1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 PETER STROJNIK, Case No. 19-cv-07579-VKD
9 Plaintiff, ORDER DISMISSING ALL CLAIMS 10 v. FOR LACK OF STANDING
11 PORTOLA HOTEL, LLC, Re: Dkt. Nos. 23-1 Defendant. 12
13 14 Pro se plaintiff Peter Strojnik filed this disability rights action asserting a claim under Title 15 III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq. and 16 related state law claims against defendant Portola Hotel, LLC (“Portola”). His allegations concern 17 purported accessibility barriers at the Portola Hotel (“the Hotel”) in Monterey, California. 18 Portola now moves for judgment on the pleadings under Federal Rule of Civil Procedure 19 12(c) for lack of standing and failure to state a claim. Dkt. No. 23-1. Mr. Strojnik opposes the 20 motion. Dkt. No. 24. The Court finds the matter suitable for resolution without oral argument. 21 Civ. L.R. 7-1(b). Having considered the parties’ submissions, the Court dismisses the ADA claim 22 for lack of standing. Mr. Strojnik’s state law claims are dismissed without prejudice.1 23 I. BACKGROUND 24 Mr. Strojnik is an Arizona resident who says that he is disabled within the meaning of the 25 ADA due to severe right-sided neural foraminal stenosis with symptoms of femoral neuropathy, 26
27 1 All parties have expressly consented that all proceedings in this matter may be heard and finally 1 prostate cancer and renal cancer, and a prosthetic right knee. Dkt. No. 1 ¶ 3. Mr. Strojnik says 2 that he “walks with difficulty and pain and requires compliant mobility features at places of public 3 accommodation.” Id. ¶ 4. “By virtue of his disability,” Mr. Strojnik further alleges that he 4 “requires an ADA compliant lodging facility particularly applicable to his mobility, both 5 ambulatory and wheelchair assisted.” Id. ¶ 14. 6 Mr. Strojnik alleges that he “intended to visited [sic] the Monterey area in the September 7 26-27, 2019 time frame” and encountered accessibility barriers while lodging at one of Portola’s 8 competitors. Id. ¶¶ 15, 17-18. Mr. Strojnik further alleges that he therefore “visited [the Hotel] to 9 determine whether its accessibility features would be adequate for [his] future intended travel and 10 lodging in the area.” Id. ¶ 18. However, Mr. Strojnik alleged that at the Hotel, he “also 11 encountered barriers to accessibility,” which he says are documented in an “Addendum A” to the 12 complaint. Id. ¶ 19. The referenced addendum contains a series of photos, purportedly of various 13 locations at the Hotel, with generic captions such as “Inaccessible,” “Identification,” “No marked 14 passenger drop off zone,” “Improperly configured handrails,” and “No signage to accessible 15 route.” Dkt. No. 1 at 8–10. 16 Mr. Strojnik filed this action on November 18, 2019. Dkt. No. 1. Portola answered the 17 complaint on March 20, 2020. Dkt. No. 8. This motion followed on September 16, 2020. Dkt. 18 No. 23. 19 II. LEGAL STANDARD 20 Rule 12(c) motions test the legal sufficiency of a claim. Chavez v. United States, 683 F.3d 21 1102, 1108 (9th Cir. 2012). A motion for judgment on the pleadings may be brought “[a]fter the 22 pleadings are closed—but early enough not to delay trial.” Fed. R. Civ. P. 12(c). Judgment on the 23 pleadings is proper when “‘there is no issue of material fact in dispute, and the moving party is 24 entitled to judgment as a matter of law.’” Id. (quoting Fleming v. Pickard, 581 F.3d 922, 925 (9th 25 Cir. 2009)). The Court may consider materials subject to judicial notice without converting a Rule 26 12(c) motion into one for summary judgment. United States v. 14.02 Acres, 547 F.3d 943, 955 27 (9th Cir. 2008). 1 jurisdiction. 5C Wright & Miller, Fed. Prac. & Proc. § 1367 (3d ed.); see also 5C Wright & 2 Miller, Fed. Prac. & Proc. § 1350 (“[I]n a significant number of cases, federal courts have 3 permitted a defending party to raise a lack of subject matter jurisdiction on a Rule 12(c) motion for 4 judgment on the pleadings . . . .”); Yu v. Designed Learned, Inc., No. 3:15-cv-5345-LB, 2016 WL 5 7033978, at *2 (N.D. Cal. Dec. 2, 2016); Leslie Salt Co. v. United States, 789 F. Supp. 1030 (N.D. 6 Cal. 1991). The Court’s analysis of a Rule 12(c) motion that raises a question of subject matter 7 jurisdiction conforms to the analysis required for a Rule 12(b)(1) motion. 5C Wright & Miller, 8 Fed. Prac. & Proc. § 1367; Diamond v. Corizon Health, Inc., No.16-cv-03534-JSC, 2016 WL 9 7034036, at *4 (N.D. Cal. Dec. 2, 2016). 