Whitaker v. Mind Games, LLC

ORDER RE: MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION [19]

HONORABLE RONALD S.W. LEW, Senior U.S. District Judge.

Plaintiff Brian Whitaker (“Plaintiff”) brought this Action against Defendant Mind Games, LLC (“Defendant”) alleging: (1) violation of the Americans with Disabilities Act (“ADA”) of 1990, 42 U.S.C. § 12101; and (2) violation of the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51-53. See generally Compl. ¶ 1, ECF No. 1. Currently before the Court is Defendant's Motion to Dismiss for lack of subject matter jurisdiction (“Motion”) [19]. Having reviewed all papers submitted pertaining to this Motion, the Court

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NOW FINDS AND RULES AS FOLLOWS: the Court GRANTS Defendant's Motion.

I. BACKGROUND

Brian Whitaker (“Plaintiff”) is a quadriplegic and uses a wheelchair for mobility. Compl. ¶ 1. Mind Games, LLC (“Defendant”) owned a Mind Games retail store (“Unit 2004”) located at or about 6600 Topanga Canyon Blvd., Unit 2004, Canoga Park, California. Id. ¶ 2; Decl. of Sassan Aria in Supp. of Defendant's Mot. to Dismiss (“Aria Decl.”), Ex. A, ECF No. 19-2. Plaintiff alleges the following in his Complaint:

In December 2020, Plaintiff went to Unit 2004, a public business establishment, to purchase goods and assess the business for disability access law compliance. Id. ¶¶ 8-9. Plaintiff was unable to access a sales counter with his wheelchair because the counter was too high and there was no lowered portion suitable for wheelchair users. Id. ¶ 12. These barriers impacted Plaintiff's disability by denying him full and equal access, creating difficulties and discomfort, and deterring him from returning to Unit 2004. Id. ¶¶ 16-20. On December 11, 2020, an investigator for Plaintiff, Evens Louis (“Louis”), assessed Unit 2004 for accessibility and found that the sales counters exceeded thirty-six inches in height. Decl. of Evens Louis (“Louis Decl.”) ¶ 2, ECF No. 20-2.

On December 31, 2020, Plaintiff filed his Complaint [1] against Defendant, alleging: (1) violation of the

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American with Disabilities Act (“ADA”) of 1990, 42 U.S.C. § 12101; and (2) violation of the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51-53. See generally Compl.

On or about April 20, 2021, a co-owner of Defendant, Sassan Aria (“Aria”), received a notice of lease termination from the landlord of the retail outlet requiring Defendant to vacate the premises by May 20, 2021. Aria Decl. ¶ 2. Unit 2004 was permanently closed by May 20, 2021, and Defendant will not reopen at that location. Id. ¶¶ 3-4.

Since June 25, 2021, Defendant has opened and operated a Mind Games store in a new unit within the same mall, located at 6600 Topanga Canyon Blvd., Unit 87 (“Unit 87”). Def.'s Reply in Supp. of Mot. (“Reply”) 2:16-20, ECF No. 22. On August 6, 2021, Louis went to the mall to verify whether Unit 2004 was still in operation but found that the Mind Games store was operating in Unit 87, around the corner from where Unit 2004 had been. Louis Decl. ¶¶ 3-4. Louis did not see any differences to the sales counter in Unit 87 compared to that in Unit 2004, but saw an additional “pedestal-style round glass table” in front of a closed cash register with a sign implying it could be used by people with disabilities. See id. ¶ 6. Plaintiff has not alleged in his Complaint that he has visited Unit 87, encountered any barriers therein, or personally observed the condition of Unit 87. Reply at 2:27-3:1.

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Defendant filed the instant Motion [19] on August 2, 2021. Plaintiff filed his Opposition [20] on August 24, and Defendant replied [22] on August 27.

