United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 17-3151
     ___________________________

                Zach Hillesheim

     lllllllllllllllllllllPlaintiff - Appellant

                        v.

         Holiday Stationstores, Inc.

    lllllllllllllllllllllDefendant - Appellee
     ___________________________

             No. 17-3186
     ___________________________

                Zach Hillesheim

     lllllllllllllllllllllPlaintiff - Appellee

                        v.

         Holiday Stationstores, Inc.

    lllllllllllllllllllllDefendant - Appellant
                    ____________

 Appeals from United States District Court
 for the District of Minnesota - Minneapolis
                ____________
                             Submitted: June 12, 2018
                             Filed: September 10, 2018
                                   ____________

Before WOLLMAN, ARNOLD, and STRAS, Circuit Judges.
                         ____________

STRAS, Circuit Judge.

       Zach Hillesheim sued Holiday Stationstores, Inc., for discrimination under the
Americans with Disabilities Act and the Minnesota Human Rights Act because it
failed to provide a compliant handicap-accessible parking space at one of its stores.
After fixing the alleged defect, Holiday moved for summary judgment. The district
court granted the motion and dismissed all of Hillesheim’s claims. Because we
conclude that the district court should have remanded most, if not all, of those claims
to state court, we vacate the district court’s judgment.

                                          I.

      Hillesheim, who uses a wheelchair for mobility, noticed during a visit to a
Holiday store in Jordan, Minnesota, that the access aisle next to the
handicap-accessible space in the parking lot was not flat. Rather than risk his safety,
he decided not to enter the store.

       Hillesheim sued Holiday in state court, alleging that it had discriminated
against him under the Americans with Disabilities Act (“ADA”) and the Minnesota
Human Rights Act (“MHRA”) by denying him full and equal access to a place of
public accommodation. See 42 U.S.C. § 12182(a); Minn. Stat. § 363A.11. For the
ADA claim, his prayer for relief requested only an injunction ordering Holiday to
flatten the access aisle. Under the MHRA, Hillesheim included a matching request


                                         -2-
for injunctive relief, as well as a demand for money damages for the discrimination
he had allegedly suffered.

       After Hillesheim filed his lawsuit in state court, two things changed. First,
Holiday removed the case to federal court. The ADA claim presented a federal
question, see 28 U.S.C. § 1331, and the district court exercised supplemental
jurisdiction over the MHRA claims, see id. § 1367. Second, Holiday fixed the
alleged defect by flattening the access aisle, first temporarily and later through
remodeling the entire parking lot.

        Once Holiday fixed the issue permanently, it filed for summary judgment. In
support of its summary-judgment motion, Holiday attached an affidavit from its Vice
President of Engineering, John Baregi, which stated that Holiday had leveled the
access aisle during a renovation of its parking lot and that its intent was to comply
with all accessibility requirements going forward. Accompanying Baregi’s affidavit
were photographs of the renovated parking lot, which displayed a flat access aisle
next to the handicap-accessible space. This was the first time Holiday revealed that
it had fixed the alleged problem, although photographs submitted by Hillesheim with
his initial disclosures also depicted a fully flat access aisle.

       The district court granted Holiday’s motion for summary judgment. It
dismissed Hillesheim’s ADA claim because the renovations had mooted his request
for injunctive relief. The court dealt with the MHRA claim differently. Instead of
relying on mootness, the court applied an affirmative defense available under
Minnesota law to “place[s] of public accommodation” that remove an “architectural
barrier . . . in a manner that complies with accessibility requirements.” Minn. Stat.
§ 363A.331, subdiv. 4. According to the court, the affirmative defense provided a
complete shield from liability, both from damages and from injunctive relief.




                                         -3-
         In the course of granting summary judgment to Holiday, the district court
refused to strike Baregi’s affidavit, which Hillesheim thought Holiday should have
disclosed long before it filed its motion for summary judgment. See Fed. R. Civ.
P. 26(a)(1)(A) (requiring parties to initially disclose, among other things, “the name
. . . of each individual likely to have discoverable information” and “a copy . . . of all
documents . . . that the disclosing party . . . may use to support its claims or
defenses”). Hillesheim appeals the denial of his motion to strike Baregi’s affidavit
and the dismissal of his case.

                                           II.

