Aiken v. Station Casinos, LLC

• Court: District Court, D. Nevada
• Decided: July 21, 2023
• Docket: 2:22-cv-02108
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 PATRICIA AIKEN, Case No. 2:22-cv-02108-ART-EJY 5 Plaintiff, ORDER 6 v.

7 STATION CASINOS LLC;

8 Defendant.

9 Plaintiff Patricia Aiken (“Aiken”) brings this action under the Americans with 10 Disabilities Act (“ADA”) 42 U.S.C. § 12182(a) and NRS 651.070 seeking $100,000 11 in punitive damages after Defendant Station Casinos LLC (“Station Casinos”) 12 refused to seat her at a restaurant without a mask on December 4, 2021. This 13 Court has jurisdiction over Aiken’s ADA claim under 28 U.S.C. § 1331 and 14 removal was proper on that basis. 15 Before the Court are Station Casinos’ Motion to Dismiss (ECF No. 5), and 16 Motion to Dismiss First Amended Complaint (ECF No. 17). For the reasons 17 described herein, the Court grants Station Casinos’ Motion to Dismiss First 18 Amended Complaint (ECF No. 17) and denies Station Casinos’ Motion to Dismiss 19 (ECF No. 5) as moot. 20 I. BACKGROUND 21 On December 4, 2021, Aiken went to the Brass Fork restaurant in Sunset 22 Station Hotel and Casino. (ECF No. 13 at 2). The general manager of the 23 restaurant told Aiken he would not seat her without a mask. (Id.) Aiken allegedly 24 “invoked her rights under the Americans With Disabilities Act. . . .” (Id.) The 25 general manger called security. (Id.) A member of Station Casinos’ security 26 department spoke with Aiken and allegedly “agreed with [Aiken] that Sunset 27 Station is actually a place of public accommodation” but refused to seat Aiken 28 1 unless she agreed to wear a mask. (Id.) Aiken refused and left. (ECF No. 13 at 2). 2 Aiken alleges that Station Casinos “violated State and Federal law under the 3 Americans with Disabilities Act by regarding the Plaintiff as having compromised 4 immune and respiratory systems without an individualized assessment.” (Id. at 5 3). 6 Aiken filed her complaint in Nevada state court on November 29, 2022. (ECF 7 No. 1-2). Station Casinos subsequently removed the case to this Court on 8 December 20, 2022 (ECF No. 1) and filed its first Motion to Dismiss (ECF No. 5) 9 on December 27, 2022. Aiken later filed her First Amended Complaint (ECF No. 10 13) without leave of court on January 23, 2023. (ECF No. 13). Station Casinos 11 filed its second Motion to Dismiss on January 26, 2023. (ECF No. 17). As 12 discussed below, the Court allows Aiken to proceed with her First Amended 13 Complaint given her status as a pro se litigant. Nonetheless, Aiken fails to state 14 a claim upon which relief can be granted and the Court therefore grants Station 15 Casinos’ Motion to Dismiss (ECF No. 17) on that basis. 16 II. LEGAL STANDARD 17 In considering a motion to dismiss for failure to state a claim upon which relief 18 can be granted under FRCP 12(b)(6), the Court must accept the allegations in the 19 complaint as true and draw all reasonable inferences in favor of the Plaintiff. Moss 20 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Ashcroft v. Iqbal, 21 556 U.S. 662, 678 (2009)). The complaint must possess more than “a formulaic 22 recitation of the elements of a cause of action;” it must contain non-conclusory, 23 factual allegations sufficient “to raise a right to relief above the speculative level.” 24 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). The Court may dismiss 25 a complaint as a matter of law for “(1) lack of a cognizable legal theory or (2) 26 insufficient facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta 27 Dental Plan of California, Inc., 88 F.3d 780, 783 (9th Cir. 1996). 28 1 III. DISCUSSION 2 A. Amendment Without Leave of Court 3 Fed. R. Civ. P. 15(a)(2) provides that leave to amend should be freely given 4 when justice so requires. The Ninth Circuit Court of Appeals recognizes that “the 5 underlying purpose of Rule 15 [is] to facilitate [a] decision on the merits, rather 6 than on the pleadings or technicalities,” and therefore “Rule 15's policy of favoring 7 amendments to pleadings should be applied with extreme liberality.” Chudacoff 8 v. University Med. Cent. of Southern Nev., 649 F.3d 1143, 1152 (9th Cir.2011) 9 (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir.1981)). A court may 10 find that amendment is not warranted, however, if one or more of the following 11 are present: (1) undue delay, bad faith or dilatory motive on the part of the 12 movant; (2) repeated failure to cure deficiencies by amendments previously 13 allowed; (3) undue prejudice to the opposing party by virtue of allowance of the 14 amendment; or (4) futility of amendment. C.F. ex rel. Farnan v. Capistrano Unified 15 Sch. Dist., 654 F.3d 975, 985 n.5 (9th Cir.2011) (quoting Foman v. Davis, 371 16 U.S. 178, 182 (1962)). Delay, by itself and without prejudice to the opposing 17 party, is insufficient to justify denial of leave to amend. United States v. Webb, 18 655 F.2d 977, 980 (9th Cir. 1981). 