United States District Court, E.D. California
KIMBERLY J. MUELLER, District Judge.
The motion to dismiss for lack of subject matter jurisdiction filed by defendant Spindleshanks, Inc. (Spindleshanks) is currently pending before the court. Plaintiff Scott Johnson has opposed the motion. After considering the parties' arguments, the court GRANTS the motion.
In a complaint filed December 9, 2013, plaintiff alleges he is a level C-5 quadriplegic, unable to walk, with significant manual dexterity impairments. He uses a wheelchair and a specially equipped van. Compl., ECF No. 1 ¶ 1. Spindleshanks is a restaurant in Kings Beach, California. Id. ¶ 2. Plaintiff travels to and from Lake Tahoe on a regular basis and in October 2013, he stopped for dinner at Spindleshanks. Id. ¶ 14. The parking lot does not have a van accessible handicapped parking space; its only handicapped space is not adequate in several ways; there is a ramp leading from the parking lot to the restaurant's entrance, but it has a lip at the bottom greater than half an inch and a hand rail on only one side; the entrance door to the restroom has a knob that requires grasping and twisting to operate; and the men's restroom has a cabinet-style sink without knee clearance for wheelchair users. Id. ¶¶ 9-13. These barriers caused plaintiff difficulties and discomfort and have deterred him from visiting the restaurant again. Id. ¶¶ 14-15.
Plaintiff names two defendants, Spindleshanks and Lake Tahoe Partners, LLC, identified as a California limited liability company, and alleges four causes of action: (1) a violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq.; (2) a violation of the Unruh Civil Rights Act, CAL. CIV. CODE § 51; (3) a violation of the Disabled Persons Act, CAL. CIV. CODE § 54, et seq.; and (4) negligence. Id.
On January 9, 2014, plaintiff filed a first amended complaint, changing the designation of the first defendant to Lake Tahoe Partners, LLC, a Nevada limited liability corporation. ECF Nos. 4, 5. This amendment was stricken because it did not comply with Rule 15 of the Federal Rules of Civil Procedure. ECF No. 6.
Spindleshanks answered the complaint on January 31, 2014. ECF No. 7.
On March 21, 2014, plaintiff filed a return of service showing that service of summons and complaint was made on Lake Tahoe Partners LLC in Incline Village, Nevada, on February 13, 2014. ECF No. 9. Lake Tahoe Partners has not appeared in the action.
On May 7, 2014, the court directed plaintiff to show cause why the case against Lake Tahoe Partners should not be dismissed for failure to prosecute or failure timely to effect service. ECF No. 18. Plaintiff has not responded.
Federal courts are courts of limited jurisdiction and, until proven otherwise, cases lie outside the jurisdiction of the court. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377-78 (1994). Lack of subject matter jurisdiction may be challenged by either party or raised sua sponte by the court. FED. R. CIV. P. 12(b)(1); FED. R. CIV. P. 12(h)(3); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1983). A Rule 12(b)(1) jurisdictional attack may be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, the complaint is challenged as failing to establish federal jurisdiction, even assuming all the allegations are true and construing the complaint in the light most favorable to plaintiff. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
By contrast, in a factual attack, the challenger provides evidence that an alleged fact is false resulting in a lack of subject matter jurisdiction. Id. In these circumstances, the allegations are not presumed to be true and "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). "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).
Spindleshanks has submitted the declaration of Steven Marks, its president. Decl. of Steven Marks, ECF No. 10-1. He avers that Spindleshanks operated the restaurant in Kings Beach, but is not the owner of the property. Id. ¶ 2. He further avers that on March 30, 2014, Spindleshanks "unconditionally vacated the Premises and permanently closed the restaurant on the property." Id. ¶ 3. He says on information and belief that the owner ...