10 Article III standing “is a necessary component of subject matter jurisdiction.” In re 11 Palmdale Hills Prop., LLC, 654 F.3d 868, 873 (9th Cir. 2011). A jurisdictional challenge under 12 Rule 12(b)(1) may be made either on the face of the pleadings (a “facial attack”) or by presenting 13 extrinsic evidence (a “factual attack”). Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 14 1139 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). “In a facial 15 attack, the challenger asserts that the allegations contained in a complaint are insufficient on their 16 face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the 17 truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air 18 for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 19 Where the attack is facial, the Court determines whether the allegations contained in the 20 complaint are sufficient on their face to invoke federal jurisdiction, accepting all material 21 allegations in the complaint as true and construing them in favor of the party asserting jurisdiction. 22 Id.; see also Warth v. Seldin, 422 U.S. 490, 501 (1975). Where the attack is factual, however, “the 23 court need not presume the truthfulness of the plaintiff’s allegations.” Safe Air for Everyone, 373 24 F.3d at 1039. In resolving a factual dispute as to the existence of subject matter jurisdiction, a 25 court may review extrinsic evidence beyond the complaint without converting a motion to dismiss 26 into one for summary judgment. Id. Once the moving party has made a factual challenge by 27 offering affidavits or other evidence to dispute the allegations in the complaint, the party opposing 1 establishing that the court, in fact, possesses subject matter jurisdiction.” St. Clair v. City of 2 Chico, 880 F.2d 199, 201 (9th Cir. 1989); see also Savage v. Glendale Union High Sch. Dist. No. 3 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003). Where a motion is resolved on declarations alone 4 without an evidentiary hearing, the complaint’s factual allegations are accepted as true. Rhoades 5 v. Avon Prods., Inc., 504 F3d 1151, 1160 (9th Cir. 2007). 6 Portola appears to raise both facial and factual challenges to Mr. Strojnik’s standing. 7 Because the Court concludes it need consider only Portola’s facial challenge to dispose of this 8 action, it does not reach the merits of Portola’s factual challenge. As the party asserting federal 9 subject matter jurisdiction, Mr. Strojnik bears the burden of establishing its existence. Kokkonen 10 v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The record is limited to the complaint 11 and materials that may be judicially noticed.2 See Hyatt v. Yee, 871 F.3d 1067, 1071 n.15 (9th Cir. 12 2017). Additionally, the Court must accept well-pled allegations of the complaint as true, draw all 13 reasonable inferences in Mr. Strojnik’s favor, and determine whether his allegations are sufficient 14 to support standing. See id. 15 III. DISCUSSION 16 Portola argues that the Court should grant judgment in its favor because (1) Mr. Strojnik 17 lacks standing to bring an ADA claim; (2) Mr. Strojnik has not pled facts to support his ADA, 18 Unruh, or negligence claims; and (3) the Court should decline supplemental jurisdiction over the 19 state law claims. Dkt. No. 23-1. Because the Court has a continuing obligation to ensure that it 20 has subject matter jurisdiction at all times, see Fed. R. Civ. P. 12(h)(3), it addresses Portola’s 21 argument concerning Mr. Strojnik’s standing first. 22 A. Standing 23 Under Article III of the Constitution, federal courts have jurisdiction to decide only actual 24 “Cases” or “Controversies,” U.S. Const., art. III, § 2, and Mr. Strojnik has standing to sue if he 25 “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the 26 defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. 