1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Peter Strojnik, No. CV-20-08319-PCT-DJH
10 Plaintiff, ORDER
11 v.
12 AIH LLC, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff’s Motion to Remand to State Court (Doc. 7). 16 Defendants have filed a Response in opposition (Doc. 12), and Plaintiff filed a Reply (Doc. 17 14). In addition, Defendants have filed a Motion to Dismiss (Doc. 18). Plaintiff filed a 18 Response in opposition (Doc. 21), and Defendant filed a Reply (Doc. 23). The Court will 19 now issue its ruling on both matters.1 20 I. Background 21 Plaintiff Peter Strojnik has been previously declared a vexatious litigant, and his 22 “history and his modus operandi are well known.” Strojnik v. Driftwood Hosp. Mgmt. 23 LLC, 2021 WL 50456, at *8 (D. Ariz. Jan. 6, 2021) (“Vexatious Litigant Order”), order 24 amended on reconsideration, 2021 WL 2454049 (D. Ariz. June 16, 2021). This case 25 follows the same pattern of his many other cookie-cutter lawsuits against hotel defendants 26 for claims arising under the Americans with Disabilities Act (“ADA”). See id. As with 27 those other cases, Defendants removed this action from state court, where Plaintiff
28 1 As stated in the Court’s previous Order (Doc. 36), the stay on this matter is now lifted by this decision on the Motion to Dismiss. 1 originally filed his Complaint. (Doc. 1-3). 2 Plaintiff alleges he visited Defendant AIH’s LLC (“AIH”) hotel (“Hotel”) in 3 Kingman, Arizona. (Id. at 4). He alleges he is disabled and that he encountered numerous 4 obstacles at the Hotel that denied him full and equal access to the premises. (Id. at 11). He 5 ultimately brings six Counts, the first three of which are plainly related to the ADA. Count 6 One alleges ADA violations. Count Two alleges negligence and negligence per se as a 7 result of Defendants breach of duty to “remove ADA accessibility barriers . . . .” (Id. at 8 22). Count Three alleges a failure to disclose arguing that Defendants breached their duty 9 “to disclose matters to Plaintiff that Defendant [sic] knew were necessary to be disclosed 10 to prevent Plaintiff to be misled by partial disclosures of ADA compliance . . . .” (Id. at 11 24). 12 The remaining Counts focus on the relationship between AIH and Defendant Best 13 Western International (“Best Western”). As alleged, the Hotel is named Best Western Plus. 14 (Id. at 25). But the Complaint alleges that the Hotel is not actually owned by Best Western. 15 Therefore, Plaintiff brings a “Consumer Fraud – Brand Deceit” claim in Count Four, which 16 alleges the “deceptive self-dentification” is intended to mislead the public into believing 17 they are booking a room at a hotel owned by Best Western, when it is actually owned by 18 AIH. (Id. at 26). Count Five alleges civil conspiracy between AIH and Best Western in 19 that they “structured their relationship” to make the public believe Best Western operated 20 the Hotel, “while at the same time they knew that Best Western was not the operator and 21 would not be considered an operator of the hotel and thereby not subject to ADA liability.” 22 (Id. at 27). Finally, Count Six alleges civil aiding and abetting as the result of Best 23 Western’s aiding AIH in brand deceit. (Id. at 29). As to this alleged deception, Counts 24 Four, Five, and Six claim over seven hundred thousand dollars in damages. Including 25 Counts Two and Three, the Complaint claims more than one million dollars in damages. 26 II. Motion to Remand 27 Plaintiff seeks to remand his “brand deceit related claims” 2 back to state court
