Shirley Lindsay v. 1777 Westwood Limited Partnership et al
Filing
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ORDER DENYING DEFENDANTS MOTION TO DISMISS 31 ; DENYING DEFENDANTS MOTIONFOR SUMMARY JUDGMENT 32 by Judge Otis D. Wright, II: The denial of theMotion for Summary Judgment is without prejudice. The Court ORDERS the parties to meet and confer and provide a written joint proposal for a summary judgmentbriefing schedule no later than March 5, 2018. (lc)
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United States District Court
Central District of California
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SHIRLEY LINDSAY,
Plaintiff,
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Case № 2:17-CV-00333-ODW-MRW
v.
1777 WESTWOOD LIMITED
PARTNERSHIP; FARZIN HALAVY;
SUTTHIWAN SOONTORNVIPAT;
DOES 1–10,
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS [31];
DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [32]
Defendants.
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I.
INTRODUCTION
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Plaintiff Shirley Lindsay alleges that Defendants violated the American with
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Disabilities Act (“ADA”) because they did not maintain compliant handicap parking
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spaces and restrooms at their business location.
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Defendants 1777 Westwood Limited Partnership and Farzin Halavy’s Motion to
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Dismiss and Pro-se Defendant Sutthiwan Soontornvipat’s Motion for Summary
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Judgment. (ECF Nos. 31, 32.) Both motions are premised on Defendants’ contention
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that they have corrected the alleged ADA violations and, therefore, this Court lacks
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Pending before the Court are
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subject matter jurisdiction over Plaintiff’s claims. For the following reasons the Court
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DENIES both Motions.1
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II.
BACKGROUND
Plaintiff filed this lawsuit on January 16, 2017, against Defendants for
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violations of the ADA and the Unruh Civil Rights Act.
(Compl., ECF No. 1.)
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Plaintiff alleges that she visited Defendants’ business, a restaurant by the name of
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Thai Fresh Café, and found that the access aisle next to the designated handicap
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parking space was so faded that other customers were freely parking in it. (Id. ¶ 10–
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14.) She also alleges that the “No Parking” warning that should have been in the
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access aisle was missing. (Id. ¶ 14.) The condition of Defendants’ property, Plaintiff
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alleges, makes it difficult for disabled persons to get to the restaurant. (Id. ¶ 15.)
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Plaintiff also alleges that the mirror in the restroom is mounted at approximately 43
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inches above the floor and cannot be used effectively by persons in wheelchairs, like
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Plaintiff. (Id. ¶ 20.)
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On September 27, 2017, Defendants 1777 Westwood Limited Partnership and
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Farzin Halavy moved to dismiss Plaintiff’s Complaint, arguing that the Court lacks
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subject matter jurisdiction over this case because Defendants’ have corrected the
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alleged violations. (Mot. to Dismiss (“MTD”), ECF No. 31.) On September 28,
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2017, Defendant Soontornvipat, who is appearing in this action pro se, moved for
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summary judgment on the same grounds. (Mot. for Summary Judgment (“MSJ”),
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ECF No. 32.) Plaintiff opposed the Motion to Dismiss, but not the Motion for
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Summary Judgment. (See Opp’n, ECF No. 38.)
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III.
A.
LEGAL STANDARD
Motion to Dismiss for Lack of Subject Matter Jurisdiction
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Federal district courts are courts of limited jurisdiction; “[t]hey possess only
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that power authorized by Constitution and statute, which is not to be expanded by
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After considering the papers filed in connection with the Motions, the Court deemed the matter
appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15.
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judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
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(1994) (citation omitted). Accordingly, “[i]t is to be presumed that a cause lies
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outside this limited jurisdiction, and the burden of establishing the contrary rests upon
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the party asserting jurisdiction.” Id.; Chandler v. State Farm Mut. Auto. Ins. Co., 598
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F.3d 1115, 1122 (9th Cir. 2010). “If the court determines at any time that it lacks
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subject-matter jurisdiction, the court must dismiss the action.”
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12(h)(3).
Fed. R. Civ. P.
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A party may move to dismiss a lawsuit for lack of subject matter jurisdiction.
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Fed. R. Civ. P. 12(b)(1). A jurisdictional challenge may be facial or factual. Safe Air
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for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is
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facial, the Court determines whether the allegations contained in the complaint are
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sufficient on their face to invoke federal jurisdiction, accepting all material allegations
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in the complaint as true and construing them in favor of the party asserting
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jurisdiction. Warth v. Seldin, 422 U.S. 490, 501 (1975). Where the attack is factual,
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however, “[t]he court need not presume the truthfulness of the plaintiff’s allegations.”
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Safe Air, 373 F.3d at 1039. In resolving a factual dispute as to the existence of subject
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matter jurisdiction, a court may review extrinsic evidence beyond the complaint
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without converting a motion to dismiss into one for summary judgment.
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McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (holding that a court
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“may review any evidence, such as affidavits and testimony, to resolve factual
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disputes concerning the existence of jurisdiction”).
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B.
Id.;
Motion for Summary Judgment
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A party may move for summary judgment on a “claim or defense” or “part of . .
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. a claim or defense.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate when
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there is not genuine dispute as to any material fact and the moving party is entitled to
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judgment as a matter of law. Id. A party seeking summary judgment bears the initial
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burden of informing the court of the basis for its motion, and of identifying those
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portions of the pleadings and discovery responses that demonstrate the absence of a
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genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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Material facts are those that might affect the outcome of the case. Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if
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there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving
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party. Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1154 (9th Cir.1999) (citing
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Anderson, 477 U.S. at 248). Disputes over irrelevant or unnecessary facts will not
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preclude a grant of summary judgment.
