Shawn Bedwell v. Tblb Enterprises LLC ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 3 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAWN BEDWELL, an individual, No. 21-56245
Plaintiff-Appellant, D.C. No.
5:21-cv-01340-JGB-SP
v.
TBLB ENTERPRISES LLC, a California MEMORANDUM*
limited liability company; SUPER 7 FOOD
MART, INC., a California corporation;
DOES, 1-10,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Submitted August 1, 2022**
Pasadena, California
Before: SILER,*** CALLAHAN, and H. THOMAS, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Shawn Bedwell (“Bedwell”) appeals from the district court’s order granting
Defendants TBLB Enterprises LLC and Super 7 Food Mart, Inc.’s (“Defendants”)
motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction on the grounds that Bedwell’s Americans with
Disabilities Act (“ADA”) claims are moot. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
We review a grant of a motion to dismiss under Rule 12(b)(1) de novo.
Banks v. Northern Trust Corporation, 929 F.3d 1046, 1049 (9th Cir. 2019).
Bedwell’s sole argument on appeal is that the district court erred by considering
extrinsic evidence at the Rule 12(b)(1) motion to dismiss phase, and our review is
necessarily framed by the parties’ arguments on appeal. See United States v.
Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (“In our adversarial system of
adjudication, we follow the principle of party presentation,” under which “‘we rely
on the parties to frame the issues for decision and assign to courts the role of
neutral arbiter of matters the parties present.’” (citation omitted)); see Independent
Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“Our
circuit has repeatedly admonished that we cannot ‘manufacture arguments for an
appellant’ and therefore we will not consider any claims that were not actually
argued in appellant’s opening brief.” (citation omitted)).
2
To contest a plaintiff’s showing of subject matter jurisdiction, a defendant
may file two types of Rule 12(b)(1) motions: a facial attack, which challenges
jurisdiction “facially,” by arguing that the allegations contained in the complaint
are insufficient on their face to invoke federal jurisdiction, or a “factual” attack,
which presents extrinsic evidence (affidavits, etc.) disputing the truth of the
allegations of the complaint that would otherwise invoke federal jurisdiction. See
Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); see also Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). As the parties agree,
Defendants’ motion mounted a “factual” attack on jurisdiction.
The narrow issue presented by Bedwell on appeal is whether the district
court erred in considering extrinsic evidence of mootness on a Rule 12(b)(1)
motion to dismiss. It did not. A district court may properly consider extrinsic
evidence on a “factual” motion to dismiss under Rule 12(b)(1), see Savage v.
Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003); but it may not
decide genuinely disputed facts where “the question of jurisdiction is dependent on
the resolution of factual issues going to the merits.” Safe Air, 373 F.3d at 1040(internal quotations and citations omitted); Rosales v. United States, 824 F.2d 799,
803 (9th Cir. 1987). Contrary to Bedwell’s contentions, the unpublished decision
in Acevedo v. C & S Plaza LLC, 2021 WL 4938124 (9th Cir. 2021), does not stand
for the proposition that a district court may never consider extrinsic evidence in the
3
context of a factual Rule 12(b)(1) motion to dismiss where these issues are
intertwined. There, we vacated the district court’s grant of a motion to dismiss
because genuine disputes of material fact existed regarding the jurisdictional
issues, not because the district court considered extrinsic evidence on a Rule
12(b)(1) motion. Id. at *2.
Accordingly, the district court did not err by considering extrinsic evidence
in deciding Defendants’ motion to dismiss under Rule 12(b)(1) on mootness
grounds.1
AFFIRMED.
1
Bedwell does not contest the district court’s factual findings on the merits on
appeal, so we need not address them either.
4