28 2 Although Plaintiff’s Motion only mentions Counts Four and Six, the Court infers that Plaintiff intended to include Count Five, which necessarily relates to Count Four. See 1 under 28 U.S.C. § 1441(c). (Doc. 7 at 1). “[I]n any civil action of which the district courts 2 have original jurisdiction, the district courts shall have supplemental jurisdiction over all 3 other claims that are so related to claims in the action within such original jurisdiction that 4 they form part of the same case or controversy under Article III of the United States 5 Constitution.” 28 U.S.C. § 1367(a). If a civil action contains “a claim not within the 6 original or supplemental jurisdiction of the district court . . . the district court shall sever 7 from the action” all such claims. 28 U.S.C. § 1441(c). A complaint’s claims fall under a 8 common nucleus of operative fact when they “are such that he would ordinarily be expected 9 to try them all in one judicial proceeding . . . .” United Mine Workers of Am. v. Gibbs, 383 10 U.S. 715, 725 (1966). 11 Plaintiff argues that the Court lacks supplemental jurisdiction over Counts Four, 12 Five, and Six because they do not share a common nucleus of operative facts with the ADA 13 claim. (Doc. 7 at 5). However, the claims are plainly alleged to be related. As alleged in 14 the Complaint, 15 Best Western and AIH structured their relationship so that Plaintiff and the public would believe that Best Western operates the Hotel, while at the same 16 time they knew that Best Western was not the operator and would not be 17 considered an operator of the Hotel and thereby not subject to ADA liability. 18 (Doc. 1-3 at 27) (emphasis added). Given this relation between these brand deceit claim 19 and the ADA claim, the Court finds they involve a common nucleus of operative facts. 20 Therefore, the claims fall within the Court’s supplemental jurisdiction, and will not be 21 severed under 28 U.S.C. § 1441(c). The Court will deny Plaintiff’s Motion to Remand 22 (Doc. 7). 23 III. Motion to Dismiss 24 Defendants move to dismiss Counts Five and Six for civil conspiracy and aiding 25 and abetting. (Doc. 18 at 5–9).
26 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (holding that pro se filings must be liberally construed). The Counts are necessarily related because civil conspiracy is a claim that 27 requires an underlying tort, and Count Five’s allegations plainly relate to the claim of brand deceit. See Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title & Tr. of Phoenix, Inc., 5 28 P.3d 249, 259 (Ariz. Ct. App. 2000) (“A civil conspiracy requires an underlying tort which the alleged conspirators agreed to commit.”). 1 a. Motion to Dismiss Standard 2 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim. 3 Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). Complaints must make a short and 4 plain statement showing that the pleader is entitled to relief for its claims. Fed. R. Civ. P. 5 8(a)(2). This standard does not require “‘detailed factual allegations,’ but it demands more 6 than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 7 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 8 There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Peter Strojnik, No. CV-20-08319-PCT-DJH
10 Plaintiff, ORDER
11 v.
12 AIH LLC, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff’s Motion to Remand to State Court (Doc. 7). 16 Defendants have filed a Response in opposition (Doc. 12), and Plaintiff filed a Reply (Doc. 17 14). In addition, Defendants have filed a Motion to Dismiss (Doc. 18). Plaintiff filed a 18 Response in opposition (Doc. 21), and Defendant filed a Reply (Doc. 23). The Court will 19 now issue its ruling on both matters.1 20 I. Background 21 Plaintiff Peter Strojnik has been previously declared a vexatious litigant, and his 22 “history and his modus operandi are well known.” Strojnik v. Driftwood Hosp. Mgmt. 23 LLC, 2021 WL 50456, at *8 (D. Ariz. Jan. 6, 2021) (“Vexatious Litigant Order”), order 24 amended on reconsideration, 2021 WL 2454049 (D. Ariz. June 16, 2021). This case 25 follows the same pattern of his many other cookie-cutter lawsuits against hotel defendants 26 for claims arising under the Americans with Disabilities Act (“ADA”). See id. As with 27 those other cases, Defendants removed this action from state court, where Plaintiff
