Whitaker v. Sivongsa

Background

Brian Whitaker brought an Americans with Disabilities Act claim against Bounsom Sivongsa. The opinion indicates that the claim concerned outdoor dining at Sivongsa’s San Francisco-based coffee shop. Sivongsa stated that he had “no intention” of offering outdoor dining again, including if future state or local health orders restricted indoor dining. He argued that this statement made Whitaker’s claim moot, meaning there was no longer a live dispute for the court to decide.

Court’s reasoning

The court explained that a defendant’s voluntary decision to stop the challenged conduct does not make a case moot unless later events make it “absolutely clear” that the conduct could not reasonably be expected to happen again. That showing was not made here. The coffee shop had not undergone permanent structural changes, and the challenged outdoor-dining practice could be resumed by moving tables and chairs outside. The court also concluded that Sivongsa’s current statement of intent did not make it absolutely clear that his position would not change.

The opinion notes that the defendant’s motion was filed after he had answered the complaint. The court therefore construed the Rule 12(b)(1) motion—which challenges subject-matter jurisdiction—as a Rule 12(h)(3) suggestion that the court lacked subject-matter jurisdiction. The motion was based only on mootness.

Disposition

The court denied the defendant’s renewed motion to dismiss. It stated that a separate order would set a schedule for further proceedings. Judge Alex G. Tse signed the order.