John Ho v. Frederick Russi ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN HO, an individual, No. 20-55915
Plaintiff-Appellant,
D.C. No.
v. 8:20-cv-00446-
DOC-DFM
FREDERICK RUSSI,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted June 6, 2022
Pasadena, California
Filed August 19, 2022
Before: Milan D. Smith, Jr., Bridget S. Bade, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge VanDyke
2 HO V. RUSSI
SUMMARY *
Supplemental Jurisdiction/Americans with
Disabilities Act
The panel reversed the district court’s order declining, in
an action under the Americans with Disabilities Act, to
exercise supplemental jurisdiction under 28 U.S.C.
§ 1367(c) over plaintiff’s state law claim under California’s
Unruh Civil Rights Act, and remanded for further
proceedings.
The panel held that the district court erred in sua sponte
declining supplemental jurisdiction without providing
plaintiff with notice of its intent to dismiss or an opportunity
to respond. This was error because plaintiff was entitled to
argue his claim prior to dismissal.
The panel addressed an award of attorney’s fees in a
separate memorandum disposition.
COUNSEL
Pamela Tsao (argued), Ascension Law Group PC, Santa
Ana, California, for Plaintiff-Appellant.
No appearance by Defendant-Appellee.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HO V. RUSSI 3
OPINION
VANDYKE, Circuit Judge:
I.
We are asked in this case to review the district court’s
order declining to exercise supplemental jurisdiction over
Plaintiff-Appellant John Ho’s state law claim. Because the
district court erred by issuing a final order without providing
Ho with notice of its intent to dismiss and an opportunity to
respond, we reverse and remand.
II.
John Ho is a paraplegic who cannot walk or stand and
requires the use of a wheelchair. In July 2019, Ho visited
Pepe’s Mexican Restaurant in Brea, California. During his
visit, Ho found that the parking spaces in front of Pepe’s had
“slopes and/or cross slopes that exceed[ed] 2.0%,” making it
difficult for him to enter and exit his vehicle. In addition,
the “[a]ccessible pathways” and “access aisles” in the
restaurant were “too narrow” for him to navigate using his
wheelchair. Ho filed a complaint in federal court alleging
that Pepe’s proprietor, Frederick Russi, had failed to
maintain the restaurant’s accessibility in accordance with
federal and state law. Ho sought damages, injunctive relief,
and attorney’s fees under the Americans with Disabilities
Act of 1990 (ADA), 42 U.S.C. §§ 12101 et seq., and
California’s Unruh Civil Rights Act (Unruh Act), Cal. Civ.
Code §§ 51–52.
After Russi failed to respond to the complaint, Ho
applied for a default, which the clerk entered. One month
later, Ho moved for default judgment. But instead of
considering Ho’s motion, the district court declined
4 HO V. RUSSI
supplemental jurisdiction sua sponte and dismissed the
Unruh Act claim without giving Ho prior notice or the
opportunity to respond.1 The district court reasoned that
“exceptional circumstances” and “compelling reasons”
justified declining jurisdiction under 28 U.S.C. § 1367(c)(4).
To support this conclusion, it cited the large influx of Unruh
Act claims filed in federal court that avoid increased filing
fees and heightened pleading standards in California state
court.
Ho now appeals the district court’s order.
III.
The district court sua sponte declined supplemental
jurisdiction without providing Ho with notice of its intent to
dismiss or an opportunity to respond. This was error because
Ho was entitled to argue his claim prior to dismissal.
Generally, a district court must provide litigants with
notice and an opportunity to respond before dismissing a
claim for failure to state a claim. See, e.g., Harmon v.
Superior Ct., 307 F.2d 796, 798 (9th Cir. 1962); Dodd v.
Spokane County, 393 F.2d 330, 334 (9th Cir. 1968). And
“[w]hile a party is entitled to notice and an opportunity to
respond when a court contemplates dismissing a claim on the
merits, it is not so when the dismissal is for lack of subject
matter jurisdiction.” Scholastic Ent., Inc. v. Fox Ent. Grp.,
336 F.3d 982, 985 (9th Cir. 2003) (citation omitted). But, as
1
The district court dismissed Ho’s claim without prejudice and
allowed Ho to file a new default judgment motion addressing only the
ADA claim. Ho refiled his motion and the district court ordered
injunctive relief and awarded reduced attorney’s fees. Ho has also
appealed the reduced attorney’s fees, and that issue is addressed in a
separate memorandum disposition.
HO V. RUSSI 5
we have cautioned, “[t]he district court’s power to dismiss
under such circumstances . . . is not unlimited. [A]ll of the
circumstances must be considered in determining whether
the absence of notice as to the possibility of dismissal or the
failure to hold an adversary hearing renders the dismissal
void.” Id. (second alteration in original) (emphases added)
(citations omitted).
