Johnson v. Pallotta, et al

Filing 11

ORDER signed by Judge John A. Mendez on 11/21/14 GRANTING 7 Motion to Dismiss with leave to amend. Plaintiff must file his amended complaint within 20 days; Defendant's responsive pleading due within 20 days thereafter. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT JOHNSON,

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2:14-cv-00940 JAM-AC

Plaintiff,

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No.

v.

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

CARAMIA PALLOTTA; HENRY
PALLOTTA; and DOES 1-10,

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Defendants.
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Caramia and Henry Pallotta are licensed physical therapists

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who own and operate Manteca Physical Therapy.

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¶ 2.

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injuries.

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themselves defendants in this Americans with Disabilities Act

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(ADA) lawsuit brought by Plaintiff Scott Johnson, who is not, has

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never been, and never could be a patient of their clinic.

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Pallotta Decl.

This family business provides therapy to treat orthopedic
Pallotta Decl. ¶ 3.

They have recently found

Plaintiff Scott Johnson claims that he has been to the

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Manteca area “on scores of occasions” despite the fact that he

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lives about an hour away.

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(reporting Plaintiff’s County of Residence as “Sacramento”);

Compl. ¶ 12; id. Civil Cover Sheet

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Google Maps, http://goo.gl/maps/sKu7a (last visited Nov. 21,

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2014).

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allegedly “obtained some items.”

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claims he encountered multiple ADA violations.

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Because of this experience, Plaintiff states, he has not been

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back to the clinic since.

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desire to patronize” the business.

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He went to Manteca Physical Therapy in January 2014 and
Compl. ¶ 12.

Compl. ¶ 12.

While there, he
Compl. ¶¶ 12-13.

But he “continue[s] to

Compl. ¶ 21.

It is not clear what services Plaintiff desires there, or
why he chose to patronize a business located approximately an

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hour away that

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rehabilitation” for spinal cord injuries (such as the one

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rendering Plaintiff disabled).

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these allegations, Defendants move to dismiss Plaintiff’s

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Complaint on numerous grounds, including standing.

“does not, and has never, provided . . .

Pallotta Decl. ¶ 3. In light of

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I.

OPINION

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A.

Legal Standard

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“Standing is a jurisdictional requirement, and a party

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invoking federal jurisdiction has the burden of establishing

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it.”

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2d 1208, 1214 (S.D. Cal. 2007) (citing Lujan v. Defenders of

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Wildlife, 504 U.S. 555, 561 (1992)).

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defendant may move for dismissal based on lack of Article III

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standing under Federal Rule of Civil Procedure 12(b)(1).

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v. Centex Corp, 658 F.3d 1060, 1067 (9th Cir. 2011).

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assessing such a motion, the court “is not restricted to the

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face of the pleadings, but may review any evidence, such as

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affidavits and testimony, to resolve factual disputes concerning

Harris v. Stonecrest Care Auto Center, LLC, 472 F. Supp.

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At the pleading stage, a

Maya

In

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the existence of jurisdiction.”

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F.2d 558, 560 (9th Cir. 1988).

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court’s power to . . . require the plaintiff to supply, by

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amendment to the complaint or by affidavits, further

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particularized allegations of fact deemed supportive of

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plaintiff’s standing.”

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Seldin, 422 U.S. 490, 501 (1975)) (quotation marks omitted).

McCarthy v. United States, 850
“[I]t is within the trial

Maya, 658 F.3d at 1067 (quoting Warth v.

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B.

Analysis

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Defendants argue that Plaintiff lacks Article III standing

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because he has not shown that he is “likely to return to the

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business for any legitimate purpose, or that he was deterred from

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doing so[.]”

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does not respond to this argument. 1

Mot. at 9; Reply at 4-5.

Plaintiff’s opposition

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An ADA plaintiff has Article III standing if he shows either

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that (1) he intends to return to the defendant’s establishment or

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(2) he is deterred from returning because of the barriers he

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encountered.

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(9th Cir. 2011) (en banc).

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injunctive relief, a plaintiff must demonstrate that his intent

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to return or his deterrence from returning is “real and

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immediate[.]”

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461 U.S. 95, 111 (1983)); see, e.g. Fortyune v. American Multi-

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Cinema, Inc., 364 F.3d 1075, 1079 (9th Cir. 2004) (holding that

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plaintiff established standing where he attested that he

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continued to attend three to four movies at defendant’s movie

Chapman v. Pier 1 Imports Inc., 631 F.3d 939, 944
Because the ADA provides only

Id. at 948 (citing City of Los Angeles v. Lyons,

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Plaintiff’s opposition brief also erroneously states in the
caption that the defendants in this action are “Ethan Conrad” and
“America’s Party Rental, Inc.”
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theater per week “with regularity”); Doran v. 7-Eleven, Inc., 524

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F.3d 1034, 1040 (9th Cir. 2008) (holding that plaintiff had

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standing where he “alleged that he had visited [defendant’s] 7-

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Eleven store on ten to twenty prior occasions, that he is

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currently deterred from visiting [it] because of its

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accessibility barriers, that the store is conveniently located

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near his favorite fast food restaurant in Anaheim, and that he

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plan[ned] to visit Anaheim at least once a year on his annual

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trips to Disneyland” but would only return to the store “once

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it’s fixed”).
Here, the complaint contains two paragraphs relating to
Plaintiff’s potential return to the business.