28 1 As stated in the Court’s previous Order (Doc. 36), the stay on this matter is now lifted by this decision on the Motion to Dismiss. 1 originally filed his Complaint. (Doc. 1-3). 2 Plaintiff alleges he visited Defendant AIH’s LLC (“AIH”) hotel (“Hotel”) in 3 Kingman, Arizona. (Id. at 4). He alleges he is disabled and that he encountered numerous 4 obstacles at the Hotel that denied him full and equal access to the premises. (Id. at 11). He 5 ultimately brings six Counts, the first three of which are plainly related to the ADA. Count 6 One alleges ADA violations. Count Two alleges negligence and negligence per se as a 7 result of Defendants breach of duty to “remove ADA accessibility barriers . . . .” (Id. at 8 22). Count Three alleges a failure to disclose arguing that Defendants breached their duty 9 “to disclose matters to Plaintiff that Defendant [sic] knew were necessary to be disclosed 10 to prevent Plaintiff to be misled by partial disclosures of ADA compliance . . . .” (Id. at 11 24). 12 The remaining Counts focus on the relationship between AIH and Defendant Best 13 Western International (“Best Western”). As alleged, the Hotel is named Best Western Plus. 14 (Id. at 25). But the Complaint alleges that the Hotel is not actually owned by Best Western. 15 Therefore, Plaintiff brings a “Consumer Fraud – Brand Deceit” claim in Count Four, which 16 alleges the “deceptive self-dentification” is intended to mislead the public into believing 17 they are booking a room at a hotel owned by Best Western, when it is actually owned by 18 AIH. (Id. at 26). Count Five alleges civil conspiracy between AIH and Best Western in 19 that they “structured their relationship” to make the public believe Best Western operated 20 the Hotel, “while at the same time they knew that Best Western was not the operator and 21 would not be considered an operator of the hotel and thereby not subject to ADA liability.” 22 (Id. at 27). Finally, Count Six alleges civil aiding and abetting as the result of Best 23 Western’s aiding AIH in brand deceit. (Id. at 29). As to this alleged deception, Counts 24 Four, Five, and Six claim over seven hundred thousand dollars in damages. Including 25 Counts Two and Three, the Complaint claims more than one million dollars in damages. 26 II. Motion to Remand 27 Plaintiff seeks to remand his “brand deceit related claims” 2 back to state court
28 2 Although Plaintiff’s Motion only mentions Counts Four and Six, the Court infers that Plaintiff intended to include Count Five, which necessarily relates to Count Four. See 1 under 28 U.S.C. § 1441(c). (Doc. 7 at 1). “[I]n any civil action of which the district courts 2 have original jurisdiction, the district courts shall have supplemental jurisdiction over all 3 other claims that are so related to claims in the action within such original jurisdiction that 4 they form part of the same case or controversy under Article III of the United States 5 Constitution.” 28 U.S.C. § 1367(a). If a civil action contains “a claim not within the 6 original or supplemental jurisdiction of the district court . . . the district court shall sever 7 from the action” all such claims. 28 U.S.C. § 1441(c). A complaint’s claims fall under a 8 common nucleus of operative fact when they “are such that he would ordinarily be expected 9 to try them all in one judicial proceeding . . . .” United Mine Workers of Am. v. Gibbs, 383 10 U.S. 715, 725 (1966). 11 Plaintiff argues that the Court lacks supplemental jurisdiction over Counts Four, 12 Five, and Six because they do not share a common nucleus of operative facts with the ADA 13 claim. (Doc. 7 at 5). However, the claims are plainly alleged to be related. As alleged in 14 the Complaint, 15 Best Western and AIH structured their relationship so that Plaintiff and the public would believe that Best Western operates the Hotel, while at the same 16 time they knew that Best Western was not the operator and would not be 17 considered an operator of the Hotel and thereby not subject to ADA liability. 18 (Doc. 1-3 at 27) (emphasis added). Given this relation between these brand deceit claim 19 and the ADA claim, the Court finds they involve a common nucleus of operative facts. 20 Therefore, the claims fall within the Court’s supplemental jurisdiction, and will not be 21 severed under 28 U.S.C. § 1441(c). The Court will deny Plaintiff’s Motion to Remand 22 (Doc. 7). 23 III. Motion to Dismiss 24 Defendants move to dismiss Counts Five and Six for civil conspiracy and aiding 25 and abetting. (Doc. 18 at 5–9).
