1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SCOTT JOHNSON, Case No. 21-cv-03904-SVK

8 Plaintiff, ORDER ON MOTION TO DISMISS 9 v. Re: Dkt. No. 11 10 HUB'S COFFEE LLC, 11 Defendant.

12 Plaintiff Scott Johnson brings this lawsuit under the Americans with Disabilities Act 13 (“ADA”) and the California Unruh Civil Rights Act, alleging that he encountered barriers during 14 visits to Hub’s Coffee in San Jose, California in March 2021 and April 2021. Dkt. 1 (Complaint) 15 ¶¶ 3, 8. The barriers identified by Plaintiff include the sales counters and dining surfaces at the 16 restaurant. Id. ¶¶ 10-19. Plaintiff alleges that Hub’s Coffee is owned by Defendant Hub’s Coffee, 17 LLC. Id. ¶¶ 2-3. The Parties have consented to the jurisdiction of a magistrate judge. Dkt. 7, 13. 18 Now before the Court is Defendant’s motion to dismiss the Complaint for lack of subject matter 19 jurisdiction. Dkt. 11. Pursuant to Civil Local Rule 7-1(b), the Court deems this matter suitable 20 without oral argument. For the reasons that follow, the motion to dismiss is GRANTED. 21 I. LEGAL STANDARD 22 Rule 12(b)(1) allows the Court to dismiss a complaint for lack of subject matter 23 jurisdiction. Chandler v. State Farm Mut. Auto. Ins. Co.,

(9th Cir. 2010). 24 Rule 12(b)(1) motions can challenge subject matter jurisdiction in two different ways: (1) a facial 25 attack based solely on the allegations of the complaint, or (2) a factual attack based on extrinsic 26 evidence apart from the pleadings. See Safe Air for Everyone v. Meyer,

(9th 27 Cir. 2004). If a defendant initiates a factual attack by submitting a declaration with extrinsic 1 the plaintiff’s allegations.”

In addition, once the defendant makes a factual challenge by 2 presenting extrinsic evidence to dispute the allegations in the complaint, “the party opposing the 3 motion must present affidavits or any other evidence necessary to satisfy its burden that the court, 4 in fact, possesses subject matter jurisdiction.” Johnson v. Techbusiness Resources, LLC, No. 20- 5 cv-06048-BLF,

, at *1 (N.D. Cal. Nov. 28, 2020) (internal quotation marks and 6 citations omitted). 7 II. DISCUSSION 8 A. ADA Claim 9 Defendant’s motion to dismiss, which is supported by the declaration of Alfredo Fernando, 10 the managing member of Defendant, states that the business at issue in this case, Hub’s Coffee, 11 closed permanently in July 2021 due to “the serious downturn in its business.” Dkt. 11-1 at 1; 12 Dkt. 11-2 ¶ 3. Mr. Fernando further states that “Defendant’s sole business was the operation of 13 the coffee shop and Defendant is therefore defunct.” Dkt. 11-2 ¶ 3. Defendant argues that in light 14 of the closure of the coffee shop, Plaintiff’s claim under the ADA is moot and he therefore lacks 15 standing to maintain that claim. Dkt. 11-1 at 1. Plaintiff does not dispute that Hub’s Coffee at the 16 location at issue is permanently closed. Dkt. 18 at 1 (stating that “[i]t appears that the location has 17 permanently closed”). Plaintiff states that although “[i]t is unknown whether the business will be 18 opening another location … Plaintiff will not be seeking injunctive relief for this location under 19 the ADA.”

20 “A claim may become moot if (1) subsequent events have made it absolutely clear that the 21 allegedly wrongful behavior cannot reasonably be expected to recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Johnson v. 22 Torres Enterprises LP, No. 18-cv-02929-VKD,

, at *4 (N.D. Cal. Jan. 22, 2019) 23 (citing Norman-Bloodsaw v. Lawrence Berkeley Lab.,

, 1274 (9th Cir. 1998)). A 24 finding that a claim is moot is the proper basis for granting a motion to dismiss for lack of subject 25 matter jurisdiction. See Torres Enterprises,

, at *4. 26 The Parties agree that Plaintiff’s ADA claim is moot, and the Court therefore GRANTS 27 1 B. Unruh Act Claim 2 Having dismissed the ADA claim, which is Plaintiff's sole federal law claim, the only 3 || remaining claim is Plaintiff's claim under California’s Unruh Act. As a state law claim, that claim 4 || is before the Court pursuant to the Court’s supplemental jurisdiction. Torres Enterprises, 2019

, at *4; see also

(a). Plaintiff argues that he can maintain his Unruh 6 || Act claim despite the permanent closure of Hub’s Coffee, and requests that the Court continue to 7 exercise supplemental jurisdiction over that claim. Dkt. 18 at 1-2. 8 “Courts in this district have declined to exercise supplemental jurisdiction over Unruh Act 9 claims after dismissing the parallel ADA claim.” Techbusiness,

, at *3 10 (citations omitted). This Court similarly declines to exercise supplemental jurisdiction over the 11 Unruh Act claim in this case because “it would not further the interest of judicial economy, 12 convenience, fairness and comity.” Jd. (citation omitted); see also

(c)(3) (stating 5 13 || that district court may decline to exercise supplemental jurisdiction over a claim if the court “has S 14 || dismissed all claims over which it has original jurisdiction”). Accordingly, the motion to dismiss 3 15 || the Unruh Act claim is GRANTED. a 16 || I. CONCLUSION

17 For the foregoing reasons, Defendant’s motion to dismiss is GRANTED. The Clerk of 18 || Court shall close the file. 19 SO ORDERED. 20 Dated: October 12, 2021 21 22 Sem SUSAN VAN KEULEN 23 United States Magistrate Judge 24 25 26 27 28