Johnson v. Overlook At Blue Ravine, LLC

Filing 29

ORDER signed by Judge John A. Mendez on 7/20/12 ORDERING This action is DISMISSED for lack of subject matter jurisdiction; Defendant's Motion for Summary Judgment is DENIED as moot; and Defendant's Request for an Order Declaring Plaintiff Vexatious Litigant is DENIED. Plaintiff and Defendant shall submit supplemental filings in accordance with this Order by August 10, 2012. CASE CLOSED.(Matson, R)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT N. JOHNSON, 12 Plaintiff, 13 v. 14 15 16 OVERLOOK AT BLUE RAVINE, LLC, a California limited liability company, Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:10-CV-02387 JAM-DAD ORDER DISMISSING CASE FOR LACK OF SUBJECT MATTER JURISDICTION; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT; AND TO SHOW CAUSE AS TO WHY SANCTIONS SHOULD NOT BE IMPOSED AGAINST PLAINTIFF 18 This matter comes before the Court on Defendant Overlook at 19 Blue Ravine, LLC’s (“Defendant”) Motion for Summary Judgment and 20 For an Order Declaring Plaintiff a Vexatious Litigant (Doc. #10). 21 Plaintiff Scott N. Johnson (“Plaintiff”) opposes the motion 22 (Doc. #22).1 23 /// 24 /// 25 /// 26 27 28 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230 (g). The hearing was scheduled for June 27, 2012. 1 1 I. 2 FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, a quadriplegic, lives in Carmichael, California. 3 Finnerty Decl., Ex. C (“Johnson Depo. Excerpt”) (Doc. #15-1) at 4 9:13-18. 5 service animal, a wheelchair, and a full size van with hand- 6 controls and a wheelchair lift. 7 plans to continue to reside at his home in Carmichael, California, 8 Plaintiff claims he is looking for an apartment for his twenty-one 9 year old son. As a quadriplegic, Plaintiff requires the use of a Compl. (“Doc. #1) ¶ 1. Though he Decl. of Scott N. Johnson (“Johnson Decl.”) (Doc. 10 #23) ¶ 7. 11 in Rocklin, California. 12 will continue to live at home, he will frequently visit his son and 13 will stay with him periodically. 14 complex, the Overlook at Blue Ravine (“the Overlook”), is located 15 in Folsom, California. 16 miles from Carmichael and Rocklin, is not convenient to either 17 city. 18 3) (“Aerial Map”). 19 Plaintiff’s son lives in Carmichael and attends college Id. Plaintiff anticipates that while he Id. Compl. ¶2. Defendant’s apartment The Overlook, about fifteen See Decl. of Cathy Tustin (“Tustin Decl.”) Ex. 1 (Doc. #27- Although the date of Plaintiff’s first visit to the Overlook 20 is unknown, Plaintiff informed Defendant about its violations of 21 Title III of the American with Disabilities Act of 1990 (“ADA”), 42 22 U.S.C. § 12182, in a letter dated March 2, 2010. 23 Specifically, Plaintiff alleged that Defendant’s parking lot lacked 24 a properly configured van accessible disabled parking space, 25 accessibility route, and appropriate signage. 26 Plaintiff requested that the parking lot be brought into compliance 27 within ninety days. Id. 28 2 Id. Compl. ¶ 3. In the letter, 1 Four months after sending the letter, on July 12, 2010, 2 Plaintiff visited the Overlook to allegedly obtain rental 3 information, but encountered the same accessibility barriers he 4 complained about in his March 2, 2010 letter. 5 Since Plaintiff could not access the rental office, he left. 6 On July 28, 2010, Plaintiff returned a second time to the Overlook, 7 but claims that he left after observing that the parking lot 8 remained non-compliant. 9 Johnson Decl. ¶ 2. Id. Johnson Decl. ¶ 4. On September 3, 2010, Plaintiff filed the instant Complaint 10 alleging Defendant violated Title III of the ADA by having an 11 improperly configured van accessible disabled parking space, 12 accessibility route, and appropriate signage. 13 Plaintiff sought injunctive relief to require Defendant to remove 14 all architectural barriers related to his disability under the ADA 15 and monetary damages pursuant to California Civil Code §§ 51, 52. 16 Compl. at 18-19. 17 Compl. ¶¶ 11-20. Defendant filed its Motion for Summary Judgment and an Order 18 Declaring Plaintiff a Vexatious Litigant on May 4, 2012. 19 Mot. for Summ. J. (“MSJ”) (Doc. #10). 