Turner v. Anand et al, No. 3:2014cv01147 - Document 30 (S.D. Cal. 2015)
Court Description: ORDER granting Defendants' 15 Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part Plaintiff's 20 Motion for Leave to File Amended Complaint; denying as moot Plaintiff's 24 Motion for Partial Summar y Judgment. Plaintiff is given leave file an amended complaint, but not in the proposed form attached to his motion. Plaintiff may file First Amended Complaint by 8/7/2015. As Plaintiff's Complaint is dismissed in its entirety, Court terminates as moot Pla's motion for partial summary judgment. Signed by Judge Cynthia Bashant on 7/21/2015. (jah)
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Turner v. Anand et al Doc. 30 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 WILLIAM LAWRENCE TURNER, Plaintiff, 14 15 16 17 18 19 20 21 22 v. VEERINDER S. ANAND, ET AL., Defendants. Case No. 14-cv-01147-BAS(PCL) ORDER: (1) GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION (ECF NO. 15); (2) GRANTING IN PART AND DENYING IN PART MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT (ECF NO. 20); AND (3) DENYING AS MOOT PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF NO. 24) 23 24 25 26 Plaintiff William Lawrence Turner (“Plaintiff”) commenced this action 27 against defendants Veerinder S. Anand, Sandhya Anand, Veerinder S. Anand, 28 M.D., Inc. (collectively, “Defendants”) on May 7, 2014 alleging violations of the –1– 14cv01147 Dockets.Justia.com 1 Americans with Disabilities Act, the Unruh Civil Rights Act, and the California 2 Disabled Persons Act, and negligence. Presently before the Court are Defendants’ 3 motion to dismiss, Plaintiff’s motion for leave to file a First Amended Complaint, 4 and Plaintiff’s motion for partial summary judgment. 5 The Court finds these motions suitable for determination on the papers 6 submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons set 7 forth below, the Court GRANTS Defendants’ motion to dismiss, GRANTS IN 8 PART and DENIES IN PART Plaintiff’s motion for leave to file a First Amended 9 Complaint, and DENIES AS MOOT Plaintiff’s motion for partial summary 10 Judgment. 11 I. BACKGROUND 12 Plaintiff is a paraplegic who cannot walk and uses a wheelchair for mobility. 13 (ECF No. 1 (“Compl.”) at ¶ 1.) Defendants own and operate a doctor’s office in El 14 Centro, California. 15 Defendants’ office while seeking treatment for a hand injury. (ECF No. 15-3, Exh. 16 A at pp. 9–10, 11, 13:22-25.) Plaintiff visited Defendants’ office three additional 17 times over the next few months. (Id. at 13:17-19.) He alleges there was no ADA 18 compliant parking space at Defendants’ office during any of these visits. (Compl. 19 at ¶ 11.) Plaintiff alleges the parking space designated as handicap accessible was 20 not ADA compliant because the parking space had faded paint, and lacked both a 21 compliant International Symbol of Accessibility (“ISA”) sign and a blue border 22 around the adjacent access aisle. (Id. at ¶¶ 12, 13, 22.) Plaintiff further alleges 23 there was no “No Parking” warning in the access aisle (or that it had faded) and the 24 access aisle was not sufficiently wide. (Id.) Because of this “inaccessible parking,” 25 Plaintiff claims he was denied full and equal access to Defendants’ office and 26 encountered difficulty. (Id. at ¶ 14.) Plaintiff alleges he would like to return to the 27 office. (Id. at ¶ 15.) 28 (Id. at ¶¶ 2-3.) In March 2013, Plaintiff was referred to Plaintiff commenced this suit in May 2014. The Complaint asserts four –2– 14cv01147 1 causes of action: (1) violation of the Americans with Disabilities Act, (2) violation 2 of the Unruh Civil Rights Act, (3) violation of the California Disabled Persons Act, 3 and (4) negligence. (See Compl.) This case is before the Court via federal question 4 jurisdiction under the Americans with Disabilities Act. (Id. at ¶ 5.) The remaining 5 causes of action are California law claims brought before the court under 6 supplemental jurisdiction. (Id. at ¶ 6.) 7 Upon receiving the Complaint, Defendants undertook to correct Plaintiff’s 8 alleged issues. (ECF No. 15-1 at 3:14-16.) They moved the parking space 9 designated for disabled persons closer to the front door of the clinic, added a wider 10 access aisle, and had a Certified Access Specialist (“CASp”) inspect the new space 11 and issue an ISA sign. (See ECF No. 15-1 at 1:8-10; ECF No. 17-1 at 2:8-10; ECF 12 No. 17-2 at 2:17-19; ECF No. 15-7, Exh. E.) Defendants alleged in their Answer 13 “that the parking lot was modified in compliance with applicable disability laws.” 14 (ECF No. 5 at 7:14-15.) 15 In August 2014, the parties held a conference pursuant to Federal Rule of 16 Civil Procedure 26(f) and Magistrate Judge Lewis issued a Scheduling Order 17 (“Order”). (See ECF No. 14.) The Order, which conformed to Plaintiff’s proposed 18 scheduling order, set October 27, 2014 as the final date for amending pleadings. 19 (ECF No. 21-4, Exh. N at 3:7; ECF No. 14 at ¶ 2.) Defendants deposed Plaintiff on 20 September 19, 2014, at which time Plaintiff made the following statements: that he 21 had seen the new parking space (ECF No. 15-3, Exh. A at 16:15-23); that the 22 problem with the parking space was “fixed” (id. at 18:1-3); that the noncompliant 23 parking space was the only reason he had filed the suit (id. at 15:3-20); that he was 24 referred to Dr. Anand (id. at 10:5); and that he had not had any further appointments 25 with Defendants or any other doctors because there was nothing doctors could do to 26 fix the problem with his hand (id. at 13:14-16). Defendants filed this motion to 27 dismiss on October 15, 2014. (See ECF No. 15). Defendants move to dismiss for 28 lack of subject matter jurisdiction, arguing the federal claim is moot, and also seek –3– 14cv01147 1 dismissal of the pendant state law claims. (Id. at 1:15-21.) 