Chapman v. Pier 1 Imports US, et al

Filing 148

ORDER denying 142 Motion to Amend the Complaint signed by Senior Judge Lawrence K. Karlton on 3/17/11: The court FURTHER ORDERS counsel for plaintiff to show cause for their failure to attach a proposed amended complaint to their motion. Counsels response and the proposed amended complaint SHALL BE FILED within seven (7) days fo the issuance of this order. (Kaminski, H)

Chapman v. Pier 1 Imports US, et al

Doc. 148

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff Byron Chapman ("Chapman") seeks leave to amend his complaint for disability discrimination against the defendant public accommodation, Pier 1 Imports ("Pier 1"), following a mandate from the Ninth Circuit, vacating this court's summary judgment order and instructing the court to dismiss Chapman's federal claim for lack of standing. For the reasons described below, the court instructs the parties to seek clarification from the Ninth Circuit as to whether it determined that plaintiff lacked standing based upon the allegations of his complaint or upon a factual determination. 1
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

BYRON CHAPMAN, NO. CIV. S-04-1339 LKK/DAD Plaintiff, v. O R D E R PIER 1 IMPORTS, INC., et al Defendants. /

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I. BACKGROUND On July 13, 2004, Chapman, a disabled and wheelchair bound individual, brought suit against Pier 1 pursuant to the American with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. ("ADA"). On June 19, 2006, this court granted plaintiff's motion for summary judgment as to seven barriers listed in a report of the facilities and denied defendant's motion as to those barriers. Pier 1 appealed this decision arguing that plaintiff lacked standing as to these seven barriers because he had not personally encountered them and, consequently, they did not deter him from returning to the store. Chapman v. Pier 1 Imports (U.S.) Inc., No. 07-16326, 2011 WL 43709, at *1 (9th Cir. 2011) (en banc). A three-judge panel of the Ninth Circuit reversed this court's grant of summary judgment and found plaintiff lacked standing as to the barriers he had not personally encountered. Id. Thereafter, plaintiff petitioned for and was granted a

rehearing en banc. On January 7, 2011, the en banc panel issued an opinion holding that an ADA plaintiff has standing to sue for injunctive relief as to both encountered and unencountered barriers related to his disability when that plaintiff suffers an injury-infact by encountering a barrier that deprives him of full and equal enjoyment of the facility due to his particular disability. Id. at *2. However, the court found that plaintiff lacked Article III standing from the beginning of litigation because he failed to "allege and prove" the required elements for standing for an ADA claim seeking injunctive relief. Further, the court vacated this 2

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court's grant of summary judgment and remanded with specific instructions to "dismiss Chapman's ADA claim for lack of

jurisdiction and for further proceedings consistent with [its] opinion." Id. at *12.1 On February 1, 2011, this court received a mandate from the Ninth Circuit. Shortly thereafter, on February 7, 2011, plaintiff filed a motion requesting leave to amend his initial complaint based on the Ninth Circuit's instruction of dismissal and "for further proceedings consistent with this opinion." (Pl.'s Mot. Am. 2: ¶ 24.). Defendant timely opposed the motion. A hearing was held on March 14, 2011. II. STANDARD Plaintiff brings this motion under Fed. R. Civ. P. 59(e). This rule, however, only concerns motions to alter or amend a judgment. Plaintiff is not seeking to alter or amend a judgment,2 but rather to file a motion for leave to file an amended complaint pursuant to the Fed. R. Civ. P. 16 scheduling order entered in this case. (Doc. No. 12). Under the scheduling order, "[N]o further . . . amendments to pleadings is permitted except with leave of court, Given the fact that plaintiff is wheelchair bound, it would appear that the fact and the nature of the impediments, at the least, provide the basis for a conclusion or at least an inference, that there was a direct relationship between the two demonstrated facts. Moreover, because the motion for summary judgment did not assert an absence of such a relationship, plaintiff had no reason to further address the issue. In sum, since the relationship issue was first raised on appeal, it would appear appropriate to remand the matter to the district court for further factual development. The Ninth Circuit vacated this court's entrance of judgment in this case. 3
2 1

