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Johnson v. Makinen

July 14, 2009


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge


This matter is before the court on a motion to dismiss for lack of subject matter jurisdiction filed by defendants Ari and Tina Makinen ("defendants" or "Makinen") pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiff Scott Johnson ("plaintiff") opposes the motion.

For the reasons set forth below, defendants' motion to dismiss is DENIED.*fn1 Under 28 U.S.C. 1367(c), which gives a district court the discretion to decline to exercise supplemental jurisdiction over a state claim in certain circumstances, plaintiff's state law claims do not substantially predominate over his federal claim. Furthermore, pursuant to Ninth Circuit precedent, once an Americans with Disabilities Act ("ADA") plaintiff has encountered or has personal knowledge of at least one barrier related to his disability when he files a complaint, that plaintiff has standing to pursue remedies for all barriers in the public accommodation that are related to his specific disability.


Plaintiff is a "person with a disability" with limited use of his legs and hands, requiring a wheelchair for locomotion, and is either unable to use portions of public facilities that are not accessible to disabled persons who require the use of a wheelchair or is only able to use such portions with undue difficulty. (Compl. at 1-2.) Plaintiff is also unable to use inaccessible door handles. (Id. at 2.) The "Lake Tahoe Adventures" recreation business (the "business") is a public accommodation. (Id.) Defendants own the real property where the business is located and operate the business. (Id.)

Plaintiff claims he was denied accessible parking, entrance, and sanitary facilities at the business on February 19 and 20, 2009, and was thereby denied equal protection of the law and civil rights under both California and federal law. (Id.) On February 19, 2009, plaintiff drove to the business to sign up his son and his son's friends for a snowmobile ride. (Id. at 5.) Plaintiff states that there was no accessible parking at the business's parking lot. (Id. at 4.) The entrance to the business required climbing steps, and was thus inaccessible to people in wheelchairs. (Id.) The restrooms inside the business were likewise inaccessible. (Id.) Plaintiff also states he was required to park in an ordinary parking space lacking an access aisle. (Id. at 5.) Because plaintiff could not enter the business, he was required to transact his business in the parking lot and also could not access the restroom. (Id.) On February 20, 2009, plaintiff returned to the business for his son's and his son's friends' snowmobile rides. (Id.) At that time, plaintiff encountered the same barriers as the previous day. (Id.)

Plaintiff contends that defendants' failure to remove all readily achievable barriers, to institute policies in furtherance of accessibility, or to use an alternate policy to enable plaintiff to use the goods and services offered to the non-disabled public without suffering indignities was a violation of the California Building Code, the Americans with Disabilities Act and federal regulations, and California Civil Code §§ 51 and 54 (also known as the "Unruh Act"). (Id.)

Plaintiff's first claim for relief is pursuant to the Unruh Act, under which plaintiff seeks injunctive relief to prohibit the acts and omissions by defendants at the business, which wrongfully exclude plaintiff and others from using the business. (Id.) Plaintiff claims that these acts and omissions are the cause of humiliation and mental and emotional suffering. (Id. at 5-6.) Plaintiff claims that as long as such acts and omissions continue, he is unable to achieve equal access to and use of this public facility, and defendants' acts have proximately caused and will continue to cause irreparable injury to plaintiff if not enjoined by the court. (Id. at 6.) For the same reasons, plaintiff seeks actual damages and attorney's fees and costs. (Id. at 6-7.)*fn3

Plaintiff's second claim for relief arises out of defendants' alleged violation of the Americans with Disabilities Act. Plaintiff claims that the removal of each of the barriers previously alleged was "readily achievable" under the standards of the ADA. (Id. at 9.) Plaintiff contends that because the business was not accessible, defendants had an obligation to have a plan which would have allowed plaintiff to enjoy the business' goods and services without having to suffer the aforementioned indignities. (Id.) Pursuant to the § 308 of the ADA, plaintiff claims he is entitled to the remedies and procedures set forth in § 204(a) of the Civil Rights Act of 1964, 42 U.S.C. 2000(a)-3(a).


Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may by motion raise the defense that the court lacks "jurisdiction over the subject matter" of a claim. Fed. R. Civ. P. 12(b)(1). It is well established that the party seeking to invoke the jurisdiction of the federal court bears the burden of establishing the court's subject matter jurisdiction. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989).

On a motion to dismiss pursuant to Rule 12(b)(1), the standards the court is to apply vary according to the nature of the jurisdictional challenge. A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of jurisdiction contained in the complaint as insufficient on their face to demonstrate the existence of jurisdiction ("facial attack"), or may be made as a "speaking motion" attacking the existence of subject matter jurisdiction in fact ("factual attack"). Thornhill Publishing Co. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).


Defendants move to dismiss plaintiff's state claim in full and plaintiff's federal claim in part for lack of subject matter jurisdiction. Specifically, defendants contend that the allegations in the ...

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