26 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (holding that pro se filings must be liberally construed). The Counts are necessarily related because civil conspiracy is a claim that 27 requires an underlying tort, and Count Five’s allegations plainly relate to the claim of brand deceit. See Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title & Tr. of Phoenix, Inc., 5 28 P.3d 249, 259 (Ariz. Ct. App. 2000) (“A civil conspiracy requires an underlying tort which the alleged conspirators agreed to commit.”). 1 a. Motion to Dismiss Standard 2 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim. 3 Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). Complaints must make a short and 4 plain statement showing that the pleader is entitled to relief for its claims. Fed. R. Civ. P. 5 8(a)(2). This standard does not require “‘detailed factual allegations,’ but it demands more 6 than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 7 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 8 There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. 9 While courts do not generally require “heightened fact pleading of specifics,” a plaintiff 10 must allege facts sufficient to “raise a right to relief above the speculative level.” See 11 Twombly, 550 U.S. at 555. A complaint must “state a claim to relief that is plausible on its 12 face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content 13 that allows the court to draw the reasonable inference that the defendant is liable for the 14 misconduct alleged.” Iqbal, 556 U.S. at 678. In addition, “[d]etermining whether a 15 complaint states a plausible claim for relief will . . . be a context-specific task that requires 16 the reviewing court to draw on its judicial experience and common sense.” Id. at 679. 17 Dismissal of a complaint for failure to state a claim can be based on either the “lack 18 of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable 19 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In 20 reviewing a motion to dismiss, “all factual allegations set forth in the complaint ‘are taken 21 as true and construed in the light most favorable to the plaintiffs.’” Lee v. City of L.A., 250 22 F.3d 668, 679 (9th Cir. 2001) (quoting Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 23 (9th Cir. 1996)). But courts are not required “to accept as true a legal conclusion couched 24 as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 25 265, 286 (1986)). 26 b. Analysis 27 Counts Five and Six, for civil conspiracy to commit fraud and aiding and abetting 28 fraud, claim that Defendants aimed to fool the public into believing that Best Western 1 owned and operated the Hotel. At most, these claims consist of unadorned the-Defendants- 2 unlawfully-harmed-me allegations. See Iqbal, 556 U.S. at 678. A claim of civil conspiracy 3 requires showing of injury. Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title & Tr. of 4 Phoenix, Inc., 5 P.3d 249, 256 (Ariz. Ct. App. 2000). Likewise, aiding and abetting 5 requires a showing that there be a tort of some kind that causes plaintiff injury. Barrio v. 6 Gisa Invs. LLC, 2020 WL 6081495, at *3 (D. Ariz. Oct. 15, 2020). Plaintiff claims several 7 hundreds of thousands of dollars in damages, but it is unclear from the Complaint why this 8 is warranted. Plaintiff claims he “suffered an injury” giving rise to both claims. (Doc. 1- 9 3 at 28, 29). But without further supporting factual allegations, the Court need not accept 10 these conclusory legal conclusions. Twombly, 550 U.S. at 555. Without further support, 11 the Court is unable to determine from the Complaint how Defendants harmed Plaintiff such 12 that they may be liable for Counts Five and Six. See Iqbal, 556 U.S. at 678. Therefore, 13 the Court will grant Defendants’ Motion to Dismiss (Doc. 18). 14 IV. Leave to Amend 15 Plaintiff requests leave to amend his Complaint, and the Court will grant it. See 16 Fed. R. Civ. P. 15(a). Plaintiff shall have thirty days from the date of this Order in which 17 he may file a first amended complaint. 18 In addition, under the Court’s Vexatious Litigant Order, if Plaintiff’s amended 19 complaint includes claims alleging violations of the ADA, Plaintiff shall post a bond for 20 $10,000 within twenty-one days of amending his pleadings. See Vexatious Litigant Order 21 at *11. If Plaintiff fails to post this bond, the Court will dismiss this case for failure to 22 comply with the Court’s Vexatious Litigant Order. 23 Accordingly, 24 IT IS HEREBY ORDERED lifting the stay on this matter pursuant to the Court’s 25 prior Order (Doc. 36). 26 IT IS FURTHER ORDERED that Plaintiff’s Motion to Remand (Doc. 7) is 27 denied. 28 IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss (Doc. 18) is granted. The Court will Dismiss Counts Five and Six from the Complaint. 2 IT IS FURTHER ORDERED that Plaintiff shall have thirty (30) days from the 3 || date of this Order in which to file an amended complaint. 4 IT IS FINALLY ORDERED that under the Court’s Vexatious Litigant Order, if 5 || Plaintiff files an amended complaint alleging violations of the Americans with Disabilities 6|| Act but fails to post a bond for $10,000 within twenty-one (21) days after the amended 7 || complaint is filed, the Clerk of Court shall kindly dismiss this action without further order. 8 Dated this Ist day of September, 2021. 9 10 oC. . fo _ □ norable' Diang4. Huretewa 2 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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