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good cause having been shown." Id. at 2. Plaintiff cannot show good cause to amend where amendment would be futile. Accordingly, whether plaintiff may file an amended complaint depends entirely on whether the Ninth Circuit instructed this court to dismiss plaintiff's ADA claim because plaintiff did not allege sufficient facts to demonstrate standing (the complaint is facially deficient) or whether it instructed this court to dismiss the claim because plaintiff failed to prove that he has standing to bring this case (the claim is factually deficient).3 If the complaint is facially deficient, plaintiff's amendment is not futile, and leave to amend should be granted. However, if the Ninth Circuit determined that, as a matter of fact, plaintiff lacks standing, amendment would be futile, and the motion should be denied. It is well established that when a claim is dismissed pursuant to Fed. R. Civ. P. 12(b)(1) that the standard applied varies according to the nature of the jurisdictional challenge. Under a facial attack to subject matter jurisdiction, the issue is whether the allegations of jurisdiction contained in the complaint are insufficient jurisdiction. on their face to demonstrate the existence of

Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 In a Rule 12(b)(1) motion of this type, the

(9th Cir. 2004).

plaintiff is entitled to safeguards similar to those applicable A court may also decide that a plaintiff lacks standing in the summary judgment context. It is clear that the Ninth Circuit did not do so here where it cites to Fed. R. Civ. P. 12(b)(1) and not to Fed. R. Civ. P. 56 in support of its decision. 4
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when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994), Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990); see also 2-12 Moore's Federal Practice - Civil § 12.30 (2009). The factual allegations of the complaint are presumed to be true, and the complaint is only dismissed if the plaintiff failed to allege an element necessary for subject matter jurisdiction. Savage v. Glendale Union High

Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.1 (9th Cir. 2003), Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2001).

Nonetheless, district courts

"may review evidence beyond the

complaint without converting the motion to dismiss into a motion for summary judgment" when resolving a facial attack. Safe Air for Everyone,373 F.3d at 1039. Alternatively, under a factual attack, the "dispute [concerns] the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. Specifically, a factual challenge occurs when the court considers "affidavits or other evidence properly brought before the court." Id. Unlike in a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court need not assume the facts alleged in a complaint are true when resolving a factual attack. Id. (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir.

2000). While the motion is not converted into a motion for summary judgment, "the party opposing the motion must [nonetheless] furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Id. When deciding a factual challenge to subject matter jurisdiction, courts may only 5

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rely on facts that are not intertwined with the merits of the action. Id. III. ANALYSIS Ultimately, this motion turns on an interpretation of the Ninth Circuit's January 7, 2011 decision. For reasons best known to the en banc panel, the opinion lacks clarity as to whether it found plaintiff's complaint to be facially deficient, and thereby curable, or it determined that plaintiff lacks standing based upon the evidence already tendered and produced after oral argument upon the request of the Circuit, and thereby concluded the failure is not curable. For this reason, the court instructs the parties to seek clarification from the Ninth Circuit as to basis of its finding that plaintiffs' ADA claim should be dismissed. The court discusses the ambiguity of the opinion below. A. The Text of the Opinion

The en banc panel limited its review to whether plaintiff had suffered an injury-in-fact and whether he had demonstrated a likelihood of future injury sufficient to support injunctive

relief. Chapman, No. 07-16326, 2011 WL 43709, at *4 (9th Cir. Jan. 7, 2011) (en banc). The previous Ninth Circuit panel concluded that plaintiff did not suffer an injury-in-fact as to unencountered barriers because the encountered barriers did not deter him from returning to the Pier 1 store. Id. at *4. The en banc panel reversed this finding, and set forth the standard for a plaintiff to demonstrate standing to sue under the ADA. Id. Specifically, the court held that when an ADA plaintiff has suffered an injury-in6

