Strojnik v. Ashford Scottsdale LP

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Peter Strojnik, No. CV-20-02352-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Ashford Scottsdale LP,

13 Defendant. 14 15 INTRODUCTION 16 Over the last decade, Plaintiff Peter Strojnik (“Strojnik”) has been personally 17 responsible for the filing of hundreds, if not thousands, of meritless lawsuits. In general, 18 these “cookie-cutter lawsuits” with inadequate allegations have involved the assertion of 19 claims under the Americans with Disabilities Act (“ADA”) against small businesses. 20 Advocates for Individuals with Disabilities LLC v. MidFirst Bank, 279 F. Supp. 891, 893 21 (D. Ariz. 2017) (“Template complaints filled with non-specific allegations have become 22 the stock-in-trade of attorney[] Peter Strojnik” who, in conjunction with others, “pursued 23 upwards of 160 cookie-cutter lawsuits in federal court and, from early to later 2016, more 24 than 1,700 such suits in Arizona state court”). 25 Initially, Strojnik filed these ADA lawsuits in his capacity as an attorney, but he was 26 disbarred by the Arizona State Bar in 2019. The notice of disbarment explained that 27 Strojnik’s modus operandi was to engage in “‘extortionate’ and ‘ethically suspect’ 28 misconduct” by asserting “vague violations” and then “demand[ing] approximately $5,000 1 in attorney’s fees regardless if the business remedied the purported violations.” See State 2 Bar of Ariz., https://azbar.legalserviceslink.com/attorneys-view/PeterStrojnik (last visited 3 May 17, 2021). 4 Next, Strojnik began bringing ADA lawsuits in federal court as a pro se plaintiff. 5 Those lawsuits were routinely dismissed for lack of standing, and in 2020, Strojnik was 6 declared a vexatious litigant by the United States District Courts for the Northern and 7 Central Districts of California. Strojnik v. IA Lodging Napa First LLC, 2020 WL 2838814, 8 *13 (N.D. Cal. 2020) (“Strojnik’s litigation tactics are frivolous and harassing.”); Strojnik 9 v. SCG Am. Construction Inc., 2020 WL 4258814, *7-8 (C.D. Cal. 2020) (finding, in the 10 course of making vexatious-litigant finding, that “Strojnik’s propensity for filing a 11 multitude of disability discrimination cases, particularly against hotel defendants, is very 12 well known,” that “countless courts have questioned Strojnik’s motives in pursuing the 13 litigation and whether he has a good faith basis for his claims,” and that “Strojnik’s history 14 contains countless filings of frivolous complaints and instances of directly ignoring court 15 orders”). 16 Strojnik’s latest strategy is to file pro se ADA lawsuits in Arizona state court. His 17 apparent rationale for doing so is that he believes state-law standing requirements are 18 favorable to him in a way that the federal courts’ standing requirements are not.1 Many of 19 the targets of these lawsuits have responded by removing the action to federal court, based 20 on the presence of a federal claim (i.e., the ADA claim), and then moving to dismiss based 21 on a lack of standing. Strojnik v. Driftwood Hospitality Mgmt. LLC, 2021 WL 50456, *8- 22 9 (D. Ariz. 2021) (“As of December 19, 2020, Mr. Strojnik claims to have filed 64 cases 23 with ADA claims in Arizona superior courts . . . [and] twenty-two of Mr. Strojnik’s pro se 24 ADA cases have been heard in this District since his disbarment after they were removed 25 from state court”). Strojnik has not only resisted these efforts but gone on the offensive, 26 seeking sanctions against opposing counsel. (See, e.g., Doc. 15.) Such tactics prompted 27 1 Strojnik expressed this belief during a deposition in a different case. (Doc. 19-1 at 28 38-39 [Q: “Is there any reason why you filed in state court rather than federal court.” A. “State constitutions don’t have Article 3 of the Constitution.”].) 1 the District of Arizona to declare Strojnik a vexatious litigant in January 2021. Driftwood 2 Hospitality, 2021 WL 50456 at *10 (“The Court finds that Mr. Strojnik harasses and 3 coerces parties into agreeing to extortive settlements . . . [and] finds Mr. Strojnik’s 4 litigation tactics frivolous and harassing.”). 5 This action represents more of the same. Strojnik initiated this pro se lawsuit in 6 October 2020 by filing a complaint in Maricopa County Superior Court. (Doc. 1-1 at 2- 7 39.) The complaint names one defendant, Ashford Scottsdale LP, doing business as 8 Courtyard by Marriott Scottsdale Old Town (“Ashford”). (Id.) It asserts an ADA claim 9 and five state-law claims. (Id.) In December 2020, Ashford removed the action to federal 10 court. (Doc. 1.) Because the removal occurred before the District of Arizona’s vexatious 11 litigant order took effect in January 2021, it is not subject to the bond and screening 12 requirements set forth in that order. Thus, this Court must address whether and how it may 13 proceed. 14 To that end, Ashford has now filed a motion to dismiss for lack of subject-matter 15 jurisdiction. (Doc. 19.) Ashford not only argues that Strojnik lacks standing to pursue his 16 claims, because he has not suffered an injury in fact, but argues that dismissal is the 17 appropriate remedy because a remand to state court would be futile. (Id.) Strojnik opposes 18 the motion and separately seeks permission to remand one of his state-law claims (Doc. 9) 19 and/or to amend his complaint (Doc. 20). 20 For the following reasons, Ashford’s motion to dismiss is granted and Strojnik’s 21 motions are denied. Having been disbarred once, and been declared a vexatious litigant 22 thrice, for making variants of the same arguments presented in this case, Strojnik cannot 23 establish that remanding this action for further litigation in state court would be anything 24 other than an exercise in futility. Enough is enough. This judicial equivalent of whack-a- 25 mole must stop. 26 … 27 … 28 … 1 RELEVANT BACKGROUND 2 I. The Allegations And Claims In The Complaint 3 On October 6, 2020, Strojnik initiated this action in Maricopa County Superior 4 Court. (Doc. 1-1 at 2-39.) 