2 In mid-October 2014, presumably after receiving Defendants’ motion to 3 dismiss, Plaintiff sent his own CASp to Defendants’ property to inspect the new 4 parking space, as well as the rest of the facilities. (ECF No. 20-2 at ¶ 17.) Plaintiff 5 received the CASp report on approximately November 1, 2014, after the date to 6 amend pleadings set forth in the Scheduling Order. (See ECF No. 16-3.) Plaintiff 7 then filed his response to the motion to dismiss on November 3, 2014. (See ECF 8 No. 16.) In his response, he included the CASp report, which included evidence 9 that the slope in the new parking space exceeded the 2% maximum allowed under 10 the ADA, as well as evidence of several other violations not previously pleaded in 11 the Complaint. (ECF No. 16-3 at ¶ 13-19.) Upon receiving a copy of Plaintiff’s 12 CASp report, Defendants contend they corrected the slope issue in the parking 13 space, put a plan in place to prevent future violations, and submitted evidence of 14 same along with their reply to the motion to dismiss on November 10, 2014. (See 15 ECF Nos. 17, 17-1, 17-2, 17-6, 17-7.) 16 Immediately thereafter, on November 13, 2014, Plaintiff filed a motion for 17 leave to file a First Amended Complaint. (See ECF No. 20.) In the proposed First 18 Amended Complaint, Plaintiff references the slope issue in the new parking space, 19 but does not dispute that it has since been corrected. (ECF No. 20-1 at ¶ 18.) 20 Rather, Plaintiff states that, in mid-October, the slope issue and other architectural 21 barriers were discovered, and that “[t]he defendants have claimed that this slope 22 issue has been corrected.” (Id. at ¶¶ 17, 18.) Plaintiff also lists the additional 23 architectural barriers discovered in the mid-October inspection, but does not claim 24 to have personally encountered any of these. (Id. at ¶¶ 19–22.) Defendants filed 25 their response on December 1, 2014, (see ECF No. 21) and Plaintiff replied shortly 26 thereafter (see ECF No. 22). 27 In April 2015, Plaintiff filed a motion for partial summary judgment on 28 Plaintiff’s state law causes of action before the Court under supplemental –4– 14cv01147 1 jurisdiction. (See ECF No. 24.) Defendants filed an opposition. (See ECF No. 27.) 2 II. LEGAL STANDARD 3 A. Motion to Dismiss 4 Under Rule 12 of the Federal Rules of Civil Procedure, a party may move to 5 dismiss a claim based on the court’s lack of subject matter jurisdiction. See Fed. R. 6 Civ. P. 12(b)(1). “A federal court is presumed to lack jurisdiction in a particular 7 case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated 8 Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989) (citation omitted). “Article III of the 9 Constitution confines the federal courts to adjudication of actual ‘Cases’ and 10 ‘Controversies.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 590 (1992). “[T]he 11 core component of standing is an essential and unchanging part of the case-or- 12 controversy requirement of Article III.” 13 Consequently, a case that lacks Article III standing must be dismissed for lack of 14 subject matter jurisdiction. See Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th 15 Cir. 2011). Because standing is essential for a federal court to have subject matter 16 jurisdiction, the issue of standing is properly raised in a 12(b)(1) motion to dismiss. 17 Chandler v. State Farm Mut. Auto Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010) 18 (citations omitted). Id. at 560 (citation omitted). 19 The “irreducible constitutional minimum” of Article III standing is 20 comprised of three elements: (1) “the plaintiff must have suffered an ‘injury in 21 fact’” which is both “concrete and particularized” and “‘actual or imminent, not 22 ‘conjectural’ or ‘hypothetical’”; (2) “there must be a causal connection between the 23 injury and the conduct complained of” such that the injury is “‘trace[able] to the 24 challenged action of the defendant, and not … th[e] result [of] the independent 25 action of some third party not before the court’”; and (3) “it must be ‘likely,’ as 26 opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable 27 decision.’” Lujan, 504 U.S. at 560-61 (citations omitted). The party soliciting 28 federal jurisdiction has the burden of establishing these elements. Id. The doctrines –5– 14cv01147 1 of ripeness and mootness also relate to a federal court’s subject matter jurisdiction, 2 and so challenges to a claim on either ground are properly raised in a 12(b)(1) 3 motion. Chandler, 598 F.3d at 1122 (citations omitted). 4 A jurisdictional attack under can be either facial or factual. White v. Lee, 227 5 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, the challenger asserts that the 6 allegations in the complaint are insufficient to invoke federal jurisdiction, and the 7 court is limited in its review to the allegations in the complaint. Safe Air for 8 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a factual attack, the 9 challenger provides evidence that an alleged fact in the complaint is false, thereby 10 resulting in a lack of subject matter jurisdiction. Id. Therefore, under a factual 11 attack, the allegations in the complaint are not presumed to be true and “the district 12 court is not restricted to the face of the pleadings, but may review any evidence, 13 such as affidavits and testimony, to resolve factual disputes concerning the 14 existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 15 1988). “Once the moving party has converted the motion to dismiss into a factual 16 motion by presenting affidavits or other evidence properly brought before the court, 17 the party opposing the motion must furnish affidavits or other evidence necessary to 18 satisfy its burden of establishing subject matter jurisdiction.” Savage v. Glendale 19 Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003). However, “[a] court 20 may not resolve genuinely disputed facts where ‘the question of jurisdiction is 21 dependent on the resolution of factual issues going to the merits.’” Roberts v. 22 Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (citations omitted). 