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fact by encountering a barrier that deprives him of full and equal enjoyment of the facility due to his particular disability, he has standing to sue for injunctive relief as to that barrier and other barriers related to his disability, even if he is not deterred from returning to the public accommodation at issue. Id. In applying their holding to this case, however, the court found that plaintiff failed to "allege and prove the required elements of Article III standing to support his claim for injunctive relief under the ADA." Id. (emphasis added).4 The court found that plaintiff's complaint alleged that "[H]e is `physically disabled,' and that he `visited the Store' and `encountered architectural barriers that denied him full and equal access,'" but, the court explained that plaintiff "never allege[d] what those barriers were and how his disability was affected by them such that he was denied `full and equal' access that would satisfy the injury-in-fact requirement. . ." Id. at *11. Furthermore, the court found plaintiff's attachment to his complaint, referred to as the "Accessibility Survey", listing store barriers known to him, insufficient to assert factual allegations of injury. The court concluded that plaintiff had also failed to relate the violations to his disability. Id. at *12. The Ninth Circuit then reversed and instructed dismissal of plaintiff's claim under Federal Rule of Civil Procedure 12(b)(1). 1. Text Supporting Facial Finding

Given that the standard applied was apparently the first time it was articulated by the Circuit, it would appear to be unremarkable that the plaintiff had not addressed the standard. 7

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On the one hand, much of the opinion suggests that the Circuit found that the allegations in plaintiff's complaint were

insufficient to plead standing. The court explained that plaintiff, "failed to allege and prove the elements of standing. . .", that plaintiff's "complaint itself is jurisdictionally defective[,]" and the court refers to "pleading standards" that apply to civil rights plaintiffs. Id. at *11 (emphasis added). Further, the court cited to Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992), where the Ninth Circuit determined the district court had supplemented facts and details to plaintiff's initial complaint in a § 1983 claim. The court observed that, "Chapman's complaint fails to allege the essential elements of Article III standing." Id. at *11 (emphasis added). Additionally, the court continued to refer to plaintiff's complaint and determined that the "Accessibility Survey" attached to his complaint, listing barriers known to him, were insufficient to connect the "alleged violations" to plaintiff's disability. Id. at *12. In support of its dismissal, the court cites to pleading requirements as specified by Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), explaining that "Chapman's allegation that the barriers at the Store `denied him full and equal employment' is precisely the `formulaic recitation' of the elements of a claim that the Supreme Court has deemed insufficient under Rule 8," and that "[t]o sufficiently allege standing, Chapman must do more than offer `labels and conclusions' that parrot the language of the ADA." Id. at *12, n.9. Additionally, the Ninth Circuit does not expressly state that 8

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plaintiff cannot establish standing in further proceedings. The court stated, "[a]lthough Chapman may establish standing as to unencountered barriers related to his disability, the list of barriers incorporated into his complaint does nothing more than `perform a wholesale audit of the defendant's premises.'" Id. A possible interpretation of this language could be that plaintiff may have satisfied standing if he had properly pled his ADA claim. Moreover, in the language instructing this court to dismiss the ADA claim, the Circuit cited to United States v. Hays, 515 U.S. 737, 747 (1995). In Hays, the Supreme Court vacated and remanded a redistricting gerrymandering case to the district court and ordered it to dismiss plaintiff's claim for lack of standing. Id. There, the Court remanded the case to the district court after considering evidence presented during a two-day hearing in support of plaintiffs' motion for a preliminary injunction. Nonetheless once remanded, the district court granted plaintiffs leave to amend the complaint in light of the Court's holding. Hays v. State of La., 936 F. Supp. 360, (W.D. La. 1996). Similar to the case at bar, the Court held that plaintiffs had failed to allege how they were aggrieved and how they personally suffered injury as a result of the redistricting plan adopted by the state. Hays, 515 U.S. 737, 745-746 (1995). The Court found that although a plaintiff could state a claim for relief under the Equal Protection Clause by alleging that th state had adopted a reapportionment scheme that discriminated against citizens based on race, appellees lacked standing to bring this claim because they lived outside of the 9