20 than oppose the MSJ, Plaintiff filed a Request for Dismissal with 21 Prejudice on May 10, 2012 contending that since Defendant removed 22 the architectural barriers, this action is moot (Doc. #18). 23 Defendant filed Objections to Plaintiff’s Request for Dismissal on 24 May 15, 2012 arguing that the action should not be dismissed 25 because Plaintiff is requesting a voluntary dismissal only to avoid 26 a near-certain adverse ruling (Doc. #19). 27 Plaintiff’s Request for Dismissal on May 16, 2012 (Doc. #20). 28 3 Def.’s Shortly thereafter, rather The Court denied 1 2 II. A. 3 4 OPINION Legal Standard 1. Summary Judgment Summary judgment is appropriate when “the pleadings, 5 depositions, answers to interrogatories, and admissions on file, 6 together with affidavits, if any, show that there is no genuine 7 issue as to any material fact and that the moving party is entitled 8 to a judgment as a matter of law.” 9 Corp. v. Catrett, 477 U.S. 317, 322 (1986). 10 Fed. R. Civ. P. 56(c); Celotex Plaintiff does not dispute any of the facts listed in 11 Defendant’s Motion for Summary Judgment. 12 summary judgment, “there can be no genuine issue as to any material 13 fact, since a complete failure of proof concerning an essential 14 element of the nonmoving party’s case necessarily renders all other 15 facts immaterial.” 16 omitted). 17 facts, the Court accepts all of Defendant’s facts as true. 18 19 20 B. To grant a motion for Celotex, 477 U.S. at 323 (internal quotations Since there are no genuine issues as to any material Claims for Relief 1. The Americans With Disabilities Act The American with Disabilities Act of 1990 (“ADA”), 42 U.S.C. 21 § 12182, was enacted “to provide clear, strong, consistent, 22 enforceable standards addressing discrimination against individuals 23 with disabilities.” 24 premised on Congress's finding that discrimination against the 25 disabled is “most often the product, not of invidious animus, but 26 rather of thoughtlessness and indifference,” of “benign neglect,” 27 and of “apathetic attitudes rather than affirmative animus.” 28 Alexander v. Choate, 469 U.S. 287, 295–96 (1985). 42 U.S.C. § 12101(b)(2). 4 Its passage was The concept of 1 “discrimination” under the ADA “does not extend only to obviously 2 exclusionary conduct — such as a sign stating that persons with 3 disabilities are unwelcome, but rather the ADA proscribes more 4 subtle forms of discrimination — such as difficult-to-navigate 5 restrooms and hard-to-open doors — that interfere with disabled 6 individuals' ‘full and equal enjoyment’ of places of public 7 accommodation.” 8 939, 946 (9th Cir. 2011) (quoting 42 U.S.C. § 12182(a)). Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 9 A disabled person claiming access discrimination must 10 establish Article III standing in order to maintain a suit under 11 the ADA. 12 available to a private litigant under the ADA is an injunction, 13 Plaintiff has the burden of proving both an injury in fact and the 14 real threat of future injury. 15 standing to pursue injunctive relief by proving either an injury- 16 in-fact coupled with an intent to return or deterrence from 17 returning to the premises. 18 view of constitutional standing in disability access cases. 19 946. Chapman, 631 F.3d at 946. 20 a. 21 22 Id. Because the only remedy An ADA plaintiff may show Id. at 944. Courts are to take a broad Id. at Injury-in-Fact and Intent to Return (i) Injury-in-Fact Because the ADA Accessibility Guidelines (“ADAAG”) establish 23 the technical standards required for “full and equal enjoyment,” if 24 a barrier violating these standards relates to a plaintiff's 25 disability, it will impair the plaintiff's full and equal access, 26 which constitutes “discrimination” under the ADA. 27 F.3d at 947. 28 element. Chapman, 631 That discrimination satisfies the “injury-in-fact” Id. 5 1 Defendant argues that Plaintiff did not suffer an injury-in- 2 fact because he only photographed the alleged barriers and did not 3 personally encounter them. 4 accessible space was not properly configured, he could not exit the 5 car using his wheelchair lift and had to leave the premises before 6 entering the rental office. 