1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

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7 BRIAN WHITAKER, Case No. 21-cv-09398-PJH 8 Plaintiff,

9 v. ORDER OF DISMISSAL

10 AVOCADO TOAST INC, Re: Dkt. No. 44 11 Defendant. 12

13 14 Before the court is plaintiff’s “notice of indication of mootness of ADA claim for 15 injunctive relief.” In the notice, plaintiff accepts defense counsel’s representation to the 16 court that the barrier to plaintiff’s access has been fully remedied and removed. The 17 removal of the barrier leaves plaintiff’s claim for injunctive relief under the ADA moot, and 18 plaintiff thus “has no objection to dismissal of his ADA claim.” Dkt. 44 at 1. Further, 19 plaintiff states that, if the court dismisses the ADA claim, the sole federal claim giving this 20 court subject matter jurisdiction, he “has no objection to the Court declining to exercise 21 supplemental jurisdiction over his state law claim so that he can refile that action in state 22 court.” Dkt. 44 at 1-2. 23 This court’s subject matter jurisdiction is based on plaintiff’s claim for violation of 24 federal law, the Americans with Disabilities Act (“ADA”).

. Private 25 plaintiffs may only pursue injunctive relief under the ADA, and “a defendant's voluntary 26 removal of alleged barriers prior to trial can have the effect of mooting a plaintiff’s ADA 27 claim.” Oliver v. Ralphs Grocery Co.,

(9th Cir. 2011). “[C]ourts have 1 the absence of a challenge from any party.” Ruhrgas AG v. Marathon Oil Co.,

574, 583 (1999); see Fed. R. Civ. P. 12(h)(3) (requiring the court to dismiss the action if 3 subject matter jurisdiction is lacking). 4 Here, defendant has not yet filed a motion challenging subject matter jurisdiction, 5 though counsel represented at the case management conference that such a challenge 6 was anticipated. The court’s ongoing obligation to assess subject matter jurisdiction 7 permits the court to dismiss for lack of subject matter jurisdiction even in the absence of a 8 jurisdictional challenge. In light of plaintiff’s acceptance of the ADA claim’s mootness, 9 and in light of plaintiff’s statements that he has no objection to dismissal of the ADA claim 10 on that basis, the court DISMISSES plaintiff’s ADA claim. 11 The court’s subject matter jurisdiction over plaintiff’s second claim, a violation of 12 California’s Unruh Civil Rights Act, is based on supplemental jurisdiction over state law 13 claims arising from the same case or controversy as the ADA claim. 28 U.S.C. 14 § 1367(a). Title

(c)(4) authorizes a district court to “decline to exercise 15 supplemental jurisdiction over a claim . . . if . . . in exceptional circumstances, there are 16 other compelling reasons for declining jurisdiction.” When a “high-frequency” litigant 17 asserts a California Unruh Act claim in federal court with an ADA claim, it may constitute 18 an exceptional circumstance that justifies dismissal of the Unruh Act claim. Arroyo v. 19 Rosas,

(9th Cir. 2021). The Ninth Circuit generally disfavors the 20 exercise of supplemental jurisdiction. “The Supreme Court has stated, and we have 21 often repeated, that ‘in the usual case in which all federal-law claims are eliminated 22 before trial, the balance of factors . . . will point toward declining to exercise jurisdiction 23 over the remaining state law claims.’” Acri v. Varian Assocs.,

(9th 24 Cir. 1997) (quoting Carnegie-Mellon Univ. v. Cohill,

, 350 n. 7 (1988)). 25 Here, supplemental jurisdiction is not warranted. The court finds that fairness, 26 judicial economy, and comity all favor allowing plaintiff to pursue his Unruh Act claim in 27 state court. In light of these circumstances, plaintiff’s lack of objection to the court’s 1 suggest a reason why this court should retain jurisdiction over the remaining state law 2 cause of action, the court also DISMISSES the second claim. 3 IT IS SO ORDERED. 4 Dated: October 14, 2022 5 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 6 United States District Judge

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