Johnson v. Jacob et al

Filing 12

ORDER signed by Judge John A. Mendez on 04/09/15 DENYING 8 Motion to Dismiss for Lack of Jurisdiction and DENYING Request for Sanctions. (Benson, A)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SCOTT JOHNSON, 10 13 14 15 2:14-cv-02323-JAM-EFB Plaintiff, 11 12 No. v. ORDER DENYING DEFENDANTS’ MOTION TO DISMISS KELLIE ANNE JACOBS, in her individual and representative capacity as Trustee for The Kellie Anne Revocable Trust; VALLEY BREWING COMPANY, INC., a California Corporation, and Does 1-10, 16 Defendants. 17 Defendants Kellie Anne Jacobs (“Jacobs”), in her individual 18 19 and representative capacity as Trustee of the Kellie Anne 20 Revocable Trust, and Valley Brewing Company, Inc. (“Valley 21 Brewing”) (collectively “Defendants”) contend the Court lacks 22 subject matter jurisdiction over the claims in Plaintiff Scott 23 Johnson’s (“Plaintiff”) complaint (Doc. #1) and have moved to 24 dismiss (Doc. #8) pursuant to Federal Rule of Civil Procedure 25 12(b)(1) (“Rule 12(b)(1)”). 1 In his opposition (Doc. #9), 26 27 28 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for March 25, 2015. 1 1 Plaintiff argues this attack on the merits of his claims is 2 premature and is better suited as a motion for summary judgment. 3 The Court agrees. 4 5 6 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND Valley Brewing Company is a business establishment and place 7 of public accommodation owned and operated by Defendants. 8 Plaintiff is a California resident with physical disabilities. 9 As a C-5 quadriplegic, he uses a wheelchair for mobility. 10 Plaintiff alleges there are significant accessibility issues 11 at Valley Brewing Company involving features of the bar/counter, 12 tables and bathroom. 13 on two occasions and encountered these barriers. 14 Plaintiff experienced difficulty and discomfort and has been 15 deterred from visiting on subsequent occasions. 16 states four causes of action arising out of these encounters: 17 (1) violation of the Americans with Disabilities Act of 1990 18 (“ADA”), 42 U.S.C. § 12101, et seq.; (2) violation of the Unruh 19 Civil Rights Act, California Civil Code §§ 51-53; (3) violation 20 of the California Disabled Persons Act, California Civil Code 21 §§ 54-54.8; and (4) negligence. Plaintiff alleges he ate at Valley Brewing As a result, The complaint 22 23 II. OPINION 24 A. Legal Standard 25 Dismissal is appropriate under Rule 12(b)(1) when a district 26 court lacks subject matter jurisdiction over the claim. 27 defendant brings a Rule 12(b)(1) motion, the plaintiff has the 28 burden of establishing subject matter jurisdiction. 2 See When a 1 Rattlesnake Coal. v. U.S. E.P.A., 509 F.3d 1095, 1102 n.1 (9th 2 Cir. 2007) (“Once challenged, the party asserting subject matter 3 jurisdiction has the burden of proving its existence.”). 4 are two permissible jurisdictional attacks under Rule 12(b)(1): a 5 facial attack, where the court’s inquiry is limited to the 6 allegations in the complaint; or a factual attack, which permits 7 the court to look beyond the complaint at affidavits or other 8 evidence. 9 1039 n.2 (9th Cir. 2003). 10 There Savage v. Glendale Union High Sch., 343 F.3d 1036, If the moving party asserts a facial challenge, the court 11 must assume that the factual allegations asserted in the 12 complaint are true and must construe those allegations in the 13 light most favorable to the plaintiff. 14 Supp. 2d 1172, 1175 (S.D. Cal. 2007) (citing 15 One 1997 Mercedes E420, 175 F.3d 1129, 1130-31 & n.1 (9th Cir. 16 1999) and Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 17 1139 (9th Cir. 2003)). 18 attack, the court “is free to hear evidence regarding 19 jurisdiction and to rule on that issue prior to trial, resolving 20 factual disputes where necessary.” 21 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). 22 Li v. Chertoff, 482 F. United States v. If the moving party asserts a factual Id. (citing Safe Air for In resolving a factual attack, district courts “may review 23 evidence beyond the complaint without converting the motion to 24 dismiss into a motion for summary judgment.” 25 Everyone, 373 F.3d at 1039 (citing Savage, 343 F.3d at 1039 n.2). 26 Courts consequently need not presume the truthfulness of 27 plaintiff’s allegations. 28 1214, 1242 (9th Cir. 2000)). Safe Air for Id. (citing White v. Lee, 227 F.3d “Once the moving party has 3 1 converted a motion to dismiss into a factual motion by presenting 2 affidavits or other evidence properly before the court, the party 3 opposing the motion must furnish affidavits or other evidence 4 necessary to satisfy its burden of establishing subject matter 5 jurisdiction.” 6 Id. (quoting Savage, 343 F.3d at 1039 n.2). However, “jurisdictional finding of genuinely disputed facts 7 is inappropriate when the jurisdictional issue and the 8 substantive issues are so intertwined that the question of 9 jurisdiction is dependent on the resolution of factual issues 10 going to the merits of an action.” 11 F.3d at 1039 (internal citations and quotations omitted). 12 Jurisdiction and the merits of an action are intertwined where “a 13 statute provides the basis for both the subject matter 14 jurisdiction of the federal court and the plaintiff’s substantive 15 claim for relief.” 16 omitted). 