Johnson v. Dias

Filing 18

ORDER by Judge Joseph C. Spero denying 8 Motion to Dismiss without prejudice and ordering parties to mediation (jcslc1, COURT STAFF) (Filed on 2/24/2010) (Additional attachment(s) added on 2/25/2010: # 1 Cert Serve) (klh, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 v. SAMUDRA PRIYA DIAS, Defendant. __________________________________/ SUSAN JOHNSON, Plaintiff, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. C-09-02886 JCS ORDER DENYING MOTION TO DISMISS WITHOUT PREJUDICE AND VACATING HEARING [Docket No. 8]

United States District Court

11
For the Northern District of California

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In this case, involving disability access, Plaintiff asserts claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and state law. The parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 626(c). Defendant has filed a motion to dismiss, arguing, inter alia, that the accommodation sought by Plaintiff is not "readily achievable" under the ADA. Having reviewed Defendant's motion and supporting declaration, the Court concludes that it is based on evidence going to the merits of the case. Rule 12(b)(6) of the Federal Rules of Civil Procedure does not allow the Court to consider extrinsic evidence. Nor will the Court consider the motion as one for summary judgment, under Rule 56, because there has not been an adequate period in which to conduct discovery. Accordingly, Defendant's motion is DENIED without prejudice. The hearing scheduled for March 12, 2010 is vacated. Further, the parties are referred to mediation, to occur within 90 days of the date of this Order. IT IS SO ORDERED. Dated: February 24, 2010

_________________________ JOSEPH C. SPERO United States Magistrate Judge