1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 SCOTT JOHNSON, 8 Case No. 19-cv-06214-EJD Plaintiff, 9 ORDER CONVERTING MOTION TO v. DISMISS FOR MOOTNESS INTO 10 MOTION FOR SUMMARY MONTPELIER ONE LLC, JUDGMENT AND ALLOWING SUR- 11 REPLY Defendant. 12 Re: Dkt. No. 21
13 Plaintiff Scott Johnson sues Defendant Montpelier One LLC, the owner of the real 14 property at 2380 Montpelier Drive, San Jose, California, alleging various barriers to accessibility 15 under the Americans with Disabilities Act (“ADA”) and California state law. Presently before the 16 Court is Defendant’s motion to dismiss the case pursuant to Federal Rule of Civil Procedure 17 12(b)(1). Defendant argues that the ADA claims are moot, that Johnson lacks Article III standing 18 to seek injunctive relief, and that the Court should decline to exercise supplemental jurisdiction 19 over the state law claims. Having reviewed the parties’ submissions and the applicable law, the 20 Court finds that Defendant’s motion to dismiss on mootness grounds must be converted to a 21 motion for summary judgment. Because Defendant attached additional evidence to its Reply 22 brief, the Court will grant Plaintiff an opportunity to file a Sur-Reply. 23 I. BACKGROUND 24 The following allegations derive from the Complaint, Dkt. No. 1 (“Compl.”), which 25 generally must be construed as true on a motion to dismiss. See Maya v. Centex Corp., 658 F.3d 26 1060, 1068 (9th Cir. 2011). 27 Case No.: 19-cv-06214-EJD 1 Plaintiff is a quadriplegic. Compl. ¶ 1. As a consequence, he cannot walk, he uses a 2 wheelchair for mobility, and he drives a “specially equipped van.” Id. Plaintiff also has 3 “significant manual dexterity impairments.” Id. 4 Defendant Montpelier One LLC owned the real property located at or about 2380 5 Montpelier Drive in San Jose, California in January and April 2019. Compl. ¶¶ 2-3. Plaintiff 6 attempted to visit a chiropractor’s office located at 2380 Montpelier Drive (“the Chiropractor”) on 7 two occasions, once in January 2019 and once in April 2019. Id. ¶ 9. During those two visits, 8 Plaintiff personally encountered various barriers to accessibility. Id. ¶ 17. Specifically, Plaintiff 9 alleges that Defendant (1) “fail[s] to provide accessible parking,” (2) “fail[s] to provide accessible 10 door hardware at the Chiropractor,” (3) “fail[s] to provide accessible paths of travel leading into 11 the Chiropractor.” Id. ¶ 12-16. 12 On September 30, 2019, Plaintiff filed the instant action. Dkt. No. 1. The operative 13 Complaint contains two counts: (1) violation of the Americans with Disabilities Act, 42 U.S.C. 14 § 12182(a), see Compl. ¶¶ 24-34; (2) violation of the Unruh Civil Rights Act (“Unruh Act”), Cal. 15 Civ. Code §§ 51-53, see Compl. ¶¶ 35-39. Defendant Montpelier One LLC answered the 16 Complaint on November 8, 2019. Dkt. No. 10. 17 II. DISCUSSION 18 That brings us to the present motion. Defendant attests that, following receipt of the 19 Complaint, it voluntarily remedied the three barriers identified therein with the help of a Certified 20 Access Specialist (“CASp”), Steve Moncur. See Mot. at 3; Dkt. No. 21-3 (“Nguyen Decl.”). 21 Defendant says that the parties then conducted a joint site inspection (as required by General 22 Order 56) on February 4, 2020. Dkt. No. 27 (“Reply”) at 4. Defendant specifically avers that 23 “Plaintiff’s counsel was accompanied by its expert Tim Wegman and Defendant was accompanied 24 by its expert Steve Moncur, CASp.” Id. According to Defendant, the joint site inspection 25 confirmed that Defendant had voluntarily remedied the three barriers identified in the Complaint. 26 Mot. at 3, 6. 27 Case No.: 19-cv-06214-EJD 1 Accordingly, on March 25, 2020, Defendant moved to dismiss the Complaint pursuant to 2 Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Dkt. No. 21. 