23 B. Motion for Leave to File First Amended Complaint 24 Generally, under Rule 15(a) of the Federal Rules of Civil Procedure, “a party 25 may amend its pleading only with the opposing party’s written consent or the 26 court’s leave” and leave shall be given freely when justice so requires. Fed. R. Civ. 27 P. 15(a)(2). However, after a scheduling order has been issued setting a deadline to 28 amend the pleadings, and a party moves to amend the pleadings after the deadline, –6– 14cv01147 1 the motion amounts to one to amend the scheduling order and thus is properly 2 brought under Rule 16(b) of the Federal Rules of Civil Procedure rather than Rule 3 15. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 4 1992). 5 Under Rule 16, a scheduling order “may be modified only for good cause and 6 with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The decision to modify a 7 scheduling order is within the broad discretion of the district court. Johnson, 975 8 F.2d at 607 (citation omitted). If good cause is shown, the court proceeds to 9 consider the requirements of Rule 15(a). Id. at 608 (citing approvingly Forstmann 10 v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 1987), for its explication of this order of 11 operations); C.F. v. Capistrano Unified Sch. Dist., 656 F. Supp. 2d 1190, 1192 12 (C.D. Cal. 2009). 13 III. 14 15 DISCUSSION A. Defendants’ Motion to Dismiss 1. Americans with Disabilities Act 16 Plaintiff’s lone federal claim is an alleged violated of Title III of the 17 Americans with Disabilities Act (“ADA”). The ADA prohibits discrimination that 18 interferes with disabled individuals’ “full and equal enjoyment” of places of public 19 accommodation. 42 U.S.C. § 12182(a). Unlawful discrimination under the ADA 20 occurs when an accommodation “subjects an individual . . . to a denial of the 21 opportunity . . . to participate in or benefit from the . . . accommodations of an 22 entity.” 42 U.S.C. § 12182(b)(1)(A)(i). A doctor’s office is a place of public 23 accommodation under the ADA. 42 U.S.C. § 12181(7)(F). The ADA Accessibility 24 Guidelines (“ADAAG”) provide “the objective contours of the standard that 25 architectural features must not impede disabled individuals’ full and equal 26 enjoyment of accommodations.” Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 27 939, 945 (9th Cir. 2011). 28 Pursuant to the ADAAG, parking spaces designated as reserved for disabled –7– 14cv01147 1 individuals must be identified by the ISA sign. ADAAG § 4.1.2(7)(a). “At least 2 one accessible route within the boundary of the site shall be provided from . . . 3 accessible parking . . . to the accessible building entrance they serve.” ADAAG § 4 4.3.2(1). Accessible parking spaces must be at least 96 inches wide and adjacent 5 access aisles must be at least 60 inches wide. 6 Additionally, “[p]arking spaces and access aisles shall be level with surface slopes 7 not exceeding 1:50 (2%) in all directions.” ADAAG § 4.6.3. ADAAG §§ 4.6.3, 4.6.6. 8 The only available remedy to private plaintiffs under the ADA is injunctive 9 relief. 42 U.S.C. § 12188(a)(1). Because this is the sole remedy, a plaintiff 10 pursuing injunctive relief must demonstrate, in addition to the traditional elements 11 of standing, a “real and immediate threat that the plaintiff will be wronged again.” 12 City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). In the context of an ADA 13 claim, a plaintiff can satisfy this requirement by “demonstrating deterrence, or by 14 demonstrating injury-in-fact coupled with an intent to return to a noncompliant 15 facility.” Chapman, 631 F.3d at 944. The Ninth Circuit has also held that if a 16 plaintiff has established standing as to barriers that he did personally encounter, he 17 may sue for injunctive relief as to barriers related to his disability that he did not 18 personally encounter. Id. at 951; See also Doran v. 7-Eleven, Inc., 524 F.3d 1034, 19 1047 (9th Cir. 2008) (citation omitted) (“An ADA plaintiff who has Article III 20 standing as a result of at least one barrier at a place of public accommodation may, 21 in one suit, permissibly challenge all barriers in that public accommodation that are 22 related to his or her specific disability.”). 23 2. Factual Challenge To Subject Matter Jurisdiction 24 In the present case, Plaintiff alleges that he went to Defendants’ office and 25 that there was no compliant handicap parking in the lot serving the office. (ECF 26 No. 1 at ¶¶ 8, 11.) He further alleges that he personally encountered this barrier and 27 that the inaccessible parking denied him full and equal access. (Id. at ¶ 14.) He 28 also alleges that he “would like to return and patronize the [Defendants’] Office but –8– 14cv01147 1 he will be denied full and equal access” should he return. (Id. at ¶ 15.) 2 Defendants bring a factual challenge to the Court’s subject matter 3 jurisdiction. In their motion to dismiss, they assert that the issues with the non- 4 compliant parking space and access aisle have been remedied, thereby rendering 5 Plaintiff’s ADA claim moot. (ECF No. 15 at 1:14-16.) Defendants also assert that 6 if this Court finds that Plaintiff’s ADA claim is moot, that it does not have 7 discretion to exercise jurisdiction over the pendant state law claims. (Id. at 1:19- 8 23.) In support of their motion, Defendants submit several documents, including, 9 but not limited to, the following: Plaintiff’s deposition testimony (ECF No. 15-3); a 10 photograph of the new parking space (ECF No. 15-4); an ISA issued by a CASp 11 dated September 26, 2014 (ECF No. 15-7); a signed declaration stating that the 12 slope issue in the new parking space has been corrected (ECF No. 17-1); and 13 several photographs of the new parking space with a level displaying a slope of less 14 than 2% (ECF No. 17-7). 