Strojnik v. C&H Kingman LLC

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-20-08313-PCT-MTL

10 Plaintiff, ORDER

11 v.

12 C&H Kingman LLC, et al.,

13 Defendants. 14 15 Before the Court is Plaintiff Peter Strojnik’s Motion that Defendant Prove 16 Removal Jurisdiction (Doc. 20) and Motion for Writ of Prohibition (Doc. 20). Defendants 17 C&H Kingman LLC (“C&H”) and Wyndham Hotels and Resorts LLC (“Wyndham”) 18 filed a response to Mr. Strojnik’s motions. (Doc. 25.) Mr. Strojnik has replied. (Doc. 26.) 19 The Court resolves these motions as follows.1 20 I. BACKGROUND 21 Mr. Strojnik visits hotels and websites to test their compliance with the Americans 22 with Disabilities Act (“ADA”). (Doc. 1-3, Ex. A ¶¶ 14–17.) Over the past several years, 23 Mr. Strojnik has initiated thousands of ADA lawsuits across the western United States. 24 See Strojnik v. Driftwood Hosp. Mgmt. LLC, No. CV-20-00343-PHX-DJH, 2021 WL 25 50456, at *7 (D. Ariz. Jan. 6, 2021). These lawsuits are routinely dismissed for failing to 26 sufficiently allege Article III standing. See id. at *5 (collecting cases). Based on his prior 27 1 Both parties have fully briefed the issues and oral argument would not have aided the 28 Court’s decisional process. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); see also LRCiv 7.2(f); Fed. R. Civ. P. 78(b). 1 litigation conduct, another judge of this Court has ruled that Mr. Strojnik is a vexatious 2 litigant who “harasses and coerces parties into agreeing to extortive settlements.” Id. at 3 10. Other Ninth Circuit District Courts have reached similar conclusions. See Strojnik v. 4 IA Lodging Napa First LLC, No. 19-CV-03983-DMR, 2020 WL 2838814, at *12–13 5 (N.D. Cal. June 1, 2020); Strojnik v. SCG Am. Constr. Inc., No. SACV 19-1560 JVS 6 (JDE), 2020 WL 4258814, at *6–8 (C.D. Cal. Apr. 19, 2020). 7 This case involves Mr. Strojnik’s visit to a Travelodge by Wyndham, operated by 8 C&H, and its website. (Doc. 1-3, Ex. A ¶¶ 14–17, 30, 34.) Based on several ADA 9 violations that he allegedly observed, Mr. Strojnik filed suit in Arizona Superior Court 10 asserting six causes of action: (1) violations of the ADA, (2) negligence, (3) failure to 11 disclose, (4) brand deceit, (5) civil conspiracy, and (6) aiding and abetting. (Id. ¶¶ 8, 12.) 12 In November 2020, C&H, with Wyndham’s consent, timely removed the action to this 13 Court. (Doc. 1 at 1–2.) Mr. Strojnik soon thereafter brought a motion to remand three of 14 his state-law causes of action, which this Court denied. (Docs. 5, 12.) The Court then 15 ordered the parties to submit supplemental briefing on whether Mr. Strojnik has standing 16 to bring his ADA claim. (Doc. 14.) The parties timely responded. (Docs. 21, 22.) Mr. 17 Strojnik then filed the instant motions. (Doc. 20.) 18 II. DISCUSSION 19 A. Motion for Writ of Prohibition 20 The All Writs Act provides that “all courts established by Act of Congress may 21 issue all writs necessary or appropriate in aid of their respective jurisdictions.” 28 U.S.C. 22 § 1651. Mr. Strojnik brings this All Writs Act motion to argue that C&H’s counsel 23 removes cases from state to federal court only to then argue that the federal court lacks 24 subject matter jurisdiction. (Doc. 20.) This “unconscionable routine,” Mr. Strojnik 25 argues, “imposes a severe, direct and unavoidable costs [sic] on the District Court.” (Id. 26 at 2.) Mr. Strojnik therefore requests “that the District Court issue an appropriate writ of 27 prohibition and enter sanctions.” (Id. at 11.) 28 Like other judges of this Court have concluded, such an order is not appropriate. 1 See Strojnik v. Flagrock Hosp. LLC, No. CV-20-08317-PCT-JAT, at * 2 (D. Ariz. Mar. 2 22, 2021) (denying Mr. Strojnik’s request to issue a writ enjoining the defendants’ 3 counsel from removing his cases to federal court); Strojnik v. Phoenix N. Bell M6 LLC, 4 No. CV-20-02065-DLR, Doc. 23 (D. Ariz. Feb. 4, 2021) (same). There are obvious 5 problems with Mr. Strojnik’s request. First, the sole case Mr. Strojnik relies on––Collier 6 v. SP Plus Corp., 889 F.3d 894 (7th Cir. 2018)––is inapposite. (Doc. 20 at 2, 3–4, 9.) The 7 court in Collier dealt with a defendant that moved to dismiss a case for lack of standing a 8 week after removing the case to federal court. Collier, 889 F.3d at 895. In contrast here, 9 C&H has not moved to dismiss this case. Collier also did not deal with the All Writs Act 10 nor did it involve a plaintiff seeking to enjoin the defendant’s counsel from removing 11 other cases, something this Court might not have jurisdiction to do. See Phoenix N. Bell 12 M6 LLC, CV-20-02065, Doc. 23 at 2 n.2. 13 Next, Mr. Strojnik has not met his burden to demonstrate that a writ should issue. 14 Mr. Strojnik’s motion mostly argues that C&H’s counsel has continued this practice to 15 incur unnecessary legal fees. (Doc. 20 at 9.) As other judges of this Court have stated, 16 given Mr. Strojnik’s own history of “extortionate” and “pervasive” lawsuits, Driftwood, 17 2021 WL 50456, at *2, “the Court is unpersuaded by Strojnik’s newfound concern that 18 Defendants ‘will be impoverished’ as a result of their counsel’s litigation strategy.” 19 Flagrock Hosp. LLC, 2021 WL 1085395, at *2. Mr. Strojnik also argues that C&H’s 20 counsel’s conduct has committed a fraud on this Court. (Doc. 20 at 4–7, 9.) This 21 argument also recounts C&H’s counsel’s actions in other courts, expressing his 22 discontentment with certain orders from different judges. See Flagrock Hosp. LLC, 2021 23 WL 1085395, at *2 (“The Court, however, does not find it appropriate to punish 24 Defendants’ counsel for conduct that led counsel to prevail on a motion in a different 25 case involving different defendants. To the extent Strojnik objects to conduct related to a 26 different case, he may address it in that case.”). Mr. Strojnik does not cite any law to 27 support his position that a writ can issue from this conduct and his vague allegations 28 cannot meet his burden to issue a writ against C&H’s counsel. The Court therefore denies 1 Mr. Strojnik’s Motion for Writ of Prohibition. 2 B. Standing 3 1. Legal Standard 4 “[T]o invoke the jurisdiction of the federal courts, a disabled individual claiming 5 discrimination must satisfy the case or controversy requirement of Article III by 6 demonstrating his standing to sue at each stage of the litigation.” Chapman v. Pier 1 7 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011). “To establish standing under 8 Article III of the Constitution, a plaintiff must demonstrate (1) that he or she suffered an 9 injury in fact that is concrete, particularized, and actual or imminent, (2) that the injury 10 was caused by the defendant, and (3) that the injury would likely be redressed by the 11 requested judicial relief.” Thole v. U. S. Bank N.A, ___ U.S. ___, 140 S. Ct. 1615, 1618 12 (2020) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). “The party 13 invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 14 U.S. at 561. “Since they are not mere pleading requirements but rather an indispensable 15 part of the plaintiff’s case, each element must be supported in the same way as any other 16 matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree 17 of evidence required at the successive stages of litigation.” Id. 18 As relevant here, “an ADA plaintiff can establish standing to sue for injunctive 19 relief . . . by demonstrating deterrence.”2 Chapman, 631 F.3d at 944. Under this 20 “deterrent effect doctrine,” “a disabled individual who is currently deterred from 21 patronizing a public accommodation due to a defendant’s failure to comply with the 22 ADA has suffered ‘actual injury.’” Pickern v. Holiday Quality Foods Inc., 293 F.3d 23 1133, 1138 (9th Cir. 2002). But the mere existence of an ADA violation does not give 24 any disabled person standing to sue; a plaintiff “lacks standing . . . if the barriers he seeks 25 to enjoin do not pose a real and immediate threat to him due to his particular disability.”

