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Johnson v. Pallotta

United States District Court, E.D. California

November 21, 2014


For Scott Johnson, Plaintiff: Mark D. Potter, LEAD ATTORNEY, Center for Disability Access, San Diego, CA; Phyl Grace, LEAD ATTORNEY, Potter Handy LLP, San Diego, CA.

For Caramia Pallotta, Henry Pallotta, Defendants: Stephanie Yee Jean Wu, LEAD ATTORNEY, Borton Petrini LLP, Modesto, CA.



Caramia and Henry Pallotta are licensed physical therapists who own and operate Manteca Physical Therapy. Pallotta Decl. ¶ 2. This family business provides therapy to treat orthopedic injuries. Pallotta Decl. ¶ 3. They have recently found themselves defendants in this Americans with Disabilities Act (ADA) lawsuit brought by Plaintiff Scott Johnson, who is not, has never been, and never could be a patient of their clinic.

Plaintiff Scott Johnson claims that he has been to the Manteca area " on scores of occasions" despite the fact that he lives about an hour away. Compl. ¶ 12; id. Civil Cover Sheet (reporting Plaintiff's County of Residence as " Sacramento"); Google Maps, (last visited Nov. 21, 2014). He went to Manteca Physical Therapy in January 2014 and allegedly " obtained some items." Compl. ¶ 12. While there, he claims he encountered multiple ADA violations. Compl. ¶ ¶ 12-13. Because of this experience, Plaintiff states, he has not been back to the clinic since. Compl. ¶ 12. But he " continue[s] to desire to patronize" the business. Compl. ¶ 21.

It is not clear what services Plaintiff desires there, or why he chose to patronize a business located approximately an hour away that " does not, and has never, provided . . . rehabilitation" for spinal cord injuries (such as the one rendering Plaintiff disabled). Pallotta Decl. ¶ 3. In light of these allegations, Defendants move to dismiss Plaintiff's Complaint on numerous grounds, including standing.


A. Legal Standard

" Standing is a jurisdictional requirement, and a party invoking federal jurisdiction has the burden of establishing it." Harris v. Stonecrest Care Auto Center, LLC, 472 F.Supp.2d 1208, 1214 (S.D. Cal. 2007) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). At the pleading stage, a defendant may move for dismissal based on lack of Article III standing under Federal Rule of Civil Procedure 12(b)(1). Maya v. Centex Corp, 658 F.3d 1060, 1067 (9th Cir. 2011). In assessing such a motion, the court " is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). " [I]t is within the trial court's power to . . . require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing." Maya, 658 F.3d at 1067 (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)) (quotation marks omitted).

B. Analysis

Defendants argue that Plaintiff lacks Article III standing because he has not shown that he is " likely to return to the business for any legitimate purpose, or that he was deterred from doing so[.]" Mot. at 9; Reply at 4-5. Plaintiff's opposition does not respond to this argument.[1]

An ADA plaintiff has Article III standing if he shows either that (1) he intends to return to the defendant's establishment or (2) he is deterred from returning because of the barriers he encountered. Chapman v. Pier 1 Imports Inc., 631 F.3d 939, 944 (9th Cir. 2011) (en banc). Because the ADA provides only injunctive relief, a plaintiff must demonstrate that his intent to return or his deterrence from returning is " real and immediate[.]" Id. at 948 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)); see, e.g. Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1079 (9th Cir. 2004) (holding that plaintiff established standing where he attested that he continued to attend three to four movies at defendant's movie theater per week " with regularity"); Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1040 (9th Cir. 2008) (holding that plaintiff had standing where he " alleged that he had visited [defendant's] 7-Eleven store on ten to twenty prior occasions, that he is currently deterred from visiting [it] because of its accessibility barriers, that ...

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