15 Plaintiff argues that the mere fact that Defendants have remedied the parking 16 space does not render his claim moot. (ECF No. 16 at 9:9-10.) He urges this Court 17 to apply the voluntary cessation doctrine standard, which substantially raises the bar 18 that must be met to dismiss a claim as moot. (ECF No. 16 at 5:8-13.) Under this 19 doctrine, in order to dismiss a claim as moot based on a defendant’s voluntary 20 cessation of the complained behavior, the moving party must prove that the alleged 21 wrongful behavior could not reasonably be expected to recur. Friends of the Earth, 22 Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). Plaintiff argues 23 that some problems with the original parking space, such as the faded paint and 24 signage, continually resurface. 25 modifications,” such as replacing a step with a permanent ramp, paint and signage 26 are by their very nature susceptible to wear and tear that requires regular 27 maintenance. 28 dismissal based on mootness, as these features make it “very easy for the (Id. at 6:23-7:11.) (ECF No. 16 at 7:6.) Unlike “structural Plaintiff therefore urges this Court to deny –9– 14cv01147 1 defendants to return to their previous ways and not provide a compliant parking 2 lot.” (Id. at 10:9-10.) 3 Plaintiff primarily relies on Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831 4 (N.D. Cal. 2011), an ADA class action case from the Northern District of 5 California, to support this argument. (See ECF No. 16 at pp. 7, 10.)1 In Moeller, 6 the plaintiffs brought suit for common ADA violations, including improperly 7 striped and maintained parking lots. Moeller, 816 F. Supp. 2d at 852-53. The 8 defendant challenged some claims on the grounds that those features had been 9 brought into compliance, and so the claims were moot. Id. at 851. The court found 10 that the defendant had not met its burden to establish that the problems were 11 unlikely to recur for several reasons. Id. at 860. The court first noted that the 12 defendant had its own access policies in place prior to the suit, and that it had a 13 history of not following those policies. Id. at 861. “A defendant’s ‘ongoing history 14 of not following its own stated . . . procedures ma[kes] necessary’ an injunction.” 15 Id. (citing United States v. Laedral Mfg. Corp., 73 F.3d 852, 857 (9th Cir. 1995)). 16 The court further noted that even if the defendant had been following its policies, 17 “the fact that [it] could change these policies . . . means that [it] has not met its 18 burden under the voluntary cessation doctrine.” Id. at 862. The threat of recurrence 19 in the case was particularly strong “given the length of time required for [the 20 defendant] to remove or remediate the barriers at [one location], and also given [the 21 defendant]’s history of vague and contradictory policies.” Id. 22 23 24 25 26 27 28 1 Plaintiff also relies on an unpublished Fourth Circuit decision in which the Fourth Circuit found that the defendants had not met their burden under the voluntary cessation doctrine. See Feldman v. Pro Football, Inc., 419 F. App’x 381, 384, 387 (4th Cir. 2011). In that case, the plaintiff had requested ADA accommodations for three years prior to filing suit, but the defendants did not implement accommodations until after the suit had been filed. See id. at 384, 387. However, the Court finds Feldman distinguishable because, in this case, Defendants have established a pattern of immediately remedying a claimed ADA violation upon being informed of such violation. – 10 – 14cv01147 1 The Southern District of California addressed an ADA claim with a parking 2 space issue similar to this case in Kohler v. Islands Rests., LP, 956 F. Supp. 2d 1170 3 (S.D. Cal. 2013) (Whelan, T.). 4 plaintiff’s claim mooted on the grounds that they had already remedied the 5 problems with the parking space. 6 defendants had remedied the slope issue in the parking space, there would “no 7 longer be a basis to support Kohler’s request for relief, and his ADA claim [would 8 be] moot.” Id. (citing Grove v. De La Cruz, 407 F. Supp. 2d 1126, 1130-31 (C.D. 9 Cal. 2005)). The defendants submitted “photographs of a level with a digital slope 10 display” that showed “a slope not exceeding 2%.” Id. at 1174. However, the court 11 found that a genuine issue of material fact existed as to whether the slope issue had 12 been corrected because the plaintiff submitted a declaration that the slope issue was 13 still present in other sections of the lot, and so the court found that the photographs, 14 which showed only limited portions of the parking lot, were not dispositive. Id. In Kohler, the defendants sought to have the Id. at 1173. The court noted that if the 15 Because Defendants present a factual challenge, this Court is permitted to 16 consider affidavits and other evidence beyond those referred to in the complaint, 17 and is not required to accept as true the allegations in the complaint. McCarthy, 18 850 F.2d at 560. 19 appropriate under the reasoning of both Moeller and Kohler. Plaintiff seeks an 20 injunction “compelling defendants to comply with the Americans with Disabilities 21 Act.” (ECF No. 1 at 8:10-11.) However, Defendants assert that they are presently 22 complying with the ADA, and support that assertion with undisputable evidence. 23 (See ECF No. 15.) This Court finds that dismissal of Plaintiff’s ADA claim 24 The Court finds sufficient evidence to conclude that the initial problems with 25 the parking space at issue in the Complaint have since been remedied. Defendants 26 submit a photograph of the new office parking space. (ECF No. 15-4, Exh. B.) In 27 that photograph, the new parking space is freshly painted, the words “No Parking” 28 are visible in the access aisle, an ISA sign has been mounted above the parking – 11 – 14cv01147 1 space, and there is a blue border around the access aisle. (Id.) Defendants also 2 assert in their motion that the parking space meets the ADA modifications required 3 as of June 2014. (ECF No. 15-1 at 3:19-21.) Plaintiff does not dispute the validity 4 of these assertions and evidence in his opposition. Instead, Plaintiff raises an 5 entirely new issue with the parking space, which was not raised in the Complaint. 