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district in dispute. Id. at 738-739. The district court interpreted the Supreme Court's instruction on remand as a directive allowing the amendment of the complaint. Specifically, the district court found that the Court had instructed it to dismiss the claim but "not their action." Hays v. State of La., 936 F. Supp. 360, 365 (W.D. La. 1996) (emphasis in original). Further, the district court in Hays explained that "it is well established that a district court should grant leave to amend a complaint even after the original complaint has been dismissed so long as the action is still before the court." Id. (citing Federal Rule of Civil

Procedure 15(a) providing "leave shall be freely granted when justice so requires"). Thus, the Ninth Circuit's reference to this case could be interpreted as a directive to permit leave to amend plaintiff's complaint. 2. Text Supporting Factual Finding

On the other hand, several sections of the opinion suggest that the Circuit made a factual determination that plaintiff's complaint should be dismissed. Specifically, the court repeatedly states that plaintiff failed to "allege and prove" the elements of standing under the ADA. Chapman, 2011 WL 43709, at *11 (emphasis added). The court explained that plaintiff had not "alleged or proven that he personally suffered discrimination. . ." Id. at *2 (emphasis added). Further, the court points out that even if plaintiff had amended his complaint to include his expert's "Card Report" to address barriers he did encounter, he still failed to relate them to his disability. Id. at *12, n.10. In support of this 10

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proposition, the court cites to Martinez v. Longs Drug Stores, Inc., No. CIV-S-03-1843 DFL CMK, 2005 WL 2072013 (E.D. Cal. Aug. 25, 2005), in which the district court granted summary judgment for defendants because plaintiffs lacked standing. This reference supports an indication that the Ninth Circuit considered the evidence presented in this court's decision for summary judgment as well as the evidence it requested plaintiff to submit following oral argument. Furthermore, the posture of this case strongly suggests that the Court of Appeals made a determination as a matter of fact that plaintiff lacked standing. Specifically, the Circuit did not

consider whether plaintiff lacked standing while this case was in the pleading stage. Rather, discovery had closed and this court had entered judgment in the case. Accordingly, the Ninth Circuit considered deposition testimony in addition to the allegations of plaintiff's complaint when reaching its decision. Under these circumstances, it does appear that the court may have made a determination that plaintiff's claim should be dismissed because, based upon the complete factual record before it, he lacked standing. B. Oral Argument Before En Banc Panel

The court cannot determine whether the Circuit instructed it to dismiss plaintiff's ADA claim for lack of standing such that plaintiff can cure the defect. For this reason, the court turns to the oral argument heard before the en banc panel for guidance as to how it should interpret the opinion. During oral argument, the 11

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judges

directed

questions

to

counsel

regarding

both

factual

evidence proving that plaintiff had suffered a cognizable injury and pleading issues with his complaint. Recording for Case C h a p m a n v . P i e r 1 I m p o r t s , N o . 0 7 - 1 6 3 2 6 E B , http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000005243 (last visited Mar. 8 2011). On one hand, Judge Kleinfeld insisted that both plaintiff's counsel and defendant's counsel address the injury plaintiff had suffered during his visit to the store. Id. Judge Kleinfeld requested references to the record and evidence from depositions, making clear on numerous occasions that he was not concerned about the "allegations" but about "evidence" in the record. Id. On the other hand, Judge Berzon alluded that the issue in the case was not necessarily a standing issue but a "pleading" issue. Id. at 19:00-20:00. Judge Berzon explained that the only issue was that the complaint was not amended and it was simply a "technical problem." Id. It seems clear, then, that the panel had divergent views on whether the standing question was a factual or a facial determination. Nevertheless, their opinion failed to shed any light on the matter. Thus, oral argument does not provide much guidance on the determinative question here. C. Supplemental Briefing to the Panel