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Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
T.W. Elec. Serv., Inc. v. Pac. Elec.
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Soontornvipat’s motion for summary judgment is unopposed. A district court
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may not grant a motion for summary judgment solely because the opposing party has
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failed to file an opposition. Cristobal v. Siegel, 26 F.3d 1488, 1494–95 & n.4 (9th Cir.
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1994) (unopposed motion may be granted only after court determines that there are no
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material issues of fact). The court may, however, grant an unopposed motion for
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summary judgment if the movant’s papers are themselves sufficient to support the
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motion and do not on their face reveal a genuine issue of material fact. See United
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States v. Real Prop. at Incline Village, 47 F.3d 1511, 1520 (9th Cir. 1995) (local rule
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cannot mandate automatic entry of judgment for moving party without consideration
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of whether motion and supporting papers satisfy Fed. R. Civ. P. 56).
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IV.
DISCUSSION
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Although they attempt to do so through different procedures, Defendants are
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seeking the same result—for the Court to dismiss this case for lack of subject-matter
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jurisdiction because the Defendants have remediated the property. Where, as here, a
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private plaintiff brings an ADA claim seeking to enjoin a defendant to remove an
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architectural barrier, removal of the barrier before final judgment moots the ADA
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clam based on that barrier. See Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th
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Cir. 2011); see also Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001)
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(ADA claims became moot when plaintiff received the accommodation he sought).
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The Court addresses each pending motion, in turn, below.
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A.
Motion to Dismiss
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The Ninth Circuit has cautioned that courts should not apply Federal Rule of
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Civil Procedure 12(b)(1) or 12(h)(3) to dismiss a claim on subject-matter jurisdiction
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grounds when, as it is here, the jurisdictional issue is intertwined with the merits of a
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claim. See Sun Valley Gasoline, Inc. v. Ernst Enters., Inc., 711 F.2d 138, 139–40 (9th
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Cir. 1983); Safe Air, 373 F.3d at 1039; Robert v. Corrothers, 812 F.2d 1173, 1177
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(9th Cir. 1987) (“The relatively expansive standards of a 12(b)(1) motion are not
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appropriate for determining jurisdiction in a case . . . where issues of jurisdiction and
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substance are intertwined. A court may not resolve genuinely disputed facts where
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‘the question of jurisdiction is dependent on the resolution of factual issues going to
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the merits.’”) (citation omitted). Simply put, the Court will not dismiss the action at
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the pleading stage because the jurisdictional analysis is coextensive with the merits of
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Plaintiff’s ADA claim.
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submit a report prepared by Amir Hamidzadeh, which purports to establish that the
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property is fully ADA compliant. (See Ex. 1, ECF No. 31-1.) While disguised as a
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factual attack on subject matter jurisdiction, this evidence—that the Court cannot
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consider on a motion to dismiss—actual seeks to prove that the defendants remediated
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the property. Such an inquiry is better left to a motion for summary judgment. For
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these reasons, the Court DENIES Defendants’ Motion to Dismiss. (ECF No. 31.)
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B.
1777 Westwood Limited Partnership and Farzin Halavy
Motion for Summary Judgment
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Soontornvipat’s Motion for Summary Judgment, although unopposed, does not
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sufficiently support the relief requested therein. As a preliminary matter, the Motion
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does not comply with the Local Rules for this District or the Court’s standing order.
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A party moving for summary judgment must lodge a proposed “Statement of
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Uncontroverted Facts and Conclusions of Law.” C.D. Cal. L.R. 56-1. Such proposed
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statement shall set forth the material facts as to which the moving party contends there
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is no genuine dispute. Id.2
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Additionally, the Motion does not lay the appropriate foundation for the report
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of Mr. Hamidzadeh, who allegedly inspected the property and opined that it was now
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in compliance with the applicable statutes. See Fed. R. Civ. P. 56. As presented, that
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report constitutes inadmissible hearsay.
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Soontornvipat’s own declaration does not contain the necessary foundation to support
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his contention that his business is now in compliance with the requirements of the
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ADA. (ECF No. 34.) Therefore, the Court DENIES Soontornvipat’s Motion for
See Fed. R. Evid. 801, 802.
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Summary Judgment without prejudice. (ECF No. 32.)
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Further,
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Then, the opposing party shall serve and file with their opposing papers a separate document
containing a concise “Statement of Genuine Disputes” setting forth all material facts as to which it is
contended there exists a genuine dispute necessary to be litigated. C.D. Cal. L.R. 56-2.
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V.
CONCLUSION
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For the foregoing reasons, the Court DENIES the pending Motion to Dismiss
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(ECF No. 31) and Motion for Summary Judgment. (ECF No. 32.) The denial of the
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Motion for Summary Judgment is without prejudice. While inartfully drafted, the
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Motion for Summary Judgment makes a compelling case that the ADA violations
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have been remedied, which if proven, would require the Court to dismiss the federal
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claims as moot.3 This case could be disposed of through motions for summary
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judgment, assuming such motions are supported by admissible evidence and comply
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with the Local Rules and the Court’s orders. Therefore, the Court ORDERS the
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parties to meet and confer and provide a written joint proposal for a summary-
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judgment briefing schedule no later than March 5, 2018.
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IT IS SO ORDERED.
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February 8, 2018
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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
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Once the federal claims are dismissed, it is within the Court’s discretion to dismiss the remaining
state-law claims. 28 U.S.C. § 1367(c).
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