Garcia v. Thunderbird Lodge, Sacramento, LLC ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ORLANDO GARCIA, No. 2:20-cv-02161-MCE-CKD 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 THUNDERBIRD LODGE, SACRAMENTO, LLC, a limited liability 15 company, 16 Defendant. 17 18 Through the present action, Plaintiff Orlando Garcia (“Plaintiff”), who is physically 19 disabled and uses a wheelchair, walker, or cane for mobility, seeks redress from 20 Defendant Thunderbird Lodge, Sacramento, LLC, (“Defendant”), which owns the Best 21 Western Plus Sutter House in Sacramento, on grounds that Defendant’s website does 22 not provide sufficient information from which Plaintiff can determine whether there are 23 rooms at the Best Western that would work for him. Plaintiff contends this failure 24 violates both the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”) 25 and California’s Unruh Civil Rights Act, California Civil Code §§ 51, et seq. Presently 26 before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint for lack of 27 /// 28 /// 1 standing and because Plaintiff has failed to state a claim upon which relief can be 2 granted. That Motion is GRANTED with leave to amend.1 3 4 ANALYSIS 5 6 A. Rule 12(b)(1) 7 Federal courts are courts of limited jurisdiction and are presumptively without 8 jurisdiction over civil actions. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 9 377 (1994). The burden of establishing the contrary rests upon the party asserting 10 jurisdiction. Id. Because subject matter jurisdiction involves a court’s power to hear a 11 case, it can never be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630 12 (2002). Accordingly, lack of subject matter jurisdiction may be raised by either party at 13 any point during the litigation, through a motion to dismiss pursuant to Federal Rule of 14 Civil Procedure 12(b)(1). Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); see also Int’l 15 Union of Operating Eng’rs v. Cnty. of Plumas, 559 F.3d 1041, 1043-44 (9th Cir. 2009). 16 Lack of subject matter jurisdiction may also be raised by the district court sua sponte. 17 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). Indeed, “courts have an 18 independent obligation to determine whether subject matter jurisdiction exists, even in 19 the absence of a challenge from any party.” Id.; see Fed. R. Civ. P. 12(h)(3) (requiring 20 the court to dismiss the action if subject matter jurisdiction is lacking). 21 There are two types of motions to dismiss for lack of subject matter jurisdiction: a 22 facial attack, and a factual attack. Thornhill Publ’g Co. v. Gen. Tel. & Elec. Corp., 23 594 F.2d 730, 733 (9th Cir. 1979). Thus, a party may either make an attack on the 24 allegations of jurisdiction contained in the nonmoving party’s complaint or may challenge 25 the existence of subject matter jurisdiction in fact, despite the formal sufficiency of the 26 pleadings. Id. 27 1 Having concluded that oral argument would not be of material assistance, the Court submitted 28 this matter on the briefs pursuant to E.D. Local Rule 230(g). 1 When a party makes a facial attack on a complaint, the attack is unaccompanied 2 by supporting evidence, and it challenges jurisdiction based solely on the pleadings. 3 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where, as here, 4 the motion to dismiss constitutes a facial attack, the Court must consider the factual 5 allegations of the complaint to be true, and determine whether they establish subject 6 matter jurisdiction. Savage v. Glendale High Union Sch. Dist. No. 205, 343 F.3d 1036, 7 1039 n.1 (9th Cir. 2003). In the case of a facial attack, the motion to dismiss is granted 8 only if the nonmoving party fails to allege an element necessary for subject matter 9 jurisdiction. Id. 10 B. Rule 12(b)(6) 11 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 12 Procedure 12(b)(6), all allegations of material fact must be accepted as true and 13 construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. 14 Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only “a short and plain 15 statement of the claim showing that the pleader is entitled to relief” in order to “give the 16 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 17 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 18 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require 19 detailed factual allegations. However, “a plaintiff’s obligation to provide the grounds of 20 his entitlement to relief requires more than labels and conclusions, and a formulaic 21 recitation of the elements of a cause of action will not do.” Id. (internal citations and 22 quotations omitted). A court is not required to accept as true a “legal conclusion 23 couched as a factual allegation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) 24 (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right 25 to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan 26 Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating 27 that the pleading must contain something more than “a statement of facts that merely 28 creates a suspicion [of] a legally cognizable right of action.”)). 1 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 2 assertion, of entitlement to relief.” Twombly, 550 U.S. at 556 n.3 (internal citations and 3 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard 4 to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of 5 the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing 5 Charles 6 Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain “only enough 7 facts to state a claim to relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . 8 have not nudged their claims across the line from conceivable to plausible, their 9 complaint must be dismissed.” Id. However, “[a] well-pleaded complaint may proceed 10 even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a 11 recovery is very remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 12 232, 236 (1974)). 13 C. Leave to Amend 14 A court granting a motion to dismiss a complaint must then decide whether to 15 grant leave to amend. Leave to amend should be “freely given” where there is no 16 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 17 to the opposing party by virtue of allowance of the amendment, [or] futility of the 18 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 19 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 20 be considered when deciding whether to grant leave to amend). Not all of these factors 21 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 22 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 23 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 24 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 25 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 26 1013 (9th Cir. 2005)); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 27 1989) (“Leave need not be granted where the amendment of the complaint . . . 28 constitutes an exercise in futility . . . .”)). 1 ANALYSIS 2 3 In this case, Plaintiff has failed to plead sufficient facts to “demonstrate an intent 4 | to return to [DJefendant’s hotel or that he was deterred from visiting [D]efendant’s hotel.” 5 | Strojnik v. Pasadena Robles Acquisition, LLC, 801 Fed. Appx. 569, 570 (9th Cir. 2020). 6 | Accordingly, he failed to establish standing to pursue his ADA claim. Nor has he 7 | sufficiently alleged facts showing that the website lacked accessibility information. See, 8 | e.g., Barnes v. Marriott Hotel Servs., Inc., No. 15-cv-01409-HRL, 2017 WL 635474, g | at *10 (N.D. Cal. Feb. 16, 2017). Given this, Plaintiff's ADA claim is DISMISSED with 10 | leave to amend, and the Court declines to exercise supplemental jurisdiction over 41 | Plaintiff's state law claim, which is thus dismissed as well. 12 13 CONCLUSION 14 15 Defendant's Motion to Dismiss (ECF No. 6) is GRANTED with leave to amend. 16 | Not later than twenty (20) days following the date this Memorandum and Order is 47 | electronically filed, Plaintiff may, but is not required to file an amended complaint. If no 48 || amended complaint is timely filed, the causes of action dismissed by virtue of this Order, 49 | will be deemed dismissed with prejudice upon no further notice to the parties. 20 IT |S SO ORDERED. 21 | Dated: September 27, 2021 22 jj KK, Mtg» _{ ZL SNC. 23 Marlee 24 25 26 27 28