1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Peter Strojnik, No. CV-20-01532-PHX-DJH No. CV-20-00343-PHX-DJH 10 Plaintiff, No. CV-20-01434-PHX-DJH
11 v. ORDER
12 Driftwood Hospitality Management LLC, et al., 13 Defendants. 14 15 Pending before the Court in this consolidated action1 are three Motions in which 16 Defendants argue that pro se Plaintiff Peter Strojnik lacks standing to bring his claims 17 under the Americans with Disabilities Act (“ADA”).2 Additionally, all Defendants have 18
19 1 The cases assigned to this Court include: Strojnik v. New Crescent Investments LLC, No. CV-20-00343 (D. Ariz. filed Feb. 14, 2020) (“Crescent”); Strojnik v. Xenia Hotels and 20 Resorts Inc., No. CV-20-01434 (D. Ariz. filed July 21, 2020) (“Xenia”). 21 2 Defendants Driftwood Hospitality Management LLC, et al., filed a Motion to Dismiss 22 (Doc. 12), to which Mr. Strojnik has filed a Response (Doc. 16) and Defendants have 23 Replied (Doc. 19). Defendant New Crescent Investments, LLC, filed a Motion for Summary Judgment (Crescent, Doc. 47), to which Mr. Strojnik has filed a Response (Id., 24 Doc. 49) and Defendant Replied (Id., Doc. 55). Defendants Xenia Hotels and Resorts Inc., et al. (“Xenia”), have also filed a Motion to Dismiss (Xenia, Doc. 8), which has been 25 followed by Mr. Strojnik’s Response (Id., Doc. 15) and Defendants’ Reply (Id., Doc. 20). 26 While Xenia requested oral argument on their Motion to Dismiss and Motion to Declare Plaintiff a Vexatious Litigant, the Court denies the requests because the issues have been 27 fully briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b) 28 (court may decide motions without oral hearings); LRCiv 7.2(f) (same). 1 filed Motions to Declare Plaintiff a Vexatious Litigant (“Vexatious Litigant Motions”) 2 (Doc. 17; Crescent, Doc. 51; Xenia, Doc. 22).3 The parties have fully briefed the Court on 3 both matters. For the reasons that follow, the Court will dismiss this case. The Court will 4 also grant Defendants’ Motions to Declare Plaintiff a Vexatious Litigant. 5 I. The Americans with Disabilities Act 6 Congress enacted the ADA “to provide clear, strong, consistent, enforceable 7 standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 8 12101(b)(2). It was designed to protect disabled individuals from facing “subtle” 9 discrimination, such as “difficult-to-navigate restrooms and hard-to-open doors.” 10 Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011). This kind of 11 discrimination interferes with a disabled individual’s “full and equal enjoyment” of public 12 accommodations. Id. (quoting 42 U.S.C. § 12182(a)). 13 Both the Department of Justice and “any person who is being subjected to 14 discrimination on the basis of disability” may bring a civil action against public 15 accommodations, such as hotels, that violate ADA standards. 42 U.S.C. §§ 12181(7)(A), 16 12188. Like other civil rights causes of action, a private ADA plaintiff’s relief is limited 17 to an injunction and an award for costs. 42 U.S.C. § 2000a-3; Molski v. Evergreen Dynasty 18 Corp. (“Evergreen”), 500 F.3d 1047, 1061–62 (9th Cir. 2007). An ADA plaintiff cannot 19 recover damages. Evergreen, 500 F.3d at 1061–62. If a plaintiff successfully obtains an 20 injunction to remedy the discrimination, “he does so not for himself alone but also as a 21 ‘private attorney general,’ vindicating a policy that Congress considered of the highest 22 priority.” Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968). 23 Without damages, an ADA plaintiff’s only incentive to try a case on the merits is to 24 vindicate the rights of the marginalized. See Evergreen, 500 F.3d at 1062 (“We recognize 25 that the unavailability of damages reduces or removes the incentive for most disabled 26 persons who are injured by inaccessible places of public accommodation to bring suit under
27 3 Mr. Strojnik’s filed his Responses (Doc. 18; Crescent, Doc. 52; Xenia, Doc. 24). And 28 Defendants filed their Replies (Doc. 20; Crescent, Doc. 56; Xenia, Doc. 26). 1 the ADA.”). If ADA plaintiffs were forced to bear the full cost of litigation, including 2 paying attorneys, such suits would be economically unviable. Many ADA attorneys, too, 3 cannot survive on ideological motivation alone. To address this problem, Congress 4 allowed the prevailing party in an ADA action to receive an award of attorney’s fees. 42 5 U.S.C. § 2000a-3; see also Newman, 390 U.S. at 402 (noting that “Congress therefore 6 enacted the provision for counsel fees—not simply to penalize litigants who deliberately 7 advance arguments they know to be untenable but, more broadly, to encourage individuals” 8 to bring actions). 9 By providing financial incentives, Congress helped create a market for ADA 10 litigation, or, as some call it, a “cottage industry.” See Rodriguez v. Investco, LLC, 305 F. 11 Supp. 2d 1278, 1280 (M.D. Fla. 2004). Whatever kind of market it is, it surely is limited 12 to a few participants. As courts and commentators have noted, even with the prospect of a 13 fee award, most attorneys will not take on ADA cases because the cost of a single ADA 14 case is seldom justifiable. As a result, the ADA caters to serial litigants by encouraging a 15 high volume of cases. Evergreen, 500 F.3d at 1062 (“For the ADA to yield its promise of 16 equal access for the disabled, it may indeed be necessary and desirable for committed 17 individuals to bring serial litigation advancing the time when public accommodations will 18 be compliant with the ADA.”); Samuel R. Bagenstos, The Perversity of Limited Civil 19 Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L. Rev. 1, 13 (2006) 20 (noting that the ADA’s incentive structure favors serial litigants). 21 In practice, these serial litigants come in different forms. Some, ADA “testers,” go 22 about intentionally looking for ADA violations to remedy through litigation, a prerogative 23 that gives these litigants legal standing in court. See C.R. Educ. & Enf't Ctr. v. Hosp. Props. 