26 2 An ADA plaintiff may also establish standing by “demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility.” Chapman, 631 F.3d at 944. Mr. 27 Strojnik, however, only relies on the “deterrent effects doctrine” in his briefing. (Doc. 16 at 5–6.) As shown below, Mr. Strojnik has failed to adequately demonstrate an injury-in- 28 fact coupled with an intent to return. See Strojnik v. B&L Motels Inc., No. CV-20-08306, 2020 WL 7350897, at *2–3 (D. Ariz. Dec. 15, 2020). 1 Chapman, 631 F.3d at 953 (emphasis added). 2 2. Physical Barriers 3 Mr. Strojnik alleges that several barriers at C&H’s hotel violate the ADA’s 4 requirements. (Doc. 1-3, Ex. A ¶¶ 14–15, 31.) The Complaint states that these are 5 “barriers to [his] equal enjoyment” of the hotel and these “barriers impair [his] full and 6 equal access.” (Id. ¶¶ 14–15.) Mr. Strojnik attaches several pictures of the hotel’s alleged 7 ADA violations, including issues with the pool, parking spots, and signage around the 8 property. (Id. ¶ 31.) He also lists several of his disabilities and alleges that he is “deterred 9 from visiting the Hotel based on [his] knowledge that the Hotel is not ADA compliant as 10 such compliance relates to [his] disability.” (Id. ¶¶ 16, 18–27.) Although Mr. Strojnik 11 lists several general allegations, he does not tie in his conclusory allegations of an injury 12 or deterrence to his disabilities. See Chapman, 631 F.3d at 953. 13 “As noted in other cases from this Court, Strojnik’s modus operandi is ‘to use the 14 same boilerplate arguments used in his previous filings [and] insert[] new photos of 15 alleged non-compliance.” Flagrock Hosp. LLC, 2021 WL 1085395, at *3 (collecting 16 cases). Mr. Strojnik also uses the same boilerplate and conclusory language here to allege 17 certain barriers are ADA violations. For example, below each picture he lists vague 18 phrases like “[a]ccessible parking not closest to entry,” “[n]o marked passenger loading 19 zone,” “[p]ool latch too high,” “[i]naccessible check in counter,” and “[v]ertical signage 20 too low.” (Doc. 1-3, Ex. A ¶ 31.) Mr. Strojnik, however, does not tie in this vague 21 language to any of his disabilities and it is not this Court’s responsibility to “connect the 22 metaphorical dots of injury-in-fact.” See Strojnik v. HPTRI Corp., No. CV-20-01868- 23 PHX-SPL, 2020 WL 6827765, at *2 (D. Ariz. Nov. 20, 2020). As to Mr. Strojnik’s 24 accessibility, he alleges that he requires the use of a wheelchair to ambulate when his 25 disabilities are “in their unmitigated, active state.” (Doc. 1-3, Ex. A ¶ 26.) There are no 26 allegations that he used a wheelchair on his visit to C&H’s hotel or even how frequently 27 Mr. Strojnik uses a wheelchair. See Strojnik v. Vill. 1017 Coronado, Inc., No. 19-cv- 28 02210-BAS-MSB, 2020 WL 3250608, at *4 (S.D. Cal. June 16, 2020) (finding that Mr. 1 Strojnik failed to establish Article III standing where he did “not allege when he needs 2 the assistance of a wheelchair or that he needed the assistance of a wheelchair at the time 3 he wished to visit the Hotel”). Mr. Strojnik’s bare allegations therefore do not provide 4 any concrete and meaningful connections between his disability and the alleged ADA 5 violations. See, e.g., Gastelum v. Phoenix Cent. Hotel Venture, LLC, No. CV-17-04544- 6 PHX-DLR, 2019 WL 498750, at *3 (D. Ariz. Feb. 8, 2019) (“A ‘bare procedural 7 violation’ unassociated with a plaintiff’s particular disability ‘cannot satisfy the demands 8 of Article III’ standing.”) (citations omitted). 9 Mr. Strojnik also does not show that there is a real and immediate threat of 10 repeated injury. For Mr. Strojnik to satisfy standing under the deterrence theory, he must 11 express more than a “vague desire to return” to the hotel. Summers v. Earth Island Inst., 12 555 U.S. 488, 496 (2009). The United States Supreme Court has made clear that “a 13 profession of an ‘inten[t]’ to return . . . is simply not enough. Such ‘some day’ intentions– 14 –without any description of concrete plans, or indeed even any specification of when the 15 day will be––do not support a finding of the ‘actual or imminent’ injury that our cases 16 require.” Lujan, 504 U.S. at 564. Mr. Strojnik alleges that he intends to visit the hotel “at 17 a specific time” when it becomes ADA compliant. (Doc. 1-3, Ex. A ¶ 17.) Mr. Strojnik 18 does not make clear when, if ever, that “specific time” to revisit the hotel is and he 19 provides no evidence of such an intent besides this bare statement. Considering his 20 litigation history, courts have questioned the sincerity of his “professed intent to return” 21 to a defendant’s hotel. See B&L Motels Inc., 2020 WL 7350897, at *3. Mr. Strojnik’s 22 vague and conclusory statements scattered throughout his complaint do not show that he 23 has suffered an injury-in-fact or a real and immediate threat of repeated injury. See 24 Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004).3

