Advocates for Individuals with Disabilities Foundation Incorporated v. Russell Enterprises Incorporated

Filing 12

ORDER granting 5 Defendant's Motion to Dismiss for lack of subject matter jurisdiction as to Plaintiff's federal claim (Count I of Plaintiff's Complaint, without prejudice; there being no just reason for delay, the Clerk shall enter judgment of dismissal without prejudice on Count I. The Clerk shall remand Plaintiff's state claim to the Maricopa County Superior Court. IT IS FURTHER ORDERED denying as moot 5 Defendant's Motion to Dismiss for failure to state a claim. Signed by Senior Judge James A Teilborg on 12/9/16. (Attachments: # 1 Remand Letter)(LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Advocates for Individuals with Disabilities Foundation Inc., 10 Plaintiff, No. CV-16-02380-PHX-JAT ORDER 11 12 13 v. Russell Enterprises Inc., Defendant. 14 15 Pending before the Court are: (1) Defendant Russell Enterprises, Inc.’s Motion to 16 Dismiss (Defendant’s “Motion”), (Doc. 5); (2) Plaintiff Advocates for Individuals with 17 Disabilities Foundation, Inc.’s Response to Defendant’s Motion, (Doc. 10); and 18 (3) Defendant’s Reply in Support of its Motion, (Doc. 11). The parties did not request 19 oral argument. The Court now rules on Defendant’s Motion. 20 I. BACKGROUND 21 Plaintiff is a non-profit charitable foundation which has “past, present[,] and future 22 relationships or associations with individuals with disabilities.” (Doc. 1-1 at ¶¶ 49–51). 23 This case is one of many filed by attorneys Peter Strojnik and Fabian Zazueta that alleges 24 violations of the Americans with Disabilities Act (“ADA”) and similar state statutes. 1 25 1 26 27 28 Since March 2016, 167 of Mr. Strojnik and/or Mr. Zazueta’s cases have been filed in or removed to this Court, either on behalf of Plaintiff or one of its related entities, Advocates for Individuals with Disabilities, LLC or Advocates for American Disabled Individuals, LLC. Defendant claims that “Plaintiff’s counsel has filed over 900 nearly identical lawsuits in Maricopa County Superior Court” on behalf of Plaintiff or Plaintiff’s related entities. (Doc. 5 at 2); see also Advocates for Individuals with Disabilities Found. Inc. v. Golden Rule Props. LLC, No. CV-16-02413-PHX-GMS, 2016 WL 5939468, at *5 1 “These cases all appear to assert identical allegations—that the defendant business (the 2 nature of which usually is not identified in the complaint) has violated the ADA by 3 having inadequate signage or parking spaces for disabled persons.” Advocates for 4 Individuals with Disabilities LLC v. WSA Props. LLC, No. CV-16-02375-PHX-DGC, 5 2016 WL 5436810, at *1 (D. Ariz. Sept. 29, 2016). In this case, Plaintiff alleges that 6 Defendant has failed “to design, construct, and/or own or operate public accommodations 7 that are fully accessible to, and independently usable by, disabled people.” 8 (Doc. 1-1 at ¶ 51). Plaintiff brings its claims against Defendant under the ADA and the 9 ADA’s counterpart under Arizona law, Ariz. Rev. Stat. § 41-1492. (Id. at ¶¶ 79–92). 10 After Defendant removed this case to federal court, Defendant filed its Motion, 11 arguing first that the Court lacks subject matter jurisdiction. (Doc. 5 at 3–12). Defendant 12 alternatively argues that the Court should dismiss Plaintiff’s complaint because it fails to 13 state a claim. (Id. at 12–13). Plaintiff admits that it lacks Article III standing to sue in 14 federal court but argues that the Court should remand this case to Arizona state court. 15 (Doc. 10 at 1–3). Defendant rejoins that the Court should dismiss this case without 16 remand because any such remand would be futile. (See Doc. 11). 17 II. LEGAL STANDARD 18 Under Federal Rule of Civil Procedure 12(b)(1), a litigant may seek dismissal of 19 an action for lack of standing because “Article III standing is a species of subject matter 20 jurisdiction.” Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1227 21 (9th Cir. 2011) (citation omitted). To survive a defendant’s motion to dismiss, the 22 plaintiff has the burden of proving jurisdiction. Tosco v. Cmtys. for a Better Env’t, 23 236 F.3d 495, 499 (9th Cir. 2000). 24 Following removal of an action from state court to federal court, the federal court 25 “shall” remand the case back to state court “[i]f at any time before final judgment it 26 appears that the district court lacks subject matter jurisdiction.” 