24 Tr., 867 F.3d 1093, 1102 (9th Cir. 2017) (holding that a plaintiff’s status as an ADA tester 25 does not deprive him or her of standing to bring a claim). Others, however, are vexatious 26 serial litigants whose claims frustrate the ADA’s central purpose. 27 These vexatious ADA litigants are characterized by “[f]alse or grossly exaggerated 28 claims of injury, especially when made with the intent to coerce settlement . . . .” 1 Evergreen, 500 F.3d at 1062 (emphasis added). No legal barrier prevents parties from 2 settling ADA cases. And generally, federal courts encourage settlement before trial. 3 Franklin v. Kaypro Corp., 884 F.2d 1222, 1225 (9th Cir. 1989). “Since it obviously eases 4 crowded court dockets and results in savings to the litigants and the judicial 5 system, settlement should be facilitated at as early a stage of the litigation as possible.” 6 Fed. R. Civ. P. 16(c) advisory committee’s note to 1983 amendment. Indeed, ADA 7 plaintiffs may also prefer settlement to trial because, in a settlement agreement, plaintiffs 8 may receive a monetary award and their attorneys may still receive an award of attorney’s 9 fees. See e.g., Barrios v. Cal. Interscholastic Fed'n, 277 F.3d 1128, 1137 (9th Cir. 2002) 10 (holding that a plaintiff’s attorney could receive an award of fees after the settlement of a 11 case, which included an ADA claim, awarded $10,000 for the plaintiff). Put another way, 12 serial ADA plaintiffs themselves face a strong financial incentive to avoid trial, possibly 13 forgoing injunctive relief and failing to vindicate the rights of the disabled as a whole. 14 II. Factual Background 15 Before Mr. Strojnik was an ADA litigant, he was a serial ADA litigator known for 16 his “extortionate” and “pervasive” lawsuits. Advocs. for Individuals with Disabilities, LLC 17 v. MidFirst Bank (“MidFirst”), 279 F. Supp. 3d. 891, 893 (D. Ariz. 2017). Now, pro se 18 Plaintiff Mr. Strojnik brings these actions as an “ADA Tester and a consumer of hotel 19 lodging services.” (Doc. 1-3 at 13). According to his Complaints, his disabilities, his 20 infirmities, and the resulting impairments to his major life activities are legion. (Id. at 15– 21 18; Xenia, Doc. 1-3 at 9–11). He claims that architectural features that do not comply with 22 certain ADA standards for Accessibility and Design cause him to experience “pain and 23 discomfort.” (Doc. 1-3 at 18–21). 24 Here is an example of Mr. Strojnik’s testing routine: In July of 2020, he investigated 25 two hotels in the Phoenix area, the Holiday Inn Phoenix West and the DoubleTree by Hilton 26 Hotel. (Id. at 13, 21–44). First, Mr. Strojnik inspected the hotel’s websites for information 27 on their ADA accommodations. (Id. at 21–26, 32–35). Then he visited the hotels where 28 he discovered and photographed many alleged barriers denying him “full and equal” access 1 to the premises such that he now alleges he is “deterred” from booking rooms at either 2 hotel. (Id.) The other Complaints filed show practically identical testing procedures, and 3 they contain practically identical allegations. (See Crescent, Doc. 1-3; Xenia, Doc. 1-3). 4 The named Defendants all own or operate hotels in the Phoenix area. (Doc. 1-3 at 5 13–14; Crescent, Doc. 1-3 at 2; Xenia, Doc. 1-3 at 7). In their Vexatious Litigant Motions, 6 Defendants note Mr. Strojnik’s practice of offering to settle matters for monetary awards. 7 (Doc. 17 at 4; Crescent, Doc. 51 at 1; Xenia, Doc. 22 at 3). In one letter to Defendant New 8 Crescent Investments, LLC (“New Crescent”), Mr. Strojnik demanded to settle a suit for 9 $22,850.00 and offered to “sweeten the pot” for Defendant with a “no visit clause for an 10 additional $5,000.00.” (Crescent, Doc. 51-7 at 7). The offer does not require that 11 Defendant fix every alleged ADA violation, only that it use “best efforts to remediate 12 readily achievable remediations.” (Id.) 13 Each of the three Complaints contains a claim alleging violations of the ADA. (Doc. 14 1-3 at 45; Crescent, Doc. 1-3 at 3; Xenia, Doc. 1-3 at 44). No Complaint is exactly the 15 same; each contains its own mutations. In one Complaint, for example, Mr. Strojnik 16 alleges that he purchased stock in Defendant Xenia Hotels and Resort’s company and 17 claims Defendant committed securities fraud by misrepresenting their ADA compliance. 18 (Xenia, Doc. 1-3 at 41–44). In another, he alleges that a Defendant negligently 19 misrepresented their ADA compliance. (Doc. 1-3 at 47). Strangely, in all cases, Mr. 20 Strojnik requests attorney’s fees. (Doc. 1-3 at 46; Crescent, Doc. 1-3 at 6; Xenia, Doc. 1- 21 3 at 48). No Complaint explains how the Court may grant a pro se litigant attorney’s fees. 22 See Kay v. Ehrler, 499 U.S. 432, 438 (1991). 23 Defendants all argue Mr. Strojnik lacks standing to bring an ADA claim. (Doc. 12 24 at 2; Crescent, Doc. 47 at 7; Xenia, Doc. 8 at 6). They also argue that his accompanying 25 fraud and negligence claims also fail as a matter of law. (Doc. 12 at 13; Crescent, Doc. 47 26 at 15; Xenia, Doc. 8 at 13). The Court will first address whether Mr. Strojnik has standing 27 to bring his claims, and then it will address the Vexatious Litigant Motions. 28 / / / 1 III. Subject-Matter Jurisdiction & Standing 2 Defendants pursue their standing arguments through Motions to Dismiss and a 3 Motion for Summary Judgment. Courts, too, may raise the issue of subject-matter 4 jurisdiction and standing on their own. See Arbaugh v. Y&H Corp., 546 U.S. 500, 506 5 (2006). In fact, this Court has “an independent obligation to determine whether subject- 6 matter jurisdiction exists, even in the absence of a challenge from any party.” Id. at 514 7 (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). Therefore, to avoid 8 mixing different motions, the Court will assess standing on its own motion and take into 9 consideration the parties’ standing arguments. 10 a. ADA Standing Requirements 11 The Constitution and federal statutes only grant this Court limited jurisdiction. 