Warner v. Delano

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA WADE WARNER, Case No. 21-cv-05666-HSG 8 Plaintiff, ORDER TO SHOW CAUSE 9 v. 10 DENNIS JAY DELANO, 11 Defendant.

13 Plaintiff Wade Warner filed this action against Defendant Dennis Delano on July 23, 2021.

14 See Dkt. No. 1. The Court previously granted Defendant’s motion to dismiss, Dkt. No. 22, and Plaintiff filed an amended complaint, Dkt. No. 23 (“FAC”). Plaintiff alleges that Defendant violated the Americans with Disabilities Act (“ADA”) and the California Unruh Civil Rights Act by denying him the ability to shop at the Fairfax Market without a mask in April 2021 based on concerns about COVID-19. See FAC at ¶¶ 2–3, 10–11, 14–27. Defendant has moved to dismiss the FAC in its entirety. See Dkt. No. 46.

20 In the process of reviewing Defendant’s motion to dismiss, a more fundamental issue has come to the Court’s attention regarding its subject matter jurisdiction.1 Article III of the U.S. Constitution limits the jurisdiction of federal courts to live “cases” or “controversies.” U.S. Const. art. III, § 2. “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quotation “Subject matter jurisdiction can never be forfeited or waived and federal courts have a continuing independent obligation to determine whether subject-matter jurisdiction exists . . . .”

1 omitted). “Because a private plaintiff can sue only for injunctive relief (i.e., for removal of the || barrier) under the ADA, a defendant’s voluntary removal of alleged barriers prior to trial can have || the effect of mooting a plaintiff's ADA claim.” Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011). As relevant here, several cases have concluded that claims based on COVID-19 safety policies are moot and federal courts lack subject matter jurisdiction following the lifting of such restrictions. See, e.g., Pletcher v. Giant Eagle Inc., No. CV 2:20-754, 2022 WL 17488019, at *4_8 (W.D. Pa. Dec. 7, 2022) (collecting cases); cf. Brach v. Newsom, 38 F.4th 6, 11-15 (9th Cir. || 2022) (finding moot plaintiffs request for injunction and declaratory judgment regarding California school reopening plan during COVID-19 pandemic because state had lifted all || restrictions on school reopening). Since this case was filed, California has ended its mask 11 mandate and the COVID-19 state of emergency that Defendant relied on when enforcing a mask || mandate in his store. See Dkt. No. 46 at 3.

5 13 The Court accordingly DIRECTS Plaintiff TO SHOW CAUSE why (1) the Court retains 14 subject matter jurisdiction over the ADA claim; and (2) if it does not, why the Court should 15 nevertheless exercise supplemental jurisdiction over the remaining Unruh Act claim. Plaintiff is || directed to file his response to this order to show cause by June 20, 2023. Defendant shall file a 17 || response by June 27, 2023, and should indicate whether the Fairfax Market still requires patrons to || wear a mask or when it lifted such protocols if they are no longer in place. The matter will be 19 deemed submitted once the briefing is complete unless the Court determines that a hearing is 20 necessary. The Court further VACATES the June 15, 2023 hearing on the motion to dismiss and 21 the initial case management conference. The Court will reset the hearing if necessary once this || jurisdictional question has been resolved.

23 IT IS SO ORDERED.

24 || Dated: 6/6/2023 6 HAYWOOD S. GILLIAM, JR. United States District Judge