7 Plaintiff counters that because the van Because Plaintiff is a quadriplegic, he requires the use of a 8 wheelchair and wheelchair lift. 9 accessible parking space violated the ADAAG and subsequently 10 impaired Plaintiff’s full and equal access to the premises. 11 Plaintiff has shown an injury-in-fact. 12 13 The improperly configured van Thus, (ii) Intent to Return “Although encounters with the noncompliant barriers related to 14 one's disability are sufficient to demonstrate an injury-in-fact 15 for standing purposes, a plaintiff seeking injunctive relief must 16 additionally demonstrate ‘a sufficient likelihood that he will 17 again be wronged in a similar way.’” 18 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). 19 Chapman, 631 F.3d at 948 Defendant argues that Plaintiff is unlikely to return to the 20 apartment complex. 21 engage in the “futile gesture” of actually returning to the 22 inaccessible place of public accommodation, but that he would like 23 to be able to return once the violations are cured. 24 Plaintiff counters that he is not required to To determine whether a plaintiff's likelihood of returning to 25 a place of public accommodation is sufficient to confer standing, 26 courts examine factors such as “(1) the proximity of defendant’s 27 business to plaintiff's residence, (2) plaintiff's past patronage 28 of defendant's business, (3) the definitiveness of plaintiff's 6 1 plans to return, and (4) the plaintiff's frequency of travel near 2 defendant.” 3 WL 1037467 at *5 (E.D. Cal. Mar. 27, 2012) (citing D’Lil v. 4 Stardust Vacation Club, CIV-S-00-1496DFl PAN, 2001 WL 1825832 at *3 5 (E.D. Cal. Dec. 21, 2001)). 6 Lema v. Comfort Inn, Merced, 1:10-cv-00362-SMS, 2012 7 A. Proximity of Place of Public Accommodation The location of Defendant’s apartment complex to Plaintiff’s 8 residence is approximately fifteen miles. 9 the relatively close proximity between the complex and the 10 Plaintiff’s residence tilts slightly in favor of the Plaintiff. 11 12 Thus, the Court finds B. Past Patronage of Public Accommodation Before Plaintiff’s July 12, 2010 visit, he had never been to 13 the Overlook. 14 the Court finds this factor strongly favors the Defendant. 15 16 Johnson Depo. Excerpt at 64:25-65:1-2. C. Therefore, Definitiveness of Plans to Return Currently, Plaintiff has no ties to Folsom, California where 17 the Overlook is located. Plaintiff does not know anyone in the 18 facility, nor has he ever known anyone who resided there. 19 64:25-65:2. 20 in Carmichael and attends school in Rocklin. 21 The apartment complex is neither close to Rocklin nor in between 22 Carmichael and Rocklin. 23 no definitive plan to return. 24 he has no specific plans to revisit the facility until the action 25 is resolved and the property altercations are complete). 26 ‘some day’ intentions - without any description of concrete plans, 27 or indeed even any specification of when the some day will be - do 28 not support a finding of the ‘actual or imminent’ injury.” Id. at Plaintiff lives in Carmichael; Plaintiff’s son lives See Aerial Map. Johnson Decl. ¶ 7. Plaintiff has expressed See Id. at 64:16-24 (testifying that 7 “Such Lujan 1 v. Defenders of Wildlife, 504 U.S. 555, 564 (1992). 2 indicate Plaintiff has no definite intent to return to the 3 Overlook, thus this factor strongly favors the Defendant. 4 These facts Additionally, Defendant argues that Plaintiff’s extensive 5 litigation history undermines his professed intent to return. 6 Defendant cites Molski v. Mandarin Touch Restaurant, in which a 7 Central District Court found Molski’s litigation history undercut 8 his credibility and belied his professed intent to return to the 9 restaurant. 385 F.Supp.2d 1042, 1046 (C.D. Cal. 2005). Defendant 10 points out that in addition to looking for an apartment at the 11 Overlook, on July 12, 2012, Plaintiff visited between five and ten 12 other facilities. 13 Johnson Depo. Excerpt at 68:1-6. Since Mandarin Touch Restaurant, the Ninth Circuit has opined 14 that courts must be cautious about affirming credibility 15 determinations that rely on a plaintiff’s past ADA litigation. 