1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 GERARDO HERNANDEZ, Case No. 21-cv-09212-CRB
9 Plaintiff,
ORDER DISMISSING PLAINTIFF’S 10 v. STATE-LAW CLAIMS FOR LACK OF SUPPLEMENTAL 11 SYNCRASY, et al., JURISDICTION 12 Defendants.
13 Plaintiff Gerardo Hernandez (“Hernandez”) filed suit against Defendants Syncrasy 14 and Franklin St. RC Apartments LLC (together, “Defendants”) for failure to provide 15 wheelchair-accessible parking and facilities in violation of the Americans with Disabilities 16 Act (“ADA”), the California Unruh Civil Rights Act (“Unruh Act”), and denial of full and 17 equal access to public facilities under California Health and Safety Code § 19955(a). See 18 Compl. (dkt. 1). On October 11, 2022, the Court ordered Hernandez to show cause why it 19 should not decline to exercise supplemental jurisdiction over his Unruh Act claim. Order 20 to Show Cause (“OSC”) (dkt. 37). Hernandez has since responded and filed a motion for 21 leave to file an amended complaint. See OSC Response (dkt. 40); Mot. for Leave to File 22 Am. Compl. (dkt. 39). For the reasons stated below, and finding this matter suitable for 23 resolution without oral argument pursuant to Civil Local Rule 7-1(b), the Court declines to 24 exercise supplemental jurisdiction over Hernandez’s state-law claims. Hernandez shall 25 notify the court by February 3, 2023 whether he intends to move forward with his ADA 26 claim. 27 I. BACKGROUND 1 he lives less than twenty miles from Defendants’ facilities and that he visited on three 2 occasions in July and August 2021 “to purchase lunch.” Id. ¶ 10. While there, he alleges 3 that he encountered barriers, including a lack of designated accessible parking, a service 4 counter that was too high for him to communicate with Defendants’ staff, and a self- 5 service beverage dispenser that was similarly too high for him to access from his 6 wheelchair. Id. Hernandez then filed this suit against Defendants under the ADA, 42 7 U.S.C. § 12101, et seq., the Unruh Act, Cal. Civ. Code §§ 51–53, and Cal. Health & Safety 8 Code § 19955(a). Id. ¶¶ 16–46. The parties then commenced litigation subject to General 9 Order 56, which sets procedure for actions asserting ADA claims in the Northern District. 10 See General Order 56. The parties conducted a joint site inspection on February 8, 2022, 11 where Hernandez’s “access consultant identified additional conditions which would 12 prevent Plaintiff’s full and equal access to the Facility,” the subject of Hernandez’s motion 13 to amend his complaint. See Joint Case Management Statement (dkt. 35) at 2; Mot. for 14 Leave to File Am. Compl. The parties had an unsuccessful mediation session on 15 September 12, 2022. See dkt. 32. 16 II. LEGAL STANDARD 17 When a federal court has original jurisdiction over a claim, the court “shall have 18 supplemental jurisdiction over all other claims that are so related to claims in the action . . . 19 that they form part of the same case or controversy.” 28 U.S.C. § 1367(a). State claims 20 are part of the same case or controversy as federal claims “when they derive from a 21 common nucleus of operative fact and are such that a plaintiff would ordinarily be 22 expected to try them in one judicial proceeding.” Kuba v. 1–A Agric. Ass’n, 387 F.3d 23 850, 855–56 (9th Cir. 2004) (internal quotation marks and citation omitted). 24 Supplemental jurisdiction is mandatory unless prohibited by § 1367(b), or unless 25 one of the exceptions in § 1367(c) applies. Schutza v. Cuddeback, 262 F. Supp. 3d 1025, 26 1028 (S.D. Cal. 2017). Under § 1367(c), a district court may “decline supplemental 27 jurisdiction over a claim” if: claim substantially predominates over the claim or claims over 1 which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original 2 jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 3 28 U.S.C. § 1367(c). 4 III. DISCUSSION 5 After reviewing Hernandez’s response to the Court’s order, the Court declines to 6 exercise supplemental jurisdiction over his state-law claims. 7 Federal courts may decline to exercise supplemental jurisdiction over a state law 8 claim “in exceptional circumstances.” 