decision, although we clarify that the dismissal for
lack of jurisdiction is without prejudice.

                                           I.

       Davis claims that on both May 3, 2016, and March 4, 2017, she attempted to
patronize Emma Krumbee’s, a restaurant in Belle Plaine, Minnesota. Her complaint
alleged that the defendants failed to comply with the ADA, because “[t]he ‘Emma
Krumbee’s’ customer parking lot had approximately 130 total parking spaces, but had
only 3 spaces reserved as accessible parking spaces, rather than the required 5.” The
three reserved spaces were also deficient, she asserted, because one lacked an
accessibility sign and the signs for the other two spaces were not posted high enough
above the ground. One of the three spaces allegedly did not have an adjacent access
aisle. Finally, the complaint asserted that the accessible route from the three reserved
parking spaces to the restaurant traversed broken asphalt and required travel through
a vehicular way rather than a sidewalk.

       Davis sued the owner of Emma Krumbee’s and the owner of the real property.
Her complaint alleged that the parking lot deficiencies violated the ADA and the
Minnesota Human Rights Act, and she sought an injunction directing the owners to
remedy those problems. The owners moved to dismiss the complaint for lack of
jurisdiction, arguing that they had remedied the alleged deficiencies and that the case
was therefore moot.




      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

                                          -2-
       Davis moved for summary judgment and claimed that the parking lot still did
not have enough accessible spaces. Even with the improvements, Davis argued, the
lot had only four accessible spaces, but her complaint had alleged that five were
required. Davis also moved to amend her complaint to add allegations of deficiencies
inside the Emma Krumbee’s restaurant.

       The district court dismissed Davis’s ADA claim as moot and declined to
exercise supplemental jurisdiction over her state law claim. Because the owners
raised a factual attack on the district court’s subject matter jurisdiction, the court was
permitted to resolve factual disputes and was not required to accept as true every
allegation in the pleadings. See Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th
Cir. 2016).

       Although Davis alleged that the customer parking lot included approximately
130 spaces, the district court found that it included only eighty-eight. The court
explained that Davis, to arrive at a total of 130 spaces, had counted spaces from an
adjacent overflow lot. The court determined, however, that the overflow lot was a
separate “facility” under the relevant ADA regulations, see 36 C.F.R. pt. 1191, app.
B § 208.2, and that any claim regarding the overflow lot was not properly before the
court.

       Because ADA regulations require four accessible parking spaces for a facility
with 76 to 100 spaces, the court concluded the owners had now provided “a sufficient
number of accessible parking spaces for the Restaurant,” denied Davis’s motion for
summary judgment, and dismissed the complaint as moot. The court also denied
Davis’s motion to amend her complaint as futile, because Davis had never entered the
restaurant and thus lacked standing to litigate alleged ADA violations occurring
inside. We review the district court’s legal conclusions de novo, its factual findings
for clear error, and its denial of the motion for leave to amend for abuse of discretion.



                                           -3-
See Branson Label, Inc. v. City of Branson, 793 F.3d 910, 914-15 (8th Cir. 2015);
Enervations, Inc. v. Minn. Mining & Mfg. Co., 380 F.3d 1066, 1068 (8th Cir. 2004).

                                          II.

       “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. 85, 91 (2013) (internal quotation marks omitted). A defendant’s voluntary
compliance with a plaintiff’s demands will moot a case if the defendant shows that “it
is absolutely clear the allegedly wrongful behavior could not reasonably be expected
to recur.” Id. (internal quotation marks omitted). In the context of the ADA, we have
held that a defendant’s permanent physical improvements—such as the installation of
parking spaces, ramps, pull and grab bars, and chair lifts—are sufficient to eliminate
a case or controversy if they provide the requested relief. See Hillesheim v. Holiday
Stationstores, Inc., 903 F.3d 786, 791 (8th Cir. 2018); Davis v. Anthony, Inc., 886
F.3d 674, 676-77 (8th Cir. 2018); Hickman v. Missouri, 144 F.3d 1141, 1144 (8th Cir.
1998).

       Davis does not contest the permanence of the changes to the Emma Krumbee’s
parking lot, but argues that there is still a live dispute about whether the defendants
are required to designate more parking spaces as accessible. She complains that the
district court essentially rejected her claim on the merits while mistakenly
characterizing the decision as jurisdictional.