25 3 The Court acknowledges that the Ninth Circuit has recently issued a ruling on ADA standing in Whitaker v. Tesla Motors, Inc., 985 F.3d 1173 (9th Cir. 2021). As judges of 26 this Court have noted, even considering this new decision, the standard for alleging standing under the ADA “demands more than what Strojnik alleged here.” Flagrock 27 Hosp. LLC, 2021 WL 1085395, at *4. Whitaker reiterated the pleading standard that a plaintiff, including ADA testers, lacks standing if the barriers he seeks to enjoin do not 28 pose a real and immediate threat to him due to his disability. 985 F.3d at 1079. The plaintiff in Whitaker, “a quadriplegic who use[d] a wheelchair for mobility,” adequately 1 3. The Website 2 Mr. Strojnik seems to include a table from the hotel’s website to demonstrate “a 3 failure to identify and describe accessible features and guest rooms offered through its 4 reservations service.” (Doc. 1-3, Ex. A ¶ 30.) Mr. Strojnik, however, failed to file the 5 specific page of his complaint that contains this table, which presumably showed the 6 C&H’s online accessibility information. (Id.) These allegations relating to the website 7 seem to be another attempt to allege ADA violations, but as other courts have noted, this 8 website allegation “does not identify what accessibility features Mr. Strojnik claims are 9 required to accommodate his disability, or state that those specific features were not 10 described on the website.” See Strojnik v. R.F. Weichert V, Inc., No. 20-CV-00354-VKD, 11 2021 WL 242912, at *4 (N.D. Cal. Jan. 25, 2021). Without any clearer allegations as to 12 the hotel’s accessibility information, Mr. Strojnik fails to allege Article III standing as it 13 relates to the website. See Flagrock Hosp. LLC, 2021 WL 1085395, at *4. 14 4. Remand 15 Having concluded that Mr. Strojnik does not have Article III standing to bring his 16 ADA claim, this Court lacks subject matter jurisdiction. See Strojnik v. Pasadena Robles 17 Acquisition, LLC, 801 F. App’x 569, 570 (9th Cir. 2020) (“The district court properly 18 dismissed Strojnik’s ADA claim for lack of standing because Strojnik failed to 19 demonstrate an intent to return to defendant’s hotel or that he was deterred from visiting 20 defendant’s hotel.”). The Court will remand the entire case to the Superior Court because 21 this Court has no authority to retain jurisdiction over Mr. Strojnik’s state law claims. See 22 Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 664 (9th Cir. 2002) (citing 28 U.S.C. 23 § 1367(a)); see also Strojnik v. Hotel Circle GL Holdings, LLC, No. 1:19-CV-01194- 24 DAD-EPG, 2019 WL 6212084, at *6 (E.D. Cal. Nov. 21, 2019). 25 The Court finds that granting Mr. Strojnik leave to amend the complaint would be 26