Also during oral argument, Judge Kleinfeld asked plaintiff's attorney to provide specific citations to evidence in the record that illustrated how plaintiff had been "aggrieved" during his

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visit to Pier 1.5 Plaintiff's counsel could not cite to the record at that time and Judge Kozinski provided him an opportunity to submit that evidence to the court shortly after oral arguments. In response, counsel for plaintiff submitted deposition testimony of plaintiff and plaintiff's declaration filed in support of his motion for summary judgment. Letter from Scottlynn J. Hubbard IV, Pl.'s counsel, to Ninth Circuit Court (Mar. 24, 2010). The fact that the panel requested additional evidence suggests that they found plaintiff's claim insufficient as a factual matter but, in light of the discussion in the opinion, this request is not determinative of the question this court. D. Procedure for Seeking Clarification from the Circuit

In certain circumstances, the Ninth Circuit will clarify ambiguous mandates. Where a party demonstrates good cause and that clarification will prevent injustice, the Court of Appeals may clarify its mandate. Planned Parenthood v. American Coalition of Life Activists, 518 F.3d 1013, 1022 (9th Cir. 2008) (citing Aerojet-General Corp. v. The American Arbitration Assoc., 478 F.2d 248, 254 (9th Cir. 1973); Graham v. Balcor Co., 241 F.3d 1246, 1248

The parties disputed the scope of Kleinfeld's question. Plaintiff interpreted the question broadly to encompass any evidence of injury and defendant interpreted it narrowly to testimony where plaintiff said "I've had more trouble getting on toilets because it was further from the wall than it should have been." The court does not interpret what the appropriate scope of the question was. Rather, the fact that the panel requested evidence of plaintiff's injury, regardless of how broad or narrow that request was, suggests that the Circuit was considering whether the evidence demonstrated that plaintiff had standing to bring his ADA claim. 13

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(9th Cir. 2001) (citing same). The Circuit has identified "where the mandate does not fully express the intentions of the court" as a classic example of when a mandate should be recalled to prevent injustice. Graham, 241 F.3d at 1248 (quoting Aerojet-General Corp., 478 F.2d at 254). In Graham, the court noted that the district court's inability to interpret the mandate as evidence that

supported the issuance of a revised mandate. Id. Under these circumstances, the court finds that it is appropriate for the parties to seek clarification of the mandate issued in this case. E. Plaintiffs' Failure to Comply with Local Rules

Under L.R. 137(c), plaintiff may not move to file an amended complaint without attaching a proposed complaint. Here, plaintiff failed to do so. Counsel for plaintiff is hereby ordered to show cause in writing why sanctions should not issue in accordance with L.R. 110, including a fine of $150 and/or dismissal of this case, for their failure to attach a proposed amended complaint to the motion. See also Fed. R. Civ. P. 41(b), Link v. Wabash R.R., 370

U.S. 626, 633 (1962). Counsel shall file a response to this order to show cause and shall file a proposed amended complaint within seven days of the issuance of this order. IV. CONCLUSION For the foregoing reasons, the court DECLINES to decide this matter pending the parties' request for clarification to the Ninth Circuit. Accordingly, plaintiff's motion to file an amended

complaint (Doc. No. 142) is DENIED WITHOUT PREJUDICE. Plaintiff shall re-file his motion following either clarification from the 14

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Ninth Circuit or notification that the Ninth Circuit will not clarify the mandate. The court FURTHER ORDERS counsel for plaintiff to show cause for their failure to attach a proposed amended complaint to their motion. Counsel's response and the proposed amended complaint SHALL BE FILED within seven (7) days fo the issuance of this order. IT IS SO ORDERED. DATED: March 17, 2011.

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