United States District Court, E.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
(DOC. NO. 8)
This
matter is before the court on defendant Hotel Circle GL
Holdings, LLC's (“defendant”) motion to
dismiss pro se plaintiff Peter Strojnik Sr.'s
(“plaintiff”) complaint. A hearing on the motion
was held on November 19, 2019. Plaintiff appeared
telephonically on his own behalf, and attorney Philip
Stillman appeared telephonically on behalf of defendant. The
court has considered the parties' briefs and oral
arguments and, for the reasons set forth below, will grant
defendant's motion to dismiss with leave to amend.
BACKGROUND
Plaintiff's
complaint alleges as follows. Plaintiff is a person which
physical disabilities, including “severe right-sided
neural foraminal stenosis with symptoms of femoral
neuropathy, prostate cancer and renal cancer, [and a]
degenerative right knee . . . .” (Doc. No. 1
(“Compl.”) at ¶¶ 2, 3.) These
disabilities “substantially limit [plaintiff's]
major life activities, ” in that he “walks with
difficulty and pain and requires compliant mobility
accessible features at places of public accommodation.”
(Id. at ¶ 4.) Defendant owns, operates, or
leases a hotel located at 300 S. Court Street, Visalia, CA
93291 (the “Hotel”). (Id. at ¶ 5.)
On or about June 8, 2019, plaintiff visited the Hotel and
encountered barriers to accessibility. (Id. at
¶¶ 15, 16.) Plaintiff has attached to his complaint
an “Addendum A, ” wherein he includes photographs
of these alleged barriers to accessibility. (See Id.
at 8-10.) As a result of these barriers, plaintiff “is
deterred from visiting the Hotel based on [his] knowledge
that the Hotel is not . . . compliant [with the Americans
with Disabilities Act (‘ADA') and California's
Unruh Act] as such compliance relates to Plaintiff's
disability.” (Id. at ¶ 11.)
“Plaintiff intends to visit Defendant's Hotel at a
specific time when the Defendant's noncompliant Hotel
becomes fully compliant with [ADA Accessibility Guidelines
(“ADAAG”)] . . . .” (Id. at ¶
12.)
On
August 30, 2019, plaintiff commenced this action, asserting
claims under the ADA, the Unruh Act, and the California
Disabled Persons Act (“DPA”) as well as a
negligence claim against defendant. (Id. at 3-7.) On
October 9, 2019, pursuant to Federal Rules of Civil Procedure
12(b)(1) and (6), defendant moved to dismiss the complaint,
arguing that: (1) plaintiff lacks standing to assert his ADA,
Unruh Act, and DPA claims; and (2) the ADA and negligence
claims fail to state cognizable claims. On October 18, 2019,
plaintiff filed his opposition to the pending motion, and on
November 12, 2019, defendant filed its reply thereto. (Doc.
Nos. 10, 15.)
LEGAL
STANDARD
“Rule
12(b)(1) permits a defendant to seek dismissal of a complaint
for lack of subject-matter jurisdiction, ” and
“[a] defendant may bring a Rule 12(b)(1) motion to
dismiss based on a lack of standing.” Borden v.
Horwitz, No. 2:10-cv-00141-JHN-PLAx, 2010 WL 11459325,
at *2 (C.D. Cal. May 18, 2010) (citing Young v.
Crofts, 64 Fed.Appx. 24, 25 (9th Cir. 2003)); see
also White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)
(“Because standing and mootness both pertain to a
federal court's subject-matter jurisdiction under Article
III, they are properly raised in a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(1), not Rule
12(b)(6).”).
“A
Rule 12(b)(1) jurisdictional attack may be facial or factual.
In a facial attack, the challenger asserts that the
allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction.” Safe
Air for Everyone v. Meyer, 383 F.3d 1035, 1039 (9th Cir.
2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th
Cir. 2000)). “The district court resolves a facial
attack as it would a motion to dismiss under Rule 12(b)(6):
[a]ccepting the plaintiff's allegations as true and
drawing all reasonable inferences in the plaintiff's
favor, the court determines whether the allegations are
sufficient as a legal matter to invoke the court's
jurisdiction.” Leite v. Crane Co., 797 F.3d
1117, 1121 (9th Cir. 2014). As in a Rule 12(b)(6) motion, the
court need not assume the truth of legal conclusions cast in
the form of factual allegations. Warren v. Fox Family
Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003).
“By contrast, in a factual attack, the challenger
disputes the truth of the allegations that, by themselves,
would otherwise invoke federal jurisdiction.” Safe
Air for Everyone, 373 F.3d at 1039. Notably, extrinsic
evidence is heard on factual attacks and the court 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) (emphasis
added) (citing Land v. Dollar, 330 U.S. 731
(1947)).[1]
ANALYSIS
Here,
defendant asserts a facial challenge to jurisdiction because
it contends that the complaint's allegations, when
accepted as true and all reasonable inferences are drawn in
plaintiff's favor, fail to (1) adequately allege an
injury-in-fact as required to confer plaintiff standing under
Article III; and (2) adequately allege standing to seek
injunctive relief, which is the only remedy available to
plaintiff under Title III of the ADA. (Doc. No. 8-1 at 9-19.)