27 1 Robins, 136 S. Ct. 1540, 1547 (2016); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560– 2 61 (1992). Mr. Strojnik’s claimed injury must be both “particularized” and “concrete.” A 3 “particularized” injury is one that “‘affect[s] the plaintiff in a personal and individual way.’” 4 Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560 n.1). A “concrete” injury “must 5 actually exist” and must be “real, and not abstract.” Id. 6 “[O]nce a disabled plaintiff has encountered a barrier violating the ADA, that plaintiff will 7 have a personal stake in the outcome of the controversy so long as his or her suit is limited to 8 barriers related to that person’s particular disability.” Chapman v. Pier 1 Imports (U.S.), Inc., 631 9 F.3d 939, 948 (9th Cir. 2011) (internal quotations and citation omitted). In the context of 10 injunctive relief—which is the only remedy available to Mr. Strojnik under Title III of the ADA, 11 see 42 U.S.C. § 12188; Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002)—a plaintiff “must 12 demonstrate a sufficient likelihood that he will again be wronged in a similar way,” Fortyune v. 13 Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004) (internal quotations and citation 14 additionally omitted). “That is, he must establish a real and immediate threat of repeated injury.” 15 Id. (internal quotations and citation omitted). In the Ninth Circuit, an ADA plaintiff may establish 16 standing “either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an 17 intent to return to a noncompliant facility.” Chapman, 631 F.3d at 944. While courts take a broad 18 view of constitutional standing in disability access cases, “the ADA’s reach is not unlimited.” Id. 19 at 946. 20 Portola challenges Mr. Strojnik’s Article III standing to bring his ADA claim on three 21 grounds: (1) the complaint fails to demonstrate a concrete and particularized injury because Mr. 22 Strojnik does not identify how any barriers relate to his claimed disability, (2) the complaint does 23 not allege facts demonstrating that Mr. Strojnik faces a real and immediate threat of repeated 24 injury, and (3) Mr. Strojnik does not, in fact, have a disability that affects his mobility. Mr. 25 Strojnik does not directly respond to or dispute these arguments in his opposition brief. See Dkt. 26 No. 24. For the reasons discussed below, the Court agrees with Portola on the first two grounds 27 asserted. The Court therefore does not reach the third issue of whether Mr. Strojnik is actually 1. Injury-in-fact 1 a. Alleged disability 2 The complaint contains few allegations regarding Mr. Strojnik’s alleged disability. He 3 pleads that he suffers from multiple conditions, including “severe right-sided neural foraminal 4 stenosis with symptoms of femoral neuropathy, prostate cancer and renal cancer, [and] missing 5 part of a limb (prosthetic right knee).” Dkt. No. 1 ¶ 3. He further pleads that those impairments 6 “substantially limited his major life activities” in that he “walks with difficulty and pain and 7 requires compliant mobility accessible features at places of public accommodation.” Id. ¶ 4. Mr. 8 Strojnik says that his “impairment is constant” but that the degree of pain varies. Id. As such, he 9 asserts that he “requires an ADA compliant lodging facility particularly applicable to his mobility, 10 both ambulatory and wheelchair assisted.” Id. ¶ 14. 11 These allegations are vague and conclusory. It is not clear whether Mr. Strojnik requires a 12 wheelchair (or merely has one) or whether he requires assistive devices for walking. He does not 13 state what the nature of his “difficulty” is with respect to walking. 14 b. Alleged barriers 15 The ADA prohibits barriers that interfere with a plaintiff’s “full and equal enjoyment” of a 16 place of public accommodation on account of the plaintiff’s particular disability. 42 U.S.C. 17 § 12182(a); Chapman, 631 F.3d at 947. Mr. Strojnik’s complaint is based on an alleged lack of 18 information on websites, as well as alleged physical barriers at the Hotel itself. As discussed 19 below, the complaint fails to allege sufficient facts stating what accessibility barriers Mr. Strojnik 20 encountered or explaining how any alleged barriers relate to his particular disability. 21 The ADA applies to websites of public accommodations, such as hotels, where the alleged 22 inaccessibility impedes access to the goods and services of a physical location. See Robles v. 23 Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019) (“Because the ADA only covers actual, 24 physical places where goods or services are open to the public, and places where the public gets 25 those goods or services, there ha[s] to be some connection between the good or service 26 complained of and an actual physical place.”) (internal quotations and citation omitted). The 27 Court infers from Addendum A that Mr. Strojnik accessed information about the Hotel on 1 “hotels.com” and “portolahotel.com” on or around