McIver v. Pacific Carmel Mountain Holdings, LP et al

Filing 172

ORDER granting in part Motion to Dismiss Claims as Moot 154 , 159 . Evidentiary Hearing set for 9/25/2012 01:00 PM before Judge Larry Alan Burns. Signed by Judge Larry Alan Burns on 9/12/12. (cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LARRY McIVER,

CASE NO. 09CV1975-LAB (AJB)

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Plaintiff,

ORDER GRANTING IN PART
MOTION TO DISMISS CLAIMS AS
MOOT

vs.
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PACIFIC CARMEL MOUNTAIN
HOLDINGS, LP,

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Defendants.
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After Plaintiff renounced all claims except those for injunctive relief under the ADA,

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Defendant Sears Roebuck & Co. filed a notice contending that all remaining claims against

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it were moot. Sears’ argument is that the facility in question had been closed, renovated, and

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then reopened as a Sears Outlet store. Sears maintains that the barriers that allegedly

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prevented Plaintiff from accessing and using the facilities no longer existed and Plaintiff’s

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claims against Sears are therefore moot. Because Plaintiff seeks only injunctive relief and

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changed conditions could moot all of Plaintiff’s claims, the Court construed Sears’ notice as

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a motion to dismiss claims as moot, and ordered Plaintiff to show cause why his claims

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shouldn’t be dismissed. (Docket no. 157.)

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Costco has also filed an ex parte motion to dismiss the claims against it as moot.

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Although its facilities didn’t undergo the same type of renovation as Sears, Costco contends

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the alleged barriers have nevertheless been removed. After Costco filed its notice, the Court

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issued an order requiring Plaintiff to file a response to its motion as well. (Docket no. 161.)

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The Court’s Order to Show Cause made clear Plaintiff is required to show that the

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Court has jurisdiction to entertain his claims, and required him to address Sears’ factual

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representations as well as raising any legal arguments he had. (Docket no. 157, 1:23–25.)

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The Court’s order following Costco’s motion made clear that the mootness question would

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be considered before the scheduled trial would go forward. (Docket no. 161, 1:23–26.)

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Plaintiff filed a brief (Docket no. 162) arguing that Defendants are required to produce

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evidence showing that his claims are moot, and that they haven’t done so. (Docket no. 162,

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2:2–9, 2:15–25.) Plaintiff maintains that mootness is an affirmative defense that must be

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pleaded in the answer or at least mentioned in the final pretrial order, and that it is unfair to

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raise this defense on the eve of trial. Plaintiff also contends that Defendants bear a “heavy

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burden” to show that his claims aren’t moot. In support of this, he cites Friends of the Earth,

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Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167 (2000), and cases relied on

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by it or relying on it.

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Laidlaw, however, dealt with a situation where the only possible basis for mootness

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was the defendant’s voluntary cessation of the allegedly offending practice. 528 U.S. at 189

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(“The only conceivable basis for a finding of mootness in this case is Laidlaw's voluntary

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conduct . . . .”) But most of the barriers identified in the amended complaint and final pretrial

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order didn’t consist of voluntary practices that could be temporarily halted, only to be

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restarted later. Rather, the barriers are primarily structural. If, as Sears and Costco

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represent, these have been altered through renovation to the physical plant, or otherwise,

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there is no reasonable likelihood those changes will be undone. See Chapman v. Pier 1

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Imports (U.S.) Inc., ___ F. Supp. 2d ___, 2012 WL 2500932, slip op. at *6 (E.D.Cal., June

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27, 2012) (distinguishing "voluntary cessation" case from cases where structural changes

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rendered injunctive relief moot).