3 Defendant argues that the ADA claim (Count 1) must be dismissed as moot or, in the alternative, 4 because Plaintiff has insufficiently pleaded his standing to seek injunctive relief. See Dkt. No. 21- 5 1 (“Mot.”) at 6-7. In the event this Court dismisses Count 1, Defendant asks this Court to decline 6 supplemental jurisdiction over the Unruh Act claim (Count 2), which is a California state law 7 claim. 8 Because a private plaintiff can sue only for injunctive relief under the ADA, a defendant’s 9 voluntary removal of alleged barriers prior to trial can have the effect of mooting a plaintiff’s 10 ADA claim. Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011); see, e.g., Johnson 11 v. Gallup & Whalen Santa Maria, No. 17-CV-01191-SI, 2018 WL 2183254, at *4 (N.D. Cal. May 12 11, 2018) (“There can be no effective relief here, where defendants have already removed the 13 architectural barriers that plaintiff identified in the complaint.”). That is because a plaintiff only 14 has Article III standing for injunctive relief if he can “demonstrate a sufficient likelihood that he 15 will again be wronged in a similar way. That is, he must establish a real and immediate threat of 16 repeated injury.” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004). The 17 threat of future injury dissipates if the barriers to accessibility have been remediated—particularly 18 where remediation required structural changes that are not reasonably likely to be undone. See 19 Johnson v. Holden, No. 5:18-CV-01624-EJD, 2020 WL 1288404, at *4 (N.D. Cal. Mar. 18, 2020); 20 Ramirez v. Golden Creme Donuts, No. C 12-05656 LB, 2013 WL 6056660, at *2 (N.D. Cal. Nov. 21 15, 2013); see generally Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 22 167, 190 (2000) (“[A] defendant claiming that its voluntary compliance moots a case bears the 23 formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not 24 reasonably be expected to recur.”). 25 In this case, Defendant argues that its voluntary remediation of the three barriers at issue— 26 all structural—has mooted Plaintiff’s ADA claim. The Court agrees that if Defendant could 27 Case No.: 19-cv-06214-EJD 1 establish the fact of its remediation, Plaintiff’s ADA claim would be moot. The Court is satisfied 2 that Defendant’s alleged changes would not be mere “temporary fixes.” Sanchez v. Wendys No. 3 7421, No. 819CV00111JLSDFM, 2019 WL 6603177, at *2 (C.D. Cal. Sept. 3, 2019). If the 4 parking, the door hardware, and the paths of travel leading into the Chiropractor have indeed been 5 made ADA-compliant, the complained-of accessibility barriers would be highly unlikely to recur. 6 As Plaintiff points out, however, Defendant relies upon extrinsic evidence from Steve 7 Moncur, CASp, in order to establish that the barriers no longer exist. See Dkt. No. 26 (“Opp.”) at 8 1-3. That is, Defendant brings a factual attack on this Court’s jurisdiction to hear Plaintiff’s ADA 9 claims. See Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983) (“Federal courts lack 10 jurisdiction to decide moot cases because their constitutional authority extends only to actual cases 11 or controversies.”); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) 12 (distinguishing between factual and facial attacks on jurisdiction).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 SCOTT JOHNSON, 8 Case No. 19-cv-06214-EJD Plaintiff, 9 ORDER CONVERTING MOTION TO v. DISMISS FOR MOOTNESS INTO 10 MOTION FOR SUMMARY MONTPELIER ONE LLC, JUDGMENT AND ALLOWING SUR- 11 REPLY Defendant. 12 Re: Dkt. No. 21
13 Plaintiff Scott Johnson sues Defendant Montpelier One LLC, the owner of the real 14 property at 2380 Montpelier Drive, San Jose, California, alleging various barriers to accessibility 15 under the Americans with Disabilities Act (“ADA”) and California state law. Presently before the 16 Court is Defendant’s motion to dismiss the case pursuant to Federal Rule of Civil Procedure 17 12(b)(1). Defendant argues that the ADA claims are moot, that Johnson lacks Article III standing 18 to seek injunctive relief, and that the Court should decline to exercise supplemental jurisdiction 19 over the state law claims. Having reviewed the parties’ submissions and the applicable law, the 20 Court finds that Defendant’s motion to dismiss on mootness grounds must be converted to a 21 motion for summary judgment. Because Defendant attached additional evidence to its Reply 22 brief, the Court will grant Plaintiff an opportunity to file a Sur-Reply. 