5 The complaint contains an array of allegations intended to establish that Strojnik is 6 disabled. For example, it alleges that Strojnik is “a disabled person as defined by the ADA 7 Amendment Act” because he “suffer[s] from the following physical disabilities: prostate 8 cancer, genitourinary impairment, renal cancer, severe right-sided neural foraminal 9 stenosis with symptoms of femoral neuropathy, missing right knee ameliorated with a 10 prosthesis, limitation on the use of both shoulders, elbows and wrists, pleurisy, hyper blood 11 pressure.” (Id. ¶¶ 9, 18.) It further alleges that these physical disabilities “[a]ffect [his] 12 neurological, musculoskeletal, respiratory, cardiovascular, reproductive and genitourinary 13 body systems” and “[l]imit . . . the following major life activities: walking, standing, sitting, 14 bending, sleeping, working, climbing stairs, kicking, jumping, twisting body, running, 15 reaching, lifting, writing, working, twisting the wrist, shoulder and elbows, grasping, 16 pushing, opening doors, breathing, getting in and out of a car, working, carrying stuff and 17 other major life activities.” (Id. ¶ 19.) As discussed in more detail below, the complaint 18 also alleges that, “[i]n their unmitigated, active state,” these “impairments require the use 19 of a wheelchair.” (Id. ¶ 26, emphasis added.) 20 Next, the complaint contains various allegations concerning Strojnik’s efforts to 21 book a room at, and stay at, a hotel in Scottsdale, Arizona that is owned and operated by 22 Ashford. Specifically, the complaint alleges that, on an unspecified date, Strojnik 23 “reviewed [Ashford’s] booking website” in an attempt to determine whether the website 24 “identifies and describes accessible features and guest rooms offered through its 25 reservations service in sufficient detail to assess independently whether [Ashford’s hotel 26 meets Strojnik’s] accessibility needs.” (Id. ¶ 29.) The complaint further alleges that, “in 27 reliance on the truth of the representations” appearing on the website, “and in further 28 reliance on Ashford’s self-identification as a ‘Courtyard,’ a Marriott brand,” Strojnik 1 “booked and paid for an accessible room at the Hotel.” (Id. ¶ 32.) Finally, the complaint 2 alleges that, on the unspecified date when Strojnik visited the hotel, he “personally 3 encountered [various] photographically documented conditions at the Hotel” that “affected 4 [his] impairments . . . so as to deny him the ‘full and equal’ access that would satisfy the 5 injury-in-fact requirement.” (Id. ¶ 33.) The complaint then contains a series of 19 6 photographs that include the following captions: “No access from street,” “No handrails 7 on left of ramp,” “Improperly positioned handrails on right,” “Closest parking to lobby not 8 accessible,” “Accessible parking slope too steep,” “No marked passenger loading zone,” 9 “Out of reach snacks,” “Out of reach sundry items,” “Inaccessible check in counter,” 10 “Inaccessible business desk,” “Inaccessible card reader for pool access,” “Pool gate 11 har[d]ware requires twisting of wrist action,” “Inaccessible boarding pass counter,” 12 “Improperly configured hardware to room requiring twisting of the [wrist] action,” “19 lbs 13 to open door to room,” “Deadbolt requires twisting of wrist,” “Shower water scalding 14 136.8◦F (over 120◦F not permitted),” “No shut off control on spray unit,” and “Toilet flush 15 on wrong side.” (Id. at 13-32.) 16 Based on these allegations, the complaint asserts six claims. The first is a claim 17 under the ADA. (Id. ¶¶ 34-39.) The second is a state-law claim for “Negligence and 18 Negligence Per Se,” premised on the theory that “[e]very time” Strojnik “is required to 19 negotiate a non-compliant element in [Ashford’s] Hotel,” he “suffers pain and physical 20 discomfort that the regulation is designed to prevent.” (Id. ¶¶ 40-53.) The third is a state- 21 law claim for “Negligent Misrepresentation,” premised on the theory that Ashford’s 22 booking website “supplied false information to [Strojnik] for guidance in [Strojnik’s] 23 business transaction, to wit: the renting of a hotel room.” (Id. ¶¶ 54-61.) The fourth is 24 what appears to be a state-law claim for “Failure to Disclose,” premised on the theory that 25 Ashford had a duty to make certain disclosures under 28 C.F.R. § 36.302(e)(1)(ii) related 26 to its ADA compliance, failed to make those disclosures, and thereby caused Strojnik to 27 suffer at least $35,000 in damages. (Id. ¶¶ 62-70.) The fifth is a state-law claim for 28 “Common Law and Statutory Fraud,” premised on the theory that Ashford made knowingly 1 false representations in connection with the sale or advertisement of merchandise. (Id. ¶¶ 2 71-84.) The sixth is a state-law claim for “Consumer Fraud—Brand Deceit,” premised on 3 the theory that “Ashford identifies itself as Courtyard, a Marriott Brand,” but “Ashford is 4 not Courtyard by Marriott. It is Ashcroft [sic]. The misidentification is necessary because 5 [the] general public, including [Strojnik], identify Marriott properties with a higher degree 6 of lodging standard and general integrity than Ashford.” (Id. ¶¶ 85-94.) 7 II. Procedural History 8 On December 4, 2020, Ashford removed this action to federal court. (Doc. 1.) The 9 notice of removal states that removal is permissible under 28 U.S.C. § 1441(a) because this 10 Court would have original jurisdiction over the ADA claim. (Id. at 2.) 11 On December 11, 2020, Ashford filed an answer to the complaint. (Doc. 8.) Among 12 other things, the answer includes the affirmative defense that Strojnik “lacks standing under 13 Article III.” (Id. at 5 ¶ 2.) 14 On December 21, 2020, Strojnik filed a motion to remand Count Six of his 15 complaint, the “Consumer Fraud—Brand Deceit” claim, to state court on the ground that 16 it “has nothing in common with the predicate ADA claim; it is instead a wholly ‘separate 17 and independent’ claim subject to remand pursuant to 28 U.S.C. § 1441(c).” (Doc. 9 at 1.) 18 This motion thereafter became fully briefed. (Docs. 13, 14.) 19 On January 4, 2021, the District of Arizona declared Strojink a vexatious litigant. 20 Driftwood Hospitality, 2021 WL 50456 at *10. Under the vexatious litigant order,