16 D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1040 17 (9th Cir. 2008) (“For the ADA to yield its promise of equal access 18 for the disabled, it may indeed be necessary and desirable for 19 committed individuals to bring serial litigation advancing the time 20 when public accommodations will be compliant with the ADA. . . . 21 Accordingly, [courts] must be particularly cautious about affirming 22 credibility determinations that rely on a plaintiff's past ADA 23 litigation.”). 24 has no definite intent to return to the Overlook based on the facts 25 of the case and not on Plaintiff’s litigation history. 26 /// 27 /// See Thus, the Court bases its finding that Plaintiff 28 8 1 2 D. Frequency of Travel Near Public Accommodation Plaintiff presents no evidence that he has specific ties to 3 Folsom or the Overlook. 4 Therefore, this factor strongly favors the Defendant. 5 In summary, the Court finds while Plaintiff has shown an 6 injury-in-fact, he has not demonstrated an intent to return to the 7 Overlook. 8 9 b. Deterrence From Returning to the Premises Demonstrating injury-in-fact coupled with an intent to return 10 is but one way for an injured plaintiff to establish Article III 11 standing. 12 if he is deterred from visiting a noncompliant accommodation 13 because he has encountered barriers related to his disability 14 there.” 15 must be sufficiently “imminent” to permit a plaintiff to sue for 16 injunctive relief. 17 1034, 1040-41 (9th Cir. 2008) (finding that plaintiff suffered an 18 imminent harm because the ADA violations barred him from 19 patronizing a convenience store and plaintiff demonstrated an 20 intent to return annually once the barriers were removed); Pickern 21 v. Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002) 22 (holding that plaintiff has standing because the alleged ADA 23 violations prevented plaintiff from shopping at his preferred 24 grocery store, causing plaintiff to suffer an “imminent injury”). 25 “A disabled individual also suffers a cognizable injury Chapman, 631 F.3d at 949. The threat of future injury Id.; see also Doran v. 7-Eleven, Inc., 524 F.3d As discussed supra, though Plaintiff testifies that the ADA 26 violations deter him from returning to the Overlook and that he 27 would like to return once the property altercations are complete, 28 he presents no corroborating evidence. 9 Thus, the Court finds that 1 while the ADA violations deterred Plaintiff from his full and equal 2 enjoyment of the apartment complex, he completely failed to prove 3 that he was likely to return to the Overlook. 4 failed to satisfy the “imminent injury” requirement. 5 524 F.3d at 1040 (9th Cir. 2008) (plaintiff alleged that he has 6 plans to visit the convenience store at least once a year on his 7 annual trips to Disneyland); Pickern, 293 F.3d at 1135 (plaintiff 8 alleged that the grocery store is near his grandmother and he would 9 like to patronize that store when he visits her). 10 Plaintiff has, thus, C.f. Doran, Accordingly, the Court finds that Plaintiff lacks standing. 11 Plaintiff has not demonstrated a real and immediate threat of 12 repeated injury in the future. 13 case for lack of subject matter jurisdiction and DENIES Defendant’s 14 Motion for Summary Judgment as moot. Therefore, the Court DISMISSES this 15 16 2. Vexatious Litigant 17 The Court’s lack of subject matter jurisdiction does not 18 strip it of its power to award sanctions. 28 U.S.C. § 1919; Wilson 19 v. Kayo Oil Co., 535 F.Supp.2d 1063, 1072 (S.D. Cal. 2007) (citing 20 Branson v. Nott, 62 F.3d 287, 293 n. 10 (9th Cir. 1995). 21 Court now turns to issue of whether Plaintiff is a vexatious 22 litigant. Thus, the 23 “[T]here is strong precedent establishing the inherent power 24 of federal courts to regulate the activities of abusive litigants 25 by imposing carefully tailored restrictions under the appropriate 26 circumstances.” 27 Cir. 1990). 