28 U.S.C. § 1367(c)(4). When a “high-frequency” 9 litigant1 asserts a California Unruh Act claim in federal court with an ADA claim, it may 10 constitute an exceptional circumstance that justifies dismissal of the Unruh Act claim. See 11 Arroyo v. Rosas, 19 F.4th 1202, 1211–14 (9th Cir. 2021); Vo v. Choi, 49 F.4th 1167, 12 1171–73 (9th Cir. 2022). Such situations implicate strong federal–state comity concerns 13 because “high-frequency” litigants can evade heightened California-law rules by filing 14 Unruh Act claims with ADA claims in federal court. See Vo, 49 F.4th at 1171 (citing 15 Arroyo, 19 F.4th at 1212–13). If a court finds that such exceptional circumstances exist, as 16 they do here, it must then show that balance of the “Gibbs values” of comity, fairness, 17 judicial economy, and convenience provides “compelling reasons for declining 18 jurisdiction” in each case. Id. (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 19 726 (1966)). 20 In his response to the Court’s order to show cause, Hernandez argues that the Gibbs 21 values require retaining supplemental jurisdiction because (1) “Hernandez has already 22 incurred substantial litigation expenses which are only recoverable under the ADA”; and 23 (2) the “economy, convenience, fairness and comity” factors “favor retaining supplemental 24 25 26 1 Under California law, a high-frequency litigant is defined as “[a] plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period 27 immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.” Cal. Civ. Proc. Code § 425.55(b)(1). Hernandez, who filed 30 ADA cases 1 jurisdiction . . . where a site inspection has already taken place.” OSC Response at 4–5. 2 As to Hernandez’s first argument, as a threshold matter, while General Order 56 3 instructs the parties to conduct a joint site inspection, it specifically does not instruct the 4 parties to retain experts to do so. See General Order 56 ¶ 6 (“This Order does not require 5 any party to engage an expert, including a Certified Access Specialist (CASp).”). Thus, 6 expenses to hire Hernandez’s expert were incurred not due to any requirement from this 7 Court or in this District, but based on Hernandez and his counsel’s belief that they needed 8 to do so, and their hope that they would be able to recover those fees in this action when all 9 is said and done. See OSC Response at 5. Such an award would be discretionary, not 10 mandatory. See 42 U.S.C. § 12205. Hernandez was also able to evade a significant filing 11 fee required of high-frequency litigants in state court by filing in federal court. See 12 Arroyo, 19 F.4th at 1207 (citing Cal.
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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 GERARDO HERNANDEZ, Case No. 21-cv-09212-CRB
9 Plaintiff,
ORDER DISMISSING PLAINTIFF’S 10 v. STATE-LAW CLAIMS FOR LACK OF SUPPLEMENTAL 11 SYNCRASY, et al., JURISDICTION 12 Defendants.
13 Plaintiff Gerardo Hernandez (“Hernandez”) filed suit against Defendants Syncrasy 14 and Franklin St. RC Apartments LLC (together, “Defendants”) for failure to provide 15 wheelchair-accessible parking and facilities in violation of the Americans with Disabilities 16 Act (“ADA”), the California Unruh Civil Rights Act (“Unruh Act”), and denial of full and 17 equal access to public facilities under California Health and Safety Code § 19955(a). See 18 Compl. (dkt. 1). On October 11, 2022, the Court ordered Hernandez to show cause why it 19 should not decline to exercise supplemental jurisdiction over his Unruh Act claim. Order 20 to Show Cause (“OSC”) (dkt. 37). Hernandez has since responded and filed a motion for 21 leave to file an amended complaint. See OSC Response (dkt. 40); Mot. for Leave to File 22 Am. Compl. (dkt. 39). For the reasons stated below, and finding this matter suitable for 23 resolution without oral argument pursuant to Civil Local Rule 7-1(b), the Court declines to 24 exercise supplemental jurisdiction over Hernandez’s state-law claims. Hernandez shall 25 notify the court by February 3, 2023 whether he intends to move forward with his ADA 26 claim. 27 I. BACKGROUND 1 he lives less than twenty miles from Defendants’ facilities and that he visited on three 2 occasions in July and August 2021 “to purchase lunch.” Id. ¶ 10. While there, he alleges 3 that he encountered barriers, including a lack of designated accessible parking, a service 4 counter that was too high for him to communicate with Defendants’ staff, and a self- 5 service beverage dispenser that was similarly too high for him to access from his 6 wheelchair. Id. Hernandez then filed this suit against Defendants under the ADA, 42 7 U.S.C. § 12101, et seq., the Unruh Act, Cal. Civ. Code §§ 51–53, and Cal. Health & Safety 8 Code § 19955(a). Id. ¶¶ 16–46. The parties then commenced litigation subject to General 9 Order 56, which sets procedure for actions asserting ADA claims in the Northern District. 