21 [W]ithin 21 days after an action is removed from state court to United States District Court for the District of Arizona alleging violations of the Americans 22 with Disabilities Act, or within 21 days after Mr. Strojnik amends a complaint before the United States District Court for the District of Arizona 23 to include alleged violations of the Americans with Disabilities Act, Mr. Strojnik shall post a bond for $10,000. If after 21 days, Mr. Strojnik fails to 24 post the bond, the Court will dismiss the case for failure to comply with this Order. 25 26 Id. at *11. However, because this case was removed before the vexatious litigant order 27 came into effect, and because Strojnik has not amended his complaint in this action since 28 the vexatious litigant order came into effect, the bond requirement has not been triggered. 1 On February 1, 2021, Strojink filed a motion in which he accused Ashford’s counsel 2 of misconduct. (Doc. 15.) Specifically, Strojnik argued that Ashford’s counsel had acted 3 inconsistently by first removing this action from state court and then disputing the existence 4 of subject matter jurisdiction. (Id.) Strojnik requested an order requiring Ashford’s 5 counsel to “prove removal jurisdiction” and also requested the issuance of monetary and 6 other sanctions against Ashford’s counsel pursuant to the All Writs Act. (Id.) Notably, in 7 the course of making these requests, Strojnik seemed to concede that this Court lacks 8 subject-matter jurisdiction over this action. (Id. at 2, emphasis added [“The grounds for 9 this Motion are that Defendant’s counsel . . . has engaged in a deceptive and manipulative 10 scheme of removing Plaintiff’s civil rights claims from State Court to federal court when 11 federal court does not have jurisdiction.”].) 12 On February 4, 2021, the Court issued an order denying Strojnik’s motion. (Doc. 13 16.) In that order, the Court also solicited supplemental briefing on whether, given the 14 parties’ seemingly mutual acknowledgement that subject-matter jurisdiction is lacking, the 15 appropriate remedy would be dismissal or remand. (Id.) 16 Later that day, Strojnik filed a “Notice of Correction” in which he asserted that the 17 statements in his February 1, 2021 motion shouldn’t be understood as a concession that 18 subject-matter jurisdiction is lacking. (Doc. 17.) The following day, the Court issued an 19 order noting that “[t]he inescapable implication” of the statements in Strojnik’s motion was 20 “that Strojnik believes subject matter jurisdiction is lacking” because “[i]f Strojnik’s 21 position is that he actually believes subject matter jurisdiction exists but just wants to make 22 his opponent go through the motions of proving it, this would be a frivolous waste of the 23 Court’s time and a harassing litigation tactic.” (Doc. 18.) 24 On February 26, 2021, Ashford filed a motion to dismiss for lack of jurisdiction. 25 (Doc. 19.) 26 On February 28, 2021, Strojnik filed a response to Ashford’s motion to dismiss. 27 (Doc. 20.) In that filing, Strojnik also moved for leave to amend his complaint. (Id.) 28 On March 15, 2021, Ashford filed a reply in support of its motion. (Doc. 21.) 1 DISCUSSION 2 I. Motion To Remand 3 A. The Parties’ Arguments 4 The first pending motion before the Court is Strojnik’s motion to remand Count Six, 5 his state-law claim for “Consumer Fraud—Brand Deceit,” to state court. (Doc. 9.) 6 According to Strojnik, remand is required under 28 U.S.C. § 1441(c) because Count Six is 7 “based on the common practice among hoteliers who purchase the rights to hold themselves 8 out as a national hotel chain when in fact they are not a national hotel chain” and thus “has 9 nothing in common with the predicate ADA claim” that provided the basis for removal. 10 (Id. at 1.) Put another way, Strojnik argues that “[t]here is no ‘common nucleus’ of 11 operative facts between the ADA claim and” Count Six. (Id. at 5.) 12 Ashford opposes Strojnik’s motion. (Doc. 13.) Ashford contends that the ADA 13 claim and Count Six arise from a common nucleus of operative facts because “the events 14 that gave rise” to both claims “occurred on the same day, at the same location, and with 15 the same parties.” (Id. at 3.) Ashford further contends that Strojnik’s remand request is 16 nothing more than a tactic “to force [Ashford] to incur additional fees and expenses 17 litigating a two-front battle.” (Id. at 5.) 18 In reply, Strojnik essentially repeats the arguments made in his motion. (Doc. 14.) 19 B. Analysis 20 Ashford has the better side of this issue. Under 28 U.S.C. § 1441(c), when an action 21 that has been removed from state court includes both “(A) a claim arising under the 22 Constitution, laws, or treaties of the United States (within the meaning of § 1331 of this 23 title), and (B) a claim not within the original or supplemental jurisdiction of the district 24 court,” the court must “sever” and “remand” the latter type of claim. Thus, for Count Six 25 to be subject to severance and remand under § 1441(c), it must be a claim falling outside 26 this Court’s original or supplemental jurisdiction. 27 It is not. To be sure, the Court lacks original jurisdiction over Count Six, by virtue 28 of it being a state-law claim. As for the existence of supplemental jurisdiction, the analysis 1 is governed by 28 U.S.C. § 1367(a), which provides that “in any civil action of which the 2 district courts have original jurisdiction, the district courts shall have supplemental 3 jurisdiction over all other claims that are so related to claims in the action within such 4 original jurisdiction that they form part of the same case or controversy under Article III 5 of the United States Constitution.” Thus, the determinative question here is whether Count 6 Six is “so related” to the one claim in this action over which the Court has original 7 jurisdiction—the ADA claim in Count One—that they form part of the same case or 8 controversy. 