6 He claims that the slope in the new parking space exceeds the 2% maximum 7 allowed under the ADA. (ECF No. 16 at 3:25-4:9.) Although this slope issue was 8 not alleged in the Complaint, to the extent Plaintiff claims Defendants did not 9 remedy the alleged problems, but instead created an additional problem, the Court 10 will address the issue. For the reasons discussed below, the Court finds that the 11 slope issue has also been remedied. 12 As in Kohler, Defendants proffer photographs and a declaration 13 demonstrating that the new parking space has already been brought into compliance 14 with respect to the slope issue. (See ECF Nos. 17-1, 17-7.) These photographs 15 show that the slope in the access aisle now measures 1.4%, which is less than the 16 maximum allowed slope of 2%. (ECF No. 17-7, Exhs. K, I.) Defendants have also 17 submitted a signed declaration from Larry Libsack, who oversaw all of the 18 modifications in the parking lot, and who states that the slope issue was corrected 19 on November 6, 2014, the day after being contacted by the Defendants. (ECF No. 20 17-1 at ¶¶ 8-11.) 21 Gonzalez, states that the slope issue was corrected within days of Defendants being 22 notified of same. (ECF No. 17-2 at ¶¶ 8, 9.) Defendants have also submitted 23 evidence that they have spent over $7,000 to make updates and corrections to the 24 parking space. (ECF No. 17-7, Exh. F.) 25 /// 26 /// 27 /// 28 /// A similar declaration from the property manager, Robert – 12 – 14cv01147 1 Unlike Kohler, Plaintiff here does not dispute any of these facts.2 2 Additionally, unlike Moeller, Defendants did not initially have an access policy in 3 place, and therefore did not have a history of violating that policy. In response to 4 this suit, however, Defendants have created such a policy. (See ECF No. 17-7, Exh. 5 J.) Among other things, the policy calls for an annual inspection of the parking lot 6 for painting and signage compliance, and immediate notification should any defects 7 be discovered between inspections. (Id.) 8 This Court finds that the weight of the evidence supports the inference that 9 Defendants, unlike the defendants in Moeller, will comply with this newly created 10 policy. Accordingly, the Court finds that the evidence submitted by Defendants 11 establishes that the parking space is compliant, that the behavior cannot reasonably 12 be expected to recur, and dismisses Plaintiff’s ADA claim for lack of subject matter 13 jurisdiction. 3. 14 Plaintiff’s State Law Claims 15 Defendants assert in their motion that if the Court dismisses Plaintiff’s 16 federal claim as moot, then it must also dismiss the pendent California state law 17 claims. (See ECF No. 15 at 9:18-20.) “[D]istrict courts may decline to exercise 18 supplemental jurisdiction over a [] claim if … the district court has dismissed all 19 claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). However, 20 district courts only have discretion “[i]f the district court dismissed all federal 21 claims on the merits.” Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 22 802, 806 (9th Cir. 2001). If, however, the district court “dismisses [all federal 23 24 25 26 27 28 Although Defendants presented this evidence in their reply, Plaintiff did not request leave to file a sur-reply, did not dispute these facts in his subsequent motion requesting leave to amend, and did not dispute these facts in his proposed amended complaint. In the proposed amended complaint, Plaintiff states that the slope issue and other architectural barriers were discovered in mid-October, and that “[t]he defendants have claimed that this slope issue has been corrected.” (ECF No. 20-1 at ¶ 18.) Therefore, the Court concludes that Plaintiff had opportunity to dispute these facts, but did not do so. 2 – 13 – 14cv01147 1 claims] for lack of subject matter jurisdiction, it has no discretion and must dismiss 2 all [state law] claims.” Id. 3 Because the Court has dismissed Plaintiff’s ADA claim for lack of subject 4 matter jurisdiction, it does not have discretion to exercise supplemental jurisdiction 5 over the state law claims. 6 Accordingly, Defendants’ motion to dismiss is GRANTED. 7 B. 8 The Scheduling Order in this case set forth a pleading amendment deadline of 9 October 27, 2014. (ECF No. 14 at ¶ 2.) This timeline was proposed by Plaintiff 10 and adopted by the Court. (ECF No. 21-4, Exh. N at 3:7.) Plaintiff’s motion for 11 leave to amend was not filed until November 13, 2014. 12 Therefore, Plaintiff is required to demonstrate good cause under Rule 16 for filing 13 an amended complaint. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th 14 Cir. 2010). Plaintiff’s Motion for Leave to File First Amended Complaint 1. 15 (See ECF No. 20.)3 Rule 16 Analysis 16 Under the good cause standard of Rule 16(b)(4), the court’s primary focus is 17 on the movant’s diligence in seeking the amendment. Johnson, 975 F.2d at 609. 18 “Good cause” exists if a party can demonstrate that the scheduling order could not 19 or “cannot reasonably be met despite the diligence of the party seeking the 20 extension.” Id. (citation omitted). “[C]arelessness is not compatible with a finding 21 of diligence and offers no reason for a grant of relief.” Id. “Although the existence 22 or degree of prejudice to the party opposing the modification might supply 23 24 25 26 27 28 The Court notes that Plaintiff failed to move to amend the Scheduling Order prior to filing his motion for leave to file an amended complaint as required by the Ninth Circuit. See U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099 (9th Cir. 1985), superseded by statute on other grounds (noting that the district court properly denied a summary judgment motion as untimely when the defendants failed to request a modification of the pretrial order after the deadline for filing such a motion had passed). Despite this error, the Court will construe Plaintiff’s motion as including a request to amend the Scheduling Order. 