10 See General Order 56. The parties conducted a joint site inspection on February 8, 2022, 11 where Hernandez’s “access consultant identified additional conditions which would 12 prevent Plaintiff’s full and equal access to the Facility,” the subject of Hernandez’s motion 13 to amend his complaint. See Joint Case Management Statement (dkt. 35) at 2; Mot. for 14 Leave to File Am. Compl. The parties had an unsuccessful mediation session on 15 September 12, 2022. See dkt. 32. 16 II. LEGAL STANDARD 17 When a federal court has original jurisdiction over a claim, the court “shall have 18 supplemental jurisdiction over all other claims that are so related to claims in the action . . . 19 that they form part of the same case or controversy.” 28 U.S.C. § 1367(a). State claims 20 are part of the same case or controversy as federal claims “when they derive from a 21 common nucleus of operative fact and are such that a plaintiff would ordinarily be 22 expected to try them in one judicial proceeding.” Kuba v. 1–A Agric. Ass’n, 387 F.3d 23 850, 855–56 (9th Cir. 2004) (internal quotation marks and citation omitted). 24 Supplemental jurisdiction is mandatory unless prohibited by § 1367(b), or unless 25 one of the exceptions in § 1367(c) applies. Schutza v. Cuddeback, 262 F. Supp. 3d 1025, 26 1028 (S.D. Cal. 2017). Under § 1367(c), a district court may “decline supplemental 27 jurisdiction over a claim” if: claim substantially predominates over the claim or claims over 1 which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original 2 jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 3 28 U.S.C. § 1367(c). 4 III. DISCUSSION 5 After reviewing Hernandez’s response to the Court’s order, the Court declines to 6 exercise supplemental jurisdiction over his state-law claims. 7 Federal courts may decline to exercise supplemental jurisdiction over a state law 8 claim “in exceptional circumstances.” 28 U.S.C. § 1367(c)(4). When a “high-frequency” 9 litigant1 asserts a California Unruh Act claim in federal court with an ADA claim, it may 10 constitute an exceptional circumstance that justifies dismissal of the Unruh Act claim. See 11 Arroyo v. Rosas, 19 F.4th 1202, 1211–14 (9th Cir. 2021); Vo v. Choi, 49 F.4th 1167, 12 1171–73 (9th Cir. 2022). Such situations implicate strong federal–state comity concerns 13 because “high-frequency” litigants can evade heightened California-law rules by filing 14 Unruh Act claims with ADA claims in federal court. See Vo, 49 F.4th at 1171 (citing 15 Arroyo, 19 F.4th at 1212–13). If a court finds that such exceptional circumstances exist, as 16 they do here, it must then show that balance of the “Gibbs values” of comity, fairness, 17 judicial economy, and convenience provides “compelling reasons for declining 18 jurisdiction” in each case. Id. (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 19 726 (1966)). 20 In his response to the Court’s order to show cause, Hernandez argues that the Gibbs 21 values require retaining supplemental jurisdiction because (1) “Hernandez has already 22 incurred substantial litigation expenses which are only recoverable under the ADA”; and 23 (2) the “economy, convenience, fairness and comity” factors “favor retaining supplemental 24 25 26 1 Under California law, a high-frequency litigant is defined as “[a] plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period 27 immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.” Cal. Civ. Proc. Code § 425.55(b)(1). Hernandez, who filed 30 ADA cases 1 jurisdiction . . . where a site inspection has already taken place.” OSC Response at 4–5. 