II. DISCUSSION

A. Legal Standard

1. Rule 12(b)(1) Motion to Dismiss

Rule 12(b)(1) allows a party to seek dismissal of an action for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Although lack of statutory standing requires dismissal for failure to state a claim under Rule 12(b)(6), lack of Article III standing requires dismissal for want of subject matter jurisdiction under Rule 12(b)(1). See Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). The plaintiff bears the burden of proving that the court has subject matter jurisdiction. See Kekkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

A Rule 12(b)(1) “jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack is based on the challenger's assertion that allegations in the complaint are “insufficient on their face to invoke federal jurisdiction.” Id. “By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. When evaluating a facial attack, the court “must accept all of the plaintiff's factual allegations as true.” Dreier v. U.S., 106 F.3d 844, 847

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(9th Cir. 1996) (citation omitted). When considering a factual attack, however, the court is not restricted to the face of the pleadings and may review any evidence properly before the court. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).

2. Supplemental Jurisdiction

Under 28 U.S.C. § 1367, where a district court has original jurisdiction over a claim, it also “shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367. Supplemental jurisdiction is mandatory unless prohibited by § 1367(b), or unless one of the exceptions in § 1367(c) applies. See Schutza v. Cuddeback, 262 F.Supp.3d 1025, 1028 (S.D. Cal. 2017).

Under § 1367(c), “the district courts may decline supplemental jurisdiction [over a state law claim] if: (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 28 U.S.C. §1367(c). “Underlying the § 1367(c) inquiry are considerations of judicial

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economy, convenience and fairness to litigants, and comity.” Shutza, 262 F.Supp.3d at 1028. If these factors are not present, “a federal court should hesitate to exercise jurisdiction over state law claims.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).

B. Discussion

Defendant moves to dismiss Plaintiff's Complaint for lack of subject matter jurisdiction over the ADA claim and because supplemental jurisdiction over the remaining Unruh Act claim would be improper. See generally Mem. of P. & A. in Supp. of Mot. to Dismiss (“Mot.”), ECF No. 19-1. In opposition, Plaintiff argues that Defendant's Motion should be denied because the matter is not moot, and Defendant misrepresents Plaintiff's state law claims. See generally Pl.'s Opp'n to Def.'s Mot. to Dismiss (“Opp'n”), ECF No. 20.

a. ADA Claim

Because Defendant has permanently closed Unit 2004, Defendant moves to dismiss Plaintiff's ADA claim for two reasons: (1) Plaintiff's ADA claim is moot; and (2) Plaintiff lacks Article III standing to continue this Action. See Mot. at 1:24-2:5. The Court agrees.

i. Mootness

The doctrine of mootness stems from Article III's requirement that courts may only exercise jurisdiction over live “cases or controversies.” U.S. Const. Art. III. “A claim may become moot if (1) subsequent events

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have made it absolutely clear that the allegedly wrongful behavior cannot reasonably be expected to recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1274 (9th Cir. 1998). Defendant's burden to demonstrate mootness is “a heavy one.” Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979).

In addition, “an ADA claim may become moot where a defendant sells the property or permanently closes the public accommodation operating at the property.” See, e.g., Kohler v. Southland Foods, Inc., 459 Fed.Appx. 617, 618 (9th Cir. 2011) (holding that plaintiff's claim for injunctive relief became moot once the restaurant ceased operation).

Defendant brings a factual challenge to the Court's subject matter jurisdiction by arguing that it cannot be liable for a Title III violation because Defendant provides supporting evidence that Unit 2004 has been permanently closed and vacated as of May 20, 2021. See generally Mot.; Decl. of Sassan Aria in Supp. of Def.'s Mot. to Dismiss (“Aria Decl.”), Ex. A, ECF No. 19-2. The closure of Unit 2004 renders the alleged barriers nonexistent, “irrevocably eradicating the effects of the alleged violation.” Therefore, the only remedy available to Plaintiff under Title III, injunctive relief, is moot. See, e.g., Johnson v. 162 Los Gatos-Saratoga Rd., LLC, No. 18-cv-04429-VKD, 2019 WL 2869949,

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at *3 (N.D. Cal. July 3, 2019) (finding that ceasing operations and vacating the property removed the alleged barriers and therefore mooted the plaintiff's ADA claim for injunctive relief). As such, the Court GRANTS Defendant's Motion to Dismiss. Nevertheless, the Court addresses the standing issue next.

ii. Standing

“The elements of Article III standing are as follows: (1) [Plaintiff has] suffered an ‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3)...