NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 3 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTOR DALFIO, No. 21-56339

Plaintiff-Appellant, D.C. No. 3:21-cv-01136-DMS-JLB v.

ORLANSKY-WAX, LLC, a California MEMORANDUM* limited liability company; LOS ALEJANDRO'S TACO SHOP, a business of unknown form,

Defendants-Appellees,

and

DOES, 1-10,

Defendant.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, Chief District Judge, Presiding

Submitted August 1, 2022** Pasadena, California

* 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). Before: SILER,*** CALLAHAN, and H. THOMAS, Circuit Judges.

Victor Dalfio (“Dalfio”) appeals from the district court’s order granting

Defendant Orlansky-Wax, LLC’s (“Defendant”) motion to dismiss under Federal

Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction on the

grounds that Dalfio’s Americans with Disabilities Act (“ADA”) claims are moot.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review a grant of a motion to dismiss under Rule 12(b)(1) de novo.

Banks v. Northern Trust Corporation, 929 F.3d 1046, 1049 (9th Cir. 2019).

Dalfio’s sole argument on appeal is that the district court erred by considering

extrinsic evidence at the Rule 12(b)(1) motion to dismiss phase, and our review is

necessarily framed by the parties’ arguments on appeal. See United States v.

Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (“In our adversarial system of

adjudication, we follow the principle of party presentation,” under which “‘we rely

on the parties to frame the issues for decision and assign to courts the role of

neutral arbiter of matters the parties present.’” (citation omitted)); see Independent

Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“Our

circuit has repeatedly admonished that we cannot ‘manufacture arguments for an

*** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 appellant’ and therefore we will not consider any claims that were not actually

argued in appellant’s opening brief.” (citation omitted)).

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 that the allegations contained in the complaint

are insufficient on their face to invoke federal jurisdiction, or a “factual” attack,

which presents extrinsic evidence (affidavits, etc.) disputing the truth of the

allegations of the complaint that would otherwise invoke federal jurisdiction. See

Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); see also Safe Air for

Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). As the parties agree,

Defendant’s motion mounted a “factual” attack on jurisdiction.

The narrow issue presented by Dalfio on appeal is whether the district court

erred in considering extrinsic evidence of mootness on a Rule 12(b)(1) motion to

dismiss. It did not. A district court may properly consider extrinsic evidence on a

“factual” motion to dismiss under Rule 12(b)(1), see Savage v. Glendale Union

High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003); but it 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 1040

(internal quotations and citations omitted); Rosales v. United States, 824 F.2d 799,

803 (9th Cir. 1987). Contrary to Dalfio’s contentions, the unpublished decision in

3 Acevedo v. C & S Plaza LLC, 2021 WL 4938124 (9th Cir. 2021), does not stand

for the proposition that a district court may never consider extrinsic evidence in the

context of a factual Rule 12(b)(1) motion to dismiss where these issues are

intertwined. There, we vacated the district court’s grant of a motion to dismiss

because genuine disputes of material fact existed regarding the jurisdictional

issues, not because the district court considered extrinsic evidence on a Rule

12(b)(1) motion. Id. at *2.

Accordingly, the district court did not err by considering extrinsic evidence

in deciding Defendant’s motion to dismiss under Rule 12(b)(1) on mootness

grounds.

AFFIRMED.

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