28 enjoining litigants with abusive and lengthy histories is one such De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Under the power of 28 U.S.C. § 1651(a) (1988), 10 1 form of restriction that the district court may take, however, such 2 pre-filing orders should be rarely filed. 3 Id. To issue a pre-filing order, “[t]he plaintiff’s claims must 4 not only be numerous, but also be patently without merit.” 5 United States, 906 F.2d 467, 470 (9th Cir. 1990). 6 cannot issue merely upon a showing of litigiousness.” Moy v. “An injunction Id. 7 The Ninth Circuit requires four factors be proven before a 8 plaintiff may be declared a vexatious litigant: (1) a plaintiff 9 must be given adequate notice to oppose a restrictive pre-filing 10 order before it is entered; (2) a trial court must present an 11 adequate record for review by listing the case filings that support 12 its order; (3) the trial court must further make substantive 13 findings as to the frivolousness or harassing nature of the 14 plaintiff's filings; and (4) the order must be narrowly tailored to 15 remedy only the plaintiff's particular abuses. 16 920 F.2d 614, 617 (9th Cir. 1990). 17 18 a. O'Loughlin v. Doe, Adequate Notice Defendant filed a motion asking the Court to issue an order 19 declaring Plaintiff a vexatious litigant on May 4, 2012. 20 opposed the motion on June 6, 2012. 21 that Plaintiff had adequate notice and an opportunity to respond. 22 23 b. Plaintiff Therefore, the Court finds Record for Review “An adequate record for review should include a listing of all 24 the cases and motions that led the district court to conclude that 25 a vexatious litigant order was needed. 26 needs to show, in some manner, that the litigant's activities were 27 numerous or abusive.” 28 omitted). At the least, the record De Long, 912 F.2d at 1147 (internal citation 11 1 Defendant presents the Court with a comprehensive list of over 2 2,000 cases organized by name and number. 3 (Doc. #12-1). 4 terms of the listing of cases but, as discussed below, is lacking 5 in proof that the litigant’s activities were abusive. 6 See Finnerty Decl. The Court finds the record for review is adequate in c. Frivolousness or Harassing Nature of Claims 7 This is the heart of the vexatious litigant analysis. The 8 district court must “look at both the number and content of the 9 filings as indicia of the frivolousness of the litigant’s claims.” 10 Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1059 (9th Cir. 11 2007) (internal quotations omitted). 12 court to make substantive findings as to the frivolous or harassing 13 nature of the litigant’s actions.” 14 “[I]t is incumbent on the De Long, 912 F.2d at 1148. Defendant argues that nearly all of Plaintiff’s complaints 15 contain the same boilerplate language, Plaintiff’s contrived 16 allegations are not credible, Plaintiff claims duplicitous 17 injuries, and Plaintiff has a high settlement rate. 18 Plaintiff counters by distinguishing this action from Molski 19 v. Evergreen Dynasty Corp., a case in which the Ninth Circuit 20 affirmed the district court’s order declaring the plaintiff a 21 vexatious litigant. 22 Dynasty, the plaintiff, Molski, traveled to several restaurants on 23 the same day, several days in a row, and alleged that at each 24 restaurant he injured his shoulders in the process of transferring 25 himself from his wheelchair to the toilet. 26 Evergreen Dynasty court found that Molksi had plainly lied in his 27 filings because the court did not believe he suffered thirteen 28 nearly identical injuries, generally to the same part of his body, 500 F.3d 1047 (9th Cir. 2007). 12 In Evergreen 500 F.3d at 1051. The 1 in the course of performing the same activity, over a five-day 2 period. 3 file suit to rack up daily damages. 4 Dynasty court found this strategy evidenced an intent to harass 5 businesses into settlements. 6 argues that he includes at least one written notice and a period 7 for which the defendant could remove the barriers before filing 8 suit. 9 damages or actual damages in excess of the statutory minimum. 