3 – 14 – 14cv01147 1 additional reasons to deny a motion, the focus of the [Rule 16] inquiry is upon the 2 moving party’s reasons for seeking modification.” Id. (citations omitted). The 3 party seeking to continue or extend the deadlines bears the burden of proving good 4 cause. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002); 5 Johnson, 975 F.2d at 608-09. In addressing the diligence requirement, one district court in the Ninth Circuit 6 7 noted: 13 [T]o demonstrate diligence under Rule 16’s “good cause” standard, the movant may be required to show the following: (1) that [it] was diligent in assisting the Court in creating a workable Rule 16 order..; (2) that [its] noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding [its] diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference…; and (3) that [it] was diligent in seeking amendment of the Rule 16 order, once it became apparent that [it] could not comply with the order…. 14 Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) (internal citations 15 omitted). If the district court finds a lack of diligence, “the inquiry should end.” 16 Johnson, 975 F.2d at 609. If, however, the movant clears the Rule 16 bar, the Court 17 proceeds to consider the motion under the usual standard of Rule 15. Campion v. 18 Old Republic Home Prot. Co., Inc., 861 F. Supp. 2d 1139, 1150 (S.D. Cal. 2012). 8 9 10 11 12 19 The Court finds Plaintiff satisfies the good cause standard in this case. The 20 evidence suggests that Plaintiff’s CASp did not submit a report until very close to 21 or after the October 27, 2014 deadline. The declaration from Plaintiff’s CASp, Mr. 22 Bishop, is dated November 1, 2014. (See ECF No. 16-3 at 13:10.) Defendants’ 23 property manager states that he received notice of the slope issue and Mr. Bishop’s 24 report in early November. (ECF No. 17-2 at ¶¶ 8, 9.) Mr. Libsack, who made 25 corrections to the parking space also states that he received the report on November 26 5, 2014. (ECF No. 17-1 at ¶ 8.) Plaintiff then moved for leave to file his first 27 amended complaint approximately two weeks later. (See ECF No. 20.) Plaintiff 28 moved for leave to amend in light of the information contained in Mr. Bishop’s – 15 – 14cv01147 1 report, something not in his possession until very close to or after the last date to 2 amend pleadings adopted in the Scheduling Order.4 3 Additionally, it appears Plaintiff was diligent in assisting the Court in 4 creating a workable Scheduling Order, complied with the Scheduling Order in all 5 other respects, and was diligent in seeking to amend the Complaint shortly after he 6 discovered the new facts at issue. Moreover, there is no suggestion Plaintiff knew 7 of the allegations prior to filing the Complaint or made a tactical decision at the 8 outset of the litigation not to include the allegations in his initial Complaint. Cf 9 Trans Video Elecs., Ltd. v. Sony Elecs., Inc., 278 F.R.D. 505, 508 (N.D. Cal. 2011). 10 Accordingly, the Court finds Plaintiff has sufficiently demonstrated “good cause” to 11 amend the Scheduling Order. Because the Court finds that Plaintiff satisfies the 12 requirements of Rule 16(b), the Court proceeds to consider the requirements of Rule 13 15(a). 2. 14 Rule 15 Analysis 15 “Rule 15(a) is very liberal and leave to amend ‘shall be freely given when 16 justice so requires.’” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 17 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)); see also Kaplan v. Rose, 18 49 F.3d 1363, 1370 (9th Cir. 1994) (noting the “strong policy in favor of allowing 19 20 21 22 23 24 25 26 27 28 4 The proposed amended complaint alleges the following ADA barriers, none of which were included in the Complaint: (1) the gripping surface of the handrails on the walkway outside are 40 inches above the ramp surface, and the maximum height allowed by the ADAAG is 38 inches; (2) the handrails only extend for 10 inches beyond the top and bottom of the ramp runs, and the ADAAG requires that they extend 12 inches; (3) the transaction counters in the front and rear lobbies do not have 36 inch high wheelchair accessible surfaces; (4) the sink in the public restroom does not provide any knee clearance, and the ADAAG requires that all sinks provide knee clearance at least 27 inches high, 30 inches wide, and 19 inches deep; (5) the sink hardware is a twisty style knob, and the ADAAG requires that faucets be lever-operated, push-type, touch-type, or electronically controlled; and (6) the mirror in the public restroom is mounted 48 inches above the ground, and the maximum height permitted by the ADAAG is 40 inches. (ECF No. 20-2 at ¶¶ 19-22.) – 16 – 14cv01147 1 amendment”). However, “a district court need not grant leave to amend where the 2 amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) 3 produces an undue delay in litigation; or (4) is futile.” AmerisourceBergen Corp., 4 465 F.3d at 951. These factors are not of equal weight as prejudice to the opposing 5 party has long been held to be the most crucial factor in determining whether to 6 grant leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 7 (9th Cir. 2003); Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990); 8 Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973). The Court considers 9 each of these factors in turn. i. 10 Prejudice to the Opposing Party 11 The most critical factor in determining whether to grant leave to amend is 12 prejudice to the opposing party. Eminence Capital, 316 F.3d at 1052 (“Prejudice is 13 the touchstone of the inquiry under rule 15(a).”) (internal quotes and citation 14 omitted)). The burden of showing prejudice is on the party opposing an amendment 15 to the complaint. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 16 1986). Prejudice must be substantial to justify denial of leave to amend. Morongo 17 Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Under Rule 18 15(a), “[a]bsent prejudice, or a strong showing of any of the remaining [] factors,” 19 there is a presumption in favor of granting leave to amend. Eminence Capital, 316 20 F.3d at 1052. 