12 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). He who asserts this 13 Court has jurisdiction must overcome a presumption that it does not. Id. A party 14 challenging jurisdiction has two angles of attack. “A ‘facial’ attack accepts the truth of the 15 plaintiff’s allegations but asserts that they ‘are insufficient on their face to invoke federal 16 jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air 17 for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). “A factual attack, by contrast, 18 ‘contests the truth of the plaintiff’s factual allegations, usually by introducing evidence 19 outside the pleadings.’” Salter v. Quality Carriers, Inc., 974 F.3d 959, 964 (9th Cir. 2020) 20 (quoting Leite, 749 F.3d at 1121). 21 Here, Defendants bring facial and factual attacks on Plaintiff’s standing. (Doc. 12 22 at 3; Crescent, Doc. 47 at 7; Xenia, Doc. 8 at 5). Standing is an “essential and unchanging 23 part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 24 504 U.S. 555, 559 (1992). It is well established that “the irreducible constitutional 25 minimum of standing contains three elements.” Id. The plaintiff must show he suffered 26 (1) a concrete and particularized injury in fact, that is (2) caused by or fairly traceable to 27 the defendant’s conduct, and (3) that a favorable decision will redress the injury. Id. 28 Because the only form of relief available under the ADA is an injunction, a plaintiff 1 bringing an ADA claim must show a real and immediate threat of future injury to establish 2 redressability. Chapman v. Pier 1 (U.S.) Imports Inc., 631 F.3d 939, 944 (9th Cir. 2011); 3 Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004) (citing O’Shea 4 v. Littleton, 414 U.S. 488, 496 (1974)). A plaintiff may do this either by demonstrating 5 “deterrence, or by demonstrating injury-in-fact coupled with an intent to return to the 6 noncompliant facility.” Id. at 944. 7 The Ninth Circuit recognized the deterrent effect doctrine in Pickern v. Holiday 8 Quality Foods, Inc., 293 F.3d 1133, 1137–38 (9th Cir. 2002). Under this doctrine, “once 9 a plaintiff has actually become aware of discriminatory conditions existing at a public 10 accommodation, and is thereby deterred from visiting or patronizing that accommodation, 11 the plaintiff has suffered an injury.” Id. at 1136–37. In Pickern, a disabled individual had 12 encountered accessibility barriers at a market, which deterred him from shopping there 13 even though, as he stated, “he would shop at the Paradise market if it were accessible.” Id. 14 at 1138. For the Ninth Circuit, the plaintiff’s demonstrated deterrence was “sufficient to 15 establish actual or imminent injury for purposes of standing.” Id. However, simply 16 pleading a “vague desire to return is insufficient to satisfy the requirement of imminent 17 injury.” Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). “Such ‘some day’ 18 intentions—without any description of concrete plans, or indeed even any specification 19 of when the ‘some day’ will be—do not support a finding of the ‘actual or imminent’ injury 20 that our cases require.” Id. (quoting Lujan, 504 U.S. at 564). 21 The other way an ADA plaintiff demonstrates standing is by showing he has 22 suffered an injury in fact, and he that he will suffer a similar injury again. Chapman, 631 23 F.3d at 948 (quoting L.A. v. Lyons, 461 U.S. 95, 111 (1983)). The injury the ADA is 24 designed to prevent is discrimination, and a plaintiff demonstrates this by showing that a 25 barrier relating to his disability prevents his full and equal enjoyment of the premises. Id. 26 at 947. Once this is established, the plaintiff “must establish a ‘real and immediate threat 27 of repeated injury.’” Id. at 948 (quoting Lyons, 461 U.S. at 111). 28 / / / 1 b. Discussion of ADA Claims 2 Mr. Strojnik’s Complaints demonstrate neither deterrence nor injury-in-fact. To 3 begin, there is reason to doubt the sincerity of any alleged deterrence. For example, while 4 Mr. Strojnik alleges he was deterred from returning to a DoubleTree by Hilton Hotel 5 because of its ADA violations (Doc. 1-3 at 44), that deterrence must have been short-lived. 6 On November 8, three months after filing his Complaint, Mr. Strojnik filed a Notice in 7 which he claims to have attempted to reserve a room at the same hotel. (Doc. 24). It would 8 be absurd, in that instance, for this Court to find that Mr. Strojnik is deterred from returning 9 to that particular hotel. Obviously, he is not. 10 As to his allegations of deterrence generally, beyond vague “some day” intentions, 11 none of them contain any indication that he would return to the hotels if they were 12 accessible, which is necessary for his claims. See Lujan, 504 U.S. at 564; Pickern, 293 13 F.3d at 1138. Nowhere does he explain why as a Phoenix resident (Crescent, Doc. 1-3 at 14 2) he has such an interest or need in staying in Phoenix area hotels.4 To the contrary, Mr. 15 Strojnik has promised to avoid the hotels—provided Defendants pay him. (Id., Doc. 51-7 16 at 7); cf. Strojnik v. Pasadena Robles Acquisition, LLC, 801 F. App’x 569, 570 (9th Cir. 17 2020) (upholding the district court’s finding that “Strojnik failed to demonstrate an intent 18 to return to defendant’s hotel or that he was deterred from visiting defendant’s hotel”). 19 The deeper issue with Mr. Strojnik’s Complaints is whether he demonstrates an 20 injury-in-fact. He does not. Instead of explaining how the alleged ADA violations prevent 21 him from full and equal access to the hotels, Mr. Strojnik makes vague statements about 22 his disabilities, and it is anybody’s guess how the particular hotel features he photographs 23 so meticulously actually impact him. Many courts, reading Mr. Strojnik’s many 24 complaints, have seen the same boiler-plate allegations and note Mr. Strojnik’s 25 “longstanding practice of failing to allege basic facts about standing, such as a connection 26 between a barrier and [his] disability.” Strojnik v. IA Lodging Napa First LLC, 2020 WL 27
