NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BELEN ACEVEDO, No. 20-56318
Plaintiff-Appellant, D.C. No. 8:20-cv-01153-DOC-JDE
v.
MEMORANDUM*
C & S PLAZA LIMITED LIABILITY
COMPANY, a California Limited Liability
Company; FABRIC OUTLET AND
CRAFTS, INC., a California Corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted October 20, 2021**
Pasadena, California
Before: CALLAHAN and FORREST, Circuit Judges, and AMON,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
Belen Acevedo appeals the district court’s order dismissing her Americans
with Disabilities Act (“ADA”) action against C & S Plaza Limited Liability
Company and Fabric Outlet and Crafts, Inc. (collectively, “C & S Plaza”) under
Rule 12(b)(1) for lack of subject matter jurisdiction. We review the district court’s
decision de novo. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1040 n.4 (9th
Cir. 2004). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and
remand.
The district court erred in dismissing Acevedo’s First Amended Complaint
(“FAC”) asserting an ADA claim on jurisdictional grounds based on its assessment
of extrinsic evidence going to the merits of the claim. To contest a plaintiff’s
showing of subject matter jurisdiction, a defendant may file two types of Rule
12(b)(1) motions: a facial attack, which challenges jurisdiction “facially,” by
arguing the complaint “on its face” lacks jurisdiction, or a “factual” attack, by
presenting extrinsic evidence (affidavits, etc.) demonstrating the lack of
jurisdiction on the facts of the case. Wolfe v. Strankman, 392 F.3d 358, 362 (9th
Cir. 2004). Here, as the parties agree, C & S Plaza mounted a “factual” attack on
jurisdiction.
Because jurisdictional fact-finding by the court “deprives litigants of the
protections otherwise afforded by Rule 56,” there are limits imposed upon the
power of the court in reviewing a factual attack under Rule 12(b)(1). Sun Valley
2
Gasoline, Inc. v. Ernst Enter., Inc., 711 F.2d 138, 139 (9th Cir. 1983). Where a
jurisdictional issue is separable from the merits of a case, a court applies Rule
12(b)(1)’s standards and is not restricted to the face of the pleadings, but may
review any evidence, such as affidavits and testimony, and make findings of fact
concerning the existence of jurisdiction. Rosales v. United States, 824 F.2d 799,
803 (9th Cir. 1987). Under this approach, the plaintiff retains the burden to
establish the court’s subject matter jurisdiction. Colwell v. Dep't of Health &
Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009).
However, a court may not decide genuinely disputed facts where “the
question of jurisdiction is dependent on the resolution of factual issues going to the
merits.” Safe Air, 373 F.3d at 1039 (internal quotations and citations omitted);
Rosales, 824 F.2d at 803. In such a situation, the court assumes the truth of the
allegations in a complaint unless controverted by undisputed facts in the record.
Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). The court may grant
the motion to dismiss only if, viewing the evidence in the light most favorable to
the non-movant, the material jurisdictional facts are not in dispute and the moving
party is entitled to prevail as a matter of law. Rosales, 824 F.2d at 803; Suzuki
Motor Corp. v. Consumers Union of United States, Inc., 330 F.3d 1110, 1131–32
(9th Cir. 2003) (en banc). Otherwise, the intertwined jurisdictional facts must be
resolved at trial or by summary judgment. Rosales, 824 F.2d at 803.
3
“The question of jurisdiction and the merits of an action are intertwined
where ‘a statute provides the basis for both the subject matter jurisdiction of the
federal court and the plaintiff's substantive claim for relief.’” Safe Air, 373 F.3d at
1039 (quoting Sun Valley, 711 F.2d at 139). Contrary to C & S Plaza’s assertions,
we conclude that jurisdictional findings are inappropriate here because Title III of
the ADA provides both federal subject matter jurisdiction and the basis for a claim
for relief. See 42 U.S.C. § 12182(a). Acevedo’s FAC alleges that C & S Plaza
failed to provide accessible paths of travel in conformance with the ADA such that
it denied Acevedo full and equal treatment because of her disability. Jurisdiction is
dependent on the resolution of factual issues going to the merits.
Even construing the district court’s order not as a Rule 12(b)(1) dismissal for
lack of subject matter jurisdiction, but as a Rule 56 dismissal on summary
judgment, and reviewing the ruling de novo to determine whether a genuine
dispute of material fact exists, Safe Air, 373 F.3d at 1040 & n.4, we conclude that
there exists a genuine dispute of material fact. The FAC alleges that: (a) Acevedo
“found that she could not gain access to the numerous areas of the store because
the path of travel in an [sic] throughout merchandise aisles was so cramped,
narrow and stocked with items…”; (b) on June 4, 2020, her investigator visited the
store and “found 14 different locations where the path of travel through the
merchandise aisles measured less than 23 inches…”; and (c) the ADA requires
4
“36-inches of minimum clear width” (in some instances 32 inches for short
distances) such that accessible paths of travel have not been provided in
conformance with the ADA. The FAC attaches investigator photos of the
observed aisle widths.
The extrinsic evidence offered by C & S Plaza disputes the facts as alleged
in the FAC. Mr. Zukotynski declared that since 1998 his store has had “ADA-
compliant widths of 36-inch and 44-inch aisle travel paths.” His declaration
authenticates photographs which he contends depict the store’s aisles as they have
existed since 1998. The report from a July 25, 2020, inspection concludes that
“[a]ll aisles were found to be compliant at 44” minimum where products are
displayed at both sides and 36” minimum where products are displayed at one
side.”
However, C & S Plaza’s proffer does not show compliance with ADA
standards as a matter of law.1 A reasonable fact finder could conclude,
notwithstanding C & S Plaza’s declaration, photos, and inspector’s opinion, that
the aisle widths at the store do in fact violate the ADA, or that the alleged
violations, if currently remedied, are likely to recur in the future. See Kalani v.
Starbucks Corp., 81 F. Supp. 3d 876, 882–83 (N.D. Cal. 2015), aff’d sub nom.
1
Given this, we need not address C & S Plaza’s argument in the alternative
that any alleged store aisle obstruction was of an isolated and temporary nature
under 28 C.F.R. § 36.211.
5
Kalani v. Starbucks Coffee Co., 698 F. App’x 883 (9th Cir. 2017) (“Conclusory
opinions that the ‘facility is free of non-compliant issues,’ or that particular
features, e.g., the accessible parking or point of sale, ‘comply with all applicable
access requirements,’” are “an insufficient basis on which to grant summary
judgment.”). Accordingly, we find a genuine dispute of material fact exists such
that the district court erred in weighing the evidence to resolve this dispute on a
Rule 12(b)(1) motion.2
VACATED AND REMANDED.3
2
C & S Plaza is not precluded from filing a summary judgment motion on
these issues under Rule 56 following further discovery. See Hoffman v.
Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010) (holding that a district court has
discretion to permit successive motions for summary judgment under Rule 56, and
that such a successive motion is particularly appropriate on an expanded factual
record).
3
The district court’s rejection of supplemental jurisdiction over Acevedo’s
state law claims is also vacated as derivative of its ruling on Acevedo’s ADA
claim.
6
Belen Acevedo v. C & S Plaza LLC
Combined Opinion