                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 18-1086
                          ___________________________

                  The Midwest Disability Initiative; Gerald Doyen

                        lllllllllllllllllllllPlaintiffs - Appellants

                                            v.

          JANS Enterprises, Inc., d/b/a Nico's Taco & Tequila Bar, et al.

                       lllllllllllllllllllllDefendants - Appellees
                                        ____________

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

                            Submitted: February 13, 2019
                                Filed: July 8, 2019
                                  ____________

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
                          ____________

LOKEN, Circuit Judge.

       Title III of the Americans with Disabilities Act (ADA) proscribes
discrimination by places of public accommodation against persons with disabilities,
defining discrimination to include “failure to remove architectural barriers, and
communication barriers that are structural in nature, in existing facilities . . . where
such removal is readily achievable.” 42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(iv). The
ADA grants a private right of action for injunctive relief to “any person” subject to
disability discrimination. § 12188(a)(1). In this circuit, a person with a qualifying
disability has standing to seek injunctive relief to remedy ADA structural barrier
violations that affect “his specific disability” if he shows that a place of public
accommodation has “caused him actual injury at the time he commenced this action,
and ‘that [he] would visit the building in the imminent future but for those barriers.’”
Disability Support Alliance v. Heartwood Enterprises, LLC, 885 F.3d 543, 546 (8th
Cir. 2018), quoting Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000). This
appeal raises recurring issues regarding successive claims for such injunctive relief.

       The Midwest Disability Initiative (MDI) is a Minnesota nonprofit organization
that has filed numerous ADA Title III suits as a co-plaintiff with one of its members
against various Twin Cities retail establishments. In March 2017, MDI and member
Paul Testa filed an ADA Title III action seeking declaratory and injunctive relief
against Nico’s Taco & Tequila Bar and its landlord, JC LLC. Plaintiffs alleged that
Testa is a disabled individual who is fully dependent upon the use of a wheelchair or
motor scooter and, in December 2016, Testa visited Nico’s and encountered unlawful
and discriminatory architectural barriers, “including, but not necessarily limited to,”
nine identified ADA violations. On August 2, 2017, MDI, Testa, and defendants
entered into a Stipulation agreeing that “all claims in the above-captioned action are
hereby dismissed with prejudice, and on the merits.” By Order dated August 8, 2017,
the district court dismissed the action with prejudice.

        Ten days later, MDI and member Gerald Doyen filed this Title III action
seeking declaratory and injunctive relief against the same defendants. Plaintiffs
alleged that Doyen is a disabled individual who is fully dependent on the use of a
wheelchair or motor scooter and, on August 14, 2017, Doyen visited Nico’s and
encountered multiple unlawful and discriminatory architectural barriers. Like the first
suit, the MDI-Doyen suit identified nine alleged violations of the ADA, which were
“not to be considered all inclusive” of Nico’s violations. Seven were functionally
identical to barriers identified in the MDI-Testa complaint. The MDI-Doyen

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Complaint additionally identified “an inaccessible public entrance in the back of the
facility including a noncompliant ramp,” and “an inadequately maintained parking lot
with broken, patched, littered, and deteriorated surface.”

      Defendants timely filed a motion to dismiss under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, arguing plaintiffs’ claims are barred by res judicata. In
support, defendants submitted judicial records from the MDI-Testa suit and a
summary of prior actions filed by MDI and Doyen obtained from District of
Minnesota filing records. The district court,1 stating that it was considering only the
MDI-Doyen Complaint and the public records submitted by defendants, granted the
Rule 12(b)(6) motion to dismiss. Plaintiffs appeal. We affirm.

                              I. Res Judicata Issues.

       “[A] final judgment on the merits of an action precludes the parties or their
privies from relitigating issues that were or could have been raised in that action.”
Yankton Sioux Tribe v. U.S. Dep’t of Health & Human Servs., 533 F.3d 634, 639
(8th Cir. 2008) (quotation omitted). To establish that the MDI-Doyen claims are
precluded by the prior MDI-Testa suit, Nico’s must show that “(1) the first suit
resulted in a final judgment on the merits; (2) the first suit was based on proper
jurisdiction; (3) both suits involve the same parties (or those in privity with them);
and (4) both suits are based upon the same claims or causes of action.” Id. (quotation
omitted). A district court may properly grant a motion to dismiss based on the
affirmative defense of res judicata when the defense “is apparent on the face of the
complaint.” C.H. Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758, 764 (8th Cir.
2012). We review the grant of a motion to dismiss de novo. Yankton Sioux Tribe,
533 F.3d at 639.


      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.

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       Here, it is undisputed that the MDI-Testa suit resulted in a final judgment based
on proper jurisdiction. But Doyen was not a party to the MDI-Testa lawsuit, Doyen
visited Nico’s after that lawsuit was dismissed, and the MDI-Doyen Complaint
identifies two specific alleged barrier violations not alleged in the MDI-Testa
Complaint. Thus, the third and fourth res judicata prerequisites are at issue.

