1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WADE WARNER, Case No. 21-cv-05666-HSG

8 Plaintiff, ORDER DISMISSING CASE 9 v.

10 DENNIS JAY DELANO, 11 Defendant.

12 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 15 Plaintiff filed an amended complaint, Dkt. No. 23 (“FAC”). Plaintiff alleges that Defendant 16 violated the Americans with Disabilities Act (“ADA”) and the California Unruh Civil Rights Act 17 by denying him the ability to shop at the Fairfax Market without a mask in April 2021 based on 18 concerns about COVID-19. See FAC at ¶¶ 2–3, 10–11, 14–27. Defendant has again moved to 19 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 arose 21 regarding whether the Court still has subject matter jurisdiction over Plaintiff’s ADA claim if the 22 mask mandate at the store has been lifted.1 The Court issued an order to show cause why (1) the 23 Court retains subject matter jurisdiction over the ADA claim; and (2) if it does not, why the Court 24 should nevertheless exercise supplemental jurisdiction over the remaining Unruh Act claim. See 25 Dkt. No. 52. 26 1 “Subject matter jurisdiction can never be forfeited or waived and federal courts have a 27 continuing independent obligation to determine whether subject-matter jurisdiction exists . . . .” 1 Article III of the U.S. Constitution limits the jurisdiction of federal courts to live “cases” or 2 “controversies.” U.S. Const. art. III, § 2. “A case becomes moot—and therefore no longer a 3 ‘Case’ or ‘Controversy’ for purposes of Article III—when the issues presented are no longer ‘live’ 4 or the parties lack a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 568

, 91 (2013) (quotation omitted). “Because a private plaintiff can sue only for injunctive 6 relief (i.e., for removal of the barrier) under the ADA, a defendant’s voluntary removal of alleged 7 barriers prior to trial can have the effect of mooting a plaintiff’s ADA claim.” Oliver v. Ralphs 8 Grocery Co.,

(9th Cir. 2011). As relevant here, several cases have concluded 9 that claims based on COVID-19 safety policies are moot and federal courts lack subject matter 10 jurisdiction following the lifting of such restrictions. See, e.g., Pletcher v. Giant Eagle Inc., No. 11 CV 2:20-754,

, at *4–8 (W.D. Pa. Dec. 7, 2022) (collecting cases); cf. Brach v. 12 Newsom,

, 11–15 (9th Cir. 2022) (finding moot plaintiff’s request for injunction and 13 declaratory judgment regarding California school reopening plan during COVID-19 pandemic 14 because state had lifted all restrictions on school reopening). Since this case was filed, California 15 has ended its mask mandate and the COVID-19 state of emergency that Defendant relied on when 16 enforcing a mask mandate in his store. See Dkt. No. 46 at 3. 17 In response to the order to show cause, Defendant further confirmed that he has ended the 18 mask mandate at Fairfax Market. Defendant communicated with management at the Fairfax 19 Market on February 15, 2022, “informing them that Fairfax Market would be lifting its face 20 covering requirements on February 16th,” and to remove the signs previously on the front doors 21 requiring masks. See Dkt. No. 54 at 2. In Plaintiff’s response to the order to show cause, he does 22 not appear to dispute that if the mask mandate has been lifted, the Court lacks subject matter 23 jurisdiction over the ADA claim. See Dkt. No. 53 at 2, & n.1. The Court accordingly finds that 24 Plaintiff’s ADA claim is now moot and the Court lacks subject matter jurisdiction over that claim. 25 Plaintiff nevertheless urges that the Court should retain supplemental jurisdiction over the 26 remaining Unruh Act claim. See Dkt. No. 53 at 1–2. Under

(a), the district 27 courts have “supplemental jurisdiction over all other claims that are so related to claims in the 1 Article III.” A district court may decline to exercise supplemental jurisdiction if it has dismissed 2 || all claims over which it has original jurisdiction. “[I]n the usual case in which all federal-law 3 claims are eliminated before trial, the balance of factors to be considered under the pendent 4 jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward 5 || declining to exercise jurisdiction over the remaining state-law claims.” Sanford v. MemberWorks, 6 Inc.,

(9th Cir. 2010). The Court finds that this is the “usual case,” and thus in 7 its discretion declines to exercise supplemental jurisdiction over the remaining state law claim. 8 The Court therefore DISMISSES the ADA claim for lack of subject matter jurisdiction 9 || and DISMISSES the Unruh Act claim without prejudice to Plaintiff pursuing that claim in state 10 || court. The Clerk is directed to close the case. 11 IT IS SO ORDERED. 12 Dated: 6/21/2023

4 HAYWOOD S. GILLIAM, JR. United States District Judge

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