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1 The letter was filed on April 27.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

TOM FISHER, )

) CIV. S-04-2290 GEB DAD

Plaintiff, )

 ) 

v. ) ORDER

)

EDWARD JAMES BURNS, dba STUDIO )

COCKTAIL LOUNGE, )

)

Defendant. )

)

On April 27, 2005, Plaintiff’s counsel sent a letter to

chambers in which he states in pertinent part, “I am pleased to report

that this disabled access case has settled as to injunctive relief,

subject to Court’s approval of the enclosed proposed Consent Decree

and Order.”1 The parties state in what they characterize as a consent 

decree that “[i]f any term of this Consent Decree and Order is

determined by any court to be unenforceable, the other terms . . .

shall nonetheless remain in full force and effect.” (Consent Decree

at 7.)

Careful reading of what the parties assert is a consent

decree leads ineluctably to the conclusion that the parties have not

proposed a genuine “consent decree.” The term “consent decree”

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2 The customary definition of “consent decree”

likens such decrees to judgments, see Black's Law

Dictionary 410 (6th ed. 1990) (defining "consent

decree" as "[a] judgment entered by consent of the

parties whereby the defendant agrees to stop

alleged illegal activity without admitting guilt

or wrongdoing"), and in ordinary usage a judgment

is "[a] final decision of the court resolving the

dispute and determining the rights and obligations

of the parties." "Relief," on the other hand,

typically is equated with "remedy," which is "the

means by which a right is enforced or the

violation of a right is prevented, redressed, or

compensated." Inasmuch as a remedy effectuates

the adjudication expressed in a judgment, one

ordinarily would assume that "relief," by

extension, effectuates the legal decision, arrived

at by consent, in a "consent decree." 

Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 654 (1st Cir.

1997) (case citations omitted).

2

“‘means consensual court-ordered relief.’”2 Benjamin v. Jacobson, 172

F.3d 144, 155 (2d Cir. 1999) (internal brackets omitted). Here, in

addition to injunctive relief issues, the parties have mentioned in

their proposed “consent decree” pending litigation of state claims. 

But the parties have not explained why they included ongoing and

unresolved litigation in the proposed consent decree. Since that

litigation does not have bearing on the parties’ settlement of

“injunctive relief issues,” the only question is whether the parties

have provided sufficient reason to have that settlement included in a

consent decree or another federal court order.

The parties have not shown the need for injunctive relief. 

The parties’ “injunctive relief” settlement “is just another contract

to be enforced in the usual way, that is, by a fresh suit” since

sufficient reason has not been provided justifying the exercise of

federal jurisdiction over it. Jessup v. Luther, 277 F.3d 926, 929

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(7th Cir. 2002). The exercise of federal jurisdiction over a

settlement agreement is not automatic; the Court must determine

whether its exercise of jurisdiction is “essential to the conduct of

federal-court business.” Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 381 (1994). Thus, the parties’ stipulation that the

federal court will exercise jurisdiction over their settlement

agreement “is not binding on the court.” Arata v. Nu Skin Int’l,

Inc., 96 F.3d 1265, 1269 (9th Cir. 1996). 

Nor have the parties shown that the “injunctive relief” to

which they have agreed obligates the federal court to exercise

jurisdiction over that agreement. “[A] federal judge . . . is not

mechanically obligated to grant an injunction for every violation of

law.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982) (citing

Tennessee Valley Auth. v. Hill, 437 U.S. 153, 193 (1978)). “The

requirements for the issuance of a[n] injunction are the likelihood of

substantial and immediate irreparable injury and the inadequacy of

remedies at law.” Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d

1486, 1495 (9th Cir. 1996) (citation and quotation marks omitted). 

The parties have not shown that Plaintiff lacks an adequate remedy at

law to enforce the settlement agreement. Since the parties represent

they have agreed to settlement terms and indicate that Defendant will

comply with them, reason has not been provided for issuance of an

injunction to enforce any aspect of the settlement. 

Further, part of the settlement concerns a women’s restroom. 

(Consent Decree Attachment A obligates Defendant “to provide at least

. . . one fully accessible women’s restroom . . . ”). Plaintiff is a

man who uses “a wheelchair or walker for locomotion” (First Amended

Complaint at 1-2), and he has not shown he has standing under the

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Americans with Disabilities Act (“ADA”) to have accessibility barriers

for women remedied. See Parr v. L&L Drive-Inn Rest., 96 F. Supp. 2d

1065, 1082 (D. Haw. 2000) (holding a plaintiff lacked “standing to sue

for barriers that [were] not related to Plaintiff's specific

disability . . .”). It has not been shown that the federal court

should exercise jurisdiction over a settlement agreement which

contains accessibility relief of a different kind than Plaintiff had

standing to assert in the settled litigation.

Since the ADA claims have settled, except for any

recoverable attorney’s fees and costs, decision is reached on whether

to continue exercising jurisdiction over Plaintiff’s remaining state

claims. Plaintiff has remaining state “claims for statutory, actual,

treble and personal injury damages [,and] attorney fees, litigation

expenses and costs . . . .” (Consent Decree at 4.) “The district

courts may decline to exercise supplemental jurisdiction over a claim 

. . . if . . . the district court has dismissed all claims over which

it has original jurisdiction. . . .” 28 U.S.C. § 1367(c). “Factors

. . . to consider in deciding whether to [exercise] supplemental

[jurisdiction over the] state claims include economy, convenience,

fairness, and comity.” Pickern v. Best Western Timber Cove Lodge

Marina Resort, 194 F. Supp. 2d 1128, 1133 (E.D. Cal. 2002) (citing

Imagineering, Inc. v. Kiewit Pac. Co., 976 F.2d 1303, 1309 (9th Cir.

1992)). "[I]n the usual case in which federal-law claims are

eliminated before trial, the balance of factors . . . will point

toward declining to exercise jurisdiction over the remaining state law

claims.” Reynolds v. County of San Diego, 84 F.3d 1162, 1171 (9th

Cir. 1996) (overruled on other grounds by Acri v. Varian Assocs.,

Inc., 114 F.3d 999, 1000 (9th Cir. 1997)). 

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Here, the record does not indicate that the unresolved state

claims should be litigated in federal court. Further, any state

contractual issue arising out of the parties’ settlement of the ADA

claims could also be litigated in state court, unless a basis exists

to later litigate said issue in federal court. Thus, the balance of

the factors favors dismissal of the state claims under 28 U.S.C.

§ 1367(c). Therefore, Plaintiff’s state claims are dismissed without

prejudice under 28 U.S.C. § 1367(c) as of the date on which this Order

is filed.

Any motion for attorney’s fees and costs concerning the ADA

claims shall be filed and served not later than thirty (30) days after

this Order is filed. Any opposition shall be filed not later than

forty-five (45) days after this Order is filed.

IT IS SO ORDERED.

Dated: May 19, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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