28 4 Two of the hotels Mr. Strojnik visited are only 13 and 16 miles from his residence. (Doc. 12 at 2 n.1). 1 2838814, at *11 (N.D. Cal. June 1, 2020) (granting a motion to declare Mr. Strojnik a 2 vexatious litigant, in part, because of his continued failure to allege Article III standing); 3 see also Strojnik v. Kapalua Land Co., Ltd., 801 F. App’x 531, 531 (9th Cir. 2020) (“The 4 district court properly dismissed Strojnik’s ADA claim against defendants Rand and Marr 5 Jones Wang, LLP because Strojnik failed to allege facts sufficient to demonstrate an injury 6 as a result of the alleged threat.”); Strojnik v. Orangewood LLC, 829 F. App'x 783, 783 7 (9th Cir. 2020) (“The district court properly dismissed Strojnik's ADA claim for lack of 8 Article III standing because Strojnik failed to allege that the ADA barriers he identified 9 affected him because of his disabilities.”); Strojnik v. BW RRI II, LLC, 2020 WL 5210897, 10 at *1 (N.D. Cal. Sept. 1, 2020) (“Because Strojnik hasn’t explained how he was harmed by 11 the hotel’s accessibility barriers, he hasn’t sufficiently alleged an injury-in-fact.”); Strojnik 12 v. Four Sisters Inns, Inc., 2019 WL 6700939, at *3 (C.D. Cal. Dec. 9, 2019) (holding 13 Strojnik’s photographs and captions to be bare legal conclusions insufficient to show how 14 there are purported barriers his to accessibility); Strojnik v. Hotel Circle GL Holdings, 15 LLC, 2019 WL 6212084, at *3 (E.D. Cal. Nov. 21, 2019) (same); Strojnik v. 1315 Orange 16 LLC, 2019 WL 5535766, at *2 (S.D. Cal. Oct. 25, 2019) (same); Strojnik v. Bakersfield 17 Convention Hotel I, LLC, 436 F. Supp. 3d 1332, 1340 (E.D. Cal. 2020) (same). Here, Mr. 18 Strojnik’s Complaints are similarly deficient and do not show an injury-in-fact. He has not 19 demonstrated standing to bring his ADA claims, which, therefore, must be dismissed. 20 c. Fraud and Negligence Claims 21 Each Complaint’s remaining claims are different species of fraud and negligence, 22 and they almost all rely on Defendants’ alleged ADA violations. (See Doc. 1-3 at 46–50; 23 Crescent, Doc. 1-3 at 3–5; Xenia, Doc. 1-3 at 41–44, 46–47). For one fraud claim, Mr. 24 Strojnik filed a Motion to Remand to State Court arguing the claim is completely unrelated 25 to his ADA claims. (Doc. 21 at 1). While his Complaint labels the claim at issue as “Fraud 26 -Common Law and Consumer,” (Doc. 1-3 at 49), Mr. Strojnik argues it is actually a 27 “novel” “Brand Deceit” claim that does not share a common nucleus of operative facts with 28 the ADA claims. (Doc. 21 at 5–6). 1 If a claim falling under a federal court’s original jurisdiction shares a “common 2 nucleus of operative fact” with other state law claims, the court may exercise supplemental 3 jurisdiction over those other claims. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 4 725 (1966); see 28 U.S.C. § 1367. Here, the Court may exercise supplemental jurisdiction 5 over state fraud and negligence claims that relate to Defendants’ alleged federal ADA 6 violations. Importantly, supplemental jurisdiction is a “doctrine of discretion, not of a 7 plaintiff’s right.” Gibbs, 383 U.S. at 726. Courts may decline to exercise supplemental 8 jurisdiction for reasons outlined in statue, such as when a novel state claim presents. See 9 28 U.S.C. § 1367(c)(1). When deciding whether to decline supplemental jurisdiction, a 10 court should take into consideration “judicial economy, convenience and fairness to 11 litigants.” Gibbs, 383 U.S. at 726. 12 Mr. Strojnik never explains how his “brand deceit” claim arises from a separate 13 nucleus of operative facts. As alleged in the Complaint, the claim arises from his 14 investigations as an ADA Tester of Defendants’ hotels, which are the same investigations 15 that gave rise to his ADA and ADA-related claims. Therefore, the Court rejects Mr. 16 Strojnik’s contention that the brand deceit claim is not related. It clearly is. Furthermore, 17 the Court will continue to exercise its supplemental jurisdiction over the brand deceit claim 18 and the rest of Mr. Strojnik’s state-law claims because they are easily dismissed. Mr. 19 Strojnik’s Motion to Remand for this purpose is denied. 20 According to Mr. Strojnik, the elements of his novel brand deceit claim are that (1) 21 a defendant misrepresented a fact in violation of the Arizona Consumer Fraud Act and (2) 22 that the misrepresentation proximately caused a plaintiff to suffer damages. (Doc. 21 at 5) 23 (citing Cheatham v. ADT Corp., 161 F. Supp. 3d 815, 825 (D. Ariz. 2016)). However, the 24 Complaint fails to show what damages Mr. Strojnik suffered as a proximate result of any 25 alleged misrepresentation. Therefore, he fails to demonstrate an injury that is fairly 26 traceable to Defendants’ allegedly wrongful behavior. See Lujan, 504 U.S. at 559. The 27 brand deceit claim will be dismissed. 28 For the remaining claims, Mr. Strojnik asserts Defendants fraudulently or 1 negligently misrepresented they were ADA compliant, they failed to disclose they were 2 not ADA complaint, or they negligently harmed him through their actions or omissions 3 related to ADA compliance.5 But without a viable ADA claim, without any showing of 4 concrete injury resulting from ADA non-compliance, all of these associated claims must 5 necessarily fail because Mr. Strojnik fails to demonstrate a concrete injury resulting from 6 ADA non-compliance. See Lujan, 504 U.S. at 559. Therefore, each Complaint in its 7 entirety will be dismissed with prejudice. 8 d. Leave to Amend 9 In his Responses to Defendants’ Motions to Dismiss, Mr. Strojnik requests leave to 10 amend his Complaints. (Doc. 16 at 12; Xenia, Doc. 15 at 20). Normally, courts “freely” 11 give leave to amend “when justice so requires.” Fed. R. Civ. P. 15(a). But courts may 12 deny such leave when faced with “bad faith or dilatory motive on the part of the movant, 13 repeated failure to cure deficiencies by amendments previously allowed, undue prejudice 14 to the opposing party by virtue of allowance of the amendment, futility of amendment, 15 etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). Here, there are many reasons to deny 16 leave to amend. Given the chronic deficiencies in Mr. Strojnik’s many complaints over 17 the years and recent months, and the many opportunities he has had to rectify such 18 deficiencies, the Court finds that Mr. Strojnik makes his request for leave to amend in bad 19 faith. Justice does not require leave to amend. His request is denied. 20 IV. Vexatious Litigant Motions 21 With the claims dismissed, the Court will now consider the Vexatious Litigant 22 Motions. To declare a party a vexatious litigant, a court must (a) provide the accused party 23 with notice and an opportunity to be heard, (b) create an adequate record on which to decide 24 the motion, (c) make substantive findings as to the frivolous or harassing nature of the 25