9 They are so related. As the Ninth Circuit has explained, “[n]onfederal claims are 10 part of the same ‘case’ as federal claims when they derive from a common nucleus of 11 operative fact and are such that a plaintiff would ordinarily be expected to try them in one 12 judicial proceeding.” Trustees of Construction Industry & Laborers Health & Welfare 13 Trust v. Desert Valley Landscape & Maintenance, Inc., 333 F.3d 923, 925 (9th Cir. 2003) 14 (citations and internal quotation marks omitted). Here, Counts One and Six both arise from 15 Strojnik’s perusal of Ashford’s advertising materials and subsequent booking of a stay at 16 Ashford’s facility. They both stem, in part, from alleged misrepresentations and omissions 17 that Ashford made concerning the condition of its facility. Accordingly, they arise from 18 the same common nucleus of operative fact and a plaintiff would ordinarily be expected to 19 try them together. Other courts have reached the same conclusion. See, e.g., Driftwood 20 Hospitality, 2021 WL 50456 at *6 (“Mr. Strojnik never explains how his ‘brand deceit’ 21 claim arises from a separate nucleus of operative facts. As alleged in the Complaint, the 22 claim arises from his investigations as an ADA Tester of Defendants’ hotels, which are the 23 same investigations that gave rise to his ADA and ADA-related claims. Therefore, the 24 Court rejects Mr. Strojnik’s contention that the brand deceit claim is not related. It clearly 25 is.”); Strojnik v. C&H Kingman LLC, 2021 WL 37516, *2 (D. Ariz. 2021) (“[A]ll of Mr. 26 Strojnik’s claims arise from a common nucleus of operative facts. The ADA, brand deceit, 27 civil conspiracy, and aiding and abetting claims all stem from Mr. Strojnik’s August 2020 28 visit to C&H’s hotel and website.”). 1 II. Subject-Matter Jurisdiction 2 The Court next addresses Ashford’s Rule 12(b)(1) motion to dismiss for lack of 3 subject-matter jurisdiction. (Doc. 19.) Even if Ashford hadn’t filed such a motion, the 4 Court would “have an independent obligation to determine whether subject-matter 5 jurisdiction exists.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). See also Fed. R. 6 Civ. P. Rule 12(h)(3) (“If the court determines at any time that it lacks subject-matter 7 jurisdiction, the court must dismiss the action.”).2 8 A. Legal Standard 9 “A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may 10 attack either the allegations of the complaint as insufficient to confer upon the court subject 11 matter jurisdiction, or the existence of subject matter jurisdiction in fact.” Ader v. 12 SimonMed Imaging Inc., 324 F. Supp. 3d 1045, 1048 (D. Ariz. 2018) (internal quotation 13 marks omitted). Here, Ashford brings both a facial and factual attack as to Strojnik’s 14 standing. (Doc. 19 at 1.) 15 “[S]tanding is an essential and unchanging part of the case-or-controversy 16 requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 17 “[T]he irreducible constitutional minimum of standing contains three elements”: (1) a 18 concrete and particularized injury in fact; (2) a causal connection between the injury and 19 the challenged conduct; and (3) a likelihood that the injury would be redressed by a 20 favorable decision. Id. at 560-61. 21 B. The Parties’ Arguments 22 In its motion to dismiss, Ashford begins by questioning whether Strojnik is disabled. 23 (Doc. 19 at 3-5.) Next, Ashford argues that, even assuming Strojnik is disabled, he lacks 24 standing to assert his ADA claim because, although the complaint identifies 19 “purported 25 ADA violations,” each “would only potentially be a barrier . . . to someone navigating the 26 property in a wheelchair” and Strojnik wasn’t using a wheelchair when he visited the 27 2 Although the Court previously construed one of Strojnik’s filings as a concession 28 that subject-matter jurisdiction is lacking (Docs. 16, 18), Strojnik later disclaimed any such concession. Thus, the Court has conducted an independent analysis of the issue here. 1 property. (Id. at 5-6.) Ashford elaborates: 2 For example, in Paragraph 33 of his Complaint, Mr. Strojnik alleges that there is “no access from street,” or “no handrails on left of wheelchair ramp” 3 or an accessible parking space was “visually too steep.” None of these 4 conditions affect him, however, because he does not use a wheelchair to navigate Defendant’s property. Other items he lists as too high, including 5 snacks, sundry items, or the check-in counter. None of these could deprive 6 him from the [full] and equal enjoyment of the property, however, because he walked around the property and he is, according to him, six feet tall. His 7 other alleged violations follow a similar pattern. 8 (Id. at 9.)3 Finally, Ashford contends that Strojnik lacks standing to assert his state-law 9 claims because they “arose from (and depend on) his ADA claim,” so “if his ADA claim 10 is dismissed, the state tort claims must be dismissed as well.” (Id. at 10.) 11 Ashford attaches several exhibits to its motion to dismiss. One is a deposition 12 transcript from Strojnik v. New Crescent Investments, LLC, Case No. 20-cv-343-DJH (D. 13 Ariz.), another ADA case that Strojnik brought as a pro se litigant. (Doc. 19-1 at 2-67.) 14 Strojnik’s complaint in New Crescent Investments, like his complaint in this case, 15 contained a vague allegation that seemed to suggest he had been using a wheelchair during 16 his visit to the hotel in question.4 However, during his deposition in New Crescent 17 Investments, Strojnik admitted he hadn’t been using a wheelchair during his visit. (Id. at 18 3 The Court notes that some of the arguments set forth in Ashford’s motion seem to 19 have been cut-and-pasted from motions filed in other cases. For example, Ashford argues that Strojnik’s claim for monetary damages is unavailing in part because “Mr. Strojnik did 20 not make a reservation at Defendant’s hotel and did not pay Defendant any money at any time. He has alleged that his monetary damages consist of the cost and expense of driving 21 his leased 2019 BMW 530 electric vehicle from his home to Defendant’s hotel and his time spent walking around Defendant’s property on January 8, 2020.” (Doc. 19 at 6-7.) These 22 may have been the facts in other cases involving Strojnik, but the complaint in this case specifically alleges that Strojnik “booked and paid for an accessible room at the Hotel.” 23 (Doc. 1-1 ¶ 32.) 24 4 As noted, Strojnik’s complaint in this action contains the following allegation: “In their unmitigated, active state, Plaintiff’s impairments require the use of a wheelchair.” 25 (Doc. 1-1 ¶ 26.) The complaint also contains a photograph of a “government disability placard” that depicts a wheelchair. (Id. ¶ 23.) In his complaint in New Crescent 26 Investments, Strojnik alleged that “[b]y virtue of his disability, Plaintiff requires an ADA compliant Facility particularly applicable to his mobility, both ambulatory and wheelchair 27 assisted.” (Case No. 20-cv-343-DJH, Doc. 1-3 at 3 ¶ 11.) The complaint in New Crescent Investments is subject to judicial notice. Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 28 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of public record.”). 1 20.) Additionally, Strojnik couldn’t say that he had used “a cane or any sort of crutch” 2 when walking around the property and admitted that he doesn’t use a cane, crutch, or 3 wheelchair at home. (Id. at 20-21, 27.)5 Another exhibit is an independent medical 4 evaluation (“IME”) that was conducted in New Crescent Investments. (Id. at 93-99.) The 5 doctor who conducted the IME concluded that Strojnik “ambulates relatively well with a 6 very slight limp,” “appears to be functioning well post right total knee arthroplasty,” has 7 “no evidence of positive nerve root tension signs,” has “functional range of motion of his 8 shoulders,” and has an “adequate grip on both the right- and the left-hand side.” (Id. at 99.) 9 Strojnik’s response touches on the issue of standing in only superficial fashion. 10 (Doc. 20 at 1-3.) First, Strojnik accuses Ashford of displaying “confusion between motions 11 to dismiss pursuant to Rule 12(b)(1) and 12(b)(6).” (Id. at 2.) Next, Strojnik provides a 12 cursory overview of the facts of Whitaker v. Tesla Motors, Inc., 985 F.3d 1173 (9th Cir. 13 2021), and asserts without analysis that “District court has jurisdiction” here for the same 14 reasons that the plaintiff’s allegations in Whitaker were deemed sufficient to establish ADA 15 standing. (Id. at 2-3.) Finally, and seemingly in the alternative, Strojnik “moves to amend 16 the complaint pursuant to Rule 15 to enhance the claim pursuant to Whitaker, add parties 17 and claims, and avoid yet another motion to dismiss by [Ashford].” (Id.) As for his state- 18 law claims, Strojnik makes no effort to address the issue of standing. Although he initially 19 argues (before seemingly withdrawing the argument, see Part III infra) that a remand of 20 5 Strojnik objects to Ashford’s submission of the deposition transcript from New 21 Crescent Investments, arguing in cursory fashion that the deposition is “[i]rrelevant and [i]nadmissible” “pursuant to ARCP 32(a)(1).” (Doc. 20 at 5.) This objection fails for 22 several reasons. As an initial matter, Strojnik does not explain why the Arizona Rules of Civil Procedure would govern evidentiary rulings in this federal proceeding. Nor does 23 Strojnik explain why the cited Arizona rule would preclude consideration of the deposition transcript—in reply, Ashford argues that the transcript would be admissible under the 24 Arizona rule. (Doc. 21 at 8 n.1.) At any rate, when (as here) a party brings a factual challenge to subject-matter jurisdiction under Rule 12(b)(1), “the judge is authorized to 25 take evidence and decide the jurisdictional facts” and “has discretion regarding the procedures it employs for the gathering and presentation of that evidence.” 1 Gensler, 26 Federal Rules of Civil Procedure, Rules and Commentary, Rule 12 (2021), at 309. See also Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979) 27 (“Where the jurisdictional issue is separable from the merits of the case, the judge may consider the evidence presented with respect to the jurisdictional issue and rule on that 28 issue, resolving factual disputes if necessary.”). Here, the Court accepts the deposition transcript, the authenticity of which is unquestioned. 1 the state-law claims is preferable to dismissal of those claims (id. at 3-4), he offers no 2 specific analysis of the state-law claims and doesn’t dispute Ashford’s contention that they 3 are wholly derivative of his ADA claim. (Id.)6 4 In reply, Ashford argues that “Whitaker does not help Mr. Strojnik’s case, it 5 torpedoes it” because “unlike the plaintiff in Whitaker, Mr. Strojnik does not use a 6 wheelchair or an ambulatory aid during his hotel ‘inspections’ or in his home. Thus, he is 7 unable to allege how the purported barriers to accessibility at [Ashford’s] property (which 8 could only be barriers to someone in a wheelchair) have deprived him from fully accessing 9 the property.” (Doc. 21 at 2-4.) Ashford also opposes Strojnik’s request for leave to amend 10 because his proposed amended complaint still fails to allege how the purported barriers 11 would have prevented him from fully accessing the property. (Id. at 4-6.) 12 C. Analysis 13 The Court will begin by addressing Strojnik’s standing to assert the ADA claim set 14 forth in Count One of the complaint. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 15 (2006) (“[O]ur standing cases confirm that a plaintiff must demonstrate standing for each 16 claim he seeks to press.”). 17 The Ninth Circuit has “describe[d] in detail the standard for pleading standing 18 pursuant to an ADA claim.” Whitaker, 985 F.3d at 1179. The seminal decision in this area 19 is Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939 (9th Cir. 2011) (en banc). There, 20 the Ninth Circuit held that “when an ADA plaintiff has suffered an injury-in-fact by 21 encountering a barrier that deprives him of full and equal enjoyment of the facility due to 22 his particular disability, he has standing to sue for injunctive relief as to that barrier and 23 other barriers related to his disability.” Id. at 944. Critically, because the plaintiff in 24 Chapman simply “attached an accessibility survey to his complaint that identified multiple 25 ADA barriers” at the facility in question, without “connect[ing] the barriers to [his] 26 6 The Court acknowledges that Strojnik argued, in his motion to remand, that Count 27 Six is separate and independent from his ADA claim. (Doc. 9.) However, Strojnik does not seek to incorporate that argument by reference in his response to Ashford’s motion to 28 dismiss. Additionally, as noted in Part I above, Strojnik’s argument on this point is unavailing. 1 disability or indicat[ing] which barrier or barriers he had personally encountered,” the 2 Ninth Circuit concluded he lacked standing. Whitaker, 985 F.3d at 1179 (citing Chapman, 3 631 F.3d at 954-55). 4 Similarly, in O’Campo v. Bed Bath & Beyond of Cal., Inc., 610 F. App’x 706 (9th 5 Cir. 2016), the Ninth Circuit held that the plaintiff “failed to sufficiently allege standing 6 for his ADA claim” because, although the complaint identified “five alleged barriers” that 7 might interfere with the full and equal access of a mobility-impaired person who required 8 the use of a wheelchair, the plaintiff himself only “require[d] the use of a cane” and none 9 of the barriers at issue would “impact a person who was standing up.” Id. at 708. 