       A. Privity. “The application of claim and issue preclusion to nonparties . . .
runs up against the deep-rooted historic tradition that everyone should have his own
day in court.” Taylor v. Sturgell, 553 U.S. 880, 892-93 (2008) (quotation omitted).
But one exception to the general rule against nonparty preclusion is that, “‘in certain
limited circumstances,’ a nonparty may be bound by a judgment because she was
‘adequately represented by someone with the same interests who [wa]s a party’ to the
suit.” Id. at 894, quoting Richards v. Jefferson County, 517 U.S. 793, 798 (1996).
The Court gave a partial definition of this adequate representation requirement:

      A party’s representation of a nonparty is ‘adequate’ for preclusion
      purposes only if, at a minimum: (1) The interests of the nonparty and
      her representative are aligned; and (2) either the party understood herself
      to be acting in a representative capacity or the original court took care
      to protect the interests of the nonparty.

Id. at 900 (citations omitted). In granting the motion to dismiss in Yankton Sioux
Tribe, we concluded that this requirement was satisfied because the Tribe in the first
suit sued on its own behalf and on behalf of individual members who were plaintiffs
in the second suit and asserted identical interests. 533 F.3d at 640-41.

       In the district court and on appeal, plaintiffs primarily argue that Doyen is not
in privity with Testa, the MDI member plaintiff in the first suit, because their interests
are not aligned -- Testa dropped structural barrier claims Doyen intends to vigorously
pursue -- and because Testa did not assert his claims on a class basis or purport to
represent the interests of Doyen. But this argument misses the mark. The district

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court did not preclude Doyen’s claims because Testa and Doyen were in privity.
Rather, the court concluded that Doyen is bound by the final judgment in MDI-Testa
suit because Doyen was adequately represented by co-plaintiff MDI, which dismissed
its claims in that action with prejudice and on the merits. The asserted interests of
MDI in the first suit clearly align with the interests of Doyen in the second suit, the
court concluded, and the allegations in the MDI-Testa suit “signify an intention to
represent the interests of, at the very least, the members of MDI, if not a much
broader group of individuals.”

       On this procedural record, we agree with the district court’s conclusions. Testa
and Doyen were both members of MDI when the MDI-Testa suit was litigated. Both
suits were brought to remedy architectural barriers that allegedly prevent disabled
individuals who are “fully dependent upon the use of a wheelchair or motor scooter”
from patronizing Nico’s. Each Complaint gave nine examples of alleged ADA
violations, seven in nearly identical language. Each sought the same relief -- a
permanent injunction “directing defendants . . . to remove physical barriers to access
and make its facilities fully accessible to and independently usable by individuals
with disabilities to the extent required by the ADA,” and for “such other relief as . . .
is allowable under Title III of the ADA.”

      The MDI-Testa Complaint made clear that MDI was acting in a representative
capacity for the benefit of its individual members, including Doyen. The Complaint
alleged that MDI’s purpose is to “hold[] businesses that ignore the requirements of
the ADA accountable.” The Complaint alleged that “Defendants have discriminated
against Testa and others,” that the alleged violations “cause injury to Plaintiff and
other disabled individuals,” and that the identified alleged violations were “not to be
considered all-inclusive of the barriers and violations of the ADA . . . encountered by
Testa or which exist at the facility.” (Emphasis added.) In both cases, MDI and its
member co-plaintiff sought declaratory and injunctive relief ordering Nico’s to
remove all architectural barriers, not just those listed in the complaint, and not limited

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to barriers that affect the member plaintiff’s “specific disability.” Only MDI even
arguably had standing to seek an order removing barriers that did not affect the
alleged disability of Testa and Doyen -- dependence upon the use of a wheelchair or
motor scooter.

       Finally, although preclusion only sometimes requires notice of the first suit to
the represented nonparty, see Sturgell, 553 U.S. at 900, we agree with the district
court that Doyen had at least constructive notice of the first suit, as in Yankton Sioux
Tribe, 533 F.3d at 641. Doyen was a member of MDI when the MDI-Testa suit was
filed and terminated. The judicial records submitted by defendants establish that
Doyen was a co-plaintiff with MDI in numerous other ADA Title III suits to remedy
structural barrier violations. And the timing of the two lawsuits -- brought by the
same attorney -- supports the inference that Doyen was aware that MDI represented
his interest in both actions. See Continental Western Ins. Co. v. Federal Housing
Finance Agency, 83 F. Supp. 3d 828, 836 (S.D. Iowa 2015).