26 5 See e.g., (Doc. 1-3) (containing counts for ADA violations, negligence, negligent misrepresentation, failure to disclose, fraud and consumer fraud); (Crescent, Doc. 1-3) 27 (containing counts for ADA violations and negligence); (Xenia, Doc. 1-3) (containing 28 counts for common law fraud, consumer fraud, failure to disclose, fraudulent concealment, federal securities fraud, state securities fraud, ADA violations and negligence). 1 litigant’s actions, and finally (d) craft a narrowly-tailored order preventing the litigant’s 2 abusive behavior. Evergreen, 500 F.3d at 1057–58. 3 Mr. Strojnik argues that this Court has no power to issue a vexatious litigant order 4 because he originally filed these cases in state court. (Doc. 18 at 7; Crescent, Doc. 52 at 2– 5 3; Xenia, Doc. 24 at 5). He cites no supporting authority for this argument. To the contrary, 6 the case law makes no distinction. See De Long v. Hennessey, 912 F.2d 1144, 1147 (9th 7 Cir. 1990) (“There is strong precedent establishing the inherent power of federal courts to 8 regulate the activities of abusive litigants by imposing carefully tailored restrictions under 9 the appropriate circumstances.”) (quoting Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 10 1989)). This Court’s inherent power to curb abuse is not bound simply because an abusive 11 litigant brought a federal claim in state court first. If it were otherwise, the power would 12 be worthless; all vexatious litigants would just file their federal claims in state court. 13 In addition, Mr. Strojnik is the master of all his claims, and if he wanted to avoid 14 federal jurisdiction then he could have crafted a complaint that exclusively relies on state 15 law. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); Great N. Ry. Co. v. 16 Alexander, 246 U.S. 276, 282 (1918). But he has not. Mr. Strojnik has brought a federal 17 claim that was properly removed to this Court. Defendants then moved to declare him a 18 vexatious litigant. Those Motions are properly before the Court. 19 a. Notice and Opportunity to be Heard 20 This first step requires that the accused party have “an opportunity to oppose the 21 entry of the order.” Id. This does not require a hearing. See Evergreen, 500 F.3d at 1058– 22 59 (citing Pac. Harbor Cap., Inc v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir. 23 2000) (finding that an opportunity to be heard only requires the opportunity to brief the 24 issue fully)); IA Lodging, 2020 WL 2838814, at *7 (same). Here, Mr. Strojnik has filed 25 Responses to each of the Vexatious Litigant Motions, thus satisfying due process 26 requirements. (Doc. 18; Crescent, Doc. 52; Xenia, Doc. 24). His requests for an 27 evidentiary hearing made in those Responses is denied because the issue is fully briefed, 28 he has had his opportunity to be heard, and the Court needs no further presentation to make 1 its ruling. See Fed. R. Civ. P. 78(b) (court may decide motions without oral hearings); 2 LRCiv 7.2(f) (same). 3 b. An Adequate Record 4 “An adequate record for review should include a listing of all the cases and motions 5 that led the district court to conclude that a vexatious litigant order was needed.” De Long, 6 912 F.2d at 1147. At a minimum, the record must show the “litigant’s activities were 7 numerous or abusive.” Id. 8 The Court will take judicial notice of the fact that Mr. Strojnik has filed thousands 9 ADA lawsuits across the western United States. See Fed. R. Evid. 201(b) (allowing courts 10 to take judicial notice of “generally known” facts or accurate and readily accessible facts 11 from sources “whose accuracy cannot reasonably be questioned”); Bias v. Moynihan, 508 12 F.3d 1212, 1225 (9th Cir. 2007) (noting that courts may take notice of “proceedings in 13 other courts, both within and without the federal judicial system, if those proceedings have 14 a direct relation to matters at issue”) (internal citations and quotation marks omitted). 15 There is no doubt that Mr. Strojnik’s history and his modus operandi are well 16 known. See MidFirst, 279 F.Supp.3d at 893 (describing attorney-Mr. Strojnik’s ADA 17 litigation tactics as “extortionate” and “pervasive,” which included pursuing “upwards of 18 160 cookie-cutter lawsuits in federal court and, from early to later 2016, more than 1,700 19 such suits in Arizona state court”); Strojnik v. Bakersfield Convention Hotel I, LLC, 436 F. 20 Supp. 3d 1332, 1336 (E.D. Cal. 2020) (“Plaintiff Peter Strojnik . . . has filed thousands of 21 disability discrimination cases against hotel defendants in state and federal courts, and this 22 is one of those cases.”); Strojnik v. 1530 Main LP, 2020 WL 981031, at *1 (N.D. Tex. Feb. 23 28, 2020) (noting that Mr. Strojnik, a pro se plaintiff, was disbarred partly for filing 24 “thousands” of ADA lawsuits); Strojnik v. Host Hotels & Resorts, Inc., 2020 WL 2736975, 25 at *1 (D. Haw. May 26, 2020) (same). 26 The Court also takes judicial notice of the fact that Mr. Strojnik consented to 27 disbarment after the Arizona State Bar had initiated disciplinary proceedings against him 28 related to his ADA practice. (Doc. 17-1 at 106–108). Although the Court notes Mr. Strojnik 1 states he “declines to be associated with the State Bar of Arizona” as such association was 2 “inconsistent with his ‘core principles of morality and fair play.’” (Doc. 18 at 2 n.1). 