19 Here, Station Casinos does not allege any prejudice arising from Aiken’s First 20 Amended Complaint. Given Aiken’s pro se status, the Court considers Aiken’s 21 First Amended Complaint (ECF No. 13) even though Aiken did not seek leave of 22 court to amend as required by Fed. R. Civ. P. 15. 23 B. Merits 24 To raise a valid Title III claim under the ADA, Aiken must show that: (1) she is 25 disabled within the meaning of the ADA; (2) the defendant is a private entity that 26 owns, leases, or operates a place of public accommodation; and (3) she was 27 denied public accommodations by the defendant because of her disability. See 42 28 U.S.C. § 12182(a); Arizona ex rel. Goddard v. Harkins Amusement Enterprises, 1 Inc., 603 F.3d 666, 670 (9th Cir. 2010). Here, only the first prong is at issue. 2 Under the ADA, disability may be defined as “being regarded as” having “a 3 physical or mental impairment which substantially limits one or more … life 4 activities. . . .” See Socal Recovery, LLC v. City of Costa Mesa, 56 F.4th 802, 811 5 (9th Cir. 2023); 42 U.S.C. § 12102. 6 In her First Amended Complaint, Aiken alleges Station Casinos violated her 7 rights when it “regard[ed] [Aiken] as having compromised immune and 8 respiratory systems without an individualized assessment.” (ECF No. 13 at 3). 9 Construing all allegations in Aiken’s favor, Aiken argues that Station Casinos 10 improperly regarded Aiken as having a disability without an individualized 11 assessment when it required her to wear a mask. In other words, Aiken argues 12 that if Station Casinos had not regarded Aiken as having a disability it would 13 have allowed her to enter the Brass Fork without a mask. Importantly, Aiken does 14 not allege in her complaint that she has a disability which would prevent her from 15 wearing a mask, only that she was denied entrance because she was “regarded 16 as” having a disability that required her to wear a mask, i.e. “compromised 17 immune and respiratory systems” that would increase the likelihood that Aiken 18 would contract and spread COVID-19. 19 The allegation that Station Casinos perceived Aiken as potentially infectious 20 due to a weakened immune system fails to plausibly allege a claim that Station 21 Casinos regarded Aiken as having a disability under the ADA. See, e.g. Sharikov 22 v. Philips Med. Sys. MR, Inc., No. 122CV00326BKSDJS, 2023 WL 2390360, *7 23 (N.D.N.Y. Mar. 7, 2023) (citing Equal Emp. Opp'y Comm'n v. STME, LLC, 938 F.3d 24 1305, 1315 (11th Cir. 2019) (“[T]he disability definition in the ADA does not cover 25 th[e] case where an employer perceives a person to be presently healthy with only 26 a potential to become ill and disabled in the future.”); Jorgenson v. Conduent 27 Transp. Sols., Inc., No. 22-cv-1648, 2023 WL 1472022, at *4, 2023 U.S. Dist. 28 LEXIS 18463, at *10 (D. Md. Feb. 2, 2023) (dismissing a plaintiff's “regarded as” 1 ADA claim because requiring employees to attest to their vaccination status “does 2 not plausibly reflect a determination or belief that any of its employees are 3 disabled or impaired”); Earl v. Good Samaritan Hosp. of Suffern, No. 20-cv-3119, 4 2021 WL 4462413, at *6, 2021 U.S. Dist. LEXIS 186182, at *15 (S.D.N.Y. Sept. 5 28, 2021) (finding that the plaintiff “failed to plausibly allege that [his employer] 6 perceived him to be disabled based on his potential to infect patients with COVID- 7 19” because the “perception of infectiousness is not the same as perceived 8 disability”)). 