As an initial matter, the district court erred when it
determined that its dismissal was for lack of subject matter
jurisdiction. See Carlsbad Tech., Inc. v. HIF Bio, Inc.,
556 U.S. 635, 639–40 (2009) (stating that “whether a court
has subject-matter jurisdiction over a claim is distinct from
whether a court chooses to exercise that jurisdiction” and
that a district court’s “exercise of its discretion under
§ 1367(c) is not a jurisdictional matter” (citation and internal
quotation marks omitted)); Kieslich v. United States (In re
Kieslich), 258 F.3d 968, 970–71 (9th Cir. 2001) (stating that
when a district court exercises its discretion to retain
jurisdiction over supplemental state law claims “[t]here is
subject matter jurisdiction, albeit supplemental jurisdiction,”
and an objection to such supplemental jurisdiction is
waivable, unlike a challenge to subject matter jurisdiction);
Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1171 (9th Cir.
2001) (stating that the “exercise of supplemental jurisdiction
under § 1367(c) is . . . treated differently from Article III
jurisdiction”). Thus, the district court was required to
provide Ho with notice and an opportunity to be heard before
sua sponte declining to exercise supplemental jurisdiction
and dismissing his state law claim. See Catzin v. Thank You
& Good Luck Corp., 899 F.3d 77, 83–84 (2d Cir. 2018)
(holding that a district court was required to provide notice
and an opportunity to be heard before sua sponte declining
to exercise supplemental jurisdiction, reasoning in part that
such a decision is “not a case in which it is unmistakably
6 HO V. RUSSI
clear that the court lacks jurisdiction” because, “[t]o the
contrary, it is indisputable that the District Court possessed
supplemental jurisdiction” and “only faced the discretionary
inquiry of whether to discontinue that jurisdiction” (citation
omitted)).
Moreover, under the circumstances of this case, even if
the district court had properly dismissed Ho’s state law
claims for lack of subject matter jurisdiction, the district
court would still have been required to provide notice and an
opportunity to be heard. We have thus far identified only
two circumstances in which a district court may dismiss for
lack of subject matter jurisdiction without providing notice
and an opportunity to respond, and Ho’s claims do not fall
within either circumstance. First, the district court may
dismiss a litigant’s claims without notice and an opportunity
to respond when parties have previously argued the issue of
jurisdiction. Scholastic Ent., Inc., 336 F.3d at 985; see also
Cal. Diversified Promotions, Inc. v. Musick, 505 F.2d 278,
280–81 (9th Cir. 1974). Second, the district court may
dismiss a litigant’s claim without notice where lack of
jurisdiction “appears on the face of the complaint and is
obviously not curable.” Harmon, 307 F.2d at 797.
The first circumstance does not apply to Ho’s case. In
Scholastic, the district court did not give the defendant notice
or an opportunity to respond before dismissing its
counterclaim. Scholastic Ent., Inc., 336 F.3d at 985. But
several months earlier, “the parties . . . extensively briefed
the issue of subject matter jurisdiction . . . [so] any additional
briefing would have been duplicative and unnecessary.” Id.Unlike the litigant in Scholastic, Ho did not have a chance to
argue the issue of jurisdiction prior to dismissal.
The second circumstance is likewise inapplicable to
Ho’s case. In this situation, it is impossible that lack of
HO V. RUSSI 7
subject matter jurisdiction “appears on the face of the
complaint and is obviously not curable.” See Harmon,
307 F.2d at 797. A federal court normally must assert
supplemental jurisdiction when the combined state and
federal claims form part of the same “case or controversy”
and share a “common nucleus of operative fact.” See Trs. of
the Constr. Indus. & Laborers Health & Welfare Tr. v.
Desert Valley Landscape & Maint., Inc., 333 F.3d 923, 925
(9th Cir. 2003) (citations and internal quotation marks
omitted). But as we explained in Arroyo v. Rosas, a district
court might be justified declining supplemental jurisdiction
over a combined ADA/Unruh Act claim. 19 F.4th 1202,
1213 (9th Cir. 2021) (holding that “[t]he district court did
not abuse its discretion in concluding that this extraordinary
situation threatens unusually significant damage to federal-
state comity and presents ‘exceptional circumstances’ within
the meaning of § 1367(c)(4)”). But even assuming the
district court could decline supplemental jurisdiction in this
case, it also has discretion to retain supplemental jurisdiction
over the state law claim. United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966) (holding that supplemental
jurisdiction is a “doctrine of discretion”); see also 28 U.S.C.
§ 1367(c) (“The district courts may decline to exercise
supplemental jurisdiction over a claim . . . .” (emphasis
added)). Given this discretion, it makes no sense to
characterize any discretionary decision to decline
supplemental jurisdiction as apparently lacking subject
matter jurisdiction “on the face of the complaint” and
“obviously not curable.” See Harmon, 307 F.2d at 797.
Where such discretion is involved, the litigants cannot know
for sure how the district court will exercise its discretion
until after the court has done so—they certainly cannot tell
“from the face of the complaint.” Id. The district court may
be understandably reluctant to extend supplemental
jurisdiction to combined ADA/Unruh Act cases for all the
8 HO V. RUSSI
reasons given by the court, but the claims cannot be
dismissed automatically without prior notice and an
opportunity to respond.
The district court erred by not providing Ho an
opportunity to argue supplemental jurisdiction before
dismissing his claim. Until Ho is given such an opportunity,
we need not address most of the other issues asserted on
appeal. 2
IV.
For the reasons stated herein, the district court’s order
dismissing Ho’s claim is REVERSED and REMANDED
for further proceedings consistent with this opinion.
2
Except for the issue of reduced attorney’s fees. See supra note 1.