Opinion
21-cv-08021-TSH
04-19-2022
BRIAN WHITAKER, Plaintiff, v. GIAU M. HUYNH, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND ADMINISTRATIVE MOTION RE: DKT. NO. 19, 22
THOMAS S. HIXSON UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Pending before the Court are Defendant's Motion to Dismiss (ECF No. 19) and Administrative Motion for Relief from General Order No. 56 Requirements (ECF No. 22). On March 31, 2022, Plaintiff filed an Opposition to Defendant's Administrative Motion. ECF No. 23. On April 5, 2022, Plaintiff filed an Opposition to Defendant's Motion to Dismiss. ECF No. 24. On April 11, 2022, Defendant filed a Reply in support of Defendant's Motion to Dismiss. ECF No. 25. The Court finds these matters suitable for disposition without oral argument and VACATES the April 28, 2022 hearing on Defendant's Motion to Dismiss. See Civ. L.R. 7-1(b). Having considered the parties' positions, relevant legal authority, and the record in this case, the Court DENIES Defendant's Motion to Dismiss and DENIES Defendant's Administrative motion for the following reasons.
The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). ECF Nos. 8, 14.
II. BACKGROUND
Plaintiff Whitaker is a quadriplegic who uses a wheelchair for mobility. Compl. ¶ 1, ECF No. 1. Defendant Giau M. Huynh owns Wellness Nails Care located at 405 Arguello Blvd., San Francisco, California. Id. at ¶ 3.
In September 2021, Whitaker went to Wellness Nails Care with the intent to avail himself of its goods or services, motivated in part to determine if the business complied with disability access laws. Id. at ¶ 8. However, on the date of Whitaker's visit, Defendant failed to provide wheelchair accessible tables, door hardware, and paths in conformance with ADA standards. Id. at ¶¶ 11, 15, 20. Whitaker claims he will return to Wellness Nails Care to avail himself of its goods or services and to determine disability access compliance. Id. at ¶ 30. Whitaker is currently deterred from returning to Wellness Nails Care because of existing and unknown barriers. Id.
On October 14, 2021, Whitaker filed a complaint against Defendant, alleging violations of the Americans with Disabilities Act of 1900 (“ADA”) and California Unruh Civil Rights Act, Cal. Civ. Code §§ 51-53. ECF No. 1. Defendant moves to dismiss Whitaker's complaint under Federal Rule of Civil Procedure 12(b)(1) and argues Whitaker's ADA claim is moot because Defendant has removed or remedied all barriers to access alleged in the complaint. ECF No. 19. Defendant also seeks to be relieved of General Order 56's requirements. ECF No. 22.
III. LEGAL STANDARD
Rule 12(b)(1) allows a party to challenge a federal court's subject matter jurisdiction. As the party invoking subject matter jurisdiction of the federal court, the plaintiff bears the burden of establishing that the Court has the requisite subject matter jurisdiction to grant the relief requested. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A complaint will be dismissed if, looking at the complaint as a whole, it appears to lack federal jurisdiction either “facially” or “factually.” Thornhill Publ'g Co., Inc. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979); see also Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (“A Rule 12(b)(1) jurisdictional attack may be facial or factual.”).
A challenge to subject matter jurisdiction is a factual attack when the moving party relies on extrinsic evidence and does not assert a lack of subject matter jurisdiction solely based on the pleadings. Safe Air for Everyone, 373 F.3d at 1039 (quoting Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003)). “In resolving a factual attack on subject matter jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Id. (citing Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)).
IV. DISCUSSION
A. Defendant's Motion to Dismiss
Defendant moves to dismiss Whitaker's ADA and Unruh Act claims. ECF No. 19.
1. ADA Claim
Defendant argues Whitaker's ADA claim is moot because Defendant removed and remedied all barriers to access alleged in Whitaker's complaint. ECF No. 19 at 7. Defendant submitted two declarations as evidence of the removal and remedy. ECF Nos. 20 (Altwal Decl.), 21 (Ngyugen Decl.). Whitaker argues dismissing his ADA claim would be premature given a joint site inspection has not occurred, discovery is stayed, and because the elements of Whitaker's ADA claim are intertwined with the issue of subject matter. ECF No. 24 at 2-4. Whitaker requests an opportunity to inspect Defendant's premises to determine compliance. ECF No. 24 at 5.