First:

The plaintiff frequents the Manteca area and has
visited and shopped there on scores of occasions in
the last year. He went to Manteca Physical Therapy in
January of 2014 and obtained some items. He
encountered barriers at that time. He has been
deterred from attempting patronage on several other
occasions because of his knowledge and experience with
the barriers.

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Compl. ¶ 12.

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its location and options, Manteca Physical Therapy is a business

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center that plaintiff will continue to patronize and will

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continue to desire to patronize . . . .”

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offers no further evidence about his reasons for visiting

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Defendants’ physical therapy clinic.

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Later in the complaint, Plaintiff states, “Given

Compl. ¶ 21.

Plaintiff

Plaintiff has not done enough to establish standing.

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Plaintiff’s allegations do not explain why he went to Defendants’

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establishment in January, what “items” he “obtained,” or whether

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and for what purpose he will need any more “items” in the future.

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Nor does he explain why the Manteca location is favorable or what
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“options” the clinic has as a “business center.”

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Kraf, Inc., 2012 WL 2131894, at *2 (D. Ariz. June 12, 2012)

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(holding that plaintiff’s standing allegations “f[ell] short of

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the federal pleading standard” where the complaint stated that

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she “plans to return to the Property to enjoy the goods,

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services, privileges, advantages or accommodations being offered

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. . . but is deterred from returning because of discriminatory

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conditions”).

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See Arnold v.

Defendants’ evidence further deepens the Court’s concern

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about Plaintiff’s standing, because this evidence suggests that

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there are no goods or services at Defendants’ establishment that

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Plaintiff would plausibly be seeking.

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their clinic “does not, and has never, provided . . .

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rehabilitation” for spinal cord injuries, such as the one

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Plaintiff suffers from.

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treats “orthopedic injuries and ailments[.]”

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clinic therefore “would not and could not accept Plaintiff . . .

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as a patient[.]”

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Defendants attest that

Pallotta Decl. ¶ 3.

The clinic only
Id.

Defendants’

Id.

Defendants also submit evidence of an email exchange in

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which Defendants’ counsel advised Plaintiff’s counsel that the

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clinic “do[es] not treat, and ha[s] never treated, spinal

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injuries[,]” and offered that “if [Plaintiff] is in genuine need

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of physical therapy in the Manteca area, [Defendants] would be

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happy to refer him to another practice[.]”

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In response, Plaintiff’s counsel wrote, “I’m certain [Plaintiff]

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will appreciate the information, if he hasn’t found another

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therapist.”

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Wu Decl. Exh. D at 1.

Id.

Defendants’ evidence is not conclusive evidence that
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Plaintiff does not actually intend to return.

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that there are no goods or services for Plaintiff to patronize,

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such that there is no reason for him to return - or attempt to

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return - in the future.

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argument to the contrary.

But it suggests

Plaintiff has not submitted evidence or

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To proceed in this action, Plaintiff must establish “a

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sufficient likelihood” that he intends to return or suffers

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deterrence.

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at 111).

Chapman, 631 F. 3d at 948 (quoting Lyons, 461 U.S.

He has not done so here.

The Court will therefore

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require Plaintiff to supply further particularized allegations of

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fact in support of his standing in this action.

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F.3d at 1067.

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See Maya, 658

For these reasons, the Court GRANTS Defendants’ motion to

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dismiss, but allows Plaintiff leave to amend in order to

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demonstrate Article III standing to bring his ADA claim.

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Maya, 658 F.3d at 1069 (affirming dismissal on 12(b)(1) motion

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for lack of standing, but permitting leave to amend on remand

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“because plaintiffs may be able to establish by amendment that

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they have standing to pursue their claims”).

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a “threshold requirement” for any federal claim, Lyons, 461 U.S.

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at 101, the Court declines to reach the parties’ further

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arguments as to whether Defendants’ repairs are sufficient under

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the ADA and whether the violations are likely to recur.

See

Because standing is

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II.

ORDER

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For the reasons set forth above, the Court GRANTS WITH LEAVE

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TO AMEND Defendants’ motion to dismiss for lack of subject matter

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jurisdiction.

Plaintiff must file his amended complaint within
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twenty (20) days from the date of this order.

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responsive pleading is due within twenty (20) days thereafter.

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IT IS SO ORDERED.
Dated:

November 21, 2014

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Defendant’s