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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

BYRON CHAPMAN, an individual;

and DISABILITY RIGHTS

ENFORCEMENT, EDUCATION

SERVICES: HELPING YOU HELP

OTHERS, a California public

benefit corporation,

NO. CIV. S-04-1668 WBS GGH

Plaintiffs,

v.

ORDER RE: MOTION TO DISMISS 

FOR LACK OF SUBJECT-MATTER 

JURISDICTION

DAVIS ORTHOPEDIC BUILDING

PARTNERS; and JAMES

CUNNINGHAM, as trustee of the

CUNNINGHAM TRUST,

Defendants.

----oo0oo----

Defendant James Cunningham, as Successor Trustee of the

Cunningham Family Trust, individually moves to dismiss the First

Amendment Complaint as against him for lack of subject matter

jurisdiction. 

I. Factual and Procedural Background

Plaintiffs Byron Chapman and Disability Rights

Enforcement seek injunctive relief against defendants Davis

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Orthopedic Building Partners (DOBP) and the Cunningham Family

Trust for violations of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101-12300. Plaintiffs also seek monetary

damages under state law. (First Am. Compl., Causes of Action 2-

5.) The court has federal question jurisdiction over the alleged

ADA violations and supplemental jurisdiction over the state

causes of action.

At the time plaintiffs brought suit, each defendant

owned a parcel of real estate within the Covell Professional

Center Complex. (Pls.’ Mem. P. & A. in Opp’n to Def.’s Mot.

Dismiss 2.) Plaintiffs allege that they were unable to access

the medical group known as Davis Orthopedic and Sports Medicine. 

(Def.’s Opp’n to Mot. Dismiss 2.) Defendant Cunningham owned a

portion of property that was located in a different building than

the one that plaintiff Byron Chapman attempted to access. (James

Cunningham Decl. ¶ 4.) However, plaintiffs included Cunningham

in the complaint because they did “not know the true names of

defendants . . ., nor their relative responsibilities in causing

the access violations [] complained of . . . .” (Compl. ¶ 10.) 

They consequently “allege a joint venture and common enterprise”

between defendant DOBP and defendant Cunningham. Id. 

Defendant Cunningham has since sold his interest and is

no longer the owner of property that is the subject of the

lawsuit. (Id.) Accordingly, plaintiffs concede that their

request for injunctive relief under the ADA with respect to

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Co-defendant Davis Orthopedic Building Partners does 1

not appear to concede that the request for injunctive relief is

moot as to defendant Cunningham. (Defs.’ Opp’n to Def.

Cunningham’s Mot. to Dismiss 3.) However, as defendant

Cunningham notes, when violations under Title III of the ADA are

alleged against a defendant who then transfers the property that

is the subject of the litigation, the claim is moot because no

injunctive relief can be granted as to that defendant. (Def.’s

Mem. P & A Mot. to Dismiss 3 (citing Wander v. Kaus, 204 F.3d

856, 858 (9th Cir. 2002); Pickern v. Best W. Timber Cove Lodge

Marina Resort, 194 F. Supp. 2d 1128, 1130 (E.D. Cal. 2002)).)

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defendant Cunningham is moot. (Id.) However, plaintiffs request 1

that the court exercise supplemental jurisdiction over their

state law claims for monetary damages against defendant

Cunningham, and co-defendant DOBP has also filed an opposition to

this motion.

II. Discussion

Under 28 U.S.C. § 1367(c), district courts may decline

to exercise supplemental jurisdiction over claims otherwise

allowed if:

(1) the claim raises a novel or complex issue 

of State law,

(2)the claim substantially predominates over 

the claim or claims over which the district 

court has original jurisdiction, 

(3) the district court has dismissed all 

claims over which it has original jurisdiction, 

or 

(4) in exceptional circumstances, there are 

other compelling reasons for declining 

jurisdiction.

At this stage of the proceedings, the court cannot determine that

any of the above conditions allowing for a declination to

exercise supplemental jurisdiction existence here. Therefore, on

the record presently before the court there is no basis to grant

defendant Cunningham’s motion to dismiss those claims for lack of

subject matter jurisdiction. 

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III. Conclusion

Because defendant Cunningham no longer owns the

property that is the subject of this case, the issue of

injunctive relief under the ADA as to defendant Cunningham is

moot. However, defendant Cunningham has not demonstrated

sufficient grounds to dismiss the state law claims against him

over which the court retains supplemental jurisdiction. 

IT IS THEREFORE ORDERED that defendant Cunningham’s

motion to dismiss the federal claims against him be, and the same

hereby is, GRANTED.

IT IS FURTHER ORDERED that defendant Cunningham’s

motion to dismiss the state law claims against him be, and the

same hereby is, DENIED.

DATED: December 14, 2005

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