10 In contrast, in Whitaker, the Ninth Circuit held that the plaintiff’s allegations were 11 “sufficient to establish injury-in-fact for purposes of standing” because he specifically 12 alleged “that he uses a wheelchair for mobility, that he visited the defendant’s premises, 13 that he personally encountered a barrier related to his disability—inaccessible service 14 counters—and that the barrier deters him from returning.” 985 F.3d at 1179. 15 With this backdrop in mind, the issue of ADA standing in this case isn’t a close call. 16 Strojnik lacks standing to advance his ADA claim because he has not demonstrated an 17 injury in fact. There is a certain irony in Strojnik’s proffer of Whitaker as an opinion that 18 supports his position. There, an ADA plaintiff who used a wheelchair had standing to 19 assert an ADA claim because he alleged that, when visiting the defendant’s facility, he 20 “personally encountered a barrier”—an inaccessible service counter—that he couldn’t 21 access by virtue of his use of a wheelchair. 985 F.3d at 1179. Here, although Strojnik 22 misleadingly notes that his physical conditions would require the use of a wheelchair “[i]n 23 their unmitigated, active state” (Doc. 1-1 ¶ 26), he doesn’t allege that he was actually using 24 a wheelchair during his visit to Ashford’s property. Moreover, Ashford has submitted 25 undisputed evidence establishing that Strojnik doesn’t use a wheelchair at all. In fact, the 26 evidence establishes that Strojnik doesn’t use any sort of walking aid and “ambulates 27 relatively well with a very slight limp.” Thus, Strojnik has not come close to establishing 28 that he suffered any injury flowing from the conditions related to wheelchair accessibility 1 that are depicted in most of the pictures in the complaint.7 2 As an example, one of those pictures is of Ashford’s convenience store. (Doc. 1-1 3 at 19.) It shows a cooler and various shelves stocked with chips and other snacks. (Id.) 4 The caption provided by Strojnik reads: “Out of reach snacks.” (Id.) Although it may be 5 true that a guest in a wheelchair would have trouble reaching the snacks on the top shelf, 6 the complaint does not allege that Strojnik had any trouble reaching the snacks and the 7 Court has no trouble concluding that a guest in Strojnik’s position (i.e., a six-foot-tall adult 8 who doesn’t use a wheelchair or cane and ambulates relatively well with a very slight limp) 9 would be able to easily satisfy all of his snacking needs. Cf. O’Campo, 610 F. App’x at 10 708 (ADA plaintiff lacked standing because, although the “five alleged barriers” might 11 interfere with the full and equal access of a mobility-impaired person who required the use 12 of a wheelchair, the plaintiff himself only “require[d] the use of a cane” and none of the 13 barriers at issue would “impact a person who was standing up”). 14 Finally, although the captions appearing below a few of the pictures in the complaint 15 seem to suggest that the conditions at issue relate to wrist flexion rather than wheelchair 16 accessibility (see, e.g., Doc. 1-1 at 24 [“Pool gate hardware requires twisting of wrist 17 action”]), Strojnik has not established an injury-in-fact as to those conditions, either. 18 Although the complaint vaguely alleges that Strojnik suffers from an unspecified 19 “musculoskeletal” condition that “[l]imits” a long litany of activities, including “twisting 20 the wrist” (id. ¶ 19), and further alleges that “[a]n encounter with a non-compliant operable 21 part” of “doors, door opening and closing hardware, AC controls” will cause Strojnik “to 22 experience pain and discomfort” (id. ¶ 28(g)(i)), the complaint provides no information 23 whatsoever as to why the specific pieces of door hardware depicted in the complaint should 24 be considered “non-compliant” or why they specifically interfered with Strojnik’s use and 25 enjoyment of the facility. Here, just as in Driftwood Hospitality, “[i]nstead of explaining 26 how the alleged ADA violations prevent him from full and equal access to the hotels, Mr. 27 7 This analysis would remain the same even if the New Crescent Investments 28 deposition transcript were disregarded. Nowhere in the complaint does Strojnik allege that he was using a wheelchair during his visit to Ashford. 1 Strojnik makes vague statements about his disabilities, and it is anybody’s guess how the 2 particular hotel features he photographs so meticulously actually impact him.” 2021 WL 3 50456 at *5. It is also worth noting that the “pain and discomfort” Strojnik allegedly 4 experiences during an “encounter” with non-compliant door parts is boilerplate language 5 that appears in each of the ten subparts of ¶ 28(g), but most of those subparts appear to be 6 unrelated to Strojnik’s alleged disabilities. Additionally, the IME results that Ashford filed 7 in support of its motion, to which Strojnik did not object, state that Strojnik has an 8 “adequate grip on both the right- and the left-hand side.” (Doc. 19-1 at 99.) Thus, 9 Strojnik’s wrist-related allegations are both facially insufficient to establish standing 10 (because they are impermissibly vague and conclusory) and insufficient as a factual matter. 11 Turning to the state-law claims, Strojnik does not respond to—and thus implicitly 12 accedes to—Ashford’s argument that he lacks standing to advance them because they are 13 derivative of his failed ADA claim. Scott v. City of Phoenix, 2011 WL 3159166, *10 (D. 14 Ariz. 2011) (“Scott does not respond to this argument, and by failing to do so, Scott is 15 deemed to have waived the issue.”); Reyes v. Wells Fargo Bank, 2017 WL 11568871, *4 16 (C.D. Cal. 2017) (collecting cases); Hurry v. Fin. Indus. Regul. Auth., Inc., 782 F. App’x 17 600, 602 (9th Cir. 2019) (“[F]ailure to respond to that argument constitutes waiver.”). 18 Alternatively, even if Strojnik hadn’t conceded the issue, Ashford is correct on the 19 merits. It is obvious that four of Strojnik’s state-law claims (his claims in Counts Two, 20 Three, Four, and Five for negligence/negligence per se, negligent misrepresentation, 21 failure to disclose, and fraud) all hinge on the notion that the accessibility barriers at 22 Ashford caused him to suffer injury. They fail for the same reasons as his ADA claim. 