3 Even without a license to practice law, Mr. Strojnik continues to file ADA lawsuits 4 across the country. For example, in June 2020, the Northern District of California found 5 that Mr. Strojnik had filed 114 pro se ADA cases in California district courts, half of which 6 eventually settled, and none of which have been tried on the merits. IA Lodging, 2020 WL 7 2838814, at *7. Those findings, which the Court will take judicial notice of, were based 8 on information provided by Mr. Strojnik. Id.; see Bias, 508 F.3d at 1225 (noting a court 9 may take notice of proceedings in other courts with direct relation to the matters at issue); 10 Lee v. L.A., 250 F.3d 668, 689–90 (9th Cir. 2001) (noting a court may take judicial notice 11 of undisputed matters of public record). In addition to a list of his cases filed in California, 12 Mr. Strojnik told the Northern District of California Court that he had recovered a total of 13 $249,079 in settlement fees from those cases. (Doc. 28-1 at 12). That recovery, he claimed, 14 was ultimately reduced by his claimed expense of $55,960 in filing and service fees, as 15 well as $58,000 in “investigative fees.” (Id.) 16 This Court also requested information from Mr. Strojnik on his ADA filings in 17 Arizona. (Doc. 30). As of December 19, 2020, Mr. Strojnik claims to have filed 64 cases 18 with ADA claims in Arizona superior courts. (Doc. 31 at 2). Of those, he has voluntarily 19 dismissed fourteen and settled thirteen. (Id.) None have yet been tried on their merits. 20 (Id.) 21 The Court also requested that Mr. Strojnik disclose “the total amount of money 22 Plaintiff has recovered in settlements from his pro se ADA cases filed in Arizona.” (Doc. 23 30). He claims to have been awarded $5,040.48 in settlements from his “ADA claims.” 24 (Doc. 31 at 2). He also claims to have spent $11,419.50 in fees and service costs, and 25 $14,750 in other “initial expenses.” (Id.) What these expenses are exactly, Mr. Strojnik 26 does not say. In any event, Mr. Strojnik represents to the Court that his pro se lawsuits are 27 a money-losing endeavor. However, Defendant New Crescent contests whether these 28 numbers actually respond to the Court’s request for the total amount in settlements from 1 Mr. Strojnik’s “ADA cases.” (Doc. 33). In support, New Crescent filed an October 2020 2 settlement agreement in which Mr. Strojnik received $7,500 to dismiss an Arizona ADA 3 lawsuit with prejudice. (Doc. 33-1). Mr. Strojnik did not explain or deny this point in his 4 Reply brief. (Doc. 35). Accordingly, the Court finds that Mr. Strojnik’s claim that he 5 suffers a “financial loss” by pursuing his “ADA claims” versus “ADA cases” misrepresents 6 the accurate amount he is recovering. Taking this into account, the Court finds that $7,500 7 represents a reasonable estimate of the average settlement for one of Mr. Strojnik’s ADA 8 cases. To date, he says he has settled thirteen cases, which would amount to just over 9 $100,000. Even if the Court accepted Mr. Strojnik’s claimed “initial expenses” beyond 10 fees and service costs as legitimate, he would still be making about $75,000. 11 Finally, the Court takes judicial notice of the PACER search results listing Mr. 12 Strojnik’s pro se ADA cases before the Arizona District Court. (Doc. 17-1); see Lee, 250 13 F.3d at 689–90; Strojnik v. SCG Am. Constr. Inc., 2020 WL 4258814, at *3 (C.D. Cal. Apr. 14 19, 2020) (taking judicial notice of Mr. Strojnik’s PACER search results). By the Court’s 15 count, as of December 2020, twenty-two of Mr. Strojnik’s pro se ADA cases have been 16 heard in this District since his disbarment after they were removed from state court. 17 c. Substantive Findings 18 Next the Court will make its “substantive findings as to the frivolous or harassing 19 nature of the litigant’s actions.” De Long, 912 F.2d at 1148 (quoting In re Powell, 851 20 F.2d 427, 431 (D.C. Cir. 1988)). Simply filing many claims, as Mr. Strojnik does, is not 21 reason enough to find a litigant is vexatious. See Evergreen, 500 F.3d at 1059. As noted 22 above, the primary way to create a legal market for ADA claims is to allow serial litigants. 23 But when a serial litigant continues to make exaggerated claims of injury with an intent to 24 coerce settlement, that litigant becomes vexatious. Evergreen 500 F.3d at 1062. 25 Like a plaintiff that brings numerous claims, there is nothing inherently vexatious 26 about settling a claim. Normally, courts encourage settlement to promote efficiency. See 27 Franklin, 884 F.2d at 1225. And in some cases, it may be more efficient for ADA plaintiffs 28 to forego injunctive relief and, instead, accept a monetary settlement that compensates their 1 genuine ADA injures. See R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 2 2 (1960) (“The problem is to avoid the more serious harm.”). However, a plaintiff’s attempt 3 to settle may become coercive and extortionate when he pursues a settlement amount well 4 in excess of the actual personal cost of his forgoing injunctive relief. See Sidney W. 5 DeLong, Coasean Blackmail: Protection Markets and Protection Rackets, 67 U. Kan. L. 6 Rev. 281, 283 (2018). In this latter instance, a plaintiff uses the ADA not to vindicate the 7 rights of disabled Americans, but rather, to unjustly enrich himself. 8 In Molski v. Evergreen, the Ninth Circuit evaluated two of the district court’s 9 substantive findings in a vexatious litigant order. 500 F.3d at 1059–60. First, the district 10 found that the plaintiff plainly exaggerated claims that he repeatedly injured himself at 11 public accommodations in the same manner. Id. at 1059. The Ninth Circuit held this 12 finding was not in error. Id. (“Common sense dictates that Molski would have figured out 13 some way to avoid repetitive injury-causing activity; even a young child who touches a hot 14 stove quickly learns to avoid pain by not repeating the conduct.”). Second, the Ninth 15 Circuit held that the district court did not err when it inferred an “intent to harass defendants 16 into settlement from the fact that Molski had tried on the merits only one of his roughly 17 400 ADA cases and the fact that Molski . . . targeted ethnic restaurants viewed as easy prey 18 for coercive claims.” Id. at 1059–60. 