21 Defendants claim they would be prejudiced if leave to amend were granted 22 because “[t]he Anands relied upon the Complaint, took the deposition of Mr. Turner 23 (who did not identify any additional architectural barriers), remedied the parking lot 24 at an initial cost of $6,634 paid to the paving company, had a CASp inspection 25 performed as to the entire premises, and incurred the additional expense of filing a 26 motion to dismiss.” (ECF No. 21 at 13:1-6, alteration in original.) 27 Plaintiff argues that Defendants would not be prejudiced because, although 28 the assertions by Defendant are true, Plaintiff’s deposition “is still entirely valid and – 17 – 14cv01147 1 complete,” and so they can still rely on it. (See ECF No. 22 at 2:14-15.) Plaintiff’s 2 proposed amended complaint does not allege new visits to Defendants’ site, and 3 there are no new facts alleged regarding his prior visits. (Id. at 2:15-16.) 4 The Court is not persuaded that Defendants will suffer substantial prejudice 5 should Plaintiff be permitted to file an amended complaint. Although permitting 6 the amendment may result in the necessity of re-deposing Plaintiff, the Court does 7 not find that this prejudice so substantial as to warrant denial of the motion. 8 Accordingly, this factor favors amendment. ii. 9 Undue Delay 10 “Undue delay is a valid reason for denying leave to amend.” Contact Lumber 11 Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1454 (9th Cir. 1990). Delay, by 12 itself, however, does not always justify denying leave to amend. DCD Programs, 13 Ltd., 833 F.2d at 186–87. “Relevant to evaluating the delay issue is whether the 14 moving party knew or should have known the facts and theories raised by the 15 amendment in the original pleading.” Jackson, 902 F.2d at 1388. Considerable 16 delay with no reasonable explanation is relevant where a proposed amendment 17 would cause prejudice to the other party or would significantly delay resolution of 18 the case. 19 sufficient evidence of conduct upon which they could base claims of wrongful 20 conduct is a reasonable explanation. DCD Programs, Ltd., 833 F.2d at 187. Id. However, delay caused by the parties waiting until they had 21 Plaintiff argues that he did not engage in undue delay because the motion was 22 “filed within three weeks of the plaintiff’s expert site inspection.” (ECF No. 22 at 23 2:2-4.) Moreover, because this suit is in the early stages of litigation, the Court 24 should follow the liberal policy of granting leave to amend in such circumstances. 25 (ECF No. 20 at 5:4-5.) Defendants, in response, assert that a determination of delay 26 depends on “whether the moving party knew or should have known the facts and 27 theories raised by the amendment in the original pleading.” (ECF No. 21 at 14:3-5 28 (citing AmerisourceBergen Corp., 465 F.3d at 953).) While Plaintiff arguably – 18 – 14cv01147 1 should have known the facts and theories raised in the proposed amended 2 complaint, the Court finds that there is no evidence that Plaintiff acted strategically 3 in waiting to hire as CASp to discover the additional violations, and that he acted 4 diligently by seeking leave to amend within three weeks of discovering these new 5 facts. Accordingly, this factor weighs in favor of amendment. 6 iii. Bad Faith 7 A bad faith motive is a proper ground for denying leave to amend. Sorosky v. 8 Burroughs Corp., 826 F.2d 794, 805 (9th Cir. 1987). Defendants assert that “there 9 is no explanation” for Plaintiff to contend that Defendants’ clinic has additional 10 barriers. (ECF No. 21 at 13:7-9.) They also draw the Court’s attention to the Ninth 11 Circuit’s decision in Oliver v. Ralphs Grocery Co., 654 F.3d 903 (9th Cir. 2011). In 12 Oliver, the plaintiff intentionally withheld information about additional barriers so 13 as to prevent the defendant from removing all barriers and therefore moot the entire 14 case. Id. at 906, n.7. Defendants appear to suggest some similarly sinister actions 15 by Plaintiff in this case. Plaintiff fails to address the bad faith factor apart from the 16 claim in his reply that “[t]he defense never makes any argument that plaintiff is 17 involved in bad faith.” (ECF No. 22 at 2:6-8.) 18 Though not clearly articulated, Defendants do make such an argument. 19 However, the Court finds the argument less than compelling. The Court finds it 20 plausible that Plaintiff did not know of these additional barriers until his CASp 21 conducted an inspection and produced the report identifying those barriers. This 22 interpretation is bolstered by the fact that Plaintiff, as noted by Defendants in their 23 response, did not complain about those barriers in his deposition, which took place 24 prior to Plaintiff’s CASp inspection. (See ECF No. 21 at 13:9-10.) Contrary to 25 Defendants’ assertion, seeking leave to amend the complaint does not have the 26 effect of changing Plaintiff’s sworn testimony. (Id. at 13:7-9.) As previously 27 stated, the law permits an ADA plaintiff to challenge architectural barriers related to 28 his disability, even if he did not personally encounter those barriers, provided that – 19 – 14cv01147 1 he personally encountered at least one barrier at the place of public accommodation. 2 Chapman, 631 F.3d at 944. Therefore, this factor weighs in favor of granting 3 Plaintiff leave to file an amended complaint. iv. 4 Futility of Amendment 5 “Futility of amendment can, by itself, justify the denial of a motion for leave 6 to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). “[A] proposed 7 amendment is futile only if no set of facts can be proved under the amendment to 8 the pleadings that would constitute a valid and sufficient claim or defense.” 9 Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1393 (9th Cir. 1997) (citation 10 omitted). 