Terry Hubbard v. Miandmo Investments LLC et al

Filing 18

Order to Show Cause by Judge Dale S. Fischer. Within fourteen (14) days of service of this order, Plaintiff shall SHOW CAUSE (as discussed above) in writing why this case should not be dismissed on standing and mootness grounds (the ADA claim) and 28 USC section 1367(c) (the Unruh Act claim). See Order for specifics. (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

TERRY HUBBARD,
Plaintiff,

CV 20-05457 DSF (SPx)
Order to Show Cause

v.
MIANDMO INVESTMENTS LLC,
a California Limited Liability
Company; and Does 1-10,
Defendants.

This is a disability discrimination case brought by Plaintiff Terry
Hubbard against Miandmo Investments LLC for violating the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12182(a), and
California’s Unruh Civil Rights Act, Cal. Civ. Code § 51. Plaintiff filed
an Application for Default Judgment. Dkt. 15-1 (Mot.). For the
following reason, ruling on the Application is deferred until Plaintiff
has shown cause why this case should not be dismissed.
I. Facts and Background
Plaintiff suffers from cerebral palsy and is “substantially limited in
his ability to walk.” Dkt. 1 (Compl.) ¶ 1. As a result of his disabilities,
Plaintiff requires a wheelchair for mobility. Id. In November 2019,
Plaintiff visited Bernard’s Burgers located at 11913 S. Avalon Blvd.,
Los Angeles, California 90061 “with the intention to avail himself of its
goods and to assess the business for compliance with the disability
access laws.” Id. ¶ 8. Plaintiff alleges that Bernard’s Burgers is “a
facility open to the public, a place of public accommodation, and a
business establishment.” Id. ¶ 9.

In support of the Application for Default Judgment, Plaintiff stated
that on April 27, 2020, his investigator visited Bernard’s Burgers and
took photos and measurements, confirming the barriers identified by
Plaintiff and identifying additional barriers within Bernard’s Burgers.
(Mot. 1–2).
The complaint was filed in federal court on June 19, 2020. Dkt. 1.
In the course of ruling on Plaintiff’s Application for Default
Judgment, the Court discovered that Bernard’s Burgers ceased
operations on approximately May 20, 2020.
II. Legal Standard
Federal courts are courts of limited jurisdiction and, until proven
otherwise, cases lie outside the jurisdiction of the court. Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375, 377–78 (1994). Lack
of subject matter jurisdiction may be challenged by either party or
raised by the court. Fed. R. Civ. P. 12(b)(1); fed. R. Civ. P. 12(h)(3)
Although Defendants have failed to appear and, therefore, failed to
move to dismiss under Federal Rule of Civil Procedure 12(b)(1),
“[f]ederal courts are required sua sponte to examine jurisdictional
issues such as standing.” Bernhardt v. County of Los Angeles, 279 F.3d
862, 868 (9th Cir.2002) (internal quotation marks omitted). An actual
controversy must be extant at all stages of review, not merely at the
time the complaint is filed. Seven Words LLC v. Network Solutions,
260 F.3d 1089, 1095 (9th Cir. 2001). Thus, this duty also extends to
mootness. Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999).
The plaintiff bears the burden of establishing that subject matter
jurisdiction exists. See United States v. Orr Water Ditch Co., 600 F.3d
1152, 1157 (9th Cir. 2010). If the Court finds that it lacks subject
matter jurisdiction at any time, it must dismiss the action. See Fed. R.
Civ. P. 12(h)(3).

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III. Discussion
A.

Order to Show Cause

According to the Complaint, the Court has subject matter
jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3), 1 and 1343(a)(4).
Sections 1331 and 1343(a)(4) apply to this case because Plaintiff has
alleged an ADA claim, a claim brought under Title III. Complaint ¶¶
23, 30. However, “damages are not recoverable under Title III of the
ADA—only injunctive relief is available for violations of Title III.”
Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002); see also Molski v.
M.J. Cable Inc., 481 F.3d 724, 730 (9th Cir. 2007); 42 U.S.C. § 12188(a);
42 U.S.C. § 2000a–3(a). In order to maintain his claims under Title III
of the ADA, Plaintiff must have standing to obtain injunctive relief.
1.

