                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 26 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LYNDA BUTLER,                                     No. 13-55862

              Plaintiff - Appellant,              D.C. No. 5:12-cv-00980-PA-DTB

 v.
                                                  MEMORANDUM*
WINCO FOODS, LLC and BRYAN
MILLER,

              Defendants - Appellees.


                    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


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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.




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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
      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.




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