United States District Court, D. Oregon
Shannon D. Sims Attorney for Plaintiff
C. Peters David C. Campbell Lewis Brisbois Bisgaard &
Smith LLP Minh N. Vu Seyfarth Shaw LLP Attorneys for
Defendant HomeGoods, Inc.
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
Linda Planque brings this action against HomeGoods, Inc.,
alleging violations of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12181, 12182, and
a state law negligence claim. Before the Court is
Defendant's Motion to Dismiss. ECF 10. Because Plaintiff
has not satisfied Article III's standing requirements and
failed to state a claim, Defendant's Motion to Dismiss is
granted and this case is dismissed. The Court also grants
Plaintiff leave to amend.
is disabled and uses a powered wheelchair. Compl.
¶¶ 4, 12, ECF 1. On September 17, 2014, she went
shopping at Defendant's store. Id. at ¶ 11.
She alleges that the checkout counter was too high for her to
reach from her wheelchair. Id. at ¶ 12.
Plaintiff gave her card to Defendant's employee to pay
for her purchase. Id. at ¶ 13. Defendant's
employee asked Plaintiff multiple times if she would like to
open a store credit card and Plaintiff refused each time.
Id. at ¶¶ 14-16. Defendant's employee
was holding Plaintiff's card while asking if Plaintiff
was interested in a store credit card. Id. When
Plaintiff reached for the card reader, her “wheelchair
control was bumped sending her and the wheelchair into the
counter.” Id. at ¶ 17. Plaintiff alleges
that as a result of the accident, she has suffered and
continues to suffer severe injuries and her wheelchair was
badly damaged. Id. at ¶¶ 18-19.
further alleges that her injuries were a direct result of
Defendant's store being inaccessible to persons using
wheelchairs and its failure to train its employees to
properly handle customers with disabilities. Id. at
¶¶ 20-22. She seeks injunctive relief under the
ADA, prohibiting Defendant from continuing discrimination
against persons with disabilities. Id. at
¶¶ 24-27. Additionally, she claims that Defendant
negligently failed to train its employees in handling
customer issues and created hazardous conditions for persons
using wheelchairs. Id. at ¶¶ 29-32.
to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a
party may move to dismiss for lack of subject-matter
A Rule 12(b)(1) jurisdictional attack may be facial or
factual. In a facial attack, the challenger asserts that the
allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction. By contrast, in a
factual attack, the challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004) (internal citation omitted).
Court must accept the factual allegations contained in the
Complaint as true when determining whether subject matter
jurisdiction exists. Wolfe v. Strankman, 392 F.3d
358, 362 (9th Cir. 2004). However, when resolving a factual
attack on jurisdiction, the court may review extrinsic
evidence without converting the motion to a motion for
summary judgment and the court “need not presume the
truthfulness of the plaintiff's allegations.”
Safe Air for Everyone, 373 F.3d at 1039. Once the
motion has been converted into a factual motion, the
plaintiff “must furnish affidavits or other evidence
necessary to satisfy its burden of establishing subject
matter jurisdiction.” Id. (citation omitted).
to Rule 12(b)(6), to survive a motion to dismiss, a complaint
“must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face[, ]” meaning “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted). Additionally,
“only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Id. at
679. A complaint must contain “well-pleaded
facts” which “permit the court to infer more than
the mere possibility of misconduct.” Id. at
679. In evaluating the sufficiency of a complaint's
factual allegations, the court must accept all material facts
alleged in the complaint as true and construe them in the
light most favorable to the non-moving party. Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012). “Factual allegations must be enough to raise a
right to relief above the speculative level on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact)[.]” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations and
footnote omitted). However, the court need not accept
unsupported conclusory allegations as ...