September 21-22, 2019. Dkt. No. 1 ¶¶ 15-16, 2 Addendum A at 8. Mr. Strojnik alleges that the websites violate 28 C.F.R. § 36.302(e)3 “by 3 failing to identify and describe accessible features in the hotel and guest rooms in enough detail to 4 reasonably permit [Mr. Strojnik] to assess independently whether the hotel or guest room meets 5 his accessibility needs.” Id., Addendum A at 8. This allegation merely parrots the cited regulation 6 and does not identify what accessibility features Mr. Strojnik claims are required to accommodate 7 his disability or state that those specific features were not described on the websites. Similarly 8 vague and conclusory allegations have been found insufficient to support Mr. Strojnik’s standing 9 in other similar cases. See, e.g., Strojnik v. R.F. Weichert, No. 20-cv-00354-VKD, 2021 WL 10 242912, at *3–6 (N.D. Cal. Jan. 24, 2021) (dismissing action for lack of standing where plaintiff 11 failed to explain how the alleged physical barriers interfered with his access); Strojnik v. SCG Am. 12 Constr., No. SACV 19-1560 JVS (JDE), 2020 WL 4258814, at *3–4 (C.D. Cal. Apr. 19, 2020) 13 (“Strojnik cannot rely solely on conclusory allegations, but rather must state what information is 14 missing [from the websites] that would prevent him from staying at the hotel.”); Strojnik v. IA 15 Lodging Napa First LLC, No. 19-cv-03983-DMR, 2020 WL 906722, at *2 (N.D. Cal. Feb. 25, 16 2020) (“Strojnik’s allegations relate mainly to the lack of information regarding accessibility 17 features on Andaz Napa’s website, but he does not explain which accessibility features are 18
19 3 The cited regulation provides, in relevant part:
20 (e)(1) Reservations made by places of lodging. A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect 21 to reservations made by any means, including by telephone, in-person, or through a third party— 22
(i) Modify its policies, practices, or procedures to ensure that 23 individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as 24 individuals who do not need accessible rooms;
25 (ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to 26 reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her 27 accessibility needs[.] 1 required to accommodate his disability or allege that those specific features were not described on 2 the website.”); Strojnik v. Landry’s Inc., No. 4:19-CV-01170, 2019 WL 7461681, at *4 (S.D. Tex. 3 Dec. 9, 2019), report and recommendation adopted, 2020 WL 42454 (S.D. Tex. Jan. 2, 2020) 4 (“Strojnik has not alleged in what manner the hotel’s website is deficient in listing the accessibility 5 features of its accessible rooms, and has not alleged how the website should be edited to provide 6 the type of information Strojnik believes is needed.”). For these reasons, Mr. Strojnik’s 7 conclusory allegations about the lack of information on the hotels.com and portolahotel.com 8 websites are insufficient to support his Article III standing. 9 Mr. Strojnik’s allegations regarding the alleged physical barriers at the Hotel are equally 10 deficient. The complaint includes photos that purport to show architectural barriers present at the 11 Hotel. Dkt. No. 12 ¶ 19, Addendum A at 8–10. These photos are labeled with generic captions. 12 For example, some photos depict walkways or steps, accompanied by a caption stating, “No 13 signage to accessible route” or “No signage to accessible room.” Id., Addendum A at 8–10. Other 14 photos show handrails, noting “Improperly configured handrails.” Id. Other photos of counters or 15 bars bear the caption of “Inaccessible check in counter,” “Inaccessible bar,” “Inaccessible 16 gallery,” Inaccessible gallery counter,” or “Inaccessible wash station.” Id. Finally, the complaint 17 also includes two photos of the exterior of the Hotel, which are captioned “Identification” and “No 18 marked passenger drop off zone.” Id., Addendum A at 8. The complaint states that these alleged 19 violations “described in Addendum A relate to [Mr. Strojnik]’s disabilities and interfere with [his] 20 full and complete enjoyment of the Hotel.” Id. ¶ 20. 