United States District Court, N.D. California
ORDER REQUIRING FURTHER BRIEFING AND CONTINUNG
HEARING REGARDING DOCKET NO. 22
KIM UNITED STATES MAGISTRATE JUDGE
San Carlos Inn, L.P. (“Defendant”) moves for
judgment on the pleadings on the grounds that (1)
Plaintiff's request for injunctive relief is moot because
all alleged barriers have either been remedied or do not
exist, and (2) Plaintiff lacks standing. Plaintiff makes
several procedural arguments in response to Defendant's
motion and fails to address these factual issues in any way.
Plaintiff argues that this motion was filed in violation of
the stay on all proceedings pursuant to General Order 56.
General Order 56 states in relevant part: “All other
discovery and proceedings are STAYED unless the assigned
judge orders otherwise.” Several judges in this
District have rejected similar arguments regarding the scope
of General Order 56, finding that “General Order 56
does not stay all proceedings in an ADA case, but instead
stays only discovery and similar proceedings” in ADA
access cases. Johnson v. Winchester Campbell Properties,
LLC, 2018 WL 6619940, at *2 (N.D. Cal. Dec. 18, 2018)
(citing cases); see also Moralez v. Whole Foods Market,
Inc., 897 F.Supp.2d 987, 993 n. 2 (N.D. Cal. 2012)
(holding that General Order 56's stay “plainly
refers to discovery issues, and does not bar a defendant from
moving to dismiss on res judicata grounds”); Che v.
San Jose/Evergreen Cmty. College District Found., et
al., No. 17-381 BLF, Dkt. No. 34 at 2 (N.D. Cal. May 26,
2017) (“Upon further review of General Order 56, the
Court concludes that the language imposing a stay on
‘[a]ll other discovery and proceedings' does not
clearly encompass the filing of an answer or motion in
response to a complaint.”). This Court agrees and finds
that General Order 56 does not bar Defendant from challenging
Plaintiff's standing or subject matter jurisdiction.
Federal courts are under a duty to raise and decide issues of
subject matter jurisdiction sua sponte at any time
it appears subject matter jurisdiction may be lacking.
Fed.R.Civ.P. 12; Augustine v. United States, 704
F.2d 1074, 1077 (9th Cir. 1983). If the Court determines that
subject matter jurisdiction is lacking, the Court must
dismiss the case. Id.; Fed.R.Civ.P. 12(h)(3).
Alternatively, to the extent the stay under General Order 56
applies to Defendant's motion, the Court, in its
discretion grants relief from the stay to consider this
motion. See General Order 56, ¶ 9.
Plaintiff argues that the Court may not consider evidence
outside of the pleadings without converting the motion to one
for summary judgment. However, the Court may look beyond the
pleadings and consider extrinsic evidence on a motion for
judgment on the pleadings when a party challenges
subject-matter jurisdiction. United States v. In re
Seizure of One Blue Nissan Skyline Auto., & One Red
Nissan Skyline, 683 F.Supp.2d 1087, 1089 (C.D. Cal.
2010); Maya v. Centx Corp., 658 F.3d 1060, 1067-68
(9th Cir. 2011) (holding that in evaluating motion to dismiss
for lack of subject matter jurisdiction on the grounds that
plaintiff lacks constitutional standing to sue, courts may
consider evidence outside the pleadings).
Plaintiff argues that the Court should treat Defendant's
motion regarding “statutory standing” under the
standard for failure to state a claim. (Dkt. No. 24 at 3.)
However, the Ninth Circuit has made clear that while
“lack of statutory standing requires dismissal
for failure to state a claim, lack of Article III
standing requires dismissal for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure
12(b)(1).” Maya v. Centex Corp., 658 F.3d
1060, 1067 (9th Cir. 2011) (emphasis in original). Here,
Defendant is challenging Plaintiff's constitutional
standing under Article III and Plaintiff has an obligation to
demonstrate that he does have standing.
injunctive relief is the only available remedy under Title
III, a plaintiff claiming discrimination under Title III
“must not only demonstrate the familiar requirements
for standing - injury-in-fact, traceability, redressability -
but also a sufficient likelihood that he [or she] will be
wronged again in a similar way.” Ervine v. Desert
View Reg'l Med. Ctr. Holdings, LLC, 753 F.3d 862,
867 (9th Cir. 2014) (internal quotation and citation
omitted). A plaintiff can show likelihood of future injury by
demonstrating an intent to return to a noncompliant
accommodation or that he was deterred from visiting a
noncompliant accommodation because he encountered barriers
related to his disability there. Chapman v. Pier 1
Imports (U.S.) Inc., 631 F.3d 939, 948-50 (9th Cir.
2011). “In determining whether a plaintiff's
likelihood of return is sufficient to confer standing, courts
have examined factors including: (1) the proximity of the
business to the plaintiff's residence, (2) the
plaintiff's past patronage of the business, (3) the
definitiveness of the plaintiff's plans to return, and
(4) the plaintiff's frequency of travel near the
defendant.” Crandall v. Starbucks Corp., 249
F.Supp.3d 1087, 1106 (N.D. Cal. 2017) (citation omitted).
dismissing this case based on lack of jurisdiction, the Court
will provide Plaintiff with an opportunity to address
Defendant's arguments on the merits regarding whether any
barriers to access remain and whether Plaintiff has standing.
The Court notes that Plaintiff should have some knowledge
regarding the status of the barriers based on the joint
inspection conducted on July 10, 2019. Plaintiff vaguely
argues that he has not had an opportunity to conduct a site
inspection “to assess the claimed new changes.”
(Dkt. No. 24 at 5.) However, Defendant does not argue that it
made changes after the site inspection on July 10, 2019.
Nevertheless, if Plaintiff contends the parking lot was not
compliant with the ADA on July 10, 2019, Plaintiff may
inspect the parking lot again. Additionally, if Plaintiff
elects to submit a declaration to demonstrate standing, the
Court will permit Defendant to depose Plaintiff for a maximum
of two hours on the statements in his declaration.
shall submit a supplemental opposition to address the merits
of Defendant's motion by no later than December 12, 2019.
The extended period provides time for Plaintiff to inspect
the parking lot before submitting his supplemental
opposition. If Plaintiff files a declaration to demonstrate
his standing, he shall make himself available to be deposed
by no later /// than January 6, 2020. Defendants may submit a
supplemental reply by no later than January 13, 2020. The
Court HEREBY CONTINUES the hearing on Defendant's motion
to January 27, 2020.