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Turner v. Anand

United States District Court, S.D. California

July 21, 2015



CYNTHIA BASHANT, District Judge.

Plaintiff William Lawrence Turner ("Plaintiff") commenced this action against defendants Veerinder S. Anand, Sandhya Anand, Veerinder S. Anand, M.D., Inc. (collectively, "Defendants") on May 7, 2014 alleging violations of the Americans with Disabilities Act, the Unruh Civil Rights Act, and the California Disabled Persons Act, and negligence. Presently before the Court are Defendants' motion to dismiss, Plaintiff's motion for leave to file a First Amended Complaint, and Plaintiff's motion for partial summary judgment.

The Court finds these motions suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons set forth below, the Court GRANTS Defendants' motion to dismiss, GRANTS IN PART and DENIES IN PART Plaintiff's motion for leave to file a First Amended Complaint, and DENIES AS MOOT Plaintiff's motion for partial summary Judgment.


Plaintiff is a paraplegic who cannot walk and uses a wheelchair for mobility. (ECF No. 1 ("Compl.") at ¶ 1.) Defendants own and operate a doctor's office in El Centro, California. ( Id. at ¶¶ 2-3.) In March 2013, Plaintiff was referred to Defendants' office while seeking treatment for a hand injury. (ECF No. 15-3, Exh. A at pp. 9-10, 11, 13:22-25.) Plaintiff visited Defendants' office three additional times over the next few months. ( Id. at 13:17-19.) He alleges there was no ADA compliant parking space at Defendants' office during any of these visits. (Compl. at ¶ 11.) Plaintiff alleges the parking space designated as handicap accessible was not ADA compliant because the parking space had faded paint, and lacked both a compliant International Symbol of Accessibility ("ISA") sign and a blue border around the adjacent access aisle. ( Id. at ¶¶ 12, 13, 22.) Plaintiff further alleges there was no "No Parking" warning in the access aisle (or that it had faded) and the access aisle was not sufficiently wide. ( Id. ) Because of this "inaccessible parking, " Plaintiff claims he was denied full and equal access to Defendants' office and encountered difficulty. ( Id. at ¶ 14.) Plaintiff alleges he would like to return to the office. ( Id. at ¶ 15.)

Plaintiff commenced this suit in May 2014. The Complaint asserts four causes of action: (1) violation of the Americans with Disabilities Act, (2) violation of the Unruh Civil Rights Act, (3) violation of the California Disabled Persons Act, and (4) negligence. ( See Compl.) This case is before the Court via federal question jurisdiction under the Americans with Disabilities Act. ( Id. at ¶ 5.) The remaining causes of action are California law claims brought before the court under supplemental jurisdiction. ( Id. at ¶ 6.)

Upon receiving the Complaint, Defendants undertook to correct Plaintiff's alleged issues. (ECF No. 15-1 at 3:14-16.) They moved the parking space designated for disabled persons closer to the front door of the clinic, added a wider access aisle, and had a Certified Access Specialist ("CASp") inspect the new space and issue an ISA sign. ( See ECF No. 15-1 at 1:8-10; ECF No. 17-1 at 2:8-10; ECF No. 17-2 at 2:17-19; ECF No. 15-7, Exh. E.) Defendants alleged in their Answer "that the parking lot was modified in compliance with applicable disability laws." (ECF No. 5 at 7:14-15.)

In August 2014, the parties held a conference pursuant to Federal Rule of Civil Procedure 26(f) and Magistrate Judge Lewis issued a Scheduling Order ("Order"). ( See ECF No. 14.) The Order, which conformed to Plaintiff's proposed scheduling order, set October 27, 2014 as the final date for amending pleadings. (ECF No. 21-4, Exh. N at 3:7; ECF No. 14 at ¶ 2.) Defendants deposed Plaintiff on September 19, 2014, at which time Plaintiff made the following statements: that he had seen the new parking space (ECF No. 15-3, Exh. A at 16:15-23); that the problem with the parking space was "fixed" ( id. at 18:1-3); that the noncompliant parking space was the only reason he had filed the suit ( id. at 15:3-20); that he was referred to Dr. Anand ( id. at 10:5); and that he had not had any further appointments with Defendants or any other doctors because there was nothing doctors could do to fix the problem with his hand ( id. at 13:14-16). Defendants filed this motion to dismiss on October 15, 2014. ( See ECF No. 15). Defendants move to dismiss for lack of subject matter jurisdiction, arguing the federal claim is moot, and also seek dismissal of the pendant state law claims. ( Id. at 1:15-21.)

