Lynda Butler v. WINCO FOODS, LLC and BRYAN MILLER

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYNDA BUTLER,
Plaintiff - Appellant,
v.
WINCO FOODS, LLC and BRYAN
MILLER,
Defendants - Appellees.
No. 13-55862
D.C. No. 5:12-cv-00980-PA-DTB
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted May 8, 2015
Pasadena, California
Before: NOONAN, WARDLAW, and MURGUIA, Circuit Judges.
Lynda Butler appeals the district court’s dismissal of her claim brought
under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.
Butler challenges WinCo Foods, LLC’s (WinCo) store-wide policy prohibiting
service animals from riding in its grocery carts. After the district court denied
FILED
MAY 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Butler’s motion for summary judgment on her ADA claim, and granted in part and
denied in part WinCo’s cross-motion for summary judgment on that claim, WinCo
offered Butler an individual exception to its policy, which would permit her to
place her service animal in the grocery cart while shopping as long as the animal
was in a carrier. The district court dismissed Butler’s ADA claim, and declined to
exercise jurisdiction over her supplemental state law claims, reasoning that because
WinCo offered Butler an exception to its service animal policy, Butler’s ADA
claim is moot. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse
the district court’s dismissal of Butler’s ADA claim.
1. The district court erred by concluding that Butler’s ADA claim is moot
based on the exception WinCo offered her to its service animal policy. Butler’s
ADA claim falls within the “voluntary cessation” exception to the mootness
doctrine. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 174 (2000) (“A defendant’s voluntary cessation of allegedly unlawful
conduct ordinarily does not suffice to moot a case.”). WinCo only made its
concession to Butler following the district court’s denial in part of WinCo’s motion
for summary judgment, finding factual issues in dispute as to Butler’s ADA claim.
See id.
2

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WinCo must show that it is “absolutely clear” that it “could not reasonably
be expected” to revoke the exception or continue to enforce the allegedly improper
policy against Butler. See id. at 190 (“[A] defendant claiming that its voluntary
compliance moots a case bears the formidable burden of showing that it is
absolutely clear the allegedly wrongful behavior could not reasonably be expected
to recur.”); Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1179 (9th Cir.
2010). WinCo has not met its burden. WinCo proffers the declaration of its
manager, Steve Behn, who states that a memorandum is posted in the breakroom
informing employees of the exception; that employees are being trained to grant
Butler the exception; and that WinCo “has no intention of revoking the exception
to the policy.” However, WinCo’s allegedly improper service animal policy
remains in place, and WinCo maintains the position that the policy need not be
changed. And, although WinCo employees are presently being trained to grant
Butler an exception to the policy, it is not “absolutely clear” that such training
cannot reasonably be expected to cease. See Friends of the Earth, 528 U.S. at 190;
Am. Cargo Transp., Inc., 625 F.3d at 1179. The exception offered to Butler is not
sufficiently entrenched and permanent, such that Butler’s ADA claim is rendered
moot. See Bell v. City of Boise, 709 F.3d 890, 900 (9th Cir. 2013).
3

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Because the district court erred in dismissing Butler’s ADA claim as moot,
we remand to the district court to reconsider whether to exercise supplemental
jurisdiction over Butler’s state law claims. See Lacey v. Maricopa Cnty., 693 F.3d
896, 940 (9th Cir. 2012); see also 28 U.S.C. § 1367(a), (c).
2. We lack jurisdiction to address the district court’s denial of Butler’s
motion for summary judgment. See Rodriguez v. Lockheed Martin Corp., 627 F.3d
1259, 1264 (9th Cir. 2010); Burke v. Ernest W. Hahn, Inc., 592 F.2d 542, 546 (9th
Cir. 1979) (“The denial of a motion for summary judgment is not an appealable
order . . . even where an action is incorrectly dismissed by the district court for lack
of subject matter jurisdiction.”).
REVERSED and REMANDED in part; DISMISSED in part.
4

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