17 18 19 B. Safe Air for Everyone, 373 Id. (internal citations and quotations Discussion 1. Jurisdiction and Standing Defendants first contend that Plaintiff’s ADA allegations 20 are “moot.” Defendants then argue that their expert “disagrees 21 that any of Plaintiff’s allegations of ADA violations pled in his 22 Complaint are true, and as a matter of law, he is correct.” MTD 23 at p.7. Upon thorough analysis of Defendants’ motion, in 24 conjunction with the declaration filed by Defendants’ counsel 25 (Doc. #8-2) and the attached exhibits, it appears Defendants are 26 contending that whatever barriers may have previously existed, 27 “each and every claimed barrier to access has been altered to 28 comply with applicable accessibility requirements.” 4 MTD at p. 9. 1 Exhibit C (Doc. #8-6) to the declaration of Defendants’ counsel 2 is a “Unilateral Stipulation of Voluntary ADA/Title 24 Compliance 3 Prior to Service of Summons and Complaint” in which Defendants 4 state that by the time they were served “Ms. Jacobs had made all 5 relevant changes, but also more than what [Plaintiff] complained 6 about.” 7 expert, Kim Blackseth, which contains his opinion that all 8 alleged barriers have been removed as of his site inspection on 9 January 14, 2015. 10 Exhibit D (Doc. #8-7) is the report of Defendants’ Defendants argue that because there are no longer any 11 remaining barriers based on this evidence, Plaintiff’s claims are 12 moot and all that remains are state law claims. 13 the Court should decline to exercise supplemental jurisdiction 14 over these remaining claims. They next argue MTD at pp. 9-11. 15 Plaintiff responds to Defendants’ arguments by contending 16 that the question of jurisdiction and the merits of the action 17 are so intertwined that the issue can and should be raised in a 18 motion for summary judgment rather than a motion to dismiss. 19 Opp. at pp. 2-4. 20 of the instant motion to one for summary judgment would be 21 “premature and unfair” as Plaintiff has not had the opportunity 22 to conduct discovery or a site inspection to assess the alleged 23 alterations performed by Defendants. Opp. at p.4,n.1 Additionally, Plaintiff argues that conversion 24 Defendants’ motion represents a factual attack on the 25 complaint because it “disputes the truth of the allegations that, 26 by themselves, would otherwise invoke federal jurisdiction,” 27 namely whether barriers to access existed at Defendants’ 28 facility. Safe Air for Everyone, 373 F.3d at 1039. 5 The Court 1 may therefore review evidence beyond the complaint, such as that 2 relied on by Defendants here, in resolving such an attack on 3 jurisdiction unless the issue of jurisdiction and the underlying 4 merit of Plaintiffs claims are too intertwined. 5 Id. Clearly the ADA provides the basis for both the subject 6 matter jurisdiction of this Court and Plaintiff’s substantive 7 claims for relief. 8 on jurisdiction would require the Court to resolve disputed 9 issues of fact. Addressing the merits of Defendants’ attack Thus, the Court finds that the issue of 10 jurisdiction presented by Defendants and the substantive issues 11 presented by this litigation are in fact so intertwined that the 12 question of jurisdiction is dependent on the resolution of 13 factual issues going to the merits of this action. 14 for Everyone, 373 F.3d at 1039 (internal citations and quotations 15 omitted). 16 disputed facts is inappropriate.” 17 district have come to the same conclusion under similar 18 circumstances and an identical plaintiff. 19 No. 2:14-CV-00596-MCE, 2014 WL 6670054, at *4 (E.D. Cal. 2014); 20 Johnson v. Hernandez, No. 2:14-CV-01635-MCE, 2014 WL 6670170, at 21 *4 (E.D. Cal. 2014). 22 See Safe Air Therefore, a “jurisdictional finding of genuinely Id. Other courts in this See Johnson v. Conrad, Rather than convert this motion into one for summary 23 judgment at this early stage, the Court DENIES Defendants’ motion 24 to dismiss for lack of jurisdiction without prejudice in order to 25 allow for discovery by both parties before the issue of mootness 26 is addressed. 27 (finding the conversion of a Rule 12(b)(1) motion “to one for 28 summary judgment would be premature because Plaintiff has not yet See Johnson v. Conrad, 2014 WL 6670054, at *4 6 1 had the opportunity to engage in discovery and thus has not had 2 the opportunity to develop the evidence he may need to rebut 3 Defendants' ‘facts’”); Johnson v. Hernandez, 2014 WL 6670170, at 4 *4 (same conclusion); Johnson v. California Welding Supply, Inc., 5 No. CIV. 2:11-01669 WBS, 2011 WL 5118599, at *4 (E.D. Cal. 2011). 6 7 2. Sanctions Defendants contend Plaintiff and his counsel should be 8 sanctioned for their conduct in this and other ADA cases. 9 pp. 11-13. MTD at The Court has denied Defendants’ motion and does not 10 find a basis for imposing sanctions on Plaintiff or his counsel 11 at this time. In addition, Defendants have failed to provide the 12 Court with any evidence from which the Court could determine the 13 amount of sanctions including billing records which reflect costs 14 and billable hours. Defendants’ request is DENIED. 15 16 17 III. ORDER For the reasons set forth above, the Court DENIES 18 Defendants’ motion to dismiss for lack of subject matter 19 jurisdiction and DENIES Defendants’ request for sanctions. 20 21 IT IS SO ORDERED. Dated: April 9, 2015 22 23 24 25 26 27 28 7

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