
    Scott JOHNSON, Plaintiff, v. Florence B. HERNANDEZ, et al., Defendants.
    No. 2:14-cv-01635-MCE-KJN.
    United States District Court, E.D. California.
    Signed Nov. 24, 2014.
    
      Phyl Grace, Potter Handy LLP, Mark D. Potter, San Diego, CA, for Plaintiff.
    David Anthony Rishwain, Rishwain & Rishwain, Stockton, CA, for Defendants.
   MEMORANDUM AND ORDER

MORRISON C. ENGLAND, JR., Chief Judge.

Plaintiff Scott Johnson (“Plaintiff’) initiated this action against Defendants Florence B. Hernandez, in her individual and representative capacity as Trustee of the Florence B. Hernandez Trust, and Stop the Presses, Inc. (collectively “Defendants”) seeking damages and injunctive relief for violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; California’s Unruh Civil Rights Act, California Civil Code §§ 51-53; California’s Disabled Persons Act, California Civil Code §§ 54-54.8; and for negligence. Presently before the Court is Defendants’ Motion to Dismiss for lack of subject matter jurisdiction (ECF No. 7). For the following reasons, the Motion is DENIED.

BACKGROUND

Plaintiff is a quadriplegic who cannot walk and has significant dexterity impairments. He uses a wheelchair for mobility and has a specially equipped van. Together, Defendants own and/or lease the property on which a Stop the Presses Printing Company (“Stop the Presses”) is located. Stop the Presses is a business establishment and place of public accommodation.

Plaintiff avers that he has frequented Stop the Presses on more than one occasion and encountered barriers to access. More specifically, although parking is provided to Stop the Presses patrons, no functioning and compliant handicap parking space is available. According to Plaintiff, whether through neglect, apathy or otherwise, the defendants have permitted the handicap parking spaces and signage to either deteriorate to the point of being non-functioning or to be maintained incorrectly. Plaintiff also complains that the door hardware and transaction counter are noncompliant. Plaintiff has thus been deterred from additional attempts at patronage. As a result, Plaintiff initiated this action alleging violations of state and federal law.

Defendants now move to dismiss Plaintiff’s ADA claim on the grounds that each of the purported barriers allegedly has been modified so that the parking lot, door, and transaction counter all comply with federal law. In support, Defendants offer the declaration of Randall Stout, President of Construction Services & Investigations, Inc., a construction defect consulting company, who avers that he “coordinated and oversaw the necessary repairs and renovations” and “all of the items identified in the complaint as being noncompliant with the ADA [have] been resolved so that they [are] fully compliant. ...” Decl. of Randall Stout, ECF No. 7-4 ¶¶ 3-4. Mr. Stout further opined that “a handicap accessible parking space with compliant signage, slope and path of travel was installed, an accessible business service transaction counter was added, and the entry door hardware was renovated to be compliant.” Id. ¶ 4. “[Additional renovations were also completed, including installation of compliant path of travel designations from the public right of way to the Premises, including truncated domes, and the leveling of the slope at the landing area adjacent to the entry doors to the Premises.” /d

Since the only remedy sought under the ADA is an injunction, and since, given their remedial efforts Defendants contend there is no likelihood of future harm, Defendants ask that the ADA claim be dismissed, essentially as moot, and that the Court decline to exercise supplemental jurisdiction over Plaintiffs’ state law claims. Plaintiff contends dismissal of the ADA claim would be improper because, among other things, the jurisdictional question is intertwined with the merits and should not be resolved at this early juncture and because Defendants have not established the violations have been remedied such that the ADA claim is moot. Defendants’ Motion is DENIED.

STANDARD

Federal courts are courts of limited jurisdiction, and are presumptively without jurisdiction over civil actions. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The burden of establishing the contrary rests upon the party asserting jurisdiction'. Id. Because subject matter jurisdiction involves a court’s power to hear a case, it can never be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Accordingly, lack of subject matter jurisdiction may be raised by either party at any point during the litigation, through a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Arbaugh v. Y & H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); see also Int’l Union of Operating Eng’rs v. County of Plumas, 559 F.3d 1041, 1043-44 (9th Cir.2009).

There are two types of motions to dismiss for lack of subject matter jurisdiction: a facial attack and a factual attack. Thornhill Publ’g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir.1979). Thus, a party may either make an attack on the allegations of jurisdiction contained in the nonmoving party’s complaint, or may challenge the existence of subject matter jurisdiction in fact, despite the formal sufficiency of the pleadings. Id.

When a party makes a facial attack on a complaint, the attack is unaccompanied by supporting evidence, and it challenges jurisdiction based solely on the pleadings. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). If the motion to dismiss constitutes a facial attack, the Court must consider the factual allegations of the complaint to be true, and determine whether they establish subject matter jurisdiction. Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n. 1 (9th Cir.2003). In the case of a facial attack, the motion to dismiss is granted only if the nonmoving party fails to allege an element necessary for subject matter jurisdiction. Safe Air for Everyone, 373 F.3d at 1039.

