The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT MOTION TO DISMISS [Docket No. 95]
This is a disability discrimination case alleging that defendants, various retail establishments, have violated federal and state law by not removing architectural barriers which prevent Plaintiff, an alleged disabled individual, from enjoying full and equal access to defendants' stores. Plaintiff brings claims arising under the Americans with Disabilities Act ("ADA"), the California Unruh Civil Rights Act (the "Unruh Act"), the California Disabled Persons Act ("DPA"), and the Health and Safety Code. Pending before the court is defendant Rowley Petroleum Corporation's ("Rowley") motion to dismiss the complaint in its entirety. See Docket No. 95. Rowley moves pursuant to Rule 12(h)(3), Rule 12(b)(1), and Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiff alleges that she is a paraplegic and therefore "physically disabled" within the meaning of federal and state law. Comp. ¶ 23. She also alleges that Rowley "is a sales or retail establishment, open to the public, which is intended for nonresidential use and whose operation affects commerce."
Id. ¶ 39. During an alleged visit to Rowley's establishment, Plaintiff contends she encountered physical barriers that prevented her from enjoying full and equal access and which deter her from returning. Id. ¶ 56. Plaintiff seeks relief in the form of damages,*fn1 injunctive and declaratory relief, and attorney's fees and costs.
Rowley argues Plaintiff's ADA claim should be dismissed because after Plaintiff filed suit, Rowley remedied the complained-of barriers and therefore the claim is moot. Rowley also argues that Plaintiff's state claims should be dismissed pursuant to 28 U.S.C. § 1367(c) because the relevant state law is unsettled.
Rowley purports to move pursuant to the following three provisions of Rule 12.
A party may move the court to dismiss an action for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Mootness is a defect in subject matter jurisdiction because federal courts are empowered only to hear cases and controversies. U.S. Const. art. III, § 2; DeFunis v. Odegaard, 416 U.S. 312, 316 (1974). An action becomes moot, and therefore no case or controversy is presented, if after initiation of the action the aggrieved party receives the relief sought in the complaint. DeFunis, 416 U.S. at 317. When the moving party argues that the allegations are insufficient to confer subject matter jurisdiction as a matter of law, the court accepts the allegations as true. Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005). When the moving party argues that the court lacks subject matter jurisdiction as a matter of fact, then "the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).
In addition, a party may move the court to dismiss a claim upon which no relief can be granted. Fed. R. Civ. P. 12(b)(6). Such a dismissal can be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). In applying this standard, the court must treat all factual allegations as true and construe the complaint in the light most favorable to the plaintiff. Experimental Eng'g, 614 F.2d at 1245; see Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995). If matters outside the pleadings are submitted in connection with a Rule 12(b)(6) motion to dismiss, the court treats the motion as one for summary judgment pursuant to Rule 56. Jacobson v. AEG Capital Corp., 50 F.3d 1493, 1496 (9th Cir. 1995).
Finally, "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed. R. Civ. P. 12(h)(3). "The party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists." Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986).
A. Motion to Dismiss the ADA Claim as Moot
Rowley argues that Plaintiff's action is moot because after this action was initiated, Rowley "eliminated or resolved each of the applicable issues in the Complaint, though some never existed in the first place." Mot. at 6. In support of its argument, Rowley submits the following evidence. First, Rowley submits the declaration of Donald Reeves, an architect. Mr. Reeves contends that on or around January 21, 2007, he personally inspected Rowley's property and found that the property was fully compliant with all applicable standards for disabled access. Reed. Decl. at 2. Second, Rowley submits photographs of its property purportedly showing that the alleged ADA violations have been cured. See Peters Decl. and attached exhibits. Finally, Rowley submits the declaration of ...