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The final pretrial order identifies the alleged barriers at Sears as consisting of

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inappropriate handles at entrance doors, lack of an International Symbol of Accessibility
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(ISA) at the main entrance, unwrapped pipes beneath the sinks, a waste receptacle under

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the sink that protrudes into clear knee space, a waste receptacle obstructing use of the

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paper towel dispenser, a baby changing station that protrudes into the clear floor space

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needed to access lavatories, a paper towel dispenser that is mounted both too high and too

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close to the restroom exit door. (Final Pretrial Orderat 6:20–7:11.) The same order identifies

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the alleged barriers at Costco as being the lack of an adequate painted markings on and

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around disabled parking spaces, inadequate signs posted at disabled parking spaces

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(including van parking spaces), and access aisles adjacent to the van accessible parking

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spaces that are too narrow. (Id. at 7:12–24.) Of these, only the waste receptacle’s position

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is arguably practice or policy that can be ceased, and then only if the receptacle is movable

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and Sears’ employees place it (or allow it to remain) where it blocks Plaintiff’s use of the

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facilities, and if Plaintiff can’t easily move it out of the way. If the others have been fixed, it

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would be by a permanent physical change to the facility, which Defendants aren’t likely to

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undo.

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As the Court’s earlier orders pointed out, mootness is jurisdictional, and the Court is

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required to raise and consider this issue, sua sponte if necessary. See American Civil

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Liberties Union of Nevada v. Masto, 670 F.3d 1046, 1062 (9th Cir. 2012). Mootness at any

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stage of litigation requires dismissal, because the Court no longer has the power to

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adjudicate the case. Id. (“When the possibility of injury to the plaintiffs ceases, the case is

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rendered moot and we lack jurisdiction to decide it.”) Lack of subject matter jurisdiction is

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never waived, and may be raised at any stage of the proceedings. Sarei v. Rio Tinto, PLC,

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487 F.3d 1193, 1200 (9th Cir. 2007). The Court is not free to ignore possible defects in its

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jurisdiction, but is required to confirm its jurisdiction before proceeding further. Id. This

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means the Court must address mootness before allowing the claims to proceed to trial on

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the merits. See Frankl v. HTH Corp., 650 F.3d 1334, 1342 (9th Cir. 2012) (addressing

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mootness issue before proceeding to address substantive issues).

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The mootness doctrine is more flexible than other jurisdictional requirements, and

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claims are not moot when any effective relief may be granted. Karuk Tribe of Calif. v. U.S.
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Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (citations omitted). Here, however, Plaintiff

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is only seeking injunctive relief requiring the remediation of barriers. If remediation has

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already taken place and there is no longer any need for the Court to order what has already

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happened, the case has become moot. See id.

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While the Court’s orders so far have focused on mootness, the Court must also be

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mindful of other jurisdictional issues, such as standing. See Chapman v. Pier 1 Imports

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(U.S.) Inc., 631 F.3d 939, 947–48 (9th Cir. 2011) (en banc) (to show standing, ADA plaintiff

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must show real and immediate threat of injury from existing barriers, and a likelihood injury

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will be repeated if relief is not granted). The parties should also remember that this case is

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on the eve of trial. Discovery has already been completed, the final pretrial order issued, and

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new claims or affirmative defenses will not be allowed at this stage. If, as Defendants

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represent, the conditions identified in the final pretrial order have been removed so that they

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are no longer barriers for Plaintiff, the case is moot. The Court must also bear in mind the

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standards for issuing injunctive relief. Because it is the only type of relief being sought, if

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injunctive relief would be unavailable, the case would be moot for that reason as well. See

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Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743, 2756 (2010) (setting forth standards

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for issuance of injunction).

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The Court’s orders concerning Sears’ and Costco’s motions said the Court would set

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a hearing if necessary. Having reviewed the briefing, the Court has determined that some

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evidence is needed before a determination can be made, and an evidentiary hearing should

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be held. The parties are therefore ORDERED to appear for an evidentiary hearing solely on

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the issue of whether the barriers have been corrected. Defendants should present

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competent evidence to substantiate their representations to the Court that all barriers have

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been removed. Plaintiff may present rebuttal evidence showing that barriers have not been

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corrected. The hearing will be held on Tuesday, September 25, 2012 at 1:00 p.m. and each

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side will have one hour to present its evidence. No later than Friday, September 21, each

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side should file a notice, not longer than three pages, identifying the evidence it intends to

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present. The Court will rule on Defendants’ motions after the hearing. The parties are
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reminded that the hearing is an evidentiary hearing in support of the Court’s examination of

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its own jurisdiction, not oral argument or a trial.

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IT IS SO ORDERED.
DATED: September 12, 2012

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HONORABLE LARRY ALAN BURNS
United States District Judge

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