Johnson v. Noelani's LLC ( 2022 )

1 2 UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 OAKLAND DIVISION 5 6 SCOTT JOHNSON, Case No: 21-cv-04352 SBA 7 Plaintiff, ORDER STRIKING MOTION TO DISMISS WITHOUT PREJUDICE 8 vs. 9 NOELANI’S LLC, 10 Defendant. 11 Plaintiff Scott Johnson (“Plaintiff”) brings the instant disability access action against 12 Defendant Noelani’s LLC (“Defendant”). Pending is a Motion to Dismiss filed on behalf 13 of Defendant by Peter Tarantino (“Tarantino”), who is proceeding pro se. The matter is 14 suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. 15 L.R. 7-1(b). For the reasons set forth below, the motion is denied. 16 I. BACKGROUND 17 Plaintiff is a level C-5 quadriplegic who uses a wheelchair for mobility. Compl. ¶ 1, 18 Dkt. 1. Defendant, a California limited liability company (“LLC”), owns Noelani’s Island 19 Grill (the “Restaurant”), located at 1037 Laurel Street in San Carlos, California. Id. ¶¶ 2-3. 20 Plaintiff visited the Restaurant in March 2021 and May 2021. Id. ¶ 8. According to 21 Plaintiff, the Restaurant is not ADA compliant because it fails to provide wheelchair 22 accessible outside dining surfaces. Id. ¶ 10. Specifically, Plaintiff encountered a lack of 23 sufficient knee or toe clearance under outside dining surfaces for wheelchair users. Id. 24 ¶ 12. Other outside dining surfaces were too low. Id. 25 In his Complaint, Plaintiff brings causes of action for: (1) violation of the Americans 26 with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq.; and (2) violation of 27 California’s Unruh Civil Rights Act, Cal. Civ. Code §§ 51-53. Defendant moves to dismiss the Complaint. Dkt. 10. The motion is filed and signed by Tarantino, whose relationship to 2|| Defendant is unspecified. No counsel has appeared on behalf of Defendant. II. DISCUSSION 4 Tarantino, an individual proceeding pro se, purports to represent Defendant. 5|| However, Defendant is a California limited liability company. A business entity such as 6|| Defendant cannot be represented by an individual proceeding pro se; it must appear through 7|| licensed counsel. D-Beam Ltd. P’ship v. Roller Derby Skates, Inc., 366 F.3d 972, 973-74 81] (9th Cir. 2004) (“It is a longstanding rule that ‘[c]orporations and other unincorporated || associations must appear in court through an attorney.’”) (citation and footnote omitted); see also Civ. L.R. 3-9(b) (“A corporation, unincorporated association, partnership or other 11]| such entity may appear only through a member of the bar of this Court.”). Because the 12|| motion to dismiss is signed only by Tarantino, it is not properly before the Court. See Fed. R. Civ. P. 11(a) (providing that every written motion must be signed by at least one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented—and unsigned papers must be stricken). The motion to dismiss is therefore 16]| stricken without prejudice to refiling by retained counsel. 17|| 11. CONCLUSION 18 Accordingly, IT IS HEREBY ORDERED THAT Defendant’s motion to dismiss is STRICKEN without prejudice to refiling by retained counsel. The action shall be stayed 20|| for thirty (30) days to allow Defendant the opportunity to retain counsel. 21 IT ISSO ORDERED. 22|| Dated: September 13, 2022 3 hamating 33 Richard Seeborg for Saundra rmstrong United States District Judge 24 25 26 27 28