Gomez v. Boulevard and Company, Inc.

Opinion

ANDRES GOMEZ, No. 2:21-cv-2057 WBS DB Plaintiff, v. ORDER INC., a California Corporation, dba The Kana Company, Defendant.

On August 2, 2022, defendant filed a motion for default judgment and noticed the matter for hearing before the undersigned on September 9, 2022, pursuant to Local Rule 302(c)(19). (ECF No. 23.) Plaintiff’s motion seeks default judgment on the amended complaint’s claims that the defendant violated the Americans with Disabilities Act (“ADA”) and the California Unruh Civil Rights Act. (Id. at 2.) Having reviewed plaintiff’s briefing, the undersigned will deny the motion without prejudice to renewal.1 In this regard, a district court is “required sua sponte to examine jurisdictional issues such as standing.” Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002); see also Fed. 1 Pursuant to Local Rule 230(g) the undersigned finds the matter suitable for resolution without a hearing. R. Civ. P. 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”). “Article III standing is a species of subject matter jurisdiction.” Coble v. DeRosia, 823 F. Supp. 2d 1048, 1051 (E.D. Cal. 2011). “A suit brought by a plaintiff without Article III standing is not a ‘case or controversy,’ and an Article III federal court therefore lacks subject matter jurisdiction over the suit.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). To establish standing generally, a plaintiff must show they “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 578 U.S. 330, 338, (2016). Additionally, “to establish standing to pursue injunctive relief, which is the only relief available to private plaintiffs under the ADA, he must demonstrate a ‘real and immediate threat of repeated injury’ in the future.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011). (quoting Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)). In the Ninth Circuit, there are two ways an ADA plaintiff may establish standing: “plaintiff must show … either that he is deterred from returning to the facility or that he intends to return to the facility and is therefore likely to suffer repeated injury.” Chapman, 631 F.3d at 953. The deterrence test still requires an intent to return. Brooke v. Sai Ashish Inc., Case No. 1:21-cv- 0967 AWI SAB, 2021 WL 4804220, at *11 (E.D. Cal. Oct., 2021), report and recommendation adopted, 2022 WL 446676 (E.D. Cal. Feb. 14, 2022). If the public accommodation that is being sued is far from the plaintiff’s home, a plaintiff must “demonstrate[s] an intent to return to the geographic area where the accommodation is located and a desire to visit the accommodation if it were made accessible.” D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir. 2008). Here, plaintiff alleges that plaintiff visited the defendant’s website in March and August of 2021 and encountered barriers. (ECF No. 23-1 at 2.) The ADA does apply to websites run by places of public accommodation. See generally Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019). However, in a vague, conclusory, and confusing manner plaintiff’s motion and declaration offered in support assert that plaintiff “was in the California area and was considering visiting Northern California . . . because he has family that lives in Northern California.” (Id. at 7; Gomez Decl. (ECF No. 6) at 4.) A plaintiff’s profession of intent to return “without … concrete plans or … any specification” is not sufficient to establish standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992). Similarly, “conclusory statements” of deterrence are insufficient to demonstrate standing. Feezor v. Sears, Roebuck & Co., 608 F. App’x 476, 477 (9th Cir. 2015). An ADA plaintiff “lacks standing if he is indifferent to returning to the store or if his alleged intent to return is not genuine, or if the barriers he seeks to enjoin do not pose a real and immediate threat to him due to his particular disability.” Chapman, 631 F.3d at 953. While plaintiff’s conclusory statements would be insufficient under any circumstances, the facts of this action provide additional context. According to the Civil Cover Sheet filed in this action plaintiff resides in Miami, Florida. (ECF No. 1-1 at 1.) The defendant operates a cannabis collective dispensary in California. Plaintiff has not alleged—nor does it appear true—that defendant offers to ship its product interstate. Plaintiff has also not alleged an intent and ability to join the collective. In this regard, it is unclear from plaintiff’s briefing whether plaintiff has satisfied the standing requirement. Plaintiff’s motion, therefore, will be denied without prejudice to renewal and plaintiff will be provided an opportunity to amend the briefing. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff’s August 2, 2022 motion for default judgment (ECF No. 23) is denied without prejudice to renewal2; and //// //// ////

2 Plaintiff may cure the defects noted above by filing an amended motion for default judgment that contains specific factual allegations to satisfy the standing requirement supported by a declaration. 2. The September 9, 2022 hearing of plaintiffs motion is vacated. Dated: September 6, 2022 > | DLB:6 UNITED STATES MAGISTRATE JUDGE DB/orders/orders.civil/gomez2057.mdj.den.ord