Victor Dalfio v. Orlansky-Wax, LLC

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 3 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT VICTOR DALFIO, No. 21-56339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. 4