        We begin with the parties’ discovery dispute. Hillesheim’s position is that
Holiday failed to comply with its initial-disclosure obligations under Rule 26 because
it did not divulge either Baregi’s name or the photographs in its possession until it
filed its motion for summary judgment. According to Hillesheim, Holiday’s tardy
disclosure “fatally impacted [his] ability to challenge Holiday’s mootness defense.”
The district court, for its part, assumed that Holiday violated Rule 26 but concluded
that he suffered no harm from the violation. The district court did not abuse its
discretion in reaching this conclusion. See Firefighters’ Inst. for Racial Equal. ex rel.
Anderson v. City of St. Louis, 220 F.3d 898, 902–03 (8th Cir. 1998) (applying a
particularly deferential abuse-of-discretion standard); see also Fed. R. Civ. P. 37(c)(1)
(explaining that if a failure to disclose is harmless, no sanction is required).

      Holiday’s failure to disclose, even assuming that it violated Rule 26, was
harmless. Hillesheim was aware, or at a minimum should have been aware, of
Holiday’s renovations to the parking lot because the photographs he initially
disclosed under Rule 26 depicted a flat access aisle. Given this fact, Hillesheim could
not have been surprised that Holiday would eventually argue that his claim for
injunctive relief had become moot. Receiving photographs earlier in the litigation



                                           -4-
that were similar to his own would not have, using his words, “impacted [his] ability
to challenge Holiday’s mootness defense.”

       Hillesheim’s assertion of prejudice also overlooks a legal flaw in his argument.
It was not Holiday’s late disclosure that “impacted” his ability to counter Holiday’s
summary-judgment motion, but rather it was the fact that Holiday’s renovations
actually rendered his demand for injunctive relief moot. In fact, even when
Hillesheim had an opportunity to mitigate the alleged difficulties created by Holiday’s
late disclosure—by moving for a continuance or attempting to depose Baregi—he did
nothing, which casts doubt on his position that timely disclosure would have made
a difference. Under these circumstances, the district court did not abuse its discretion
when it denied Hillesheim’s motion to strike Baregi’s affidavit.

                                          III.

       We now turn to the jurisdictional issues that are the central focus of this case.
Starting with the ADA claim, Hillesheim speculates that the access aisle may not in
fact be entirely flat and that Holiday’s illegal conduct may recur at some point in the
future. Either of these facts, if true, would mean that Hillesheim’s request for
injunctive relief is not actually moot. The district court rejected both arguments,
however, and so do we.

       Under Article III of the United States Constitution, federal courts may hear
only actual cases or controversies. “‘[W]hen the issues presented are no longer live
or the parties lack a cognizable interest in the outcome,’ a case or controversy under
Article III no longer exists because the litigation has become moot.” Brazil v. Ark.
Dep’t of Human Servs., 892 F.3d 957, 959 (8th Cir. 2018) (alteration in original)
(quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)). Generally, a claim is
moot when “changed circumstances already provide the requested relief and eliminate



                                          -5-
the need for court action.” McCarthy v. Ozark Sch. Dist., 359 F.3d 1029, 1035 (8th
Cir. 2004).

       Holiday’s theory at summary judgment was that circumstances changed and
injunctive relief became unnecessary once it permanently flattened the access aisle.
It backed up its theory with evidence. Baregi’s affidavit and Holiday’s photographs
clearly establish that the store’s access aisle is flat, not sloped, fully complying with
the ADA Guidelines that Hillesheim seeks to have the district court enforce against
Holiday.1 See 42 U.S.C. § 12182(a); see also ADA Accessibility Guidelines 502.4.
The curb ramp no longer projects into the access aisle, which is what created the
slope in the first place. Hillesheim’s suggestion that the access aisle might still have
an improper slope that is not visible in the photographs is nothing more than empty
speculation. McCarthy, 359 F.3d at 1036 (“A speculative possibility is not a basis for
retaining jurisdiction over a moot case.”).

       To be sure, voluntary cessation of a challenged practice does not necessarily
moot a case. But “[a] case [may] become moot if subsequent events ma[k]e it
absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 189 (2000) (citation omitted). Making “structural changes such as
[installing] ramps, pull and grab bars, and chair lifts” is the type of action that makes
it absolutely clear that a defendant will be not be able “to resume [its] allegedly illegal
conduct.” Hickman v. Missouri, 144 F.3d 1141, 1144 (8th Cir. 1998) (first quoting



      1
       Hillesheim asserts, for the first time on appeal, that the district court should
have required Holiday to demonstrate that its handicap-accessible parking space
complies with all ADA requirements and guidelines, not just those he raised below.
We decline to consider new allegations of noncompliance that he has never presented
to the district court. See Stafford v. Ford Motor Co., 790 F.2d 702, 706 (8th Cir.
1986).

