Langer v. Badger Co., LLC et al

Filing 18

ORDER Granting in Part 12 Motion to Dismiss; and ORDER Dismissing Amended Complaint. The First Amended Complaint is dismissed without prejudice. If Langer believes he can successfully amend, he must file an ex parte motion for leave to do so within 14 calendar days of the date this order is issued. Signed by Chief Judge Larry Alan Burns on 2/14/2020. (jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRIS LANGER,

Case No.: 18CV934-LAB (AGS)
Plaintiff,

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v.

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BADGER CO., LLC, et al.,

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Defendants.

ORDER GRANTING IN PART
MOTION TO DISMISS; AND
ORDER DISMISSING AMENDED
COMPLAINT

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Plaintiff Chris Langer brings claims under the Americans with Disabilities Act

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(ADA) and California’s Unruh Civil Rights Act. His claims arise from conditions in

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the parking lot outside Dave’s Tavern, and conditions he later learned about inside

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the tavern, which he alleges denied him full and equal access to the tavern, and

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continue to deter him from returning there.

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Defendants moved to dismiss the original complaint, and the Court granted

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that motion in part. (Docket no. 9.) Langer then filed his amended complaint (the

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“FAC”), and Defendants again moved to dismiss. The Court’s previous order

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constitutes law of the case. Defendants ask the Court to take judicial notice of

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matters of public record, including pleadings and orders in certain other ADA

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cases. The Court GRANTS these unopposed requests. See Lee v. City of Los

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Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001).
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18CV934-LAB (AGS)

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Legal Standards

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A Rule 12(b)(6) motion tests the sufficiency of a complaint. Navarro v. Block,

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250 F.3d 729, 732 (9th Cir. 2001). While a plaintiff need not give “detailed factual

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allegations,” a plaintiff must plead sufficient facts that, if true, “raise a right to relief

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above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545

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(2007). “To survive a motion to dismiss, a complaint must contain sufficient factual

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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

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claim is facially plausible when the factual allegations permit “the court to draw the

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

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The Court need not accept legal conclusions couched as factual allegations. See

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Twombly, 550 U.S. at 555.

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Injunctive relief is the sole remedy available to private plaintiffs under the

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Title III of the ADA. Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1174

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(9th Cir. 2010). If the Court lacks jurisdiction to award injunctive relief, it cannot

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exercise supplemental jurisdiction over Langer’s state law claims. See Herman

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Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 2001). The

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Court is obligated to confirm its own jurisdiction, sua sponte if necessary, and to

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dismiss the complaint if jurisdiction is lacking. See Chapman v. Pier 1 Imports

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(U.S.) Inc., 631 F.3d 939, 954 (9th Cir.2011) (en banc). This means, among other

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things, that the Court must satisfy itself that all elements of Article III standing are

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met before allowing the case to proceed. See Lujan v. Defenders of Wildlife, 504

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U.S. 555, 560–61 (1992) (discussing injury-in-fact, causation, and redressibility

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elements of standing).

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Previously-Identified Defects

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The premises in question is identified as “Dave’s Tavern,” located at 2263

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Garnet Avenue in the Pacific Beach neighborhood of San Diego. Defendant

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Badger Co. allegedly owns the premises, which Defendant Dave Gligora allegedly
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18CV934-LAB (AGS)

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leases. The original complaint did not allege facts plausibly suggesting Badger was

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responsible for conditions inside the tavern, or that Gligora was responsible for

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conditions in the parking lot. The FAC fails to correct this defect, merely alleging

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that both parties were engaged in an unspecified joint venture and common

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enterprise. (FAC,¶ 6.) Generalized and conclusory allegations of agency or joint

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venture unsupported by any facts are insufficient. See Williams v. Yamaha Motor

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Co. Ltd., 851 F.3d 1015, 1025 n.5 (9th Cir. 2017) (citing Iqbal, 556 U.S. at 678)

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(rejecting as insufficient plaintiff’s conclusory allegations that defendants were

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each other’s agents and were responsible for each other’s acts).