11 Defendants argue that granting leave to amend would be futile for two 12 reasons. First, they have already remedied the parking lot issue and hired a CASp 13 to inspect the entire property, including the path of travel as well as the interior and 14 common areas. (ECF No. 21 at 14:8-12.) Second, after reviewing the CASp report 15 and consulting with contractors, they have set forth a plan to remedy all existing 16 barriers identified in the report. (Id. at 14:13-18.) Defendants also assert that 17 Plaintiff has failed to establish intent to return as required under Chapman. See 18 Chapman, 631 F.3d at 944. “[Plaintiff] has not evidenced any intent to make 19 another appointment with Dr. Anand. . . .” (ECF No. 21 at 16:6-7.) Plaintiff argues 20 in his motion that an amendment would not be futile because he seeks only to 21 update facts and identify additional barriers, and the relevant claims have not been 22 adjudicated or preempted. (ECF No. 20 at 5:27-6:3.) In his reply, Plaintiff asserts 23 that “[t]his is not the ‘futility’ that is contemplated by the courts.” (Id. at 3:24-25.) 24 As previously noted, Plaintiff made statements in his deposition suggesting 25 that his visits to Defendants’ office were few and are now over. Plaintiff testified 26 that Dr. Anand is not his primary care physician. (ECF No. 15-3, Exh. A at 10:11- 27 14.) Plaintiff also testified that he was referred to Dr. Anand for a hand injury (id. 28 at 10:5) and that he has not sought any further medical assistance with regard to his – 20 – 14cv01147 1 hand because he “figured three doctors were enough.” (Id. at 13:14-16). He stated 2 that he had seen the new parking space after Defendants’ undertook to correct the 3 problems in the Complaint (id. at 16:15-23) and that he “saw that it was fixed and 4 thought that was great.” (Id. at 19:2-3). When asked to describe the reason he was 5 suing Defendants, Plaintiff testified that it was “[f]or not having proper handicap 6 parking” (id. at 15:3-5). 7 additional reasons for the suit, to which Plaintiff replied “[t]hat’s it.” (Id. at 15:6- 8 11.) Defendants’ attorney then asked if there were any 9 Plaintiff’s statements in his deposition suggests amendment would be futile, 10 as the proposed amended complaint attached to Plaintiff’s motion appears deficient 11 for several reasons. First, the proposed amended complaint fails to allege facts 12 sufficient to establish that Plaintiff has standing to pursue injunctive relief. In order 13 to seek an injunction against unencountered barriers, Plaintiff must establish that he 14 has standing as to a barrier that he physically encountered. Chapman, 631 F.3d at 15 951. In the proposed amended complaint, Plaintiff alleges that he personally 16 encountered the parking space, but does not allege a personal encounter with any of 17 the newly alleged barriers. Now that Plaintiff no longer has standing as to the 18 parking space, Plaintiff must establish standing as to some other barrier in order to 19 pursue injunctive relief. 20 Second, although Plaintiff alleges that he “would like to be able to return and 21 patronize the services of this Doctors Office” but “is deterred from doing so due to 22 his previous experiences and his knowledge of the additional barriers,” the 23 statements he made in his deposition appear to contradict this allegation. (ECF No. 24 20-2 at ¶ 23.) A plaintiff pursuing injunctive relief must demonstrate, in addition to 25 the traditional elements of standing, a “real and immediate threat that the plaintiff 26 will be wronged again.” City of Los Angeles, 461 U.S. at 111. For an ADA claim, 27 a plaintiff can satisfy this requirement by “demonstrating deterrence, or by 28 demonstrating injury-in-fact coupled with an intent to return to a noncompliant – 21 – 14cv01147 1 facility.” Chapman, 631 F.3d at 944. Plaintiff testified that Dr. Anand is not his 2 primary care physician and that he has not sought any further treatment for his 3 hand. (ECF No. 15-3, Exh. A at 10:11-14; 13:14-16.) Thus, Plaintiff’s testimony 4 suggests amendment would be futile. 5 Despite these potential issues, however, the Court is unable to conclude that 6 “no set of facts can be proved under the amendment to the pleadings that would 7 constitute a valid and sufficient claim or defense.” Sweaney, 119 F.3d at 1393. 8 Therefore, this factor weighs in favor of amendment. 9 Weighing all the factors, the Court finds that Plaintiff should be given leave 10 to file an amended complaint. However, the Court also finds that the proposed 11 amended complaint attached to Plaintiff’s motion is deficient for the reasons 12 discussed above. While it is not clear from the record whether Plaintiff can allege 13 standing, Plaintiff is given leave to amend if he can plausibly do so. Accordingly, 14 Plaintiff’s motion for leave to amend is GRANTED IN PART and DENIED IN 15 PART. 16 C. Plaintiff’s Motion for Partial Summary Judgment 17 Plaintiff moves for partial summary judgment on the state law claims in the 18 Complaint. As discussed above, however, the entire Complaint has now been 19 dismissed. Therefore, Plaintiff’s motion for partial summary judgment is DENIED 20 AS MOOT. 21 IV. CONCLUSION & ORDER 22 In light of the foregoing, the Court GRANTS Defendants’ motion to dismiss 23 the Complaint (ECF No. 15). The Court further GRANTS IN PART and DENIES 24 IN PART Plaintiff’s motion for leave to file an amended complaint (ECF No. 20). 25 Plaintiff is given leave to file a First Amended Complaint, but not in the proposed 26 form attached to his motion. If Plaintiff if able to allege facts consistent with the 27 discussion above, and he chooses to do so, Plaintiff may file a First Amended 28 Complaint no later than August 7, 2015. However, Plaintiff may not assert any – 22 – 14cv01147 1 causes of action not present in his proposed amended complaint. As Plaintiff’s 2 Complaint has been dismissed in its entirety, the Court TERMINATES AS 3 MOOT Plaintiff’s motion for partial summary judgment (ECF No. 24). 4 IT IS SO ORDERED. 5 6 DATED: July 21, 2015 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 23 – 14cv01147
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