21 These generic captions are insufficient to establish Mr. Strojnik’s standing to pursue his 22 ADA claim. To begin, Mr. Strojnik makes vague assertions about his claimed disabilities and 23 required accommodations, generally stating only that he requires “compliant mobility features” 24 and “an ADA compliant lodging facility particularly applicable to his mobility, both ambulatory 25 and wheelchair assisted.” Id. ¶¶ 4, 14. Moreover, he does not explain how the alleged physical 26 barriers depicted in the photos prevent him from full and equal access to the facility. The 27 complaint contains no allegations that he communicated with the Hotel or that he made any 1 sufficient facts demonstrating that he encountered any accessibility barriers related to his 2 particular disability. See, e.g., Strojnik v. Driftwood Hospitality Mgmt. LLC, Nos. CV-20-01532- 3 PHX-DJH, CV-20-00343-PHX-DJH, CV-20-01434-PHX-DJH, 2021 WL 50456, at *5 (D. Ariz. 4 Jan. 6, 2021) (concluding that Mr. Strojnik did not plead sufficient facts establishing an injury in 5 fact, where he made “vague statements about his disabilities” and failed to explain how the 6 particular hotel features depicted in photographs impacted him); Strojnik v. VY Verasa Com. Co., 7 No. 3:19-cv-02556-WHO, 2020 U.S. Dist. LEXIS 169026, at *18 (N.D. Cal. Sept. 15, 2020) 8 (concluding that the proffered photos and captions do not demonstrate that Mr. Strojnik was 9 deprived of full and equal enjoyment of the hotel in question, where he did not allege a lack of 10 adequate alternatives). 11 c. Intent to return 12 Nor has Mr. Strojnik alleged sufficient facts demonstrating a real and immediate threat of 13 repeated injury. “Although encounters with the noncompliant barriers related to one’s disability 14 are sufficient to demonstrate an injury-in-fact for standing purposes, a plaintiff seeking injunctive 15 relief must additionally demonstrate ‘a sufficient likelihood that he will again be wronged in a 16 similar way.’” Chapman, 631 F.3d at 948 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 17 (1983)). “That is, he must establish a ‘real and immediate threat of repeated injury.’” Id. (quoting 18 Lyons, 461 U.S. at 102). As the Ninth Circuit and others recognize, “an ADA plaintiff 19 demonstrates a sufficient likelihood of future harm to establish standing to sue for an injunction 20 when he intends to return to a noncompliant place of public accommodation where he will likely 21 suffer repeated injury.” Id. 22 Asserting that Mr. Strojnik lives nearly 700 miles from the Hotel, Portola notes that Mr. 23 Strojnik does not allege that he has visited the Hotel in the past, does not say that he has any 24 concrete plans to visit the Hotel in the future, and has not offered any reason why he would visit 25 the Hotel in the future. Dkt. No. 23-1 at 16–17. The complaint does not allege any specific facts 26 relating to Mr. Strojnik’s intent to return to the Hotel. See Strojnik v. Orangewood LLC, No. CV 27 19-00946 DSF (JCx), 2020 U.S. Dist. LEXIS 11743, at *26 (C.D. Cal. Jan. 22, 2020) (finding that 1 “no allegations as to why Plaintiff prefers this particular Hilton property, as opposed to others in 2 the ‘Disneyland area’”); see also Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1138 (9th 3 Cir. 2002) (concluding that the plaintiff “establish[ed] actual or imminent injury for purposes of 4 standing” by stating that he “has visited [the subject] store in the past,” “has actual knowledge of 5 the barriers to access at that store,” “prefers to shop at [defendant’s stores],” and “would shop at 6 the [subject store] if it were accessible”); cf. Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1040 (9th 7 Cir. 2008) (concluding that although the plaintiff lived over 500 miles away from the store in 8 question, he established an intent to return by “alleg[ing] that he had visited the 7–Eleven store on 9 ten to twenty prior occasions, that he is currently deterred from visiting the store because of its 10 accessibility barriers, that the store is conveniently located near his favorite fast food restaurant in 11 Anaheim, and that he plans to visit Anaheim at least once a year on his annual trips to 12 Disneyland”). While the complaint states that Mr. Strojnik “intends to visit [the Hotel] at a 13 specific time when [it] becomes fully complaint with ADAAG” (Dkt. No. 12 ¶ 12), “[s]uch ‘some 14 day’ intentions—without any description of concrete plans, or indeed even any specification of 15 when the some day will be—do not support a finding of the ‘actual or imminent’ injury” required 16 to establish standing. Lujan, 504 U.S. at 564 (emphasis original). 