White v. Johnson

Filing 21

ORDER Setting Jurisdictional Hearing. Because briefing has not made the jurisdictional problem any clearer, the Court will hold a hearing on the issue. Counsel for both parties shall appear in person before the Court for a Hearing on 5/26/2017 11:00 AM before Judge Larry Alan Burns. Signed by Judge Larry Alan Burns on 5/10/2017.(lrf)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DOROTHY WHITE, 12 CASE NO. 16cv2524-LAB (JMA) Plaintiff, ORDER SETTING JURISDICTIONAL HEARING vs. 13 14 15 DIANE E. JOHNSON, TRUSTEE OF THE DIANE E. JOHNSON TRUST DATED JULY 25, 2013, Defendant. 16 17 18 19 Plaintiff Dorothy White filed her complaint in this case bringing claims under the Americans with Disabilities Act and supplemental state claims. 20 Her claims are premised solely on conditions in the parking lot at a shopping center 21 in the city of Spring Valley. Specifically, the complaint alleges “White uses a mobility 22 equipped van and manual wheelchair when traveling in public.” (Complaint, ¶ 8.) It says 23 that when she visited the shopping center, she encountered barriers that prevented her from 24 safely parking there. The complaint alleges that both disabled parking spaces and the 25 associated access aisles have slopes and/or cross slopes that are too steep. “Without a 26 level parking space, it is difficult for White to unload/transfer from a vehicle as her wheelchair 27 rolls and/or a lift’s platform cannot sit level . . . .” (Compl., ¶ 10.) The complaint alleges that 28 these barriers are denying her full and equal enjoyment of the shopping center’s facilities. -1- 16cv2524 1 Although the complaint mentions the existence of other barriers, these are the only ones that 2 are pled with any specificity and the only ones that form the basis for any claim. 3 Defendant filed an ex parte motion seeking dismissal based on fraud on the Court. Among 4 other things, Defendant noted that in a separate case filed in this District, White v. Papoutsis, 5 16cv2694-JLS (DHB), counsel for the same law firm represented to the Court that Dorothy 6 White “does not herself drive, and instead relies on friends or public transportation for her 7 transportation needs . . . .” 8 representation was made in 2011 in a brief opposing sanctions for White’s failure to appear 9 at a court-scheduled conference. (Docket no. 15 at 3:18–20, in case 16cv2694). This 10 Under the ADA, injunctive relief is the only relief available to private plaintiffs. 11 Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (en banc). If a 12 plaintiff lacks standing to pursue injunctive relief, the Court has no jurisdiction to entertain 13 ADA claims. Id. And in this case, that would mean the Court has no jurisdiction over any 14 of White’s claims. The Court is obliged to confirm its own jurisdiction, sua sponte if 15 necessary, any time a doubt arises. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 16 U.S. 274, 278 (1977). 17 The Court therefore ordered White’s counsel to file a declaration stating whether 18 White drives, whether she owns a mobility equipped van, and how he knows these things 19 to be true. Her attorney Scottlynn Hubbard filed a declaration (Docket no. 16-1) stating that 20 White does not drive and does not have a driver’s license. Instead, he says, she relies on 21 her husband to drive her in his car. When he is unavailable, she relies on friends or “third- 22 parties (e.g., buses)” to drive her. Hubbard says one of White’s friends has a mobility 23 equipped van, and it was that friend who drove her on the day she visited the shopping 24 center. But other friends drive her in other vehicles, such as SUVs. “There is no set pattern 25 to what vehicle she uses or when.” (Id., ¶ 3.) 26 The declaration raises more questions than it answers. First, it contradicts the 27 complaint, which leads a reasonable reader to believe that White always or routinely uses 28 a mobility equipped van to travel in public. The complaint also implies that White must exit -2- 16cv2524 1 vehicles without assistance; thus, her wheelchair is in danger of rolling away as she is 2 attempting to unload. But the declaration makes clear that White never travels alone, and 3 only sometimes travels in a mobility equipped van. Instead, she either takes public 4 transportation, or someone else drives her. When someone else drives her, it is sometimes 5 in a car, SUV, or other vehicle. 6 On days when White takes the bus, the condition of the handicapped parking spaces 7 would seem to be a moot point, because public buses let passengers off at bus stops; they 8 do not park in shopping center parking lots. On days when someone else drives her, she 9 would be attended by at least one other person, which appears to alleviate any danger of 10 her wheelchair rolling away. The problem of a mobility equipped van’s lift not sitting flat 11 would only be a problem if White were being driven by her one friend who owns such a van. 12 On all other days, this would not be a problem. 13 Under Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992), a plaintiff must 14 show that three elements are met in order to establish standing to sue. She must have 15 suffered an injury in fact that is actual or imminent, not conjectural or hypothetical. Id. That 16 injury must be fairly traceable to the defendant’s conduct. Id. And third, it must be likely, as 17 opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. 18 Of particular concern here are the first and third elements. In Lujan, the Supreme 19 Court held that the potential for the plaintiffs to suffer an injury at some indefinite future time 20 was not enough to show that injury was imminent, in order to establish standing to seek 21 injunctive relief. 504 U.S. at 565 n.2. Similarly, it is uncertain whether a favorable decision 22 will benefit White in the future. With so many available arrangements open to her, the 23 likelihood that she will visit the shopping center in a mobility-equipped van is unclear. 24 The requirements for issuance of an injunction include a similar showing of imminent 25 harm. A plaintiff seeking injunctive relief must establish a sufficient causal connection 26 between the imminent irreparable harm and the conduct she seeks to enjoin such that the 27 injunction would effectively curb the risk of injury. Fox Broad. Co., Inc. v. Dish Network LLC, 28 747 F.3d 1060, 1072–73 (9th Cir. 2013). -3- 16cv2524 1 Because briefing has not made the jurisdictional problem any clearer, the Court will 2 hold a hearing on the issue. Counsel for both parties shall appear in person before the 3 Court on Friday, May 26, 2017 at 11:00 a.m. No additional briefing should be filed without 4 leave. Plaintiff’s counsel should be prepared to give a short and clear explanation of why 5 White has standing to seek injunctive relief, and why there is a sufficiently definite and 6 imminent risk of harm if an injunction does not issue. While Defendant’s counsel will be 7 given an opportunity to be heard, the parties should bear in mind that it is Plaintiff’s 8 obligation to establish standing as appropriate at each stage of the case. See Lujan, 504 9 U.S. at 561. 10 11 12 IT IS SO ORDERED. DATED: May 10, 2017 13 14 HONORABLE LARRY ALAN BURNS United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 16cv2524

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