23 I. BACKGROUND 24 The following allegations derive from the Complaint, Dkt. No. 1 (“Compl.”), which 25 generally must be construed as true on a motion to dismiss. See Maya v. Centex Corp., 658 F.3d 26 1060, 1068 (9th Cir. 2011). 27 Case No.: 19-cv-06214-EJD 1 Plaintiff is a quadriplegic. Compl. ¶ 1. As a consequence, he cannot walk, he uses a 2 wheelchair for mobility, and he drives a “specially equipped van.” Id. Plaintiff also has 3 “significant manual dexterity impairments.” Id. 4 Defendant Montpelier One LLC owned the real property located at or about 2380 5 Montpelier Drive in San Jose, California in January and April 2019. Compl. ¶¶ 2-3. Plaintiff 6 attempted to visit a chiropractor’s office located at 2380 Montpelier Drive (“the Chiropractor”) on 7 two occasions, once in January 2019 and once in April 2019. Id. ¶ 9. During those two visits, 8 Plaintiff personally encountered various barriers to accessibility. Id. ¶ 17. Specifically, Plaintiff 9 alleges that Defendant (1) “fail[s] to provide accessible parking,” (2) “fail[s] to provide accessible 10 door hardware at the Chiropractor,” (3) “fail[s] to provide accessible paths of travel leading into 11 the Chiropractor.” Id. ¶ 12-16. 12 On September 30, 2019, Plaintiff filed the instant action. Dkt. No. 1. The operative 13 Complaint contains two counts: (1) violation of the Americans with Disabilities Act, 42 U.S.C. 14 § 12182(a), see Compl. ¶¶ 24-34; (2) violation of the Unruh Civil Rights Act (“Unruh Act”), Cal. 15 Civ. Code §§ 51-53, see Compl. ¶¶ 35-39. Defendant Montpelier One LLC answered the 16 Complaint on November 8, 2019. Dkt. No. 10. 17 II. DISCUSSION 18 That brings us to the present motion. Defendant attests that, following receipt of the 19 Complaint, it voluntarily remedied the three barriers identified therein with the help of a Certified 20 Access Specialist (“CASp”), Steve Moncur. See Mot. at 3; Dkt. No. 21-3 (“Nguyen Decl.”). 21 Defendant says that the parties then conducted a joint site inspection (as required by General 22 Order 56) on February 4, 2020. Dkt. No. 27 (“Reply”) at 4. Defendant specifically avers that 23 “Plaintiff’s counsel was accompanied by its expert Tim Wegman and Defendant was accompanied 24 by its expert Steve Moncur, CASp.” Id. According to Defendant, the joint site inspection 25 confirmed that Defendant had voluntarily remedied the three barriers identified in the Complaint. 26 Mot. at 3, 6. 27 Case No.: 19-cv-06214-EJD 1 Accordingly, on March 25, 2020, Defendant moved to dismiss the Complaint pursuant to 2 Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Dkt. No. 21. 3 Defendant argues that the ADA claim (Count 1) must be dismissed as moot or, in the alternative, 4 because Plaintiff has insufficiently pleaded his standing to seek injunctive relief. See Dkt. No. 21- 5 1 (“Mot.”) at 6-7. In the event this Court dismisses Count 1, Defendant asks this Court to decline 6 supplemental jurisdiction over the Unruh Act claim (Count 2), which is a California state law 7 claim. 8 Because a private plaintiff can sue only for injunctive relief under the ADA, a defendant’s 9 voluntary removal of alleged barriers prior to trial can have the effect of mooting a plaintiff’s 10 ADA claim. Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011); see, e.g., Johnson 11 v. Gallup & Whalen Santa Maria, No. 17-CV-01191-SI, 2018 WL 2183254, at *4 (N.D. Cal. May 12 11, 2018) (“There can be no effective relief here, where defendants have already removed the 13 architectural barriers that plaintiff identified in the complaint.”). That is because a plaintiff only 14 has Article III standing for injunctive relief if he can “demonstrate a sufficient likelihood that he 15 will again be wronged in a similar way. That is, he must establish a real and immediate threat of 16 repeated injury.” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004). The 17 threat of future injury dissipates if the barriers to accessibility have been remediated—particularly 18 where remediation required structural changes that are not reasonably likely to be undone. See 19 Johnson v. Holden, No. 5:18-CV-01624-EJD, 2020 WL 1288404, at *4 (N.D. Cal. Mar. 18, 2020); 20 Ramirez v. Golden Creme Donuts, No. C 12-05656 LB, 2013 WL 6056660, at *2 (N.D. Cal. Nov. 21 15, 2013); see generally Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 22 167, 190 (2000) (“[A] defendant claiming that its voluntary compliance moots a case bears the 23 formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not 24 reasonably be expected to recur.”). 25 In this case, Defendant argues that its voluntary remediation of the three barriers at issue— 26 all structural—has mooted Plaintiff’s ADA claim. The Court agrees that if Defendant could 27 Case No.: 19-cv-06214-EJD 1 establish the fact of its remediation, Plaintiff’s ADA claim would be moot. The Court is satisfied 2 that Defendant’s alleged changes would not be mere “temporary fixes.” Sanchez v. Wendys No. 3 7421, No. 819CV00111JLSDFM, 2019 WL 6603177, at *2 (C.D. Cal. Sept. 3, 2019). If the 4 parking, the door hardware, and the paths of travel leading into the Chiropractor have indeed been 5 made ADA-compliant, the complained-of accessibility barriers would be highly unlikely to recur. 6 As Plaintiff points out, however, Defendant relies upon extrinsic evidence from Steve 7 Moncur, CASp, in order to establish that the barriers no longer exist. See Dkt. No. 26 (“Opp.”) at 8 1-3. That is, Defendant brings a factual attack on this Court’s jurisdiction to hear Plaintiff’s ADA 9 claims. See Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983) (“Federal courts lack 10 jurisdiction to decide moot cases because their constitutional authority extends only to actual cases 11 or controversies.”); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) 12 (distinguishing between factual and facial attacks on jurisdiction). 13 As a general matter, “[i]n resolving a factual attack on jurisdiction, the district court may 14 review evidence beyond the complaint without converting the motion to dismiss into a motion for 15 summary judgment.” Safe Air for Everyone, 373 F.3d at 1039. “However, when the jurisdictional 16 issue and the merits are ‘intertwined,’ or when the jurisdictional question is dependent on the 17 resolution of factual issues going to the merits, the district court must apply the summary 18 judgment standard in deciding the motion to dismiss.” Miller v. Lifestyle Creations, Inc., 993 F.2d 19 883 (9th Cir. 1993) (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). 20 “The question of jurisdiction and the merits of an action are intertwined where a statute provides 21 the basis for both the subject matter jurisdiction of the federal court and the plaintiff’s substantive 22 claim for relief.” Safe Air for Everyone, 373 F.3d at 1039. In this case, the question of whether 23 there are violations of the ADA at the Chiropractor is determinative of both subject matter 24 jurisdiction and the substantive claim for relief. The Court will therefore treat the motion to 25 dismiss for mootness as a motion for summary judgment.1 Accord Johnson v. Barrita, No. C 18- 26