17 2. Deterrence 18 “Demonstrating an intent to return to a noncompliant accommodation is but one way for an 19 injured plaintiff to establish Article III standing to pursue injunctive relief.” Chapman, 631 F.3d 20 at 949. Alternatively, a disabled individual can demonstrate sufficient injury to establish Article 21 III standing if he is deterred from visiting a noncompliant public accommodation. Id. A plaintiff 22 may establish standing under a deterrence theory without actually visiting the facility. Civil Rights 23 Educ. & Enf’t Ctr. v. Hosp. Props. Tr. (“CREEC”), 867 F.3d 1093, 1099–1100 (9th Cir. 2017). 24 However, a plaintiff must still “allege ‘actual knowledge of a barrier’ and an intent to visit a 25 facility once it is ADA compliant.” IA Lodging, 2020 WL 906722 at *3 (quoting CREEC, 867 26 F.3d at 1099); see also Pickern, 293 F.3d at 1135 (“We hold that when a plaintiff who is disabled 27 within the meaning of the ADA has actual knowledge of illegal barriers at a public 1 gesture’ of attempting to gain access in order to show actual injury during the limitation period.”). 2 In his opposition brief, Mr. Strojnik appears to suggest that he is an ADA tester, and the 3 arguments presented in his opposition brief suggest that he may be relying primarily, if not 4 entirely, on a deterrence theory to establish standing. See Dkt. No. 24 at 3. He has not, however, 5 pled sufficient facts that he was deterred from visiting the Hotel. As discussed above, the generic 6 captions in Addendum A of the complaint do not adequately explain why the features shown in 7 the photos are related to Mr. Strojnik’s disability or how they would impact his access to the 8 facility. 9 Mr. Strojnik cites other decisions, including some from this district, in which courts have 10 denied motions to dismiss under Rule 12 in cases where he says defendants presented arguments 11 similar to those Portola now makes. Dkt. No. 24 at 1 (citing Strojnik v. Resort at Indian Springs, 12 LLC, No. 19-cv-04616-SVK, 2020 WL 3470100 (N.D. Cal. June 25, 2020); Strojnik v. 574 13 Escuela, LLC, No. 3:18-cv-06777-JD, 2020 WL 1557434 (N.D. Cal. June 1, 2020); Strojnik v. GF 14 Carneros Tenant, LLC, No. 19-cv-03583-JSC, 2019 WL 5963244 (N.D. Cal. Nov. 13, 2019); 15 Johnson v. Alhambra & O Assocs., No. 2:19-cv-00103-JAM-DB, 2019 WL 2577306 (E.D. Cal. 16 June 24, 2019)). Those cases are distinguishable. 574 Escuela and GF Carneros concerned 17 allegations solely relating to the absence of information on websites; Mr. Strojnik did not allege 18 that he had personally encountered barriers at the premises at issue, and the courts in those cases 19 did not discuss whether the complaints adequately described how the alleged barriers related to his 20 disability. 574 Escuela, 2020 WL 1557434, at *1; GF Carneros, 2019 WL 5963244, at *1. 21 Furthermore, the complaints at issue in Johnson and Resort at Indian Springs contained far more 22 detailed allegations about the barriers and how they related to the plaintiffs’ disabilities, as well as 23 Mr. Strojnik’s past trips and future plans to visit the area—facts that the complaint in this action 24 does not include. Johnson, 2019 WL 2577306, at *3; Resort at Indian Springs, 2020 WL 25 3470100, at *3. 26 In sum, based on the foregoing, Mr. Strojnik has not pled facts sufficient to establish his 27 Article III standing to pursue his ADA claim, which is the sole basis for federal jurisdiction. 1 challenge to the nature and extent of Mr. Strojnik’s disability, if any. 2 B. State Law Claims 3 Having dismissed Mr. Strojnik’s ADA claim for lack of standing, this Court has no 4 authority to retain jurisdiction over his state law claims. Scott v. Pasadena Unified Sch. Dist., 306 5 F.3d 646, 664 (9th Cir. 2002) (citing 28 U.S.C. § 1367(a)). Those claims are dismissed without 6 prejudice. 7 C. Leave to Amend 8 Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be freely 9 given when justice so requires,” because “the court must remain guided by the underlying purpose 10 of Rule 15 . . . to facilitate decisions on the merits, rather than on the pleadings or technicalities.” 11 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation 12 marks omitted). “The decision of whether to grant leave to amend nevertheless remains within the 13 discretion of the district court,” which may deny leave to amend if allowing amendment would 14 unduly prejudice the opposing party, cause undue delay, or be futile, or if the party seeking 15 amendment has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th 16 Cir. 2008) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). 