In the case of a factual attack, “no presumptive truthfulness attaches to plaintiffs allegations.” Thornhill, 594 F.2d at 733 (internal citation omitted). The party opposing the motion has the burden of proving that subject matter jurisdiction does exist, and must present any necessary evidence to satisfy this burden. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989). If the plaintiffs allegations of jurisdictional facts are challenged by the adversary in the appropriate manner, the plaintiff cannot rest on the mere assertion that factual issues may exist. Trentacosta v. Frontier Pac. Aircraft Ind., Inc., 813 F.2d 1553, 1558 (9th Cir.1987) (quoting Exch. Nat’l Bank of Chi. v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir.1976)). Furthermore, the district court may review any evidence necessary, including affidavits and testimony, in order to determine whether subject matter jurisdiction exists. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988); Thornhill, 594 F.2d at 733. If the nonmoving party fails to meet its burden and the court determines that it lacks subject matter jurisdiction, the court must dismiss the action. Fed.R.Civ.P. 12(h)(3).

However, “jurisdictional 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.” Safe Air for Everyone, 373 F.3d at 1039 (internal citations and quotations omitted). “The question of jurisdiction and the merits of an action are intertwined where a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiffs substantive claim for relief.” Id. at 1039-40 (internal citations and quotations omitted).

“A court may not resolve genuinely disputed facts where ‘the question of jurisdiction is dependent on the resolution of factual issues going to the merits.’ ” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987) (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983)). “In such a case, the district court assumes the truth of allegations in a complaint ... unless controverted by undisputed facts in the record.” Id. “Dismissal is then appropriate where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (internal quotations and citations omitted). “This standard, often cited in Rule 12(b)(6) motions, ... is equally applicable in motions challenging subject matter jurisdiction when such jurisdiction may be contingent upon factual matters in dispute.” Id. If, after this threshold inquiry, subject matter jurisdiction is not precluded, the Court may entertain arguments “on either a motion going to the merits [i.e., a summary judgment motion,] or at trial.” Id. at 1178.

ANALYSIS

Defendants contend dismissal is warranted because they have remedied the barriers that provide the basis for Plaintiffs request for injunctive relief under the ADA and, consequently, for this Court’s federal question jurisdiction. Plaintiff opposes the Motion, arguing that Defendants’'jurisdictional challenge is inappropriate as a Rule 12(b)(1) motion and that Defendants have not established either that the facilities have been made compliant or that the violations will not recur. Plaintiffs arguments are well taken.

The question of whether Defendants’ facilities comply with the ADA goes to the heart of Plaintiffs federal claim. Because the jurisdictional inquiry and the merits are fundamentally intertwined, review of Defendants’ Motion under the typical Rule 12(b)(1) standard applicable to factual motions would not be proper. Instead, the Court assumes the facts alleged in the Complaint are true unless contradicted by any undisputed facts in the record. In this instance, the Court finds that it has subject matter jurisdiction to reach the merits of Plaintiffs claim because Defendants failed to offer any “facts” contradicting Plaintiffs allegations and, even if they had, the Court would be required to treat the instant motion as one for summary judgment, which it views as premature.

Most importantly here, there are no undisputed facts contradicting the allegations in Plaintiffs Complaint properly before the Court. Instead, Defendants offer only conclusory opinions of a purported expert that the alleged ADA violations have been .“resolved” and that Defendants’ facilities are now “compliant.” These conclusions are not supported by any objective evidence from which the Court may make its own determination that Defendants’ expert is correct and that Plaintiffs ADA claim is moot as a result. Accordingly, as under a facial Motion, the Court has considered the Complaint in its entirety and finds subject matter jurisdiction sufficient to allow the Court to reach the merits of this dispute.

Even if Defendants had offered some facts to support their position, however, the Court would be disinclined to grant their Motion at this early stage in the litigation. “In ruling on a jurisdictional motion involving factual issues which also go to the merits, the trial court should employ the standard applicable to a motion for summary judgment .... ” Augustine, 704 F.2d at 1077. Converting the instant Motion to one for summary judgment would be premature because Plaintiff has not yet had the opportunity to engage in discovery and thus has not had the opportunity to develop the evidence he may need to rebut Defendants’ “facts.” Accordingly, Defendants’ Motion to Dismiss for lack of jurisdiction is DENIED without prejudice to raising this argument in a properly noticed and appropriately timed motion for summary judgment.

CONCLUSION

For the reasons just stated, Defendants’ Motion to Dismiss (ECF No. 7) is DENIED without prejudice.

IT IS SO ORDERED. 
      
      . Because oral argument would not be of material assistance, the Court ordered this matter submitted on the briefs. E.D. Cal. Local R. 230(g); see also ECF No. 11.
     
      
      . Unless otherwise indicated, the following facts are taken, at times verbatim, from Plaintiff's Complaint. ECF No. 1.
     
      
      . Stop the Presses is located in the City of Stockton, California, which is within the jurisdiction of the Eastern District of California.
     
      
      .Defendants' proffered additional evidence, including photographs and measurements, with their Reply brief. The Court will not consider that evidence. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir.2007) ("The district court need not consider arguments raised for the first time in a reply brief.").
     
      
      . To the extent Defendants ask that the Court, decline to exercise supplemental jurisdiction over Plaintiff's state law claims, that argument is derivative of their mootness argument and is thus similarly rejected.
     