23 Driftwood Hospitality, 2021 WL 50456 at *5-6 (“Each [of the] remaining claims are 24 different species of fraud and negligence, and they almost all rely on Defendants’ alleged 25 ADA violations. . . . ”). 26 So, too, does Strojnik’s remaining state-law claim—his claim in Count Six for 27 “Consumer Fraud—Brand Deceit.” As noted, the theory underlying this claim is that 28 Ashford committed fraud by misrepresenting its connection with the Marriott brand. 1 Although this theory may not, at first blush, seem to have anything to do with ADA 2 compliance, it is notable that the only allegation in the complaint as to why this alleged 3 misrepresentation was harmful to Strojnik is because he identifies “Marriott properties with 4 a higher degree of lodging standard and general integrity than Ashford.” (Doc. 1-1 ¶ 88.) 5 Elsewhere in the complaint, however, Strojnik doesn’t raise any allegations concerning the 6 overall quality and integrity of the lodgings at Ashford. He doesn’t, for example, contend 7 that the beds are lumpier than the typical Marriott bed or that the individual-sized soaps 8 and shampoos are somehow substandard. Instead, the only allegations in the complaint 9 that are remotely connected to the “lodging standard and general integrity” at Ashford are 10 the allegations concerning ADA compliance. Thus, Strojnik lacks standing to pursue 11 Count Six for the same reasons he lacks standing to pursue his ADA claim. 12 Finally, Strojnik’s request for leave to amend is denied. Although courts should 13 “freely” give leave to amend “when justice so requires,” Fed. R. Civ. P. 15(a), courts may 14 deny such leave when faced with “bad faith or dilatory motive on the part of the movant, 15 repeated failure to cure deficiencies by amendments previously allowed, undue prejudice 16 to the opposing party by virtue of allowance of the amendment, futility of amendment, 17 etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). Here, as in Driftwood Hospitality, the 18 Court concludes that, “[g]iven the chronic deficiencies in Mr. Strojnik’s many complaints 19 over the years and recent months, and the many opportunities he has had to rectify such 20 deficiencies, . . . [he] makes his request for leave to amend in bad faith. Justice does not 21 require leave to amend.” 2021 WL 50456 at *6. Additionally, the Court concludes that 22 the proposed amendments would be futile. The Ninth Circuit has repeatedly affirmed the 23 denial, on futility grounds, of Strojnik’s requests for leave to amend. See, e.g., Strojnik v. 24 Kapalua Land Co., Ltd., 801 Fed. App’x 531, 531-32 (9th Cir. 2020). 25 III. Dismissal Or Remand 26 A. Background 27 For the reasons discussed above, the Court lacks subject-matter jurisdiction over all 28 of Strojnik’s claims. Under 28 U.S.C. § 1447(c), the usual rule in a case that has been 1 removed from state court is that “[i]f at any time before final judgment it appears that the 2 district court lacks subject matter jurisdiction, the case shall be remanded.” However, in a 3 previous order, the Court noted the following:

4 [I]n Bell v. City of Kellogg, 922 F.2d 1418 (9th Cir. 1991), the Ninth Circuit recognized an exception to this principle. Under Bell, when a district court 5 “determines that it lacks subject matter jurisdiction in a removal case,” it has discretion to dismiss, rather than remand, the action “[w]here the remand to 6 state court would be futile.” Id. at 1424. This is because “[d]istrict court resolution of the entire case,” where there is no “conceivable” chance the 7 plaintiff would succeed on remand, “prevents any further waste of valuable judicial time and resources.” Id. at 1424-25. Although other Circuits have 8 rejected Bell’s approach, holding that a remand is always required when a district court determines it lacks subject matter jurisdiction in a removal 9 action, Bell remains good law in the Ninth Circuit. Polo v. Innoventions Int’l, LLC, 833 F.3d 1193, 1198 (9th Cir. 2016). 10 11 (Doc. 16 at 3.) Thus, the Court solicited supplemental briefing from the parties concerning 12 the applicability of the Bell doctrine. (Id.)8 13 B. The Parties’ Arguments 14 Ashford argues that dismissal is warranted under the Bell doctrine because a remand 15 would be futile. (Doc. 19 at 1.) Ashford’s essential point is that “Arizona courts impose a 16 ‘rigorous’ standing requirement” and thus “a standing analysis under the Arizona 17 Constitution leads to the same conclusion as a standing analysis under Article III.” (Id. at 18 3, 7-8.) Additionally, Ashford notes that Arizona state courts have dismissed more than 19 1,700 of Strojnik’s past lawsuits on standing grounds, which amounts to “a demonstrated 20 history of being unable to bring accessibility claims that meet Arizona’s ‘distinct and 21 palpable’ standing requirements,” and that other judges of this Court have previously 22 declined to remand Strojnik’s removal cases pursuant to the Bell doctrine. (Id. at 10-12.) 23 Strojnik’s arguments concerning the applicability of the Bell doctrine are not a 24 model of clarity. On the one hand, the introductory section of Strojnik’s response includes

25 8 As the Ninth Circuit has acknowledged, Bell’s recognition of a futility exception is difficult to reconcile with “the literal words of § 1447(c), which, on their face, give no 26 discretion to dismiss rather than remand an action.” Polo, 833 F.3d at 1197-98 (citation and internal quotation marks omitted). Nevertheless, because Polo expressly declined to 27 overrule Bell, it remains valid Ninth Circuit law. As such, it must be followed here. Hasbrouck v. Texaco, Inc., 663 F.2d 930, 933 (9th Cir. 1981) (“District courts are bound 28 by the law of their own circuit. They are not to resolve splits between circuits no matter how egregiously in error they may feel their own circuit to be.”) (citation omitted). 1 the following statement: “If the district court dismisses the federal claim, it must leave state 2 law claims inviolate and remand them back to the superior court.” (Doc. 20 at 2.) On the 3 other hand, in the body of his brief, Strojnik acknowledges that other judges of this court 4 have recently dismissed his claims (rather than remanding) pursuant to the Bell doctrine 5 and then offers the following statement: “Plaintiff finds it wasteful to spend time and 6 resources and simply moves on to amend.” (Id. at 4.) 