United States District Court, E.D. California
disabled plaintiff sues a restaurant based on its allegedly
inaccessible parking lot. Defendants move to dismiss for lack
of subject matter jurisdiction. The court submitted the case
without a hearing. ECF No. 19. As discussed below, the court
DENIES defendants' motion.
PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS
filed the operative complaint on October 10, 2016. Compl.,
ECF No. 1. The complaint alleges defendants violated: (1) the
Americans with Disabilities Act of 1990, 42 U.S.C. §
12101, et seq. (ADA); and (2) the Unruh Civil Rights
Act, Cal. Civ. Code sections 51- 53. See generally
following factual allegations give rise to plaintiff's
claims. Plaintiff is a level C-5 quadriplegic who has trouble
using his hands and cannot walk. Compl. ¶ 1. He uses a
wheelchair and has a specially equipped van. Id.
Laurie Elizabeth Tackett and Shawn D. Tackett own Burger
Barn, a restaurant in Pollock Pines, California. Id.
¶¶ 2-16. On several occasions, including in
February 2015, May 2016, June 2016, and July 2016, plaintiff
ate at Burger Barn. Id. ¶ 21. When attempting
to park, plaintiff encountered parking-lot related barriers.
Id. ¶ 24. First, the parking space for persons
with disabilities was 90 inches wide, but the access aisle
was just 86 inches wide. Id. Second, the parking
space's dividing lines were faded and barely discernable.
Id. ¶ 26. Plaintiff contends he encountered
these barriers at least twice, in February 2015 and May 2016.
Id. ¶¶ 32, 33. Plaintiff alleges these
barriers have caused him difficulty and frustration and will
deter him from visiting in the future. Id. ¶
contend they fixed their parking lot to comply with the ADA
and the Unruh Act after receiving plaintiff's complaint.
Mot. 2, ECF No. 14-1. Specifically, they contend they repaved
and restriped the accessible parking space. Id. at
3. After modification, defendants moved to dismiss for lack
of subject matter jurisdiction. See generally Id.
Defendants specifically contend plaintiff lacks standing and
his claims are moot. Id. at 2-5. Plaintiff opposed.
Opp'n, ECF No. 15.
standing and mootness both pertain to a federal court's
Article III subject-matter jurisdiction, they are properly
raised in a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1). White v. Lee, 227 F.3d 1214,
1242 (9th Cir. 2000).
are presumed to fall outside a federal court's limited
jurisdiction until proven otherwise. Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377-78 (1994).
Either party may challenge subject matter jurisdiction, or
the court can address the matter sua sponte.
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
(1999). A Rule 12(b)(1) jurisdictional attack may be either
facial or factual. White, 227 F.3d at 1242. In a
facial attack, the court assumes the complaint's
allegations are true and assesses jurisdiction in a light
most favorable to plaintiff. See Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
contrast, a factual attack challenges the veracity of
plaintiff's jurisdictional facts, or contends a necessary
jurisdictional fact is absent. Id. 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,
1040 n.2 (9th Cir. 2003).
dismissal is “exceptional” and warranted only
“‘where the alleged claim under the Constitution
or federal statutes clearly appears to be immaterial and made
solely for the purpose of obtaining federal jurisdiction or
where such claim is wholly insubstantial and
frivolous.'” Safe Air for Everyone, 373
F.3d at 1039 (quoting Bell v. Hood, 327 U.S. 678,
682- 83 (1946)). The Ninth Circuit has held that a
“[j]urisdictional finding of genuinely disputed facts
is inappropriate when ‘the jurisdictional issue and
substantive issues are so intertwined that the question of
jurisdiction is dependent on the resolution of factual issues
going to the merits of an action.'” Sun Valley
Gasoline, Inc. v. Ernst Enters., Inc., 711 F.2d 138, 139
(9th Cir. 1983) (quoting Augustine v. United States,
704 F.2d 1074, 1077 (9th Cir. 1983)). “Normally, the
question of jurisdiction and the merits of an action will be
considered intertwined where . . . a statute provides the
basis for both the subject matter jurisdiction of the federal
court and the plaintiff's substantive claim for
relief.” Id. (quotation omitted).
launch a factual attack on jurisdiction. McCarthy,
850 F.2d 560. To support their motion to dismiss based on
standing and mootness, defendants contend they remedied the
barriers giving rise to plaintiff's claims, relying on
their own affidavit testimony. Mot. at 2; Tackett Decl.
¶¶ 7-8, ECF No. 14-3. The court discusses the
standing and mootness arguments in turn.