The court addresses each of these arguments below.
A.
Plaintiff Has Failed to Allege an
“Injury-in-Fact” and He Does Not Have Standing
to Seek Injunctive Relief under the
ADA.
“[T]hose
who seek to invoke the jurisdiction of the federal courts
must satisfy the threshold requirement imposed by Article III
of the Constitution by alleging an actual case or
controversy.” City of Los Angeles v. Lyons,
461 U.S. 95, 101 (1983). To satisfy the case or controversy
requirement, a plaintiff must show that he has suffered an
injury-in-fact that is concrete and particularized; that the
injury is traceable to the challenged action of the
defendant; and that the injury is likely to be redressed by a
favorable decision. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992); Fortyune v.
Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir.
2004). “In addition, to establish standing to pursue
injunctive relief, which is the only relief available to
private plaintiffs under the ADA, [a plaintiff] must
demonstrate a ‘real and immediate threat of repeated
injury' in the future.” Chapman v. Pier 1
Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011)
(footnote and citation omitted). “[A]n ADA plaintiff
can establish standing to sue for injunctive relief either by
demonstrating deterrence, or by demonstrating injury-in-fact
coupled with an intent to return to a noncompliant
facility.” Id. at 944.
Defendant
first argues that plaintiff has not alleged an injury-in-fact
in his complaint. (Doc. No. 8-1 at 9-13.) Specifically,
defendant contends that plaintiff has not identified any
alleged barriers to accessibility at the subject Hotel that
relate to plaintiff's disability and “it is not
even clear what that disability is.” (Id. at
10-11.) In this regard, plaintiff alleges in his complaint
the following facts with respect to his alleged disability or
disabilities and how that disability or disabilities relate
to the alleged barriers to accessibility he encountered at
the Hotel: (1) plaintiff is “legally disabled by virtue
of a severe right-sided neural foraminal stenosis with
symptoms of femoral neuropathy, prostate cancer and renal
cancer, [and a] degenerative right knee”; (2) he
“walks with difficulty and pain and requires compliant
mobility accessible features at places of public
accommodation”; (3) “Plaintiff's impairment
is constant”; (4) “Plaintiff requires an ADA
compliant lodging facility particularly applicable to his
mobility, both ambulatory and wheelchair assisted”; (5)
“Plaintiff encountered barriers to accessibility [at
the Hotel] documented in Addendum A” and those barriers
“related to Plaintiff's disability and interfere
with Plaintiff's full and complete enjoyment of the
Hotel”; and (6) “The ADAAG and Unruh violations
in this Complaint relate to barriers to Plaintiffs [sic]
mobility.” (Doc. No. 10 at 5-6; Compl. at ¶¶
3, 4, 10, 11, 14, 16, 17.) The court finds that these
allegations are insufficient to support a claim that
plaintiff suffered an injury-in-fact.
First,
although the complaint alleges that plaintiff is physically
disabled, the extent of his disability is not clear from his
allegations. For example, plaintiff alleges that he
“requires . . . both ambulatory and wheelchair
assist[ance]” (Compl. at ¶ 14), but does not
allege how often he requires ambulatory assistance versus
wheelchair assistance, nor does he allege that he required
ambulatory or wheelchair assistance when he visited the
subject Hotel. This deficiency clouds whether plaintiff has
suffered an injury-in-fact. See, e.g.,
Rutherford v. Cesar's Mexican Rest., LLC, No.
19-cv-1416-LAB (JLB), 2019 WL 4193392, at *1 (S.D. Cal. Sept.
3, 2019) (finding that a plaintiff failed to establish
Article III standing where he did not allege if he used a
wheelchair at the defendant's facility despite pointing
out barriers to accessibility that related to wheelchair
users).
Second,
plaintiff does not allege what barriers to accessibility he
encountered at the Hotel. Plaintiff merely directs the
court's attention to Addendum A to his complaint which
contains, as in other cases filed by plaintiff, “a
series of [fifteen] grainy, murky photographs titled
‘Personal Barrier Encounters,' with brief
captions” of barriers he purportedly encountered at the
Hotel, but “does not identify any barriers that would
affect Strojnik, deny him equal access, or deter him from
staying at the hotel.” Strojnik v. 1315 Orange
LLC, No. 19-cv-1991-LAB (JLB), 2019 WL 5535766, at *2
(S.D. Cal. Oct. 25, 2019). Indeed, the captions under each of
the fifteen photographs-such as “Security latch too
high, ” “Not everyone is welcome, ”
“Grab bar - plumbing interference, ” “flush
control on the wrong side of tank, ” etc. (Compl. at
8-11)-are bare legal conclusions cast in the form of factual
allegations, with no specification as to how any alleged
barrier violates any aspect of the ADA or any related
accessibility guidelines. Although plaintiff references the
ADAAG in his ...