In mid-October 2014, presumably after receiving Defendants' motion to dismiss, Plaintiff sent his own CASp to Defendants' property to inspect the new parking space, as well as the rest of the facilities. (ECF No. 20-2 at ¶ 17.) Plaintiff received the CASp report on approximately November 1, 2014, after the date to amend pleadings set forth in the Scheduling Order. ( See ECF No. 16-3.) Plaintiff then filed his response to the motion to dismiss on November 3, 2014. ( See ECF No. 16.) In his response, he included the CASp report, which included evidence that the slope in the new parking space exceeded the 2% maximum allowed under the ADA, as well as evidence of several other violations not previously pleaded in the Complaint. (ECF No. 16-3 at ¶ 13-19.) Upon receiving a copy of Plaintiff's CASp report, Defendants contend they corrected the slope issue in the parking space, put a plan in place to prevent future violations, and submitted evidence of same along with their reply to the motion to dismiss on November 10, 2014. ( See ECF Nos. 17, 17-1, 17-2, 17-6, 17-7.)

Immediately thereafter, on November 13, 2014, Plaintiff filed a motion for leave to file a First Amended Complaint. ( See ECF No. 20.) In the proposed First Amended Complaint, Plaintiff references the slope issue in the new parking space, but does not dispute that it has since been corrected. (ECF No. 20-1 at ¶ 18.) Rather, Plaintiff states that, in mid-October, the slope issue and other architectural barriers were discovered, and that "[t]he defendants have claimed that this slope issue has been corrected." ( Id. at ¶¶ 17, 18.) Plaintiff also lists the additional architectural barriers discovered in the mid-October inspection, but does not claim to have personally encountered any of these. ( Id. at ¶¶ 19-22.) Defendants filed their response on December 1, 2014, ( see ECF No. 21) and Plaintiff replied shortly thereafter ( see ECF No. 22).

In April 2015, Plaintiff filed a motion for partial summary judgment on Plaintiff's state law causes of action before the Court under supplemental jurisdiction. ( See ECF No. 24.) Defendants filed an opposition. ( See ECF No. 27.)


A. Motion to Dismiss

Under Rule 12 of the Federal Rules of Civil Procedure, a party may move to dismiss a claim based on the court's lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989) (citation omitted). "Article III of the Constitution confines the federal courts to adjudication of actual Cases' and Controversies.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 590 (1992). "[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Id. at 560 (citation omitted). Consequently, a case that lacks Article III standing must be dismissed for lack of subject matter jurisdiction. See Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). Because standing is essential for a federal court to have subject matter jurisdiction, the issue of standing is properly raised in a 12(b)(1) motion to dismiss. Chandler v. State Farm Mut. Auto Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010) (citations omitted).

The "irreducible constitutional minimum" of Article III standing is comprised of three elements: (1) "the plaintiff must have suffered an injury in fact'" which is both "concrete and particularized" and "actual or imminent, not conjectural' or hypothetical'"; (2) "there must be a causal connection between the injury and the conduct complained of" such that the injury is "trace[able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court'"; and (3) "it must be likely, ' as opposed to merely speculative, ' that the injury will be redressed by a favorable decision.'" Lujan, 504 U.S. at 560-61 (citations omitted). The party soliciting federal jurisdiction has the burden of establishing these elements. Id. The doctrines of ripeness and mootness also relate to a federal court's subject matter jurisdiction, and so challenges to a claim on either ground are properly raised in a 12(b)(1) motion. Chandler, 598 F.3d at 1122 (citations omitted).

A jurisdictional attack under can be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, the challenger asserts that the allegations in the complaint are insufficient to invoke federal jurisdiction, and the court is limited in its review to the allegations in the complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a factual attack, the challenger provides evidence that an alleged fact in the complaint is false, thereby resulting in a lack of subject matter jurisdiction. Id. Therefore, under a factual attack, the allegations in the complaint 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). However, "[a] court may not resolve genuinely disputed facts where the question of jurisdiction is dependent on the resolution of factual issues going to the merits.'" Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (citations omitted).

B. Motion for Leave to File First Amended Complaint

Generally, under Rule 15(a) of the Federal Rules of Civil Procedure, "a party may amend its pleading only with the opposing party's written consent or the court's leave" and leave shall be given freely when justice so requires. Fed.R.Civ.P. 15(a)(2). However, after a scheduling order has been issued setting a deadline to amend the pleadings, and a party moves to amend the pleadings after the deadline, the motion amounts to one to amend the scheduling order and thus is properly brought under Rule 16(b) of the Federal Rules of Civil Procedure rather than Rule 15. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992).

Under Rule 16, a scheduling order "may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). The decision to modify a scheduling order is within the broad discretion of the district court. Johnson, 975 F.2d at 607 (citation omitted). If good cause is shown, the court proceeds to consider the requirements of Rule 15(a). Id. at 608 (citing approvingly Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D. N.C. 1987), for its explication of this order of operations); C.F. v. Capistrano Unified Sch. Dist., 656 F.Supp.2d 1190, 1192 (C.D. Cal. 2009).


A. Defendants' Motion ...

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