7 In reply, Ashford notes that “Strojnik’s everything-but-the-kitchen-sink Response 8 failed to address the fundamental question the Court originally posed to the parties: whether 9 remanding his lawsuit back to state court be ‘futile’ under Bell.” (Doc. 21 at 1.) Ashford 10 further notes that “Strojnik does not even attempt to argue that his lawsuit could fit within 11 the narrow sliver of cases in which an Arizona court would potentially waive standing.” 12 (Id.) 13 C. Analysis 14 The Court agrees with Ashford that it would be futile to remand this action to state 15 court and therefore dismisses Strojnik’s claims pursuant to Bell. As an initial matter, the 16 Court interprets Strojnik’s response brief as conceding that Bell applies. Despite this 17 Court’s invitation to provide supplemental briefing as to Bell’s applicability and Ashford’s 18 extensive discussion of this issue in its motion to dismiss, Strojnik declined to provide any 19 reasoned argument on this issue in his response. Instead, he declared it “wasteful to spend 20 time and resources” briefing the issue and then made a request for leave to amend. But as 21 discussed in Part II above, that request has been denied. Strojnik has identified no other 22 reason why Bell should be deemed inapplicable. 23 Even if Strojnik hadn’t conceded the issue, dismissal would be warranted under 24 Bell. The record before the Court is that Strojnik has been responsible for the filing of an 25 avalanche of meritless ADA-related lawsuits in recent years. Nearly all of those lawsuits 26 have been dismissed based on a lack of standing. Along the way, Strojnik has been 27 disbarred once, has been declared a vexatious litigant thrice, and has incurred the 28 opprobrium of innumerable judges who’ve been dismayed by his tactics. Some of those 1 judges have made findings of futility under Bell. MidFirst Bank, 279 F. Supp. 3d at 895 2 (“This is even a better case for the futility doctrine than Bell.”). True, Strojnik has 3 succeeded in extracting lucrative settlements in some of his cases, but the presence of those 4 settlement payments is hardly proof that the underlying claims weren’t futile. 5 At most, Strojnik has shown that, on two occasions, state-court judges denied 6 motions to dismiss his lawsuits based on a lack of standing. (Doc. 15 at 4 [“[T]he Maricopa 7 County Superior Court has soundly rejected claims of lack of standing. Twice.”].) But 8 these two isolated data points do not tilt the futility analysis in Strojnik’s favor. Strojnik’s 9 avoidance of dismissal at the pleading stage in a tiny fraction of his cases9 is not a 10 particularly impressive credential and Strojnik has tellingly not identified a single case in 11 which he ever prevailed on the merits. 12 Furthermore, whatever his track record in other cases, the futility of a remand in this 13 case is apparent. Polo, 833 F.3d at 1198 (under Bell, futility exists if there is an “absolute 14 certainty that a state court would simply dismiss the action on remand”) (cleaned up). 15 Although the complaint largely identifies barriers at Ashford’s facility that might interfere 16 with a wheelchair-bound customer’s ability to enjoy full and equal access to the facility, 17 Strojnik wasn’t using a wheelchair during his visit. The other identified barriers do not 18 relate to Strojnik’s alleged disabilities or relate to vaguely alleged disabilities that are 19 undermined by the evidence. These details distinguish this case from the two state-court 20 decisions cited by Strojnik. In one of those cases, the court specifically found that 21 Strojnik’s complaint “sufficiently correlate[d] the alleged violations to Plaintiff’s alleged 22 disabilities.” (Doc. 15-1 at 2.) If anything, this decision hurts Strojnik’s position because 23 it confirms that Arizona courts (like federal courts) require a correlation between the 24 barriers depicted in the complaint and the plaintiff’s disabilities—a correlation that is 25 lacking here. And in the other case, the defendant sought dismissal under the misguided 26 theory that Strojnik’s track record of dismissals in past cases was dispositive, without 27 9 Assuming that Strojnik has been responsible for filing around 2,000 ADA-related 28 lawsuits, the two cited state-court decisions establish that he has succeeded at avoiding dismissal at the pleading stage in around 0.1% of his cases. || regard to the specific allegations in the complaint. (Doc. 15-2 at 1 [“Defendant attached 15 exhibits, comprising 210 pages, in its Motion to Dismiss . . . [nearly all of which] were || copies of court pleadings, or articles about court pleadings, in other ADA cases in which 4|| Plaintiff was a litigant. ... [I]t was clear that the Defendant’s purpose for the exhibits was || to show that Plaintiff has filed many ADA lawsuits, and that some of them have been 6|| dismissed. ... The underlying purpose of the exhibits is simply not relevant in a Rule 7\| 12(b)(6) proceeding.” Once again, this is hardly proof that an Arizona court would allow 8 || Strojnik’s claims in this case to proceed, where the complaint does not establish that he 9|| suffered any harm from the complained-of conditions. To the contrary, the Arizona courts || have repeatedly dismissed Strojnik’s lawsuits at the pleading stage based on this exact sort || of deficiency. 12 Remanding the action under these circumstances would be futile because there is no 13 || conceivable chance that Strojnik would succeed on remand. Bell, 922 F.2d at 1424-25, Additionally, dismissal will promote the salutary goal of “prevent[ing] any further waste 15 || of valuable judicial time and resources.” Id. 16 Accordingly, IT IS ORDERED that: 17 1. Stroynik’s motion to remand (Doc. 9) is denied. 18 2. Ashford’s motion to dismiss (Doc. 19) is granted. 19 3. Strojnik’s motion for leave to amend (Doc. 20) is denied. 20 4. The Clerk of Court shall enter judgment accordingly and terminate this action. 21 Dated this 18th day of May, 2021. 22 23 Am ee 24 i t _o——— Dominic W. Lanza 5 United States District Judge 26 27 28

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