10 Id. at 1052. Additionally, Molski often waited a year to Id. Id. at 1060. The Evergreen Plaintiff, on the other hand, Furthermore, he argues that he does not ask for daily The Court finds that while Plaintiff has filed a high volume 11 of cases, it cannot say with any certainty that all, or even a 12 majority of the cases are so frivolous or harassing as to warrant 13 the conclusion that Plaintiff is a vexatious litigant. 14 instant case, for example, the evidence appears to support a 15 conclusion that Defendant violated the ADA. 16 Defendant’s argument that the instant lawsuit is frivolous because 17 Plaintiff engages in duplicitous injury claims is based upon 18 Defendant’s assertion that “[t]hese benign parking elements are not 19 the kind of architectural barriers that give rise to [humiliation, 20 embarrassment, emotional damage and minimal physical injury].” 21 at 22:27-28. 22 and indifference” the ADA is designed to discourage. 23 Choate, 469 U.S. 287, 295–96 (1985). 24 Plaintiff’s cases are frivolous because Plaintiff lacks standing to 25 prosecute those cases. 26 case for lack of standing, “[m]erely because a claim lacks 27 jurisdiction does not make the claim per se frivolous.” 28 912 F.2d at 1148. In the Furthermore, MSJ That argument demonstrates the exact “thoughtlessness Alexander v. Defendant also argues that While the Court is dismissing the instant De Long, Additionally, Defendant’s argument that 13 1 Plaintiff’s other cases must lack standing because they are 2 textually and factually similar to the instant case is unsupported 3 by the evidence before the Court. 4 about the merits of cases not before it. 5 The Court will not speculate Finally, Defendant’s argument that Plaintiff’s high settlement 6 rate evinces harassing legal tactics is unpersuasive. 7 provides no support that a high settlement rate demonstrates a 8 harassing litigation strategy. 9 for speculation. 10 11 d. Defendant Additionally, that argument calls Narrowly Tailored Remedy Narrowly tailored orders are needed to “prevent infringement 12 on the litigator’s right of access to the courts.” 13 F.2d at 1148 (internal citation omitted). The Court does not have 14 to reach this issue because it finds that Defendant failed to 15 provide sufficient evidence to support a substantive finding as to 16 the frivolousness or harassing nature of Plaintiff’s filings. 17 DeLong, 912 Accordingly, after evaluating the DeLong factors, the Court 18 finds that an order declaring Plaintiff a vexatious litigant is not 19 warranted. 20 Plaintiff a vexatious litigant is DENIED. 21 22 3. Thus, Defendant’s motion for an order declaring Sanctions The District Court has the inherent power to levy sanctions in 23 response to abusive litigation practices. 24 Piper, 447 U.S. 752, 765–66 (1980). 25 power to award attorney's fees for bad faith conduct.” 26 Sound Corp. v. Bumper Indus., 352 F.3d 1210, 1220 (9th Cir. 2003). 27 Furthermore, the Local Rules allow the Court to use its inherent 28 power to sanction for noncompliance with its rules. 14 Roadway Express, Inc. v. “A district court has inherent Earthquake L.R. 110. 1 This Court has adopted the Rules of Professional Conduct for the 2 State Bar of California and the Model Rules of Professional 3 Responsibility of the American Bar Association may be considered 4 for guidance. 5 L.R. 180(e). Despite the Court’s refusal to grant Defendant’s motion for 6 an order finding Plaintiff to be a vexatious litigant, the Court 7 still believes that sanctions should be imposed against Plaintiff 8 in the instant case for his failure to dismiss this lawsuit after 9 it became clear that he lacked standing. Plaintiff presumably 10 relied on the 2002 Ninth Circuit case Pickern v. Holiday Quality 11 Foods Inc. to support his apparent belief that did not need to 12 engage in a “futile gesture” of actually returning to the Overlook 13 to establish standing. 14 that argument might have been plausible when the Complaint was 15 filed in 2010, in January 2011, in Chapman v. Pier 1 Imports (U.S.) 16 Inc., the Ninth Circuit clarified the standing requirements for ADA 17 Plaintiffs. 18 plaintiff lacks standing “if he is indifferent to returning to the 19 [place of public accommodation] or if his alleged intent to return 20 is not genuine.”). 