27 28 (D. Ariz. Oct. 13, 2016) (“AID and its counsel have filed more than 1,000 lawsuits in the past year asserting identical state and federal claims in state court.”). -2- 1 28 U.S.C. § 1447(c) (2012). Although § 1447(c) uses the word “shall,” the Ninth Circuit 2 Court of Appeals has allowed dismissal, rather than remand, if a state court would 3 inevitably dismiss the case as well, rendering a remand futile. See, e.g., Deutsch v. Turner 4 Corp., 324 F.3d 692, 718–19 & n.22 (9th Cir. 2003) (declining to remand case involving 5 uncertain federal jurisdiction because a state court would inevitably dismiss on statute of 6 limitations grounds); Bell v. City of Kellogg, 922 F.2d 1418, 1424–25 (9th Cir. 1991) 7 (“Where the remand to state court would be futile, however, the desire to have state 8 courts resolve state law issues is lacking. We do not believe Congress intended to ignore 9 the interest of efficient use of judicial resources.”). However, a court should only apply 10 the futility doctrine “where there is ‘absolute certainty that remand would prove futile.’” 11 Bell, 922 F.2d at 1425 (quoting M.A.I.N. v. Comm’r, Me. Dep’t of Human Servs., 12 876 F.2d 1051, 1054 (1st Cir. 1989)). 13 III. ANALYSIS 14 Plaintiff argues “there is [a] strong likelihood that Plaintiff’s claims will survive 15 any challenge based on subject matter jurisdiction when heard by Arizona state courts.” 16 (Doc. 10 at 3). Defendant responds that, although Arizona courts apply a different legal 17 standard for standing than federal courts, Plaintiff still cannot prove standing under the 18 Arizona standard. (Doc. 11 at 3). 19 Unlike the United States Constitution, the Arizona Constitution does not require a 20 party to assert an actual “case or controversy” in order to establish standing. Karbal v. 21 Ariz. Dep’t of Revenue, 158 P.3d 243, 245 (Ariz. Ct. App. 2007). However, as a matter of 22 “sound judicial policy,” the Arizona Supreme Court requires plaintiffs seeking redress in 23 Arizona to demonstrate their standing to sue. Bennett v. Napolitano, 81 P.3d 311, 316 24 (Ariz. 2003). Standing in Arizona generally requires “an injury in fact, economic or 25 otherwise, caused by the complained-of conduct, and resulting in a distinct and palpable 26 injury giving the plaintiff a personal stake in the controversy’s outcome.” Strawberry 27 Water Co. v. Paulsen, 207 P.3d 654, 659 (Ariz. Ct. App. 2008). Specifically, the injury 28 must be “particularized” to the plaintiff itself. Bennett v. Brownlow, 119 P.3d 460, 463 -3- 1 (Ariz. 2005) (“To establish standing, we require that [the plaintiffs] show a particularized 2 injury to themselves.”). 3 However, because standing raises only prudential—not constitutional—concerns, 4 Arizona courts have waived the standing requirement “on rare occasions.” Brownlow, 5 119 P.3d at 462–63 (citing Rios v. Symington, 833 P.2d 20, 22 n.2 (Ariz. 1992)). The 6 Arizona Supreme Court has elaborated that “as a matter of discretion, we can waive the 7 requirement of standing . . . only in exceptional circumstances, generally in cases 8 involving issues of great public importance that are likely to recur.” Sears v. Hull, 9 961 P.2d 1013, 1019 (Ariz. 1998); see, e.g., Rios, 833 P.2d at 22 (accepting jurisdiction 10 notwithstanding “potential standing issues” in an action brought by the state senate 11 president 12 714 P.2d 386, 387 n.1 (Ariz. 1986) (waiving standing requirement because the case 13 involved a claim that the state statute governing procedures for municipal annexation 14 violated the equal protection clauses of the federal and state constitutions); State v. B Bar 15 Enters., 649 P.2d 978, 980 n.2 (Ariz. 1982) (reaching the merits of a claim despite 16 appellants’ lack of standing because the claim required the court to determine the 17 constitutionality of a statute that had not yet been interpreted); Montgomery v. Mathis, 18 290 P.3d 1226, 1234 n.7 (Ariz. Ct. App. 2012) (waiving the standing requirement in a 19 case regarding whether the Arizona Independent Redistricting Commission was required 20 to follow Arizona’s Open Meeting Law). Besides limiting use of the waiver to “issues 21 of great public importance,” the Arizona Supreme Court has not provided objective 22 guidance as to whether a case presents one of the “rare occasions” for a court to waive 23 the standing requirement. Sears, 961 P.2d at 1019. against