      As the case comes to us on appeal, the parties agree that there are two separate
parking facilities at Emma Krumbee’s—a restaurant lot with eighty-eight spaces for
customer parking, and an overflow lot with forty-three spaces. Davis contends that
the ADA requires four accessible spaces in the restaurant lot and two accessible
spaces in the overflow lot. Her claim regarding the restaurant lot is moot; that lot now

                                          -4-
includes the four permanent spaces that Davis sought. Davis argues, however, that
there is still a live dispute over her allegation that the overflow lot should include two
accessible spaces.

       We conclude that the district court properly dismissed the complaint for lack
of jurisdiction, because Davis lacks standing to sue over alleged deficiencies in the
overflow lot. A plaintiff invoking federal jurisdiction must establish that she has
suffered an injury in fact, that a causal connection exists between that injury and the
defendant’s conduct, and that her injury is likely redressable by a favorable decision.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). The injury must be “concrete
and particularized,” and “actual or imminent, not conjectural or hypothetical.” Id. at
560 (internal quotation marks omitted).

       Davis’s complaint does not allege that she was injured by defects in the
overflow parking lot. She never claims that she entered the overflow lot or sought to
park there. The complaint focuses instead on alleged problems in the restaurant
parking lot: one of the three accessible spaces in that lot was missing the appropriate
sign, signs for the other two spaces were not posted high enough off the ground, and
one space lacked an adjacent access aisle. The accessible route about which Davis
complained led from the restaurant parking lot to the restaurant. The three exhibits
attached to the complaint are photographs of the restaurant parking lot. The only
arguable reference to the overflow lot is Davis’s allegation that the “customer parking
lot” included a total of approximately 130 parking spaces, but Davis now concedes
that the spaces are allocated between two separate facilities, and she never claims to
have visited the second.

       Davis’s standing to sue over deficiencies in the restaurant parking lot does not
extend to the overflow lot. To be sure, this court held in Steger v. Franco, Inc., 228
F.3d 889 (8th Cir. 2000), that a plaintiff who encountered certain ADA violations in
a particular building had standing to seek relief for other related ADA violations in

                                           -5-
the same building, even though he had not encountered them. Id. at 894. But a
plaintiff’s ability to sue over violations in a single building does not extend to
violations in separate facilities. A plaintiff who encounters an alleged ADA violation
in a parking lot outside a building does not have standing to sue over violations inside
the building. Davis, 886 F.3d at 678. A plaintiff who encounters a violation in one
building cannot sue over violations in a neighboring building that she never entered.
And a plaintiff like Davis, who encountered ADA violations in one parking facility,
lacks standing to sue over alleged violations in a separate parking facility that she
never visited. We thus conclude that the district court properly dismissed Davis’s
complaint and did not err in denying her motion for summary judgment.

       We further conclude that the district court did not abuse its discretion in
denying Davis’s motion for leave to amend her complaint. The proposed amendment
would have added allegations of ADA violations inside the Emma Krumbee’s
restaurant. But the amended complaint does not allege that Davis encountered a
violation inside the building. As we held in Davis v. Anthony, Inc., Davis cannot use
the violations encountered in the parking lot “to expand her standing to sue for
unencountered violations inside the [restaurant] that never injured her.” Id.

       Davis responds that Davis v. Anthony, Inc. should not control here, because she
has detailed knowledge of ADA violations inside Emma Krumbee’s, and she intends
to return to the restaurant. Our prior decision, however, was not premised on the
plaintiff’s level of knowledge about alleged violations or her interest in making a
future entry; it turned on whether the plaintiff had suffered injury by encountering a
violation inside the restaurant. As in Davis v. Anthony, Inc., Davis seeks to sue over
violations inside a building that she never entered, and we conclude that she lacks
standing to do so. Therefore, the district court did not abuse its discretion in denying
Davis’s motion to amend as futile. See Foman v. Davis, 371 U.S. 178, 182 (1962).




                                          -6-
                                   *       *       *

      For the foregoing reasons, we affirm the district court’s dismissal of the action,
but as the decision was based on lack of jurisdiction, we modify the judgment to
dismiss Davis’s ADA claims without prejudice. See County of Mille Lacs v.
Benjamin, 361 F.3d 460, 464-65 (8th Cir. 2004).
                       ______________________________




                                          -7-