27 made that connection to prove Article III standing. Id. at 1074, 1079. Here, as mentioned above, Mr. Strojnik has done no such thing. Mr. Strojnik has included vague and 28 conclusory allegations about certain barriers and has made almost no effort to connect those to his disabilities in a meaningful way. See Chapman, 631 F.3d at 953–54. futile. See Ebner v. Fresh, Inc., 838 F.3d 958, 968 (9th Cir. 2016). Any amendment to Mr. Strojnik’s complaint would be futile given his failure to cure almost identical || standing defects in prior complaints, despite numerous opportunities to do so. See B&L Motels Inc., 2020 WL 7350897, at *4 n.2. The Ninth Circuit has affirmed many district 5 || court decisions dismissing Mr. Strojnik’s complaints without leave to amend based on 6|| futility. See, e.g., Strojnik v. Kapalua Land Co., Ltd., 801 Fed. App’x 531 (9th Cir. 2020); 7\| Pasadena Robles, 801 Fed. App’x at 570. The Court therefore denies Mr. Strojnik leave 8 || to amend his complaint. 9} Il. CONCLUSION 10 Accordingly, 11 IT IS ORDERED denying Mr. Strojnik’s Motion for Writ of Prohibition (Doc. 20). 13 IT IS FURTHER ORDERED that the Clerk of Court shall remand this case to the Arizona County Superior Court in Mohave County and terminate the case. 15 IT IS FURTHER ORDERED denying as moot Mr. Strojnik’s Motion that 16|| Defendant Prove Removal Jurisdiction (Doc. 20). 17 Dated this 13th day of April, 2021. 18 Michal T. Shurde 20 Michael T. Liburdi 21 United States District Judge 22 23 24 25 26 27 28

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