       On appeal, plaintiffs assert that plaintiffs in the MDI-Testa suit did not
understand themselves to be acting in a representative capacity for Doyen because
Doyen has never met Testa, has no relationship with him, and did not participate in
the Testa lawsuit, and MDI did not understand that it was acting in a representative
capacity for any individual member other than Testa. In support, plaintiffs rely
exclusively on sworn declarations by Doyen and by MDI’s founder filed in the
district court along with plaintiffs’ memorandum in opposition to defendants’ motion
to dismiss. Had the district court considered these declarations, it would have been
required to treat the motion to dismiss as one for summary judgment. See Fed. R.
Civ. P. 12(d). But the district court did not consider these declarations.

       In the district court, plaintiffs argued only that the motion to dismiss must be
treated as one for summary judgment under Rule 12(d) because defendants submitted
judicial records outside the Complaint. The district court properly rejected that

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contention and concluded that these judicial records and the MDI-Doyen Complaint
“provided sufficient bases for a res judicata defense.” C.H. Robinson, 695 F.3d at
764; see Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
Plaintiffs did not urge the court to treat the motion as one for summary judgment
based on plaintiffs’ declarations, nor do plaintiffs assert on appeal that the court erred
in applying Rule 12(d). Thus, the only issue before us is whether, as we have
concluded, the district court properly ruled that MDI acting in a representative
capacity was in privity with Doyen based on the Rule 12(b)(6) record considered by
the district court.

       It is well-settled that, in limited circumstances, an association has standing to
seek injunctive relief on behalf of its members. See, e.g., Friends of the Earth, Inc.
v. Laidlaw Env. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). In this case, it is
undisputed the MDI’s claims in both suits were based on associational standing, and
that MDI satisfied the requirements for such standing. When an association
representing its members suffers an adverse final judgment, whether that judgment
precludes subsequent claims by the association’s members is a separate issue that
turns, in part, on whether the association was an adequate representative. That issue
may be fact intensive. See Int’l Union, U.A.W. v. Brock, 477 U.S. 274, 290 (1986).
But “[t]actical mistakes or negligence on the part of the representative” in the first
suit are not sufficient to render the representation inadequate for preclusion purposes.
RESTATEMENT (SECOND) OF JUDGMENTS § 42, cmt. f (1980). Moreover, “the
association should not be able to evade preclusion continually by averring that
unidentified members are not bound and bringing successive suits by claiming injury
to different identified members.” 18A CHARLES ALAN WRIGHT, ARTHUR R. MILLER
& EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE § 4456, at p. 501 (2002);
see Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 322 F.3d 1064,
1084 (9th Cir. 2003). Issues of whether the association adequately represented its
members in the first suit must necessarily be decided on a case-by-case basis. Here,



                                           -7-
the district court properly resolved the only adequate representation issues raised by
the limited factual record the parties submitted.

       B. Same Claims. The final element of res judicata is whether both suits are
based on the same claims or causes of action: “a claim is barred by res judicata if it
arises out of the same nucleus of operative facts as the prior claim.” Yankton Sioux
Tribe, 533 F.3d at 641 (quotation omitted). Plaintiffs argue the MDI-Doyen suit is
not precluded because Doyen encountered discrimination in August 2017, after the
MDI-Testa lawsuit was terminated, and Doyen seeks “important relief” from two
barriers not identified in the MDI-Testa Complaint. The district court concluded that
this contention is without merit:

      The Testa Case sought the repair of all barriers, even those not explicitly
      listed . . . . A mere ten days [after dismissal of the Testa Case], MDI and
      Doyen commenced this case seeking the remedy of all barriers then
      existing. Thus . . . the barriers in each case, and the wrong they
      represent, are closely related in time, space, and origin and, as such, are
      part of the same series of connected transactions.

We agree. The MDI-Testa Complaint sought to remedy all architectural barriers
preventing disabled individuals from patronizing Nico’s in violation of the ADA. At
a minimum, this would include all barriers related to the “specific disability” shared
by Testa and Doyen. The MDI-Doyen Complaint did not allege that any of the
barriers it specifically identified were not present at the time of the earlier suit.
Plaintiffs in both suits specifically alleged that their claims were not limited to the
alleged ADA barrier violations specifically identified.

                                   II. Conclusion

     For the foregoing reasons, we conclude the district court properly granted the
motion to dismiss the MDI-Doyen lawsuit because it is precluded by the final

                                         -8-
judgment on the merits in the MDI-Testa lawsuit. Plaintiffs assert that this decision
will “substantially impact private enforcement of the ADA and is contrary to public
policy.” We disagree. The dismissal of the second suit was a product of MDI’s
decision to assert associational standing claims as a co-plaintiff on behalf of its
members in the MDI-Testa suit -- an obvious attempt to avoid limitations on the
structural barrier claims that member plaintiff Testa could assert -- and then to
dismiss its representational claims on the merits. The only nonparty individuals
bound by these tactics are members of MDI at the time. This decision does not bar
claims by any other person suffering from any disability who plausibly alleges that
he suffered actual injury from architectural barriers that limited his access to Nico’s,
and that he would visit the building in the imminent future but for those barriers.

      The judgment of the district court is affirmed.
                     ______________________________




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