Whitaker

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BRIAN WHITAKER, Case No. 21-cv-09995-AGT Plaintiff,

ORDER DENYING MOTION TO

V. DISMISS

DEL MATEO RENTAL LLC, et al., Re: Dkt. No. 17 Defendants. The defendants’ motion to dismiss is filled to the brim with facts outside the pleadings. Essentially, the defendants are attempting to prove, at the pleading stage, that their retail store cannot be modified to provide access to wheelchair users. Rule 12(b)(6) motions to dismiss aren’t intended to resolve issues of fact. The plaintiff must be given the opportunity to conduct discovery before the trier of fact determines whether modifications to the store are readily achievable. The defendants counter by noting that the Court can consider evidence outside the pleadings in resolving factual attacks on subject-matter jurisdiction, under Rule 12(b)(1). See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). But the evidence submitted here goes to the merits of the claims, not to the threshold issue of jurisdiction. The plaintiff is a person with quadriplegia who uses a wheelchair to…