The opinion of the court was delivered by: BREWSTER
ORDER STAYING PROCEEDINGS IN THIS CASE FOR 60 DAYS AND RETAINING SAN DIEGO FLOWERS' MOTION TO DISMISS UNDER SUBMISSION
On April 24, 1998, Plaintiff filed a complaint alleging discrimination in access to public accommodations in violation of the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (ADA), in addition to several supplemental state law causes of action. Defendant San Diego Flowers (SDF) now moves to dismiss for want of subject matter jurisdiction and failure to state a claim under Fed. R. Civ. P. 12(b)(1) and (6), respectively. Upon due consideration of the moving and responding papers and for the reasons set forth below, the Court hereby DENIES SDF's motion to dismiss.
The following factual allegations are set forth in the complaint. Bernard Snyder (Plaintiff) has a mobility impairment that requires him to use a wheelchair. On or about August 23, 1997, Plaintiff attempted to visit several adjacent public businesses: San Diego Flowers, Village Square Liquor & Deli, and Terrance R. Caster Trust (Defendants). Plaintiff alleges that he could not access any of these businesses because they have not complied with the accessibility requirements of the ADA and various California statutes. The complaint alleges causes of action for (1) violations of the ADA; (2) violations of Cal. Civ. Code §§ 51, 52 et seq., 54.1, 54.2, 54.3, 55, and 55.1; (3) violations of Cal. Health & Safety Code §§ 19955, et seq.; (4) negligence per se; and (5) negligence. Plaintiff seeks damages, injunctive and declaratory relief, attorney's fees, and costs.
1. Fed. R. Civ. P. 12(b)(1)
Under Rule 12(b)(1), a defendant may seek to dismiss a complaint for "lack of jurisdiction over the subject matter." Fed. R. Civ. P. 12(b)(1). The party seeking to invoke the jurisdiction of the federal court has the burden of establishing that jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S. Ct. 1673, 1675, 128 L. Ed. 2d 391 (1994). A complaint will be dismissed for lack of subject matter jurisdiction (1) if the case does not "arise under" any federal law or the United States Constitution, (2) if there is no case or controversy within the meaning of that constitutional term, or (3) if the cause is not one described by any jurisdictional statute. See Baker v. Carr, 369 U.S. 186, 198, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962).
When the moving party merely asserts that the complaint fails on its face to demonstrate that subject matter jurisdiction exists, the factual allegations in the complaint are presumed to be true, and the motion is granted only if the plaintiff has failed to allege an element necessary for subject matter jurisdiction under a given statute. See 2A J. Moore, J. Lucas & G. Grotheer, Moore's Federal Practice para. 12.07[2.1], at 12-46 to 12-47 (2d ed. 1987); see also Eaton v. Dorchester Development, Inc., 692 F.2d 727, 731 (11th Cir.1982); Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981); Mortensen v. First Fed. Sav. & Loan Ass'n., 549 F.2d 884, 891 (3d Cir.1977).
2. Fed. R. Civ. P. 12(b)(6)
A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. The Court must accept as true the complaint's material allegations and any reasonable inferences that may be drawn from them. See Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). However, the Court may disregard conclusory allegations that are wholly unsupported or contradicted by the plaintiff's factual allegations. See Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation omitted). The Court will dismiss a claim if the complaint, when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action. However, at least on an initial 12(b)(6) review, plaintiff will be given leave to file an amended complaint so long as it is not beyond doubt that the plaintiff can prove no set of facts that would warrant legal relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
B. Must Plaintiff Exhaust Administrative Remedies Before Suing under the ADA?
SDF argues that this Court lacks subject matter jurisdiction over Plaintiff's ADA claims because a plaintiff must exhaust administrative remedies before filing suit under the ADA. Plaintiff counters that the ADA does ...