9 Even if this Court assumes Aiken’s risk of potential infection is a disability 10 arguendo, several courts have dismissed claims similar to Aiken’s on the basis 11 that the ADA does not “‘require an entity to permit an individual to participate in 12 or benefit from the goods, services, facilities, privileges, advantages and 13 accommodations of such entity where such individual poses a direct threat to the 14 health or safety of others.” Warner v. Delano, No. 21-cv-05666, 2021 WL 5507160 15 (N.D. Cal. Nov. 24, 2021) (quoting 42 U.S.C. § 12182(b)(3)); see also Giles v. 16 Sprouts Farmers Mkt., Inc., No. 20-CV-2131-GPC-JLB, 2021 WL 2072379, at *5– 17 6 (S.D. Cal. May 24, 2021); Witt v. Bristol Farms, No. 21-CV-00411-BAS-AGS, 18 2021 WL 5203297, at *5–7 (S.D. Cal. Nov. 9, 2021). Aiken argues that Station 19 Casinos acted unlawfully because it did not make an individualized assessment. 20 (ECF No. 13 at 3). This argument is undermined by Aiken’s own complaint which 21 concedes that Station Casinos determined whether Aiken was wearing a facial 22 covering or not, and then refused to seat Aiken at the Brass Fork because she 23 was not wearing a facial covering. (ECF No. 13 at 2). In the context of the COVID- 24 19 pandemic, Station Casinos made an appropriate individualized assessment 25 when it determined whether a customer (like Aiken) was, or was not, wearing a 26 facial covering. See Giles, 2021 WL 2072379 at *5-6. 27 Furthermore, Aiken’s cursory mention of a disability in her response does not 28 affect the analysis. The Court may generally not consider materials outside the 1 four corners of the complaint when assessing its sufficiency under Rule 12(b)(6) 2 unless they are incorporated by reference, suitable for judicial notice, or the Court 3 converts the 12(b)(6) motion into a motion for summary judgment under Rule 56. 4 Fed. R. Civ. P. 12(d).1 See also Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th 5 Cir. 2001) ([W]hen the legal sufficiency of a complaint’s allegations is tested by a 6 motion under Rule 12(b)(6), ‘review is limited to the complaint.’”) (quoting 7 Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993)) overruled on 8 other grounds by Galbraith v. Cty. Of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). 9 Aikens’ perfunctory allegation in her response that she told Station Casinos staff 10 she “had a disability which prevented her from wearing a mask” does not alter 11 the analysis, especially as Aiken admits she “intentionally did not disclose her 12 disability and how she invoked it in her complaint or amended complaint . . . ” 13 and does not describe her disability with any particularity in her Response. (ECF 14 No. 18 at 2). For the foregoing reasons, the Court grants Station Casinos’ Motion 15 to Dismiss (ECF No. 17) as to Aiken’s ADA claim. 16 Plaintiff presents no argument regarding why this court should retain 17 jurisdiction over her state law claim once the federal claim is dismissed. The 18 Court therefore declines to exercise supplemental jurisdiction and dismisses 19 plaintiff's state law claim arising under NRS 651.070 without prejudice to its 20 filing in state court. See 28 U.S.C. § 1367(c)(3); Warren v. Fox Family Worldwide, 21 Inc., 328 F.3d 1136, 1139, 1143 n. 7 (9th Cir. 2003). 22 // 23 // 24 1 The judicial notice doctrine is only relevant in this case with regard to Station 25 Casinos’ request for judicial notice that the licensee of Sunset Station is NP Sunset LLC, rather than the defendant, Station Casinos LLC (ECF No. 17 at 2 26 n.1), and Station Casinos’ attachment of Emergency Directives 045 and 052. (Id. 27 at n.4). Both requests for judicial notice are proper. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (citing Burbank-Glendale- 28 Pasadena Airport Auth. V. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998)). 1 IV. CONCLUSION 2 The Court notes that the parties made several arguments and cited to several 3 || cases not discussed above. The Court has reviewed these arguments and cases 4 || and determines that they do not warrant discussion as they do not affect the 5 || outcome of the motions before the Court. 6 Therefore, it is ordered that Station Casinos’ Motion to Dismiss First 7 || Amended Complaint (ECF No. 17) is GRANTED. 8 It is further ordered that Station Casinos’ Motion to Dismiss (ECF No. 5) is 9 || DENIED as moot. 10 The Clerk of Court is respectfully directed to close this case. 11 12 DATED THIS 21st day of July 2023. 13 14 en 15 Aas / 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28