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The original complaint identified technical violations in the parking lot, without

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explaining how they affected Langer or denied him access to the tavern. Among

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other things, the Court cited its holding in Strong v. Johnson, 2017 WL 3537746,

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at *2 (S.D. Cal., Aug. 17, 2017). The plaintiff in that case had alleged irregularities

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in the parking lot, but it appeared they were located in places he was unlikely to

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encounter them or be affected by them, such as underneath his parked vehicle or

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between his vehicle’s front bumper and the curb. In other cases, plaintiffs have

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brought claims based on violations so slight that either they are within permitted

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tolerances, or remedying the violations would have no effect on the plaintiffs’

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access. See Langer v. Garcia, 2019 WL 1581407, slip op. at *4 (C.D. Cal., Mar. 8,

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2019).

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To establish Article III standing to seek injunctive relief, a plaintiff must show

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that it is “likely, as opposed to merely speculative, that the injury will be redressed

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by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (TOC),

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Inc., 528 U.S. 167, 180–81 (2000). Defendants’ motion correctly points out that the

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FAC again fails to allege facts showing that irregularities in the parking lot are likely

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to affect him. Rather, he alleges that he believed slopes in the parking stall and its

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access aisle were “not level with each other,” and had “significant slopes and

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swells,” including a “a drainage swale that ran right through the reserved parking
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18CV934-LAB (AGS)

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stall and its stall.” (FAC, ¶ 15.) It is not clear what “not level” and “significant” mean

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to him; where, relative to his parked vehicle, the drainage swale was; and how it

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affected him. He conclusorily alleges that the space and access aisle were

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inaccessible and non-compliant. And he alleges that an investigator later told him

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that in places (which he does not identify) the parking space has a slopes of up to

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15%. (Id., ¶ 17.) Like the original complaint, the FAC points to technical ADA

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violations, but fails to allege facts showing that they were actual barriers for him.

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While insisting on specific factual allegations might seem unnecessary,

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binding precedent makes clear that a plaintiff must plead facts necessary to

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standing; courts cannot guess at them. Chapman, 631 F.3d at 955 and n.9; Ivey

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v. Board of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). See

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also Steel Co. v. Citizens for a Better Envt., 523 U.S. 83, 96 (1998) (rejecting

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contention that federal courts can consider the merits of a claim before it is clear

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the plaintiff’s injuries are redressible). These pleading defects are easily remedied,

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assuming Langer actually does have standing. He is a frequent ADA plaintiff, and

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is familiar with what he must plead to establish standing.

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Because Langer has not pleaded facts — as opposed to labels or

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conclusions — to show he has standing, the motion to dismiss (Docket no. 12) is

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GRANTED IN PART. The FAC is DISMISSED WITHOUT PREJUDICE. Until

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Langer establishes Article III standing, the Court will not reach the merits.

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Langer is a frequent ADA Plaintiff, having filed over 400 cases in this District

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alone, and over 900 in the Central District. While frequent litigation is not prohibited

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or even disfavored, at some point the number of allegedly non-compliant defendant

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businesses being sued raises the question of whether a plaintiff is likely to return

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to them. Defendants have challenged his representation that he intends to and is

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likely to return to Dave’s Bar. If he is not, he either has no standing to seek

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injunctive relief or his claim for injunctive relief has become moot. In either case,

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the Court would have no jurisdiction to grant it.
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18CV934-LAB (AGS)

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Before proceeding further, Langer must confirm that he is willing and able to

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return to Dave’s Tavern, and that injunctive relief is still necessary to allow him to

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do so. If conditions in the tavern or the parking lot have changed such that

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injunctive relief is either no longer needed or is no longer available, or if Langer no

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longer intends to return to the tavern, he should dismiss his ADA claims.

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If Langer believes he can successfully amend, he must file an ex parte

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motion for leave to do so, which complies with Civil Local Rule 15.1. He may do

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so within 14 calendar days of the date this order is issued. His application must

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be supported by a declaration showing that he still wants and needs injunctive

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relief. At a minimum, either Langer or someone on his behalf should confirm that

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Dave’s Tavern is still in operation and is still being operated by Gligora.

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If Langer needs more time to comply with this order, he should seek it by
either joint motion or ex parte motion, showing good cause for the extension.

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IT IS SO ORDERED.
Dated: February 14, 2020

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Hon. Larry Alan Burns
Chief United States District Judge

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18CV934-LAB (AGS)