Johnson v. Conrad, et al.

Filing 19

ORDER signed by Chief Judge Morrison C. England, Jr on 11/24/14 ORDERING for the reasons just stated, Defendants' Motion to Dismiss 14 is GRANTED in part and DENIED without prejudice in part consistent with the foregoing. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT JOHNSON,

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Plaintiff,

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No. 2:14-cv-00596-MCE-EFB

v.

MEMORANDUM AND ORDER

ETHAN CONRAD, et al.,

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Defendants.

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Plaintiff Scott Johnson (“Plaintiff”) initiated this action against Defendants Ethan

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Conrad and America’s Party Rental, Inc., (collectively “Defendants”) seeking damages

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and injunctive relief for violations of the Americans with Disabilities Act (“ADA”), 42

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U.S.C. § 12101, et seq.; California’s Unruh Civil Rights Act, California Civil Code §§ 51-

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53; California’s Disabled Persons Act, California Civil Code §§ 54-54.8; and for

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negligence. Presently before the Court is Defendants’ Motion to Dismiss for lack of

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subject matter jurisdiction (ECF No. 14). For the following reasons, the Motion is

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DENIED.1

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Because oral argument would not be of material assistance, the Court ordered this matter
submitted on the briefs. E.D. Cal. Local R. 230(g); see also ECF No. 18.

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BACKGROUND2

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Plaintiff is a quadriplegic who cannot walk and has significant dexterity

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impairments. He uses a wheelchair for mobility and has a specially equipped van.

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Together, Defendants own and/or lease the property on which an American Party

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Rentals building is located.3 American Party Rentals is a business establishment and

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place of public accommodation.

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Plaintiff avers that he has frequented American Party Rentals in the past and

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encountered barriers to access that deterred him from further attempts at patronage.

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More specifically, although parking is provided to American Party Rentals patrons, no

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functioning and compliant handicap parking space is available. According to Plaintiff, on

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information and belief, Defendants have a pattern and practice of neglecting the

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maintenance upkeep of the parking lot such that the handicap parking that once existed

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has faded into oblivion. As a result, Plaintiff initiated this action alleging violations of

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state and federal law.4

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Defendants now move to dismiss Plaintiff’s ADA claim on the grounds that the

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purported barriers allegedly have been modified so that the parking lot now complies

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with federal law. In support, Defendants offer the declaration of Ethan Conrad, the

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owner of the American Party Rentals property and CEO of Ethan Conrad Properties, Inc.

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Decl. of Ethan Conrad, ECF No. 14-3 ¶ 1. According to Mr. Conrad, who has been a

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commercial real estate broker and principal since 1989, and who is “one of the most

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active and respected commercial real estate landlords in the Greater Sacramento Area,”

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Unless otherwise indicated, the following facts are taken, at times verbatim, from Plaintiff’s
Complaint. ECF No. 1.
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American Party Rentals is located in North Highlands, California, which is within the jurisdiction
of the Eastern District of California.
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In his Complaint, Plaintiff also challenges the door hardware. ECF No. 1 ¶ 11. In his Opposition,
however, Plaintiff concedes that his ADA claim on that basis is moot because Defendants have brought
the door into compliance. ECF No. 15 at 9 n.1. Accordingly, to the extent Defendants’ Motion is directed
at those allegations, it is GRANTED.

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his in-house construction company, Ethan Conrad Construction, made numerous

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improvements at the American Party Rentals site to bring it into compliance with the

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ADA. Id. ¶¶ 4-7.5 Among other things, Mr. Conrad opined that his construction company

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“altered the handicap parking space and access aisle by shifting them left to ensure

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compliance with ADA regulations.” Id. ¶ 7.6

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Since the only remedy sought under the ADA is an injunction, and since, given

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their remedial efforts Defendants contend there is no likelihood of future harm,

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Defendants ask that the ADA claim be dismissed, essentially as moot, and that the Court

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decline to exercise supplemental jurisdiction over Plaintiffs’ state law claims. Plaintiff

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contends dismissal of the ADA claim would be improper because, among other things,

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the jurisdictional question is intertwined with the merits and should not be resolved at this

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early juncture and because Defendants have not established the violations have been

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remedied such that the ADA claim is moot. Defendants’ Motion is DENIED.

