The opinion of the court was delivered by: Lucy H. Koh United States District Court
ORDER DENYING MOTION TO DISMISS
Defendant Howard's Shoes for Children, Inc. (Howard's) moves to dismiss the claims asserted against it in this action under Federal Rules of Civil Procedure 12(b)(1), 12(h)(3)*fn1 and 12(b)(6), based on a lack of subject matter jurisdiction. Howard's argues that plaintiff Ronald Moore has failed to sufficiently allege standing to sue under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181 et seq. For the reasons set forth below, Howard's motion is DENIED.
The hearing on this motion set for March 17, 2011 at 1:30 p.m. is hereby VACATED.
Plaintiffs Alma Clarisa Hernandez, Theresa Wallen, and Ronald Moore (Plaintiffs) filed a complaint on June 29, 2010, alleging violations of Title III of the ADA and related California law claims. These claims were asserted against a large number of business entities located at the Vallco Shopping Mall, on North Wolfe Road in Cupertino, California. See Dkt. No. 1 (Compl.).
On July 27, 2010, Plaintiffs filed a First Amended Complaint (FAC). See Dkt. No. 90. On December 14, 2010, having obtained leave of court, Plaintiffs filed a Second Amended Complaint (SAC). See Dkt. No. 180.
The SAC alleges that the Plaintiffs are physically disabled. Regarding Moore, the SAC states that he "was diagnosed with hydrocephalus, degenerative disc disease of the lower back, 8 cervical radiculopathy, B knee arthritis and chronic pain syndrome since 2002 and requires the use 9 of a wheelchair when traveling about in public." SAC ¶ 46. Plaintiffs allege that they have been 10 deterred from visiting the Vallco Shopping Mall because of various alleged barriers which prevent them from enjoying the goods and services available there.
Regarding defendant Howard's, Moore alleges that the barriers there included the following: "Signage containing the International Symbol of Accessibility is not located at the 14 public entrance to the facility; Carpet or carpet tiles are not securely attached; Exposed edges of 15 carpet are not fastened to floor surfaces and do not have trim along the entire length of the exposed 16 edge; The maximum forward reach height from the floor surface exceeds 48"; The height of 17 counter/cashier register exceeds 34" from the floor." SAC ¶ 118. Moore alleges that these barriers 18 prevented him from enjoying full and equal access at Howard's. Id. He states that he "would 19 return to the Facility if the ADA violations were remedied but presently continues to be deterred 20 from visiting the Howard's Shoes Facility because of the future threats of injury created by these 21 barriers." Id. at ¶ 119. Based on these allegations, Moore asserts claims under Title III of the 22
ADA and related state law claims against Howard's. 23
In challenging Moore's standing to bring these claims, Howard's has submitted a
24 declaration indicating that Moore resides in Fresno County, which Howard's argues is about 160 25 miles from the Vallco Shopping Mall. See Mot. at 8; Link Decl. ISO Motion, Ex. A (Civil Cover Sheet dated August 13, 2009, Moore v. Catalina Restaurant Group, Inc., No. 09-cv-01423; Civil Cover Sheet dated December 3, 2010, Moore v. California Teriyaki Don, LLC, No. 10-cv-02247).
Howard's has also submitted a list of fifty-three other cases brought by Moore and asserting ADA 2 claims. See Link Decl. Ex. B.*fn2 following. For over six years, Moore resided in Los Gatos and San Jose. See Moore Decl. ISO Opp'n at ¶ 3. During this time, he frequently visited the Vallco Shopping Center, and became 6 accustomed to shopping there. Id. Moore visits his brother and his brother's family in "the Los Gatos area" approximately once per month, more than fifteen times per year. Id. at ¶ 4. Moore 8 also travels to Palo Alto to receive medical treatments at the Stanford Hospital twice a year. Id. at Moore states that Howard's carries difficult-to-find children's shoes that suit his and his grandchildren's needs and tastes. Id. ¶ 6. Specifically, he states that Howard's carries a wide variety of different sizes of shoes, and a large selection of "dressy" children's shoes. Moore says 13 he will continue to shop at Howard's as long as he has grandchildren. Id. at ¶ 9. a. 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a motion to dismiss, the 18 plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "facial plausibility" standard requires the 20 plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted 21 unlawfully." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In deciding whether the plaintiff has 22 stated a claim, the Court must assume the plaintiff's allegations are true and draw all reasonable 23 inferences in the plaintiff's favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987).
Plaintiff's objections to these exhibits are therefore moot.
In response to these submissions, Moore has submitted a declaration representing the ¶ 4. He has nine grandchildren, and frequently buys them ...