19 There is no serious doubt that Mr. Strojnik exaggerates his injuries. As noted above, 20 this Court and many others have critiqued Mr. Strojnik’s “longstanding” failure to show a 21 “connection between a barrier and [his] disability.” IA Lodging, 2020 WL 2838814, at 22 *11. This is not news to Mr. Strojnik. And yet despite these admonishments, he continues 23 to file defective complaints. Faced with a blatant unwillingness to explain how alleged 24 non-conformities cause him injury, the Court can only conclude, and so finds, that Mr. 25 Strojnik habitually over-exaggerates his injuries.6 26 6 In a deposition with Defendant New Crescent, Mr. Strojnik admitted that he did not visit 27 that Defendant’s hotel in a wheelchair, nor does he remember if he used a cane or crutch. 28 (Crescent, Doc. 48-1 at 39). He also admitted that he does not own a wheelchair-accessible van. (Id. at 40). Despite not owning a van, he has brought claims against other Defendants 1 Additionally, Mr. Strojnik has no financial incentive to bring a genuine complaint 2 or to try his cases on their merits. Consider the settlement details provided by Mr. Strojnik 3 on his ADA cases in California and Arizona in which he asks for thousands of dollars to 4 dismiss the claim with prejudice and additional money to promise not to visit other hotels. 5 (Doc. 28-1 at 12; 31 at 2). Even if the Court believed the financial information Mr. Strojnik 6 provided in this case, there is enough information to make the inference that Mr. Strojnik 7 has been making a large profit from the hundreds of ADA cases filed across the country, 8 cases that that have never been tested on their merits. In addition, his settlement offers 9 usually request thousands of dollars in damages in exchange for a stipulated dismissal with 10 prejudice that only relates to the property in question—a promise to not visit Defendants’ 11 other hotels costs extra. (Doc. 17-1 at 123; Crescent, Doc. 51-7 at 7). Putting aside the 12 fact that the ADA does not allow for damages, the fact that he is requesting additional 13 payment to abstain from visiting hotels is plainly a request that unjustly enriches him. It 14 further undermines his professed purpose for advancing his ADA claims. He has not 15 incurred any damages or costs related to these other hotels, and so payment to not visit 16 them is effectively a payment to prevent Mr. Strojnik from self-inflicting further legal 17 injury. These efforts to “coerce settlement” are plainly “at odds with our system of justice.” 18 Evergreen, 500 F.3d at 1062. While the agreements require the other party’s “[b]est efforts 19 to remediate readily achievable [ADA] remediations,” (Doc. 17-1 at 123), those efforts 20 would not cover the hotels Mr. Strojnik promises to avoid. And in some settlements, this 21 “best effort” is not required at all. (See e.g., Doc. 33-1). Such limp efforts to bring about 22 the ADA’s policy goals make Mr. Strojnik a lousy private attorney general. See Newman, 23 390 U.S. at 402. The Court finds that Mr. Strojnik harasses and coerces parties into 24 agreeing to extortive settlements. 25 In total, the Court finds Mr. Strojnik’s litigation tactics frivolous and harassing. The 26 Vexatious Litigant Motions are granted, and the Court will enter an order to enjoin further 27 abuse. 28 for failing to post “van accessible” markings on their property. (Doc. 1-3 at 31). 1 d. Narrowly Tailored Order Preventing Abuse 2 This Order must be “narrowly tailored to the vexatious litigant’s wrongful 3 behavior.” Evergreen, 500 F.3d at 1061. It must add “a valuable layer of protection . . . 4 for the courts and those targeted” by Mr. Strojnik’s claims. Id. At the same time, it must 5 not deny Mr. Strojnik “access to courts on any ADA claim that is not frivolous.” Id. 6 Federal courts have an “inherent power . . . to regulate the activities of abusive 7 litigants by imposing carefully tailored restrictions under the appropriate circumstances.” 8 De Long, 912 F.2d at 1147 (quoting Tripati, 878 F.2d at 352). In addition, 28 U.S.C. § 9 1651(a) grants federal courts the power to enjoin vexatious litigants from continuing their 10 abuse. Id. Traditionally, this has been used to screen a plaintiff’s filings in the district 11 court. See e.g., Evergreen, 500 F.3d at 1064. However, “[a]s new ideas develop and old 12 devices prove ineffective, the judiciary must respond with imaginative new techniques 13 designed to protect the court access of all litigants.” Procup v. Strickland, 792 F.2d 1069, 14 1073 (11th Cir. 1986) (surveying the variety of injunctive devices employed by federal 15 courts to curtail frivolous and vexatious litigation). 16 The wrongful behavior here is Mr. Strojnik’s harassing attempts to unjustly enrich 17 himself through frivolous ADA claims. This behavior, to say the least, wastes “judicial 18 time that properly could be used to consider the meritorious claims of other litigants.” De 19 Long, 912 F.2d at 1149. Already confronted with Mr. Strojnik’s behavior, two federal 20 courts in California have enjoined Mr. Strojnik from filing ADA claims in their respective 21 districts without first obtaining leave of court. See SCG Am. Constr. Inc., 2020 WL 22 4258814, at *8; IA Lodging, 2020 WL 2838814, at *13. This Court will follow suit and 23 adopt a similar order. But while such an order on its own would provide some protection, 24 it would not sufficiently address the scope of the nuisance. The Court must therefore add 25 two additional protections. 26 First, an additional screening of removed cases is necessary. All of Mr. Strojnik’s 27 current cases in this District were originally filed in state court, and a simple pre-filing 28 injunction would fail to prevent frivolous claims that are appropriately removed to this 1 Court under federal question jurisdiction. Mr. Strojnik should know that if he elects to 2 bring a federal cause of action in state court, that cause of action may be removed to federal 3 court. Therefore, the Court will automatically review Mr. Strojnik’s complaints to 4 determine whether it is frivolous or asserted for an improper purpose in any ADA action 5 brought by Mr. Strojnik in state court and subsequently removed to the Arizona District 6 Court. Again, Mr. Strojnik is the master of all his claims, and he may decide to avoid 7 federal jurisdiction by crafting a complaint that exclusively relies on state law. See 8 Caterpillar Inc., 482 U.S. at 392; Great N. Ry. Co., 246 U.S. at 282. 