                                           -6-
Preiser v. Newkirk, 422 U.S. 395, 402 (1975); and then quoting Allen v. Likins, 517
F.2d 532, 535 (8th Cir. 1975)).

        The changes made by Holiday were structural, comparable to the ramps, pull
and grab bars, and chair lifts installed in Hickman. In addition to temporarily leveling
the access aisle after Hillesheim filed his lawsuit, Holiday fully renovated its parking
lot, resulting in the removal of the entire curb ramp and leveling the space beneath it.
There is no reason to believe that Holiday spent considerable time and money to
renovate its parking lot only to change it back once this litigation is over. Holiday’s
changes, in other words, went far beyond “a mere voluntary cessation of alleged
illegal conduct.” Id. (citation omitted).

        The district court was therefore right to conclude that Hillesheim’s ADA claim
is moot, but perhaps counterintuitively, it was wrong to dismiss the claim. When a
federal court lacks subject-matter jurisdiction over a removed claim, it “must remand
[it] to . . . state court” even if, as is true here, the removed claim is one arising under
federal, not state, law. Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1033 (8th
Cir. 2014); see also Hughes v. City of Cedar Rapids, 840 F.3d 987, 993 (8th Cir.
2016) (remanding federal constitutional claims to state court and explaining that
courts must evaluate whether to remand on a claim-by-claim basis). Accordingly, we
vacate the district court’s judgment dismissing Hillesheim’s ADA claim and instruct
the court on remand to return it to state court.

                                           IV.

   The other focus of Hillesheim’s appeal is the district court’s dismissal of his
MHRA claims, one seeking injunctive relief and the other money damages.2 The


      2
       In its cross-appeal, Holiday argues that the district court should have
dismissed Hillesheim’s MHRA claims for another reason: he did not provide pre-suit

                                           -7-
injunction Hillesheim requests is the same as what he asks for under the ADA, so it
no more presents a live controversy than his ADA claim does. Cf. St. Martin v. City
of St. Paul, 680 F.3d 1027, 1034 (8th Cir. 2012) (“Analysis of a[n] ADA claim
applies equally to a[n] MHRA claim.”); Loye v. Cty. of Dakota, 625 F.3d 494, 496 n.2
(8th Cir. 2010) (“In general, the ADA and the MHRA are . . . construed the same.”).
We therefore vacate the district court’s judgment on this claim and instruct the court
on remand to return it, like the ADA claim, to state court. See 28 U.S.C. § 1447(c);
Hughes, 840 F.3d at 993.

       Hillesheim’s request for damages, on the other hand, is not moot. “Traditional
money damages are payable to compensate for the harm of past conduct”—here, the
alleged lack of access when Hillesheim visited the store—and remain live regardless
of “whether future harm is threatened.” Friends of the Earth, 528 U.S. at 211 n.5
(Scalia, J., dissenting). Accordingly, the district court has subject-matter jurisdiction
over Hillesheim’s claim for money damages, which will continue to present a live
controversy “until it is settled, judicially resolved, or barred by a statute of
limitations.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 77 (2013); see also
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (explaining that
standing is evaluated separately for “each claim [a plaintiff] seeks to press and for
each form of relief that is sought” (citation omitted)).




notice that Holiday had “violated [an] accessibility requirement[].” Minn. Stat.
§ 363A.331, subdiv. 2. However convincing Holiday’s pre-suit-notice defense might
be, we have no jurisdiction to consider it because Holiday prevailed below and is
therefore not entitled to file a cross-appeal. See Deposit Guar. Nat’l Bank v. Roper,
445 U.S. 326, 333 (1980) (“A party who receives all that he has sought generally is
not aggrieved by the judgment affording the relief and cannot appeal from it.”).
Besides, even if we were to construe Holiday’s cross-appeal as just a request to affirm
on a different ground, we still would not reach the pre-suit-notice defense in light of
the antecedent jurisdictional questions presented.

                                          -8-
       But we are uncertain whether the district court—now knowing that it needs to
remand both Hillesheim’s federal claim and his MHRA claim requesting an
injunction to state court—would still decide to exercise supplemental jurisdiction
over Hillesheim’s MHRA claim seeking money damages. See 28 U.S.C.
§ 1367(c)(3). Under section 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. Now that only a single state-law claim
remains, the district court can decide whether it 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) (“In exercising its discretion, the district court should consider
factors such as judicial economy, convenience, fairness, and comity.”).

                                           V.

      Accordingly, we vacate the district court’s judgment and remand for further
proceedings consistent with this opinion.
                      ______________________________




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