ORDER RE: MOTION TO DISMISS
Plaintiff Scott Johnson brought this action alleging failure by defendants to remove access barriers to their welding supply store and seeking relief under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., and California's Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code §§ 51, 52. Defendants now move to dismiss plaintiff's Complaint pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure on the grounds that the court no longer has subject matter jurisdiction over plaintiff's claims.
I. Factual and Procedural Background
Plaintiff is a quadriplegic and is thus a "person with a disability" and a "physically handicapped person" according to the ADA. (Compl. ¶ 1; 42 U.S.C. § 12102(2)(A); 28 C.F.R. § 36.104.) As a result of his disability, plaintiff has substantial limitations on major life activities, including standing, breathing, and reaching. (Compl. ¶ 1.) To function with these difficulties, plaintiff requires the use of a service animal, electric wheelchair, and a full-size van with hand-controls and a wheelchair lift. (Id.)
Twice in the past year, plaintiff claims he has visited California Welding Supply Company ("California Welding"), a welding supply and retail store. (Id. ¶¶ 2, 4.) During these visits, one of which occurred on or about April 3, 2011, plaintiff alleges that he encountered multiple barriers that made it difficult for him to make full and equal use of the premises. (Id. ¶ 4.) Specifically, plaintiff claims that because of his disability, the entrance door, pathways through the store, the service counter, signage, and striping caused him to experience difficulty, discomfort, and embarrassment. (Id.)
Plaintiff also claims that the customer parking and customer restroom he and his companion used during his April 3, 2011, visit were out of compliance with applicable disability laws. (Id.) Defendants contend that they do not and have never provided customer restrooms or customer parking. (Garcia Decl. ¶¶ 6,7.)
As a result of these barriers, plaintiff further claims that he has been deterred from making two additional visits in the past year. (Compl. ¶ 4.)
According to the plaintiff, he mailed a letter to defendants on December 5, 2010, informing them that their store was inaccessible to him and asking that they bring it into conformity with applicable disability laws. (Id. ¶ 4, Ex. C.) Defendants claim that they never received the letter as the address to which the letter was mailed was no longer a valid address. (Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss at 3.)
Plaintiff filed this Complaint on June 20, 2011. (Docket No. 1.) Some time that same month, defendants, who had not yet been served, allege that they were contacted by an attorney who informed them that they were named as defendants in a complaint alleging ADA violations. (Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss at 3.) In response, defendants contacted a disability accessability specialist and asked him to perform a survey of California Welding. (Id.; Garcia Decl. ¶ 8) The initial survey identified several areas in which the premises were not in compliance with the ADA or the California Building Code. (Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss at 3-4; Simms Decl. Ex. A.) Relying upon defendants' assertion that they do not provide public-use parking or restrooms, the specialist found that no changes were needed with respect to parking or restroom facilities. (Simms Decl. ¶¶ 5, 9.)
According to defendants, all of the access barriers identified in the specialist's report were removed by July 18, 2011. (Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss at 4.)
The accessability specialist made a follow-up visit to California Welding on July 20, 2011, and reported that as of that date the premises were in compliance with the ADA and the California Building Code. (Id.; Simms Decl. ¶ 10, Ex. A.) Plaintiff disputes defendants' claim that they are now in substantial compliance with the ADA and the California Business Code on several grounds. (Pl's Opp. to Mot. to Dismiss ¶¶ 2-4.)
First, the specialist's report found that the horizontal pull handle on the outside of the entrance door could be opened without "tight grasping or pinching, or twisting of the wrist" and was therefore in compliance. (Simms Decl. ¶ 6.) Plaintiff, however, claims that the handle was difficult for him to use because of his limited hand grasping ability and is thus a barrier to access. (Pl.'s Opp. to Mot. to Dismiss ¶ 4; Johnson Decl. ¶ 9.)
Second, plaintiff takes issue with the specialist's reliance on defendants' assertion that they do not provide public parking or public restrooms. Plaintiff contends that California Welding does provide such facilities. (Id. ¶ 4.) In support of this position, plaintiff has filed a declaration stating that when he visited the premises on April 3, 2011, he was permitted to park in a parking lot outside of the store and that when his companion asked if there was a customer-use restroom, she was directed to a restroom inside the store. (Johnson Decl. ¶¶ 4, 7; Kem Decl. ¶¶ 2, 4.) Defendants respond that the area in which plaintiff claims to have parked is a loading dock and point to the "No Public Restrooms" sign on the store front's window. (Mem. of P. & A. in Supp. of Defs' Mot. to Dismiss at 4-5; Ambriz Decl. Ex. B.) At oral argument, the parties also disagreed as to whether the bathroom in question is a unisex or women-only facility.
Rule 12(h)(3) of the Federal Rules of Civil Procedure provides that "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). "The distinction between a Rule 12(h)(3) motion and a Rule 12(b)(1) motion is simply that the former may be asserted at any time and need not be responsive to any pleading of the other party." Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 880, n.3 (3d Cir. 1992); see also Kairy v. SuperShuttle Int'l, Inc., ...