the governor); Goodyear Farms v. City of Avondale, 24 Here, Plaintiff does not affirmatively argue that it has standing under Arizona law. 25 Rather, Plaintiff argues that the Court cannot determine with “absolute certainty” that a 26 state court would dismiss this case because Plaintiff lacks standing under Arizona law. 27 (Doc. 10 at 3). The Court agrees. Although Defendant has demonstrated that Plaintiff 28 cannot meet the particularized injury requirement under Article III, (see Doc. 11 at 3), -4- 1 and Arizona courts have applied Article III case law to determine whether a plaintiff 2 alleged a particularized injury, see, e.g., McComb v. Super. Ct., 943 P.2d 878, 882–83 3 (Ariz. Ct. App. 1997), the Court cannot state with “absolute certainty” that a state court 4 would not waive the standing requirement in this case. Further, Defendant does not 5 present any argument convincing the Court that a state court would not waive Arizona’s 6 standing requirement in this case. See Conrad Assocs. v. Hartford Accident & Indem. 7 Co., 994 F. Supp. 1196, 1198 (N.D. Cal. 1998) (“In a motion to remand to state court, the 8 party asserting federal jurisdiction has the burden of proof.”). Therefore, remand of 9 Plaintiff’s state claims to the Arizona state court is the appropriate action in this case. 10 However, in remanding this case, the Court will dismiss Plaintiff’s federal claims 11 without prejudice. Plaintiff argues that the Court should remand both the state and federal 12 claims because “[s]tate [c]ourts have concurrent jurisdiction to hear the claims.” (Doc. 10 13 at 3). While the Court does not dispute the state court’s concurrent jurisdiction, Plaintiff 14 is actually arguing that a state’s more-lenient standing requirements can divest a federal 15 court of its 28 U.S.C. § 1331 federal question jurisdiction, which Defendant invoked by 16 removing this case to federal court. Plaintiff does not address, and the Court finds no 17 authority, that such divestment is possible. See, e.g., DaimlerChrysler Corp. v. Cuno, 18 547 U.S. 332, 339, 354 (2006) (ordering the district court to dismiss—not remand to state 19 court—an action originally filed in state court because the plaintiffs lacked Article III 20 standing and despite plaintiffs filing motions to remand the case to state court); Lone Star 21 Coll. Sys. v. Immigration Reform Coal. of Tex., 418 S.W.3d 263, 280 (Tex. App. 2013) 22 (Christopher, J., concurring) (“[I]f [the plaintiff] had sued [the defendant] in federal court 23 for violating federal law, it would have had no Article III standing—whether based on 24 state or municipal taxpayer status—to do so. Why then should [the plaintiff] have 25 standing to bring the same claim in state court?”); Paul J. Katz, Standing in Good Stead: 26 State Courts, Federal Standing Doctrine, and Reverse-Erie Analysis, 99 Nw. U. L. 27 Rev. 1315, 1352 (2005) (“Federal courts have constitutional jurisdiction of cases ‘arising 28 under’ the laws of the United States. Article III jurisdiction is only a ceiling for federal -5- 1 subject matter jurisdiction, but Congress in 1866 copied this ‘arising under’ language in 2 28 U.S.C. § 1331 to grant federal courts general subject matter jurisdiction . . . . [I]t 3 seems unreasonable that the Constitution would allow Congress to use state courts to 4 enforce statutory directives where federal courts cannot.”); see also generally William A. 5 Fletcher, The “Case or Controversy” Requirement in State Court Adjudication of 6 Federal Questions, 78 Calif. L. Rev. 263 (1990). 7 IV. CONCLUSION 8 For the foregoing reasons, 9 IT IS ORDERED the Court GRANTS Defendant’s Motion to Dismiss for lack of 10 subject matter jurisdiction as to Plaintiff’s federal claim (Count I of Plaintiff’s Complaint, 11 Doc. 1-1 at ¶¶ 79–85) without prejudice, (Part of Doc. 5); there being no just reason for 12 delay, the Clerk of the Court shall enter judgment of dismissal without prejudice on 13 Count I. 14 IT IS FURTHER ORDERED the Clerk of the Court shall remand Plaintiff’s 15 state claim (Count II of Plaintiff’s Complaint, Doc. 1-1 at ¶¶ 86–92) to the Maricopa 16 County Superior Court. 17 18 19 IT IS FURTHER ORDERED the Court DENIES Defendant’s Motion to Dismiss for failure to state a claim as moot. (Part of Doc. 5). Dated this 9th day of December 2016. 20 21 22 23 24 25 26 27 28 -6-

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