Mayya Grechko; Lyudmila Grechko v. Calistoga Spa, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAYYA GRECHKO; LYUDMILA
GRECHKO,
Plaintiffs-Appellants,
v.
CALISTOGA SPA, INC.,
Defendant-Appellee.
No. 22-15295
D.C. No. 3:21-cv-06726-EMC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted March 30, 2023**
San Francisco, California
Before: McKEOWN, GOULD, and IKUTA, Circuit Judges.
Mayya and Lyudmila Grechko appeal from the district court’s order
dismissing their claim under Title III of the Americans with Disabilities Act
(“ADA”) for lack of subject matter jurisdiction. We have jurisdiction under 28
* 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).
FILED
APR 3 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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U.S.C. § 1291, and we review de novo a district court’s dismissal for lack of
subject matter jurisdiction. Tijerino v. Stetson Desert Project, LLC, 934 F.3d 968,
971 (9th Cir. 2019). Because “both parties submitted declarations in connection
with the motion to dismiss” but the district court did not hold an evidentiary
hearing, we accept the allegations in the complaint “as true for the purposes of
establishing jurisdiction and surviving a 12(b)(1) motion.” Rhoades v. Avon
Prods., Inc., 504 F.3d 1151, 1160 (9th Cir. 2007). We affirm.
The district court properly dismissed the Grechkos’ amended complaint for
lack of subject matter jurisdiction because the Grechkos failed to establish standing
to seek injunctive relief under Title III of the ADA. To demonstrate standing
under Title III of the ADA, a plaintiff “must not only demonstrate the familiar
requirements for standing—injury-in-fact, traceability, redressability—but also ‘a
sufficient likelihood that he will be wronged again in a similar way.’” Ervine v.
Desert View Reg’l Med. Ctr. Holdings, LLC, 753 F.3d 862, 867 (9th Cir. 2014)
(quoting Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir.
2004)). The Grechkos allege that, because of their disabilities, neither of them can
share a bed with another person. They assert that Calistoga Spa’s hotel violated
the ADA by denying them a rollaway bed during their stay. They further allege
that they are currently unable to visit Calistoga Spa because of its continuing ADA
violations and that they would return if Calistoga Spa came into compliance. But

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the amended complaint fails to allege that Calistoga Spa would deny the Grechkos
a rollaway bed if they returned. Moreover, the allegation that Lyudmila has stayed
at Calistoga Spa “for many years,” including in the suite in which she was denied a
rollaway bed, “and always requested and received a rollaway bed” undercuts the
claim that Calistoga Spa remains out of compliance with the ADA. Even if
Calistoga Spa violated the ADA by failing to provide a rollaway bed, the Grechkos
have not alleged any “real and immediate threat” of Calistoga Spa denying them a
rollaway bed in the future as required to establish standing. See Ervine, 753 F.3d
at 867.
The district court also properly granted Calistoga Spa’s Rule 12(b)(1)
motion to dismiss for lack of subject matter jurisdiction without converting it into a
motion for summary judgment. Dismissal under Rule 12(b)(1) rather than Rule 56
was proper because the jurisdictional and substantive issues are not “so intertwined
that the question of jurisdiction is dependent on the resolution of factual issues
going to the merits.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th
Cir. 2004) (quoting Sun Valley Gasoline, Inc. v. Ernst Enters., Inc., 711 F.2d 138,
139 (9th Cir. 1983)). The requirement that the Grechkos show a real and
immediate threat of repeated injury to establish Article III standing is separate
from the resolution of any factual issues going to the merits of the Grechkos’ ADA
claim. Further, the district court did not err by declining to hold an evidentiary

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hearing because “even viewing the evidence in the light most favorable to [the
Grechkos] and accepting [their] version of events, dismissal was appropriate.”
McLachlan v. Bell, 261 F.3d 908, 910–11 (9th Cir. 2001).
The district court erred, however, by dismissing the ADA claim with
prejudice for lack of subject matter jurisdiction. “[D]ismissals for lack of Article
III jurisdiction must be entered without prejudice because a court that lacks
jurisdiction ‘is powerless to reach the merits.’” Barke v. Banks, 25 F.4th 714, 721
(9th Cir. 2022) (citation omitted). Thus, we affirm the district court’s dismissal of
the amended complaint on the basis that the Grechkos lack Article III standing to
bring their ADA claim, but we instruct the district court to enter an order of
dismissal without prejudice.
AFFIRMED with instructions to the district court to enter an order of
dismissal without prejudice.

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