Johnson v. Simper Investments, Inc. ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SCOTT JOHNSON, Case No. 20-cv-01061-HSG 8 Plaintiff, ORDER DENYING MOTION TO DISMISS SECOND AMENDED 9 v. COMPLAINT 10 SIMPER INVESTMENTS, INC., Re: Dkt. No. 29 11 Defendant. 12 13 Pending before the Court is Defendant’s motion to dismiss Plaintiff’s second amended 14 complaint (“SAC”).1 Dkt. No. 29 (“Mot.”). The Court previously granted Defendant’s motion to 15 dismiss Plaintiff’s first amended complaint because Plaintiff failed to identify the names and 16 addresses of the businesses at the Main St. Auto Center he allegedly tried to visit to test 17 compliance with Americans with Disabilities Act (“ADA”) requirements. Dkt. No. 26 at 2-3. 18 Plaintiff now identifies those businesses as including AAMCO Transmission and Precision Tune 19 Auto Care. Dkt. No. 27 SAC ¶¶ 9-16. The Court finds that the businesses are sufficiently 20 identified to allow Defendant to respond to Plaintiff’s allegations and rejects Defendant’s 21 arguments to the contrary. Mot. at 14-15; Dkt. No. 35 (“Reply”) at 4-6. 22 Defendant also argues that the SAC should be dismissed because Plaintiff failed to join as 23 24 1 Plaintiff’s deadline to file the SAC was February 16, 2021. See Dkt. No. 26 at 3. Plaintiff filed the SAC on February 19, 2021 with a notice that explained that the delay was due to the loss of 25 power in Plaintiff’s counsel’s Texas office during an unusually severe period of cold weather. Dkt. No. 28. Defendant objects to the late filing, but it does not identify any prejudice from the 26 three-day delay. Dkt. No. 35 at 2. Defendant was able to file a timely motion to dismiss the SAC. Although Plaintiff failed to meet the deadline and failed to properly request leave for the late 27 filing, the Court will consider the SAC given the extraordinary weather in Texas and the relatively 1 indispensable parties the businesses he identified and because the building is in full compliance 2 with the ADA. Mot. at 13-16. In the alternative, Defendant asks the Court to treat the motion to 3 dismiss as a motion for summary judgment. Mot. at 18-19. 4 The Court disagrees that Defendant’s tenants are indispensable parties under Federal Rule 5 of Civil Procedure (“FRCP”) 19. As Plaintiff notes, the Ninth Circuit has held that “a landlord has 6 an independent obligation to comply with the ADA that may not be eliminated by contract.” 7 Botosan v. Paul McNally Realty, 216 F.3d 827, 833 (9th Cir. 2000). Defendant provides no case 8 law to support its interpretation of FRCP 19 in ADA compliance cases. Given the landlord’s 9 “independent obligation,” and the absence of any cited authority to the contrary, the Court finds 10 that Plaintiff’s case may proceed without joining AAMCO Transmission and Precision Tune Auto 11 Care. 12 Finally, the Court denies Defendant’s request to reach the merits of Plaintiff’s ADA 13 compliance claims at the motion to dismiss stage. Mot. 15-16, 18-19. At the motion to dismiss 14 stage, the Court must “accept factual allegations in the complaint as true and construe the 15 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & 16 Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Accordingly, it is inappropriate for the 17 Court to resolve adequately pled factual disputes at this stage. Defendant is, of course, free to 18 bring a properly noticed motion for summary judgment.2 19 The motion to dismiss is DENIED. A telephonic case management conference is SET for 20 July 20, 2021 at 2:00 p.m. A joint case management statement is due by July 13, 2021. 21 This proceeding will be held by AT&T Conference Line. The court circulates the 22 following conference number to allow the equivalent of a public hearing by telephone. 23 For conference line information, see: https://apps.cand.uscourts.gov/telhrg/ 24 2 Defendant also argues that Plaintiff’s case should be dismissed for lack of subject matter 25 jurisdiction, relying on Johnson v. DTBA, LLC, 424 F. Supp. 3d 657 (N.D. Cal. 2019). Reply at 6- 7. The Court declines to consider this argument because Defendant raised it for the first time in its 26 Reply. 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.”). The Court does note, though it need 27 not here decide, that the Johnson court’s analysis of the standing requirement may well have 1 All counsel, members of the public and press please use the following dial-in information 2 || below to access the conference line: 3 Dial In: 888-808-6929 4 Access Code: 6064255 5 The Court may be in session with proceedings in progress when you connect to the 6 || conference line. Therefore, mute your phone if possible and wait for the Court to address you 7 before speaking on the line. For call clarity, parties shall NOT use speaker phone or earpieces for 8 these calls, and where at all possible, parties shall use landlines. The parties are further advised to 9 || ensure that the Court can hear and understand them clearly before speaking at length. 10 PLEASE NOTE: Persons granted access to court proceedings held by telephone or 11 videoconference are reminded that photographing, recording, and rebroadcasting of court 12 || proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited. 13 See General Order 58 at Paragraph III. IT IS SO ORDERED. 3 15 || Dated: 6/9/2021 16 /Mapurerd 3 Sh bp. 5 HAYWOOD S, GILLIAM, JR. nited States District Judge 18 19 20 21 22 23 24 25 26 27 28