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STANDARD

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Federal courts are courts of limited jurisdiction, and are presumptively without

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jurisdiction over civil actions. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

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377 (1994). The burden of establishing the contrary rests upon the party asserting

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jurisdiction. Id. Because subject matter jurisdiction involves a court’s power to hear a

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case, it can never be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630

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(2002). Accordingly, lack of subject matter jurisdiction may be raised by either party at

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any point during the litigation, through a motion to dismiss pursuant to Federal Rule of

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Defendants also attached a declaration from Andrew Schueler, a superintendent at Ethan
Conrad Construction, who was purportedly tasked with bringing the property into compliance. Decl. of
Andrew Schueler, ECF No. 14-2 ¶¶ 1-3. Mr. Schueler indicates that he recorded measurements relevant
to the compliance of the parking lot and that he photographed the property as well. Id. ¶¶ 4-5. However,
none of the evidence to which he refers was submitted to the Court. To the extent Defendants may be
referring to exhibits attached to an earlier declaration submitted with a prior Motion to Dismiss, see ECF
No. 11, that Motion was withdrawn, see ECF No. 13, and those exhibits have not been considered.
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Like Mr. Schueler, Mr. Conrad references exhibits that were not submitted to the Court.

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Civil Procedure 12(b)(1). Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); see also Int’l

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Union of Operating Eng’rs v. County of Plumas, 559 F.3d 1041, 1043-44 (9th Cir. 2009).

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There are two types of motions to dismiss for lack of subject matter jurisdiction: a

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facial attack and a factual attack. Thornhill Publ’g Co. v. Gen. Tel. & Elec. Corp.,

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594 F.2d 730, 733 (9th Cir. 1979). Thus, a party may either make an attack on the

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allegations of jurisdiction contained in the nonmoving party’s complaint, or may

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challenge the existence of subject matter jurisdiction in fact, despite the formal

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sufficiency of the pleadings. Id.

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When a party makes a facial attack on a complaint, the attack is unaccompanied

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by supporting evidence, and it challenges jurisdiction based solely on the pleadings.

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Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). If the motion to

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dismiss constitutes a facial attack, the Court must consider the factual allegations of the

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complaint to be true, and determine whether they establish subject matter jurisdiction.

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Savage v. Glendale High Union Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.1 (9th Cir.

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2003). In the case of a facial attack, the motion to dismiss is granted only if the

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nonmoving party fails to allege an element necessary for subject matter jurisdiction.

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Safe Air for Everyone, 373 F.3d at 1039.

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In the case of a factual attack, “no presumptive truthfulness attaches to plaintiff’s

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allegations.” Thornhill, 594 F.2d at 733 (internal citation omitted). The party opposing

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the motion has the burden of proving that subject matter jurisdiction does exist, and must

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present any necessary evidence to satisfy this burden. St. Clair v. City of Chico,

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880 F.2d 199, 201 (9th Cir. 1989). If the plaintiff’s allegations of jurisdictional facts are

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challenged by the adversary in the appropriate manner, the plaintiff cannot rest on the

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mere assertion that factual issues may exist. Trentacosta v. Frontier Pac. Aircraft Ind.,

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Inc., 813 F.2d 1553, 1558 (9th Cir. 1987) (quoting Exch. Nat’l Bank of Chicago v.

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Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976)). Furthermore, the district court

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may review any evidence necessary, including affidavits and testimony, in order to

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determine whether subject matter jurisdiction exists. McCarthy v. United States,
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850 F.2d 558, 560 (9th Cir. 1988); Thornhill, 594 F.2d at 733. If the nonmoving party

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fails to meet its burden and the court determines that it lacks subject matter jurisdiction,

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the court must dismiss the action. Fed. R. Civ. P. 12(h)(3).

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However, “jurisdictional finding of genuinely disputed facts is inappropriate when

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the jurisdictional issue and substantive issues are so intertwined that the question of

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jurisdiction is dependent on the resolution of factual issues going to the merits of an

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action.” Safe Air for Everyone, 373 F.3d at 1039 (internal citations and quotations

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omitted). “The question of jurisdiction and the merits of an action are intertwined where

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a statute provides the basis for both the subject matter jurisdiction of the federal court

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and the plaintiff's substantive claim for relief.” Id. at 1039-40 (internal citations and

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quotations omitted).