Defendant is correct that Whitaker's ADA claim would become moot if the barriers to access alleged are removed and remedied. However, a “[j]urisdictional finding of genuinely disputed facts is inappropriate when the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits' of an action.” Id. (internal quotation and citation omitted). Here, the jurisdictional facts at issue are intertwined with the merits of Whitaker's ADA claim. See Johnson v. Supakam Corp., Case No. 21-cv-4122-BLF, 2022 WL 767615, at *5 (N.D. Cal. Mar. 11, 2022) (finding ADA issues intertwined with jurisdictional facts and denying motion to dismiss under 12(b)(1)); Johnson v. JKLM Properties, LLC, Case No. 20-cv-1078-EJD, 2021 WL 796274, at *4 (N.D. Cal. Mar. 2, 2021) (same). Resolution of the jurisdictional question on this motion would be inappropriate. See Acevedo v. C & S Plaza Limited Liability Company, Case No. 20-56318, 2021 WL 4938124, at *2 (9th Cir. 2021) (“[W]e conclude that jurisdictional findings are inappropriate here because Title III of the ADA provides both federal subject matter jurisdiction and the basis for a claim for relief.”); JKLM Properties, 2021 WL 796274 at 4 (“[T]he question of whether this Court has jurisdiction and whether Plaintiff's claim is meritorious are intertwined because the ADA underlies each question. If the Court determines it lacks jurisdiction because Defendant has remedied the problem, it by default declares that Plaintiff's action is no longer meritorious. The Court cannot make that determination at this point.”)
Defendant urges the Court to consider Defendant's declarations and apply a summary judgment standard in deciding the motion to dismiss. ECF No. 19 at 6. Given the early stage of litigation and the fact that discovery is stayed pursuant to General Order 56, the Court declines to convert Defendant's motion to dismiss into a motion for summary judgment. See Alcazar v. Bubba Gump Shrimp Co. Restaurants Inc., Case No. 20-cv-2771-DMR, 2020 WL 4601364, at *4 (N.D. Cal. Aug. 11, 2020) (“[I]t is inappropriate to resolve the factual disputes at this stage of litigation, before discovery has commenced.”); Supakam, 2022 WL 767615 at *6 (“Under General Order 56, discovery is stayed, so treating Supakam's motion as a summary judgment motion would not be appropriate at this stage.”); Acosta v. Fast N Esy II, Inc., Case No. 16-cv-1150-LJO-SAB, 2017 WL 75796, at *4 (E.D. Cal. Jan. 9, 2017) (“At this early stage of the litigation, when no discovery has been conducted, resolving jurisdictional facts that are intertwined with the substantive merits of Plaintiff's ADA claim is improper.”). Defendant filed his motion to dismiss before the joint inspection deadline and before Plaintiff inspected the premises. Compare with Johnson v. Hurwicz, Case No. 21-cv-2027, 2022 WL 444404, at * 3 (N.D. Cal. Feb. 14, 2022) (granting motion to dismiss plaintiff's ADA claim under 12(b)(1) where “the deadline to conduct the site inspection in this case expired . . . without Plaintiff ever seeking a court order compelling the site inspection.”); Whitaker v. Gundogdu, 2021 WL 5937659, at *1-2 (N.D. Cal. Dec. 16, 2021) (granting motion to dismiss plaintiff's ADA claim under 12(b)(1) after parties' accessibility consultants performed a joint site inspection). Given Whitaker's request to inspect Defendant's premises, the Court grants the parties leave to perform limited jurisdictional discovery. Cf. Am. W. Airlines, Inc. v. GPA Grp., Ltd., 877 F.2d 793, 801 (9th Cir. 1989) (finding that “the district court did not abuse its discretion in deciding the jurisdictional issue without allowing additional time for discovery” where the plaintiff neither moved to compel discovery nor requested time to conduct such discovery).
Accordingly, the Court DENIES Defendant's Motion to Dismiss as to Whitaker's ADA claim.
2. Unruh Act Claim
A district court “may decline to exercise supplemental jurisdiction” if it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Because the Court has not dismissed Plaintiff's ADA claim, the Court also denies Defendant's motion as to Whitaker's Unruh Act claim.
B. Defendant's Administrative Motion
Defendant argues Whitaker's claims are moot and requests relief from the requirements of General Order 56. For the same reasons discussed above, the Court DENIES Defendant's Administrative Motion.
V. CONCLUSION
For the reasons stated above, the Court DENIES Defendant's Motion to Dismiss and Administrative Motion without prejudice. The Court ORDERS the parties to meet and confer to establish a plan for limited jurisdictional discovery. The parties shall file a status report regarding their limited jurisdictional discovery plan by April 25, 2022.
IT IS SO ORDERED.