Langer v. Music City Hotel LP

• Court: District Court, N.D. California
• Decided: December 2, 2021
• Docket: 4:21-cv-04159
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

7 CHRIS LANGER, Case No. 21-cv-04159-PJH 8 Plaintiff,

9 v. ORDER

10 MUSIC CITY HOTEL LP, et al., Re: Dkt. No. 14 11 Defendants. 12

13 14 Defendants’ motion to dismiss came on for hearing before this court on December 15 2, 2021. Plaintiff appeared through his counsel, Cara Townsend. Defendants appeared 16 through their counsel, Phillip Stillman. 17 This is a disability access case in which plaintiff alleges defendant violated the 18 Americans with Disabilities Act (“ADA”) by failing to provide sufficient information on its 19 hotel website to comport with the “Reservations Rule.” 28 C.F.R. § 36.302(e)(1)(ii). 20 Defendant submits a screenshot of the accessibility page of its website alongside its 21 motion to demonstrate compliance with the Reservations Rule. See Req. for Judicial 22 Notice, Ex. 1 (Dkt. 14-2 at 9). Plaintiff opposes defendant’s motion to dismiss in 23 significant part by alleging that the version of the website offered by defendants is 24 different than the version of the webpage that existed when the lawsuit was filed. Dkt. 15 25 at 8 (“In a move of questionable ethicality, the defense submits a reservation webpage 26 screen shot of the current version of the webpage without informing the Court that it was 27 changed after the lawsuit was filed.”). Defendant argues for the first time in its reply brief 1 website. At the hearing, defendant “clarified” its position that, even if the website had 2 been recently updated, relief available to plaintiff under the ADA is moot because of the 3 website’s now-present accessibility disclosures. 4 Introduction of a legal argument for the first time in a reply brief is disfavored and 5 improper because it deprives the opposing party of the opportunity to address the 6 arguments in their opposition to the respective motion. Vasquez v. Rackauckas, 734 7 F.3d 1025, 1054 (9th Cir. 2013) (“Because we do not consider issues raised for the first 8 time in reply briefs, we deem this late-raised argument forfeited.”); see also Adriana Int’l 9 Corp. v. Thoeren, 913 F.2d 1406, 1417 n.12 (9th Cir. 1990). However, the court here 10 finds the issue of mootness relevant for consideration because it implicates the court’s 11 ongoing subject matter jurisdiction. 12 Therefore, plaintiff may submit a brief addressing only defendant’s late-raised 13 argument regarding mootness. See Dkt. 16 at 9-11. Such brief may not exceed five (5) 14 pages and is due on or before December 9, 2021. Because defendant already made 15 argument on this point, it is not permitted to file an additional response. 16 IT IS SO ORDERED. 17 Dated: December 2, 2021 18 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 19 United States District Judge

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