9 Second, if this Order is to be truly “narrowly-tailored,” it must precisely address the 10 root of the wrongful behavior: Mr. Strojnik’s financial incentives. It is reasonable to 11 assume that many of the parties targeted by Mr. Strojnik’s vexatious tactics would rather 12 pay Mr. Strojnik to go away than deal with a lawsuit. The parties that choose to bear the 13 costs of defeating Mr. Strojnik’s frivolous claims in court are too few and far between. 14 And because it is relatively inexpensive for Mr. Strojnik to file a claim, these brave parties’ 15 efforts ultimately do not deter further frivolous claims. Therefore, the Court must increase 16 Mr. Strojnik’s cost of filing frivolous ADA cases by requiring that he post a bond for ADA 17 cases that come before this Court. See e.g., (Doc. 32-1) (containing an order from 18 California Superior Court, Strojnik v. Sahi Group, LLC, No. 20CV367614 (Cal. Super. Ct. 19 Dec. 16, 2020) imposing a bond requirement on Mr. Strojnik upon filing of new 20 complaints). Such requirements have been issued before to protect federal courts from 21 “misuse of legal processes.” Sassower v. Am. Bar Ass’n, 33 F.3d 733, 736 (7th Cir. 1994) 22 (requiring a party know for filing frivolous claims to post a bond before continuing with 23 further claims). In addition, the Court finds, under the All Writs Act, this requirement is 24 “necessary” and “appropriate” to protect this District from frivolous claims over which it 25 has no jurisdiction. 28 U.S.C. § 1651(a). 26 Accordingly, 27 IT IS HEREBY ORDERED dismissing Plaintiff’s claims with prejudice for 28 lacking standing. 1 IT IS FURTHER ORDERED that Plaintiff’s requests for leave to amend his 2 Complaints (Doc. 16; Xenia, Doc. 15) are denied. 3 IT IS FURTHER ORDERED that Defendants’ Motions to Declare Plaintiff a 4 Vexatious Litigant are granted. Plaintiff Peter Strojnik is hereby declared a vexatious 5 litigant. 6 IT IS FURTHER ORDERED that if Mr. Strojnik attempts to file any new action 7 alleging violations of the Americans with Disabilities Act in the United States District 8 Court for the District of Arizona after the date of this Order, he must include therewith a 9 “Motion for Leave to File” and a copy of this Order. If Mr. Strojnik does not include a 10 “Motion for Leave to File” and a copy of this Order with any new action he submits, the 11 Court will not consider the filing, and the action will be summarily dismissed for failure to 12 comply with this Order. If the Court cannot determine from the “Motion for Leave to File” 13 that Mr. Strojnik’s claims demonstrate standing or meet federal pleading requirements, the 14 Court will read no further, the “Motion for Leave to File” will be denied, and the case will 15 be dismissed for failure to comply with this Order. 16 IT IS FURTHER ORDERED that if a case filed by Mr. Strojnik in state court and 17 containing claims alleging violations of the Americans with Disabilities Act is removed to 18 the United States District Court for the District of Arizona after the date of this Order, the 19 Court will automatically screen the complaint to determine whether it demonstrates 20 standing and meets federal pleading requirements. The Court will apply this same 21 screening to any and all amended complaints that Mr. Strojnik files alleging violations of 22 the Americans with Disabilities Act. If the Court determines that Mr. Strojnik fails to 23 demonstrate standing or otherwise meet federal pleading requirements, it shall dismiss the 24 case. 25 IT IS FURTHER ORDERED that within 21 days after filing a new action in the 26 United States District Court for the District of Arizona alleging violations of the Americans 27 with Disabilities Act, within 21 days after an action is removed from state court to United 28 States District Court for the District of Arizona alleging violations of the Americans with Disabilities Act, or within 21 days after Mr. Strojnik amends a complaint before the United □□ States District Court for the District of Arizona to include alleged violations of the 3|| Americans with Disabilities Act, Mr. Strojnik shall post a bond for $10,000. If after 21 days, Mr. Strojnik fails to post the bond, the Court will dismiss the case for failure to 5 || comply with this Order. 6 IT IS FURTHER ORDERED that if at any point the Court determines that Mr. || Stroynik fails to demonstrate standing or otherwise meet federal pleading requirements, the 8 || Court will dismiss the case and initiate sanctions proceedings by ordering Mr. Strojnik to || show cause why sanctions should not be imposed under Federal Rule of Civil Procedure 11(b)(1). If, after providing Mr. Strojnik an opportunity to be heard, the Court imposes 11 || sanctions, the bond shall be used towards paying the opposing party’s reasonable attorney’s fees. Any remaining amount will be returned to Mr. Strojnik. If the Court finds Mr. 13 || Strojnik demonstrates standing and meets federal pleading requirements, or if the Court □□ declines to impose sanctions, Mr. Strojnik may recover the bond. 15 IT IS FURTHER ORDERED that all remaining motions are denied as moot. 16 IT IS FURTHER ORDERED that the Clerk provide a copy of this Order to the || judges of the United States District Court for the District of Arizona. 18 IT IS FINALLY ORDERED directing the Clerk of Court to enter judgment accordingly, close these consolidated cases (No. CV-20-01532; No. CV-20-00343; No. 20 }} CV-20-01434), and termination this action. 21 Dated this 6th day of January, 2021. 22 23 5 fe □□ 24 norable' Diang/4. Hunfetewa 5 United States District Fudge 26 27 28
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