27 1 This Court has done so in several prior cases. See, e.g., Johnson v. Mantena LLC, No. 5:19-CV- Case No.: 19-cv-06214-EJD 1 06205 WHA, 2019 WL 931769, at *2 (N.D. Cal. Feb. 26, 2019). 2 Applying the summary judgment standard, Defendant must demonstrate that no genuine 3 dispute of material fact exists that the relevant accessibility barriers do not currently exist. See 4 Miller, 993 F.2d at 883. In support of its contention to that effect, Defendant attached a 5 declaration by Steve Moncur to its Motion. See Dkt. No. 21-2 (“First Moncur Decl.”). Plaintiff 6 responds that this declaration is insufficient to establish that the barriers have been remediated. 7 Opp. at 4-5. 8 As this Court recently explained, a conclusory declaration “stat[ing] that all ADA 9 violations have remedied, but . . . provid[ing] no exhibits or other evidence to support these 10 statements” is insufficient to support summary judgment on mootness grounds. Johnson v. 11 Mantena LLC, No. 5:19-CV-06468-EJD, 2020 WL 1531355, at *2 (N.D. Cal. Mar. 31, 2020); see 12 also Kalani v. Starbucks Corp., 81 F. Supp. 3d 876, 882–83 (N.D. Cal. 2015), aff’d sub nom. 13 Kalani v. Starbucks Coffee Co., 698 F. App’x 883 (9th Cir. 2017) (“Conclusory opinions that the 14 ‘facility is free of non-compliant issues,’ or that particular features, e.g., the accessible parking or 15 point of sale, ‘comply with all applicable access requirements,’” are “an insufficient basis on 16 which to grant summary judgment.”). The declaration must “provide factual support” in order to 17 support a finding that the property has come into compliance with the applicable ADA standards. 18 Kalani, 81 F. Supp. 3d at 882 (offering the following example of a properly supported opinion: 19 “the pick-up counter . . . as modified now provides a length of 36 inches and a height of 34 inches, 20 as such it complies with access regulations.”). Such factual support is required whether or not the 21 declarant is a CASp-certified expert. 22 The Court agrees with Plaintiff that, pursuant to the principles just recited, Mr. Moncur’s 23 initial declaration is too conclusory to support a finding that Defendant is now in compliance with 24 the ADA. See First Moncur Decl. ¶¶ 4-5. However, after Plaintiff raised this objection in his 25
26 06468-EJD, 2020 WL 1531355, at *3 (N.D. Cal. Mar. 31, 2020); Johnson v. 1082 El Camino 27 Real, L.P, No. 5:17-CV-01391-EJD, 2018 WL 1091267, at *2 (N.D. Cal. Feb. 28, 2018). Case No.: 19-cv-06214-EJD 1 Opposition, Defendant attached a detailed supplemental declaration from Mr. Moncur to its Reply. 2 || See Dkt. No. 27-1 (Supp. Moncur Decl.”). In this declaration, Mr. Moncur describes the 3 particular features of each barrier that he examined, the measurements he took and how he took 4 || them, and the applicable ADA and California state law standards he applied. See id. Mr. Moncur 5 also attached to his declaration photographs of each of the three relevant areas. Dkt. Nos. 27-2, 6 || 27-3, 27-4. With this additional factual detail and support, the Court believes that Mr. Moncur’s 7 supplemental declaration would be sufficient to meet Defendant’s summary judgment burden. 8 But of course, the supplemental declaration was not included with Defendant’s opening 9 || brief, as it should have been. “[W]here new evidence is presented in a reply to a motion for 10 summary judgment, the district court should not consider the new evidence without giving the 11 non-movant an opportunity to respond.” Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). 12 || Accordingly, Plaintiff shall have the opportunity to respond to the evidence Defendant submitted 5 13 || with its Reply by filing a sur-reply. 14 In that sur-reply, Plaintiff may also request deferral of the Court’s consideration pursuant 15 to Federal Rule of Civil Procedure 56(d). See Opp. at 3 n.1. If Plaintiff chooses to do so, it should 16 address why it has a need to “conduct an expert-led site inspection,” id., if (as Defendant has 3 17 asserted) the parties have already conducted a joint site inspection with their respective experts. S 18 Any sur-reply must be filed by June 24, 2020 and may be no longer than 15 pages. To 19 accommodate this additional briefing, the motion hearing currently scheduled for June 25, 2020 is 20 || hereby CONTINUED to July 2, 2020. 21 22 IT IS SO ORDERED. 23 24 || Dated: June 17, 2020 aM) 25 EDWARD J. DAVILA 26 United States District Judge Case No.: 19-cv-06214-EJD 28 || ORDER CONVERTING MOTION TO DISMISS FOR MOOTNESS INTO MOTION FOR SUMMARY JUDGMENT AND ALLOWING SUR-REPLY