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“A court may not resolve genuinely disputed facts where ‘the question of

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jurisdiction is dependent on the resolution of factual issues going to the merits.’”

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Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting Augustine v. United

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States, 704 F.2d 1074, 1077 (9th Cir. 1983)). “In such a case, the district court assumes

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the truth of allegations in a complaint . . . unless controverted by undisputed facts in the

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record.” Id. “Dismissal is then appropriate where it appears beyond doubt that the

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plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

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Id. (internal quotations and citations omitted). “This standard, often cited in Rule 12(b)(6)

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motions, . . . is equally applicable in motions challenging subject matter jurisdiction when

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such jurisdiction may be contingent upon factual matters in dispute.” Id. If, after this

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threshold inquiry, subject matter jurisdiction is not precluded, the Court may entertain

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arguments “on either a motion going to the merits [,i.e., a summary judgment motion,] or

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at trial.” Id. at 1178.

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ANALYSIS

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Defendants contend dismissal is warranted because they have remedied the

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barriers that provide the basis for Plaintiff’s request for injunctive relief under the ADA

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and, consequently, for this Court’s federal question jurisdiction. Plaintiff opposes the

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Motion, arguing that Defendants’ jurisdictional challenge is inappropriate as a Rule

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12(b)(1) motion and that Defendants have not established either that the parking lot has

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been made compliant or that the violations will not recur. Plaintiff’s arguments are well

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taken.

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The question of whether Defendants’ facilities comply with the ADA goes to the

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heart of Plaintiff’s federal claim. Because the jurisdictional inquiry and the merits are

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fundamentally intertwined, review of Defendants’ Motion under the typical Rule 12(b)(1)

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standard applicable to factual motions would not be proper. Instead, the Court assumes

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the facts alleged in the Complaint are true unless contradicted by any undisputed facts in

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the record. In this instance, the Court finds that it has subject matter jurisdiction to reach

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the merits of Plaintiff’s claim because Defendants failed to offer any “facts” contradicting

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Plaintiff’s allegations and, even if they had, the Court would be required to treat the

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instant motion as one for summary judgment, which it views as premature.

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Most importantly here, there are no undisputed facts contradicting the allegations

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in Plaintiff’s Complaint properly before the Court. Instead, Defendants offer only

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conclusory opinions from lay witnesses that, for example, the handicap parking space

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and access aisle have been “altered” to “ensure compliance with ADA regulations.” ECF

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No. 14-3 ¶ 7. These conclusions are not supported by any objective evidence from

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which the Court may make its own determination that Defendants’ expert is correct and

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that Plaintiff’s ADA claim is moot as a result. Accordingly, as it would in considering a

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facial attack, the Court has considered the Complaint in its entirety and finds subject

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matter jurisdiction sufficient to allow the Court to reach the merits of this dispute.

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Even if Defendants had offered some facts to support their position, however, the

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Court would be disinclined to grant their Motion at this early stage in the litigation. “In

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ruling on a jurisdictional motion involving factual issues which also go to the merits, the

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trial court should employ the standard applicable to a motion for summary

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judgment . . . .” Augustine, 704 F.2d at 1077. Converting the instant Motion to one for

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summary judgment would be premature because Plaintiff has not yet had the opportunity

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to engage in discovery and thus has not had the opportunity to develop the evidence he

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may need to rebut Defendants’ “facts.” Accordingly, Defendants’ Motion to Dismiss for

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lack of jurisdiction is DENIED without prejudice to raising this argument in a properly

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noticed and appropriately timed motion for summary judgment.7

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CONCLUSION

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For the reasons just stated, Defendants’ Motion to Dismiss (ECF No. 14) is
GRANTED in part and DENIED without prejudice in part consistent with the foregoing.

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IT IS SO ORDERED.

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Dated: November 24, 2014

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To the extent Defendants ask that the Court decline to exercise supplemental jurisdiction over
Plaintiff’s state law claims, that argument is derivative of their mootness argument and is thus similarly
rejected.

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