Strojnik v. LADA Sedona LP ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Peter Strojnik, No. CV-20-08262-PCT-DWL 10 Plaintiff, ORDER 11 v. 12 LADA Sedona LP, 13 Defendant. 14 15 On February 1, 2021, Plaintiff Peter Strojnik (“Strojnik”) filed a “Motion that 16 Defendant Prove Removal Jurisdiction and All Writs Act Motion for Writ of Prohibition 17 Against Lindsay Leavitt and Jennings, Strouss & Salmon, P.L.C.” (Doc. 14.) The Court 18 need not wait for additional briefing on this motion. The motion is denied. 19 As background, Strojnik initiated this action by filing a complaint in state court on 20 August 31, 2020. (Doc. 1-1 at 2-25.) Count One of the complaint asserts a federal claim— 21 a claim arising under the Americans with Disabilities Act (“ADA”)—and the remaining 22 counts assert state-law claims. (Id.) On October 2, 2020, Defendant LADA Sedona LP 23 (“Defendant”) timely removed the action to federal court. (Doc. 1.) The basis for the 24 removal request was the presence of a federal claim. (Id. at 2 [“A district court has original 25 jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United 26 States. See 28 U.S.C. § 1331. Mr. Strojnik has asserted a claim against defendant for 27 alleged ADA violations that exist because of, and therefore arise under, the laws of the 28 United States.”].) 1 There have been two significant developments since this case was removed. First, 2 on January 6, 2021, another judge of this Court issued an order declaring Mr. Strojnik a 3 vexatious litigant. Strojnik v. Driftwood Hosp. Mgmt. LLC, 2021 WL 50456, *11 (D. Ariz. 4 2021). The Court reviewed the history of Strojnik’s “extortionate” litigation tactics, 5 including while he was a practicing attorney and after his disbarment, and declared them 6 to be “frivolous and harassing.” Id. at *8-10. Pursuant to that order, “if at any point the 7 Court determines that Mr. Strojnik fails to demonstrate standing or otherwise meet federal 8 pleading requirements, the Court will dismiss the case and initiate sanctions proceedings 9 by ordering Mr. Strojnik to show cause why sanctions should not be imposed under Federal 10 Rule of Civil Procedure 11(b)(1).” Id. at *11. Second, in recent filings, both parties have 11 acknowledged that this Court lacks subject matter jurisdiction over this action due to 12 Strojnik’s lack of standing. In the Rule 26(f) report filed on December 4, 2020, Defendant 13 wrote: “Defendant believes that Plaintiff does not have Article III standing to pursue his 14 ADA claim because he did not suffer an injury-in-fact.” (Doc. 10 at 2.) Meanwhile, in his 15 recently filed motion, Strojnik states that Defendant’s counsel’s actions in this case are part 16 of a larger plot to “remov[e] Plaintiff’s civil rights claims from State Court to federal court 17 when federal court does not have jurisdiction.” (Doc. 14 at 2.) 18 Because all parties now acknowledge that subject matter jurisdiction is lacking, the 19 Court will deny as moot Strojnik’s motion.1 The only issue now properly before the Court 20 is how to dispose of this action given the acknowledged absence of jurisdiction. Under 28 21 U.S.C. § 1447(c), the usual rule is that a district court should remand to state court if it 22 determines that it lacks subject matter jurisdiction in a removal action. Id. (“If at any time 23 before final judgment it appears that the district court lacks subject matter jurisdiction, the 24 1 Strojnik also requests what would effectively be an injunction precluding a non- party (Defendant’s counsel) “from removing any case filed by Strojnik in the Superior 25 Court and then claiming that the district court lacks jurisdiction.” (Doc. 14 at 11.) That request is denied for several reasons. As an initial matter, Strojnik does not explain how 26 this Court, which he acknowledges lacks subject matter jurisdiction over this action, would still possess jurisdiction to issue a broad prospective injunction as part of this action. 27 Strojnik’s motion also does not identify any authority that would support imposing the sort of injunction he seeks. Finally, Strojnik’s request presupposes that Defendant’s counsel’s 28 attempt to remove and then obtain dismissal of this action was improper. But whether this case will be dismissed is still an issue to be decided. 1 case shall be remanded.”). However, in Bell v. City of Kellogg, 922 F.2d 1418 (9th Cir. 2 1991), the Ninth Circuit recognized an exception to this principle. Under Bell, when a 3 district court “determines that it lacks subject matter jurisdiction in a removal case,” it has 4 discretion to dismiss, rather than remand, the action “[w]here the remand to state court 5 would be futile.” Id. at 1424. This is because “[d]istrict court resolution of the entire case,” 6 where there is no “conceivable” chance the plaintiff would succeed on remand, “prevents 7 any further waste of valuable judicial time and resources.” Id. at 1424-25. Although other 8 Circuits have rejected Bell’s approach, holding that a remand is always required when a 9 district court determines it lacks subject matter jurisdiction in a removal action, Bell 10 remains good law in the Ninth Circuit. Polo v. Innoventions Int’l, LLC, 833 F.3d 1193, 11 1198 (9th Cir. 2016). 12 Here, there are some reasons to believe dismissal might be appropriate under Bell’s 13 futility standard. In a removed ADA case that Strojnik litigated before his disbarment, 14 another judge in this District determined that dismissal, rather than remand, was the 15 appropriate disposition because “it is certain that Arizona law would not wink at standing 16 to allow . . . Strojnik to bring these injury-free lawsuits in light of the ethically suspect 17 tactics Strojnik employs.” Advocates for Individuals With Disabilities LLC v. MidFirst 18 Bank, 279 F. Supp. 3d 891, 897 (D. Ariz. 2017). Moreover, in the context of the ADA 19 cases Strojnik has brought pro se since his disbarment, “[a]s of December 19, 2020, Mr. 20 Strojnik claims to have filed 64 cases with ADA claims in Arizona superior courts,” of 21 which “he has voluntarily dismissed fourteen and settled thirteen” and tried none as of yet 22 on their merits. Driftwood Hosp., 2021 WL 50456, at *8. On the other hand, the Court 23 also notes that Strojnik has provided, as an attachment to his most recent motion, some 24 state-court decisions that suggest a remand would not be futile. (Doc. 14-1 at 2; Doc. 14- 25 2.) 26 It seems that the burden of demonstrating the absolute futility of remand should rest 27 with Defendant. Thus, Defendant is ordered, by February 26, 2021, to either (1) voluntarily 28 remand the action or (2) file a motion to dismiss on grounds that remand would be absolutely futile. 2 Accordingly, 3 IT IS ORDERED that Plaintiffs “Motion that Defendant Prove Removal 4|| Jurisdiction and All Writs Act Motion for Writ of Prohibition Against Lindsay Leavitt and || Jennings, Strouss & Salmon, P.L.C.” (Doc. 14) is denied. 6 IT IS FURTHER ORDERED that Defendant shall, by February 26, 2021, □□□□□□ (1) voluntarily remand the action or (2) file a motion to dismiss on grounds that remand 8 || would be absolutely futile. 9 Dated this 4th day of February, 2021. 10 11 Lom ee” 12 f □ _o—— Dominic W. Lanza 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-