21 any fact or present any evidence of an imminent injury supported by 22 a concrete or genuine intent to return to the Overlook. 23 Furthermore, Plaintiff never sought leave to amend his Complaint to 24 meet the Chapman standing requirements. 293 F.3d 1133, 1133 (9th Cir. 2002). While 631 F.3d 939, 953 (9th Cir. 2011) (holding that a As discussed supra, Plaintiff fails to allege 25 Once Chapman was issued in January 2011, Plaintiff had a 26 professional obligation to dismiss this lawsuit, since he knew, at 27 that time, that there were no facts to support his belief that he 28 had standing. See Model R. of Prof’l Conduct Rule 3.1 (“A lawyer 15 1 shall not bring . . . a proceeding . . . unless there is a basis in 2 law. . . .”); Model R. of Prof’l Conduct R. 3.3(a)(2) (“A lawyer 3 shall not knowingly fail to disclose to the tribunal legal 4 authority . . . known to the lawyer to be directly adverse to the 5 position of the client. . . .”). 6 May 10, 2012, well over a year after Chapman was issued, and after 7 Defendant had already filed its Motion for Summary Judgment, to 8 voluntarily dismiss his case, on grounds unrelated to standing. 9 Instead, Plaintiff waited until The Court notes that this case is distinguishable from Wilson 10 v. Kayo Oil Co., 563 F.3d 979, 980 (9th Cir. 2009). 11 Ninth Circuit reversed the district court’s imposition of sanctions 12 for lack of standing in an ADA case. 13 that the Wilson district court’s standing decision was contrary to 14 the Ninth Circuit’s opinion in Doran v. 7-Eleven, 524 F.3d 1034, 15 1041 (9th Cir. 2008). 16 while Plaintiff may have believed he had standing when he filed his 17 case in 2010, Chapman made it abundantly clear that he lacked 18 standing and, therefore, should have dismissed this action rather 19 than allow it to continue for approximately eighteen additional 20 months. 21 Id. There, the The Ninth Circuit found The instant case is distinguishable because This Court has previously sanctioned Plaintiff for his failure 22 to make a reasonable inquiry as to whether the factual allegations 23 of his complaint had evidentiary support. 24 No. 2:08-cv-02651-JAM-KJN, Doc. #24 (E.D. Cal. May 21, 2009). 25 Similarly, in this case, Plaintiff failed to make a reasonable 26 inquiry as to whether he had standing under the applicable law. 27 an attorney who has filed over 2,000 ADA cases, Plaintiff should be 28 well-aware of the requirements for standing under the ADA. 16 See Johnson v. Kybych, As 1 2 Thus, for all the aforementioned reasons, the Court finds that 3 sanctions against Plaintiff should be imposed in the form of a 4 reimbursement payment to Defendant for its reasonable attorneys’ 5 fees for the period from or about February 1, 2011 to the present. 6 Before it can impose sanctions, however, the Court is required to 7 provide notice to Plaintiff of exactly which conduct is 8 sanctionable and give him an opportunity to show cause as to why 9 sanctions should not be imposed. See In re DeVille, 361 F.3d 539, 10 549 (9th Cir. 2004). 11 required notice. 12 response to this Order to Show Cause by August 10, 2012. 13 same time, the Court invites Defendant’s counsel to submit a 14 supplemental affidavit with billing timesheets by August 10, 2012 15 demonstrating the amount of attorneys’ fees and costs incurred by 16 Defendant between February 1, 2011 and the present. 17 for guidance. Upon receipt of this information, the Court will 18 issue a supplemental Order setting forth the amount of sanctions, 19 if any, to be paid by Plaintiff to Defendant. This Order to Show Cause serves as the The Court orders Plaintiff to submit a written At the See L.R. 293 20 21 III. ORDER 22 For the reasons set forth above: 23 This action is DISMISSED for lack of subject matter 24 jurisdiction; 25 26 27 28 Defendant’s Motion for Summary Judgment is DENIED as moot; and Defendant’s Request for an Order Declaring Plaintiff Vexatious Litigant is DENIED. 17 1 2 3 4 5 Plaintiff and Defendant shall submit supplemental filings in accordance with this Order by August 10, 2012. IT IS SO ORDERED. Dated: July 20, 2012. ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?