2 As to Hernandez’s first argument, as a threshold matter, while General Order 56 3 instructs the parties to conduct a joint site inspection, it specifically does not instruct the 4 parties to retain experts to do so. See General Order 56 ¶ 6 (“This Order does not require 5 any party to engage an expert, including a Certified Access Specialist (CASp).”). Thus, 6 expenses to hire Hernandez’s expert were incurred not due to any requirement from this 7 Court or in this District, but based on Hernandez and his counsel’s belief that they needed 8 to do so, and their hope that they would be able to recover those fees in this action when all 9 is said and done. See OSC Response at 5. Such an award would be discretionary, not 10 mandatory. See 42 U.S.C. § 12205. Hernandez was also able to evade a significant filing 11 fee required of high-frequency litigants in state court by filing in federal court. See 12 Arroyo, 19 F.4th at 1207 (citing Cal. Gov’t Code § 70616.5).2 Thus, it would seem 13 incongruous if high-frequency litigants were able to dodge state-court filing fees by filing 14 in federal court and hiring an expert that a federal court does not require to conduct their 15 inspection—thus incurring litigation costs that would allow them supplemental jurisdiction 16 to bring those state-law claims in federal court. And in any case, if Hernandez moves 17 forward with his ADA claim in this action, he may still seek litigation expenses and costs 18 here; he just may not do so while simultaneously seeking Unruh damages, which he may 19 seek in state court. 20 As to Hernandez’s second argument, the Court is not convinced that this case is in 21 such a “late stage” that the relevant factors “overwhelmingly favor[] retaining 22 jurisdiction.” OSC Response at 5 (quoting Arroyo, 19 F.4th at 1214). The district court in 23 Arroyo did not decide the supplemental jurisdiction question until after it had ruled on the 24 merits of the plaintiff’s ADA claim; the Ninth Circuit thus held that the district court had 25 26 2 Other litigants have argued that General Order 56 itself functions like California’s high- frequency litigant statute. But as this Court and others have previously held, General Order 56 27 does not “address the particular concerns that motivated the California legislature to adopt heightened pleading standards for ‘high-frequency litigants.’” Johnson v. Kuma Kuma LLC, 22- 1 waited until a “very late stage” of the litigation—too late—to decline supplemental 2 jurisdiction. See Arroyo, 19 F.4th at 1214; see also id. at 1216 (“[I]t is simply too late to 3 undo the now-sunk costs already incurred by litigating this matter to its now-inevitable 4 conclusion.”). In Vo, the Ninth Circuit, affirming a district court’s decision to decline 5 supplemental jurisdiction in a case where the plaintiff had moved for default judgment, 6 distinguished Arroyo: “The district court here declined supplemental jurisdiction over Vo’s 7 Unruh Act claim well before it ruled on the merits of the ADA claim.” Vo, 49 F.4th at 8 1172. So too here: The Court has not ruled on the merits of Hernandez’s ADA claim; 9 instead, the parties have complied with General Order 56, which requires a single joint 10 inspection of the facilities at issue, a settlement conference, and a mediation session. 11 General Order 56 at 3–4. The only motion either party has yet filed is a motion for leave 12 to amend the complaint. This is hardly a “very late stage” of the litigation such that 13 Arroyo requires that jurisdiction over Hernandez’s state law claims be retained. 14 In all, concerns of fairness and comity support declining jurisdiction in this case to 15 allow the state of California to properly enforce its rules governing high-frequency 16 litigants. These strong comity concerns outweigh any loss of convenience by requiring 17 Hernandez to refile his state-law claims in state court. And strong judicial economy 18 concerns are not implicated because, as in Vo, the Court has not waited until a “very late 19 stage” of the case to decline supplemental jurisdiction. Vo, 49 F.4th at 1172 (quoting 20 Arroyo, 19 F.4th at 1171). After balancing the Gibbs values in this case, the Court finds 21 that exceptional circumstances exist that justify declining supplemental jurisdiction over 22 Hernandez’s state-law claims. 23 IV. CONCLUSION 24 For the foregoing reasons, Hernandez’s state-law claims are dismissed for lack of 25 supplemental jurisdiction. Hernandez shall notify the court by February 3, 2023 whether 26 he intends to move forward with his ADA claim. 27 1 IT IS SO ORDERED. = 2 Dated: January 26, 2023 am CHARLES R. BREYER 3 United States District Judge A 5 6 7 8 9 10 11 12
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