Standing

“To satisfy the constitutional requirements of standing, the plaintiff
must have suffered an ‘injury in fact’ – an invasion of a legally
protected interest which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical.” Stickrath v.
Globalstar, Inc., 527 F. Supp. 2d 992, 995 (N.D. Cal. 2007) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)) (internal
quotation omitted).
In the context of a claim for injunctive relief under Title III of the
ADA, a plaintiff must “demonstrate a sufficient likelihood that he will
again be wronged in a similar way. That is, he must establish a real
and immediate threat of repeated injury.” Fortyune v. Am. Multi–
Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004) (citations omitted).
Unless a plaintiff can show that he intends to return to an
Title 28 Section 1343(a)(3) provides subject matter jurisdiction where there
is a deprivation of federal rights under color of state law, but the Complaint
contains allegations of conduct by a private entity only; they do not show
conduct under color of state law. Thus § 1343(a)(3) does not provide federal
jurisdiction. Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916,
922 (9th Cir. 2011).
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establishment that has discriminated against him, he cannot establish
a real and immediate threat of repeated injury. See D’Lil v. Best W.
Encina Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir. 2008); Bird v.
Lewis & Clark College, 303 F.3d 1015, 1020 (9th Cir. 2002) (holding
that student who had graduated and did not plan to return to her
school lacked standing to pursue Title III claims against it).
If Bernard’s Burgers had ceased operation prior to the filing of the
Complaint, Plaintiff cannot demonstrate that he intends to return to
the establishment without providing evidence to the Court that a new
(and non-ADA conforming) establishment has opened and that the
Defendants are still allegedly liable under 42 U.S.C. § 12183(a)(2).
2.

Mootness

A case becomes moot when there is no longer a reasonable
expectation the violation will recur and when there are no existing
effects of the alleged violation. County of Los Angeles v. Davis, 440
U.S. 625, 631 (1979). “The basic question in determining mootness is
whether there is a present controversy as to which effective relief can
be granted.” Northwest Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244
(9th Cir. 1988). The Ninth Circuit has held an ADA case to be moot
when the challenged premises have closed with no plans to reopen or
lease to new tenants. Kohler v. Southland Foods, Inc., 459 F. App’x.
617 (9th Cir. 2011) (unpublished) (affirming district court’s
determination that ADA action was moot when defendant closed the
restaurant that was the subject of the ADA action); see also Bayer v.
Neiman Marcus Grp., Inc., 861 F.3d 853, 864 (9th Cir. 2017) (“A
request for injunctive relief remains live only so long as there is some
present harm left to enjoin.”).
If Bernard’s Burgers has ceased its operations and is no longer in
business, and 11913 S. Avalon Blvd., Los Angeles, California 90061 is
no longer a place of public accommodation, then Plaintiff’s claims for
injunctive relief are now moot. See id.

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3.

Supplemental Jurisdiction

The Court may have supplemental jurisdiction over Plaintiff’s
Unruh Act state law claim. 28 U.S.C. § 1367. Without a viable ADA
claim, the Court will decline to exercise supplemental jurisdiction
pursuant to 28 U.S.C. § 1367(c)(3). See Kohler, 459 Fed. App’x at 618–
19 (affirming district court’s decision to decline to exercise
supplemental jurisdiction over plaintiff’s Civil Code § 51 claim after the
Title III of the ADA claim became moot when defendant went out of
business).
IV. Conclusion
Before the Court dismisses the ADA claim as moot and declines to
exercise supplemental jurisdiction over the California Unruh Act claim,
the Court will give Plaintiff the opportunity to respond. Plaintiff is
required to show that he had standing at the time of filing the
Complaint, his ADA claim is not moot, and explain why the state law
claim should not be dismissed under 28 U.S.C. § 1367(c).
1. Within fourteen (14) days of service of this order, Plaintiff shall
SHOW CAUSE (as discussed above) in writing why this case should not
be dismissed on standing and mootness grounds (the ADA claim) and
28 U.S.C. § 1367(c) (the Unruh Act claim); and
3. The failure to timely show cause will result in the dismissal of
this case without further warning.
IT IS SO ORDERED.
Date: February 17, 2021

___________________________
Dale S. Fischer
United States District Judge

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