Strong v. Johnson

Filing 9

ORDER granting in part 4 Motion to Dismiss. The complaint is DISMISSED WITHOUT PREJUDICE, for failure to state a federal claim. By January 31, 2017, Strong may file an amended complaint that corrects the defects this order has identified. Signed by Judge Larry Alan Burns on 1/17/17. (kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MATT STRONG,

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CASE NO. 16cv1289-LAB (JMA)
Plaintiff,

ORDER GRANTING MOTION TO
DISMISS

vs.
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DIANA E. JOHNSON, TRUSTEE OF
THE DIANA E. JOHNSON TRUST
DATED JULY 25, 2013,

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Defendant.

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Plaintiff Matt Strong brought claims under the Americans with Disabilities Act as well

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as supplemental state-law claims. Strong alleges he is disabled and that the business

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Defendant owns, a donut shop called Miss Donuts, is inaccessible to him. Defendant Diana

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Johnson moved to dismiss the complaint for lack of jurisdiction and for failure to state a

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claim.

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Jurisdiction

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The Court is required to raise and resolve jurisdictional issues such as mootness and

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standing before proceeding. American Civil Liberties Union of Nevada v. Masto, 670 F.3d

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1046, 1061–62 (9th Cir. 2012). Specifically, the Court is required to confirm its original

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jurisdiction before proceeding to adjudicate claims brought under supplemental jurisdiction.

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16cv1289

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Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001). Here,

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that means Plaintiff must first plead a federal claim.

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Under the ADA, which is the only federal cause of action in this case, Plaintiff would

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only entitled to injunctive relief. If he doesn't need prospective injunctive relief, or if such

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relief becomes unavailable, the Court would lack jurisdiction to consider the ADA claims

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further, because of either mootness or lack of standing. See Los Angeles v. Lyons, 461 U.S.

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95, 111 (1983) (holding that injunctive relief is only available upon a showing of the likelihood

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of substantial and immediate irreparable injury); Chapman v. Pier 1 Imports (U.S.) Inc., 631

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F.3d 939, 946–47 (9th Cir. 2011) (en banc) (discussing jurisdictional standards for ADA

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claims); Flint v. Dennison, 488 F.3d 816, 823 (9th Cir. 2007) (discussing mootness doctrine).

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One of Article III's jurisdictional requirements is that it must be "likely, as opposed to merely

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speculative, that the injury will be redressed by a favorable decision." Friends of the Earth,

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Inc. v. Laidlaw Envtl. Serv. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (discussing this

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requirement as part of standing analysis).

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The Court is required to confirm its own jurisdiction, sua sponte if necessary. See

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Chapman, 631 F.3d at 954. In other words, even if Defendant’s motion to dismiss doesn’t

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address a particular jurisdictional problem, the Court must raise it anyway.

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Legal Standards

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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the

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sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). While a

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plaintiff need not give “detailed factual allegations,” a plaintiff must plead sufficient facts that,

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if true, “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 545 (2007). “To survive a motion to dismiss, a complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 547). A claim is

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facially plausible when the factual allegations permit “the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Id.

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Discussion

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Defendant’s motion argues that the complaint doesn’t meet the Fed. R. Civ. P. 8
pleading standard as delineated in cases such as Twombly and Iqbal.

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Strong alleges that he is disabled, and that he uses a wheelchair. He drives or rides

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in a specially designed van. Although the complaint vaguely refers to “elements and areas

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of the Store,” (Complaint, ¶ 13), he does not say what or where they are, or how the barriers

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in those places interfere with his access. He also alleges that the Store’s “goods, services,

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facilities, privileges, advantages, and accommodations” were unavailable to him. (Id., ¶ 11.)

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This is insufficient to state a claim with regard to those barriers. See Oliver v. Ralphs

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Grocery Co., 654 F.3d 903, 909 (9th Cir. 2011) (“[F]or purposes of Rule 8, a plaintiff must

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identify the barriers that constitute the grounds for a claim of discrimination under the ADA

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in the complaint itself . . . .”). Oliver v. Ralphs Grocery Co., 654 F.3d 903, 909 (9th Cir.

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2011).

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The only barriers identified with any particularity concern parking outside the store.

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The complaint points to a lack of signage at the disabled parking space, failure to designate

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a parking space as being van accessible; and an access aisle that Strong says is “too steep.”

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(Complaint, ¶ 10.)

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The root problem appears to be that Strong never clearly explains what he thinks Miss

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Donuts is. In other words, is it the Miss Donuts shop only, or does it consist of adjoining

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areas in a shopping center that are not part of the business, such as a parking lot? He also

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does not allege whether he thinks Defendant owns or leases the parking lot, or has any

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control over it.

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The complaint appears to have originated as a form pleading that includes many

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formulaic alternative factual allegations. While there is nothing necessarily wrong with

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beginning the drafting process by using a form or model, during the drafting and editing

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process inapplicable alternatives are normally deleted, so that the end product meets Rule

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8 standards.

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While pleading in the alternative is allowed, in this case Strong has pled so many

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alternatives that it isn’t clear what he means. For example, in one place he says the Store

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is a “sales or retail establishment” (Compl., ¶ 9) and has a street address (id., ¶ 1.) At the

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same time, he claims it includes all surrounding properties that are part of the same complex

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(perhaps part of the same shopping center). (Id.) He refers generally to goods and services

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sold by Miss Donuts (presumably inside the store), but the only barriers he identifies with any

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specificity are in the parking lot.

