Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Sandi Rush v. Islands Restaurants


December 17, 2012


The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge


Over the course of this litigation, a number of claims have been dismissed, and Defendant Ridgeway/Bradford Partnership was dismissed as a party. The only remaining claims pertained to accessibility of the parking lot outside the Islands Restaurant Plaintiff had visited. Those claims were claims brought under the Americans with Disabilities Act (for injunctive relief) and under California law (for both injunctive relief and damages). On October 23, 2012, with trial scheduled, Plaintiff's counsel Lynn Hubbard III filed a declaration stating that the restaurant was generally compliant with the law, and he did not intend to go to trial. The Court therefore issued an order vacating the trial, and ordering Plaintiff to file a joint motion to dismiss no later than November 15, 2012 (unless Defendants objected, in which case they were to file a notice). The order informed the parties that if no joint motion and no objections were filed, the entire case would be dismissed without prejudice as moot.

Instead of complying with the Court's order, Plaintiff filed a joint motion to dismiss (signed by all parties) on November 19 (the "Joint Motion"). The Joint Motion asked "that this Court dismiss the Americans with Disabilities Act claims in this matter with prejudice and dismiss all State law claims without prejudice due to mootness and pursuant to FRCP 41(a)(2)." (Docket no. 54 at 2:2--6.)

The Joint Motion appeared to contain a scrivener's error, confusing the federal and state claims. The complaint brings claims for both damages and injunctive relief under California law. (Docket no. 1 (Complaint), ¶¶ 38, 39, 46, 47, 52.) But-with exceptions not applicable here-a request for damages cannot be moot. Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002) (because plaintiff was seeking damages, claim was not mooted by changed circumstances). Secondarily, moot claims are non-justiciable, and are therefore properly dismissed without prejudice.*fn1

The Court therefore corrected what appeared to be an error and issued an order (Docket no. 55) dismissing all claims for injunctive relief as moot, all other claims with prejudice, and the entire action without leave to amend. Plaintiff has now filed a motion pursuant to Fed. R. Civ. P. 60(b) to correct this judgment. The motion shows what the Court thought was a scrivener's error was in fact deliberate, although no less erroneous. The motion shows that Plaintiff's counsel interpreted the Court's order as dismissing the entire case with prejudice, which is wrong. The motion also argues that the real distinction is between state and federal law, not between claims for injunctive relief and other claims, which is also wrong. The motion gives no reasons why the correction is legally appropriate or required.

The Rule 60(b) motion, as filed, cannot be granted because what it requests is contrary to law. It is therefore SUMMARILY DENIED. The Court believes Plaintiff seeks the dismissal of all claims for injunctive relief, whether brought under state or federal law, as moot (without prejudice but without leave to amend); and the dismissal of state-law claims for damages without prejudice. This would typically be the outcome in an Americans with Disabilities Act case where federal claims are dismissed and the only claims remaining are state-law claims for damages, although whether to decline supplemental jurisdiction is in the Court's discretion. See 28 U.S.C. § 1367(c) (setting forth circumstances in which a district court may decline to exercise supplemental jurisdiction over state-law claims).

If this understanding is correct, Plaintiff is directed to file another motion requesting it. If Plaintiff has some other type of dismissal in mind, he must file a motion lucidly explaining what he seeks and why it is legally appropriate. In either case, a joint motion is preferable although an ex parte application is also acceptable. A noticed motion should not be filed. Either motion must be filed without exception no later than Wednesday, December 27, 2012.

Because Plaintiff has made clear he is unwilling to go to trial, failure to file a motion as ordered within the time permitted will result in this case remaining dismissed as previously ordered. Any motion filed after the deadline will be summarily denied for failure to comply with the Court's orders.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.