United States District Court, E.D. California
For Scott Johnson, Plaintiff: Mark D. Potter, LEAD ATTORNEY, Center for Disability Access, San Diego, CA; Phyl Grace, Potter Handy LLP, San Diego, CA.
For Ethan Conrad, Defendant: Eric Ray Garner, LEAD ATTORNEY, Wagner Kirkman Blaine Klomparens & Youmans Ll, Mather, CA.
For America's Party Rental, Inc., a California Corporation, Defendant: Eric Ray Garner, LEAD ATTORNEY, Wagner Kirkman Blaine Klomparens & Youmans Ll, Mather, CA.
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, JR., CHIEF JUDGE, UNITED STATES DISTRICT COURT.
Plaintiff Scott Johnson (" Plaintiff") initiated this action against Defendants Ethan Conrad and America's Party Rental, Inc., (collectively " Defendants") seeking damages and injunctive relief for violations of the Americans with Disabilities Act (" ADA"), 42 U.S.C. § 12101, et seq.; California's Unruh Civil Rights Act, California Civil Code § § 51-53; California's Disabled Persons Act, California Civil Code § § 54-54.8; and for negligence. Presently before the Court is Defendants' Motion to Dismiss for lack of subject matter jurisdiction (ECF No. 14). For the following reasons, the Motion is DENIED.
Plaintiff is a quadriplegic who cannot walk and has significant dexterity impairments. He uses a wheelchair for mobility and has a specially equipped van. Together, Defendants own and/or lease the property on which an American Party Rentals building is located. American Party Rentals is a business establishment and place of public accommodation.
Plaintiff avers that he has frequented American Party Rentals in the past and encountered barriers to access that deterred him from further attempts at patronage. More specifically, although parking is provided to American Party Rentals patrons, no functioning and compliant handicap parking space is available. According to Plaintiff, on information and belief, Defendants have a pattern and practice of neglecting the maintenance upkeep of the parking lot such that the handicap parking that once existed has faded into oblivion. As a result, Plaintiff initiated this action alleging violations of state and federal law.
Defendants now move to dismiss Plaintiff's ADA claim on the grounds that the purported barriers allegedly have been modified so that the parking lot now complies with federal law. In support, Defendants offer the declaration of Ethan Conrad, the owner of the American Party Rentals property and CEO of Ethan Conrad Properties, Inc. Decl. of Ethan Conrad, ECF No. 14-3 ¶ 1. According to Mr. Conrad, who has been a commercial real estate broker and principal since 1989, and who is " one of the most active and respected commercial real estate landlords in the Greater Sacramento Area, " his in-house construction company, Ethan Conrad Construction, made numerous improvements at the American Party Rentals site to bring it into compliance with the ADA. Id. ¶ ¶ 4-7. Among other things, Mr. Conrad opined that his construction company " altered the handicap parking space and access aisle by shifting them left to ensure compliance with ADA regulations." Id. ¶ 7.
Since the only remedy sought under the ADA is an injunction, and since, given their remedial efforts Defendants contend there is no likelihood of future harm, Defendants ask that the ADA claim be dismissed, essentially as moot, and that the Court decline to exercise supplemental jurisdiction over Plaintiffs' state law claims. Plaintiff contends dismissal of the ADA claim would be improper because, among other things, the jurisdictional question is intertwined with the merits and should not be resolved at this early juncture and because Defendants have not established the violations have been remedied such that the ADA claim is moot. Defendants' Motion is DENIED.
Federal courts are courts of limited jurisdiction, and are presumptively without jurisdiction over civil actions. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The burden of establishing the contrary rests upon the party asserting jurisdiction. Id. Because subject matter jurisdiction involves a court's power to hear a case, it can never be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Accordingly, lack of subject matter jurisdiction may be raised by either party at any point during the litigation, through a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Arbaugh v. Y& H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); see also Int'l Union of Operating Eng'rs v. County of Plumas, 559 F.3d 1041, 1043-44 (9th Cir. 2009).
There are two types of motions to dismiss for lack of subject matter jurisdiction: a facial attack and a factual attack. Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). Thus, a party may either make an attack on the allegations of jurisdiction contained in the nonmoving party's complaint, or may challenge the existence ...