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Although Defendant’s motion does not say so outright, it is apparent Defendant thinks

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the Store means the Miss Donuts business itself, not the parking lot. For example, even

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though Defendant knows Plaintiff is making specific allegations about the parking lot,

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Defendant does not connect those allegations with any claim against her. (See Motion at

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1:18–2:17; 3:3–12; 5:24–6:10.) Strong says he has been to Miss Donuts, so he should know

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the building’s layout, and should be able to allege specific facts rather than a stream of

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alternatives. Defendant has a right to a pleading specific enough so that she knows whether

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she is being sued for barriers inside the store (which are referred to but never identified) or

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whether the only barriers are in the parking lot (which she may or may not control).

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Looking at Strong’s allegations regarding the parking lot conditions, it isn’t clear what

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he means when he alleges that the “slopes and/or cross slopes . . . are too steep. . . .”

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(Compl. at 3:21.) If he intended to claim that the slope is greater than the ADA allows, he

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should have said so by pleading facts, rather than his own conclusions.

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It is also unclear whether Strong has standing to seek relief regarding designation of

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a van-accessible parking space. He does not allege that there is no van-accessible space,

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and is not asking that one be installed; he merely alleges that the space is not properly

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designated or marked. He claims this makes it “difficult for [him] to determine which spaces

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are intended for and will accommodate vans . . . .”) (Compl. at 3:18–20.) But because he

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has been to the store, he apparently already knows which space or spaces are van-

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accessible. If he knows this, an injunction ordering the Defendant to tell him what he already

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knows would afford him no meaningful relief. It could of course help other disabled people,
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16cv1289

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but binding precedent makes clear Strong has no standing to seek relief on their behalf. See

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Chapman, 631 F.3d at 949 (“Article III, however, requires a sufficient showing of likely injury

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in the future related to the plaintiff's disability to ensure that injunctive relief will vindicate the

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rights of the particular plaintiff rather than the rights of third parties.”).

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Defendant also points out that Strong has not alleged facts plausibly suggesting that

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he is presently being deterred from returning to Miss Donuts. In fact, all the complaint says

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is that Strong was visited the store once. He does not, for example, allege he would like to

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patronize Miss Donuts in the future, or that he would be likely to do so if the barriers were

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removed.

See Chapman, 631 F.3d at 950 (discussing alternative ways of establishing

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standing). His conclusion that he is being deterred from returning is not based on factual

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allegations. See Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1138 (9th Cir. 2002)

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(concluding that plaintiff was deterred from visiting defendant’s stores based on his

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allegations that he preferred to shop there and would do so if it were accessible).

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Defendant has raised arguments concerning Strong's failure to comply with Cal. Civ.

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Proc. Code §§ 425.50, et seq. and Cal. Civil Code §§ 52 and 54.3. But under the Erie

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Doctrine, the Court applies federal, not state, procedural requirements. See Anglin v.

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Bakersfield Prosthetics & Orthotics Center, Inc., 2013 WL 6858444 at *5 (E.D. Cal., Dec. 30,

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2013) ("[T]he requirements of CCP section 425.50 do not govern Plaintiff's complaint in

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federal court . . . .") In addition, state procedural law regarding the jurisdiction of various

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state courts over claims comes into play only when the case is pending in state court. In this

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case, state law does not oust the Court of congressionally-authorized supplemental

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jurisdiction.

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Defendant also argues that Strong's state-law claims substantially predominate over

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his federal claims, and asks that the Court decline jurisdiction over them. While courts have

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granted similar motions, see, e.g., Schutza v. McDonald's Corp., 133 F. Supp. 3d 1241 (S.D.

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Cal., Feb. 27, 2015), the Court finds this issue would be clearer after it is determined

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whether Strong can plead a federal claim and, if so, what that claim looks like. Accordingly,

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the Court will deny this request without prejudice.
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Conclusion and Order

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The complaint fails to identify any barriers specifically, except for three in the parking

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lot. It fails to allege that Defendant owns or leases the parking lot, or that she is in some

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other way responsible for violations there. It fails to allege facts, as opposed to conclusions,

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about the slope, and it fails to establish standing to seek relief regarding van-accessible

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markings. The complaint also fails to allege facts showing that Strong either intends to

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return to Miss Donuts, or that the barriers he knows of are deterring him from returning. See

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Chapman, 631 F.3d at 944. For these, and for the other reasons discussed above,

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Defendant's motion to dismiss is GRANTED IN PART. The complaint is DISMISSED

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WITHOUT PREJUDICE, for failure to state a federal claim. And in the absence of a viable

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federal claim, the Court cannot exercise jurisdiction over any supplemental state claims.

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See Herman, 254 F.3d at 805.

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By January 31, 2017, Strong may file an amended complaint that corrects the defects

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this order has identified. If there is any doubt about whether Defendant owns or leases the

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parking lot or is in some other way responsible for its condition, Strong's counsel is directed

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to research this issue before amending.

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Assuming Strong amends as permitted, the Court may sua sponte revisit the issue

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of its discretion not to exercise jurisdiction over supplemental state claims. Defendant may

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also seek reconsideration with regard to this issue by filing an ex parte motion, and if she

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does so, Strong should file his opposition within five court days.

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IT IS SO ORDERED.
DATED: January 17, 2017

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HONORABLE LARRY ALAN BURNS
United States District Judge

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