17 In his opposition brief, Mr. Strojnik does not directly address or dispute any of Portola’s 18 arguments, including its argument that he does not actually have a disability that affects his 19 mobility. Indeed, Mr. Strojnik has provided no indication that there are additional facts that may 20 be alleged on a further amendment that would cure the deficiencies—whether facial or factual— 21 discussed in this order. Although the Court is mindful that pro se pleadings should be liberally 22 construed, it is undisputed that Mr. Strojnik is a former licensed attorney, who has filed numerous 23 similar lawsuits in this district and others in which defendants have raised many of the same 24 challenges Portola raises here. To the extent any additional facts exist that Mr. Strojnik truthfully 25 could allege, he should have identified them in his opposition brief. See, e.g., Thibodeaux v. 26 Teamsters Local 853, 264 F. Supp. 772, 780 (N.D. Cal. 2017) (concluding that granting leave to 27 amend would be futile where plaintiff did not request leave and made no showing he could allege 1 Portola opposes leave to amend, noting that Mr. Strojnik has been declared a vexatious 2 litigant by other judges in this district and in another district within the Ninth Circuit. Dkt. No. 3 23-1 at 25 (citing Strojnik v. IA Lodging Napa First LLC, No. 19-CV-03983 DMR, 2020 WL 4 2838814, at *6–13 (N.D. Cal. June 1, 2020); SCG Am. Constr. Inc., 2020 WL 4258814 at *6–8). 5 While those matters are not directly relevant to the Court’s consideration of the present matter, 6 Portola also refers to two Ninth Circuit decisions affirming district courts’ dismissal of Mr. 7 Strojnik’s initial complaints without leave to amend. Id. at 3. In Strojnik v. Pasadena Robles 8 Acquisition, LLC, the district court granted defendant’s motion to dismiss for lack of standing 9 based on Mr. Strojnik’s failure to adequately plead deterrence or an intent to return. Strojnik v. 10 Pasadena Robles Acquisition, LLC, No. 2:19-cv-02067-AB-PJW, Dkt. No. 23 at 3–8 (C.D. Cal. 11 August 14, 2019), aff’d, 801 F. App’x 569 (9th Cir. 2020). The Pasadena Robles court also 12 expressed skepticism that the complaint adequately alleged an injury in fact because it was 13 “devoid of facts alleging what these access barriers are” and how they were tied to Mr. Strojnik’s 14 alleged disability. Id. at 4 n.1. Similarly, in Strojnik v. Kapalua Land Co. Ltd., the district court 15 granted defendants’ motion to dismiss because, among other reasons, Mr. Strojnik had not alleged 16 any facts showing that he had suffered a “distinct and palpable injury.” Strojnik v. Kapalua Land 17 Co. Ltd., No. 19-00077 SOM-KJM, 2019 WL 4685412, at *3, 7–8 (D. Haw. Aug. 26, 2019), 18 report and recommendation adopted, 2019 WL 4684450 (D. Haw. Sept. 25, 2019), aff’d, 801 F. 19 App’x 531 (9th Cir. 2020). The Ninth Circuit affirmed both decisions to dismiss without leave to 20 amend because the courts found that amendment would be futile. Pasadena Robles, 801 F. App’x 21 at 570 (citing CREEC, 867 F.3d at 1100 for the proposition that “district courts make ‘case-by- 22 case determinations about whether a particular plaintiff’s injury is imminent’”); Kapalua Land, 23 801 F. App’x at 531–32 (same). 24 Accordingly, because Mr. Strojnik has not indicated that there are any facts that he could 25 plead from which the Court may draw an inference of adequate standing for his ADA claim, the 26 Court finds that amendment would be futile. 27 D. Mr. Strojnik’s Request for Sanctions 1 he believes Portola’s motion is “retaliatory in nature,” “baseless in law,” and “groundless and 2 || vexatious.” Dkt. No. 24 at 2, 8. That request does not comply with Civil Local Rule 7-8(a), 3 which requires that a motion for sanctions be separately filed and noticed. Also, in view of this 4 || order, such a motion would appear to lack merit. The Court therefore denies the request. 5 || IV. CONCLUSION 6 For the foregoing reasons, the Court dismisses Mr. Strojnik’s ADA claim for lack of 7 standing without leave to amend because amendment would be futile. Mr. Strojnik’s state law 8 claims are dismissed without prejudice, and his request for sanctions is denied. 9 IT IS SO ORDERED. 10 Dated: March 17, 2021 11
22 Vnigiiin®, LaMarche: VIRGINIA K. DEMARCH 13 United States Magistrate Judge
Z 18 19 20 21 22 23 24 25 26 27 28