Strojnik v. Forest Villas Inn II LLC ( 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-20-08328-PCT-DWL 10 Plaintiff, ORDER 11 v. 12 Forest Villas Inn II LLC, 13 Defendant. 14 15 INTRODUCTION 16 Over the last decade, Plaintiff Peter Strojnik (“Strojnik”) has been personally 17 responsible for the filing of hundreds, if not thousands, of meritless lawsuits. In general, 18 these “cookie-cutter lawsuits” with inadequate allegations have involved the assertion of 19 claims under the Americans with Disabilities Act (“ADA”) against small businesses. 20 Advocates for Individuals with Disabilities LLC v. MidFirst Bank, 279 F. Supp. 891, 893 21 (D. Ariz. 2017) (“Template complaints filled with non-specific allegations have become 22 the stock-in-trade of attorney[] Peter Strojnik” who, in conjunction with others, “pursued 23 upwards of 160 cookie-cutter lawsuits in federal court and, from early to later 2016, more 24 than 1,700 such suits in Arizona state court”). 25 Initially, Strojnik filed these ADA lawsuits in his capacity as an attorney, but he was 26 disbarred by the Arizona State Bar in 2019. The notice of disbarment explained that 27 Strojnik’s modus operandi was to engage in “‘extortionate’ and ‘ethically suspect’ 28 misconduct” by asserting “vague violations” and then “demand[ing] approximately $5,000 1 in attorney’s fees regardless if the business remedied the purported violations.” See State 2 Bar of Ariz., https://azbar.legalserviceslink.com/attorneys-view/PeterStrojnik (last visited 3 May 17, 2021). 4 Next, Strojnik began bringing ADA lawsuits in federal court as a pro se plaintiff. 5 Those lawsuits were routinely dismissed for lack of standing, and in 2020, Strojnik was 6 declared a vexatious litigant by the United States District Courts for the Northern and 7 Central Districts of California. Strojnik v. IA Lodging Napa First LLC, 2020 WL 2838814, 8 *13 (N.D. Cal. 2020) (“Strojnik’s litigation tactics are frivolous and harassing.”); Strojnik 9 v. SCG Am. Construction Inc., 2020 WL 4258814, *7-8 (C.D. Cal. 2020) (finding, in the 10 course of making vexatious-litigant finding, that “Strojnik’s propensity for filing a 11 multitude of disability discrimination cases, particularly against hotel defendants, is very 12 well known,” that “countless courts have questioned Strojnik’s motives in pursuing the 13 litigation and whether he has a good faith basis for his claims,” and that “Strojnik’s history 14 contains countless filings of frivolous complaints and instances of directly ignoring court 15 orders”). 16 Strojnik’s latest strategy is to file pro se ADA lawsuits in Arizona state court. Some 17 of the targets of these lawsuits have responded by asking that Strojnik be declared a 18 vexatious litigant in state court. At least one Arizona court—the Yavapai County Superior 19 Court—recently made such a declaration. (Doc. 17-1 at 2 [March 2, 2021 order: “IT IS 20 ORDERED declaring that the Plaintiff Peter Strojnik is a vexatious litigant pursuant to 21 A.R.S. § 12-3201.”].) 22 Other targets of these lawsuits have responded by removing the action to federal 23 court, based on the presence of a federal claim (i.e., the ADA claim), and then moving to 24 dismiss based on a lack of standing. Strojnik v. Driftwood Hospitality Mgmt. LLC, 2021 25 WL 50456, *8-9 (D. Ariz. 2021) (“As of December 19, 2020, Mr. Strojnik claims to have 26 filed 64 cases with ADA claims in Arizona superior courts . . . [and] twenty-two of Mr. 27 Strojnik’s pro se ADA cases have been heard in this District since his disbarment after they 28 were removed from state court”). Strojnik has not only resisted these efforts but gone on 1 the offensive, seeking sanctions against opposing counsel. See, e.g., Strojnik v. Ashford 2 Scottsdale LP, 2021 WL 2002977, *1 (D. Ariz. 2021) (discussing unsuccessful sanctions 3 motion filed by Strojnik). Such tactics prompted the District of Arizona to declare Strojnik 4 a vexatious litigant in January 2021. Driftwood Hospitality, 2021 WL 50456 at *10 (“The 5 Court finds that Mr. Strojnik harasses and coerces parties into agreeing to extortive 6 settlements . . . [and] finds Mr. Strojnik’s litigation tactics frivolous and harassing.”). 7 This action represents more of the same. Strojnik brought this action in Arizona 8 state court against a hotel, asserting an ADA claim and a pair of related state-law claims. 9 (Doc. 1-3 at 2-22.) His complaint in this action is quite similar to the he complaints filed 10 in other actions, with many identical (or nearly identical) paragraphs appearing in each 11 version.1 In response, Defendant Forest Villas Inn II LLC (“Forest Villas”) removed the 12 action to federal court, based on the presence of the ADA claim (Doc. 1), and then filed a 13 motion to dismiss (Doc. 11). Forest Villas further argues that, under Bell v. City of Kellogg, 14 922 F.2d 1418 (9th Cir. 1991), the appropriate remedy is dismissal rather than a remand to 15 state court because a remand would be futile. (Doc. 11.) For the following reasons, the 16 Court agrees with Forest Villas and dismisses this action. 17 DISCUSSION 18 I. Subject-Matter Jurisdiction 19 Forest Villas moves for dismissal under Rule 12(b)(1), based on the absence of 20 subject-matter jurisdiction, and also seeks judgment on the pleadings under Rule 12(c). 21 (Doc. 11.) The Court will begin by addressing the existence of subject-matter jurisdiction. 22 Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31 (2007) (“[A] 23 federal court generally may not rule on the merits of a case without first determining that 24 1 For example, in Ashford Scottsdale, Case No. 20-cv-2352-DWL, the complaint 25 appears at Docket No. 1-1. This pleading is subject to judicial notice. Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice 26 of court filings and other matters of public record.”). One difference between the complaints is that Strojnik’s complaint in this action asserts only two state-law claims (for 27 negligence and failure to disclose). In Ashford Scottsdale, the complaint asserted the same two state-law claims but also added state-law claims for negligent misrepresentation, fraud, 28 and “Consumer Fraud—Brand Deceit,” the latter of which was the subject of additional motion practice. Ashford Scottsdale, 2021 WL 2002977 at *4-5. 1 it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the 2 parties (personal jurisdiction).”). Even if Forest Villas hadn’t filed such a motion, the Court 3 would “have an independent obligation to determine whether subject-matter jurisdiction 4 exists.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). See also Fed. R. Civ. P. Rule 5 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the 6 court must dismiss the action.”). 7 A. Legal Standard 8 “[S]tanding is an essential and unchanging part of the case-or-controversy 9 requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 10 “[T]he irreducible constitutional minimum of standing contains three elements”: (1) a 11 concrete and particularized injury in fact; (2) a causal connection between the injury and 12 the challenged conduct; and (3) a likelihood that the injury would be redressed by a 13 favorable decision. Id. at 560-61. 14 B. The Parties’ Arguments 15 Forest Villas argues that Strojnik cannot establish an injury-in-fact with respect his 16 ADA claim because, “[a]s usual, [Strojnik] identifies a list of apparent ADA violations, 17 claiming that each violation denies him full and equal access ‘that would satisfy the injury- 18 in-fact requirement.’ But Plaintiff doesn’t actually do this: instead, he just gives generic 19 descriptions, like ‘identification,’ ‘no marked passenger loading zone,’ ‘signage too low,’ 20 and so forth.” (Doc. 11 at 3.) Put another way, Forest Villas argues that “[a]t no point in 21 his Complaint does [Strojnik] explain how the alleged ADA violations prevent him from 22 full and equal access to the hotels. . . . This is exactly what he has done in countless other 23 ADA cases, and it does not come close to satisfying the injury-in-fact requirement for 24 standing under the ADA.” (Id. at 4-5.) Forest Villas further contends that Strojnik cannot 25 establish standing with respect to his ADA claim because his complaint “contains no 26 indication that he would return to Forest Villas’ hotel if it were accessible or why he has 27 an interesting in staying at this hotel. This, coupled with the fact that he has personally 28 sued dozens of other hotels, gives reason to doubt the sincerity of any alleged deterrence 1 anyway. He cannot, thus, show that he is deterred from visiting this hotel.” (Id. at 4, 2 citation omitted). Finally, Forest Villas contends that Strojnik lacks standing with respect 3 to his state-law claims because they “are all dependent on this doomed ADA claim.” (Id. 4 at 3.) 5 Strojnik’s response touches on the issue of federal standing in only superficial 6 fashion. (Doc. 20 at 3.)2 In a nutshell, he contends that, because the complaint alleges that 7 he is “mobility disabled” and “personally encountered” certain “barriers to accessibility” 8 during his visit to Forest Villas, his allegations should be deemed sufficient under Whitaker 9 v. Tesla Motors, Inc., 985 F.3d 1173 (9th Cir. 2021), and certain other Ninth Circuit cases. 10 (Id.) 11 In reply, Forest Villas argues that Strojnik’s arguments are contradictory because, 12 although he “argues—adamantly—that he has standing under federal law . . . [he] 13 simultaneously argues that Forest Villas improperly removed this case . . . and that the 14 procedure should end up so ‘[t]he case is right back in the State Court where it belongs,’ 15 which is, necessarily, a concession that [he] lacks Article III standing.” (Doc. 17 at 1.) 16 C. Analysis 17 The Court will begin by addressing Strojnik’s standing to assert the ADA claim set 18 forth in Count One of the complaint. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 19 (2006) (“[O]ur standing cases confirm that a plaintiff must demonstrate standing for each 20 claim he seeks to press.”). 21 The Ninth Circuit has “describe[d] in detail the standard for pleading standing 22 pursuant to an ADA claim.” Whitaker, 985 F.3d at 1179. The seminal decision in this area 23 is Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939 (9th Cir. 2011) (en banc). There, 24 the Ninth Circuit held that “when an ADA plaintiff has suffered an injury-in-fact by 25 2 Rather than address whether he has standing under federal standards, Strojnik 26 dedicates most of his response to discussing the general importance of private ADA compliance litigation (id. at 1-2), why he prefers to litigate in state court (id. at 3-4), why 27 Forest Villas’ attempt to challenge his standing after removing the case from state court should be considered improper (id. at 5), why the remedy for a finding of no subject-matter 28 jurisdiction should be remand rather than dismissal (id. at 5-7), and why Forest Villas’ request for dismissal under Rule 12(c) should be denied (id. at 7-9). 1 encountering a barrier that deprives him of full and equal enjoyment of the facility due to 2 his particular disability, he has standing to sue for injunctive relief as to that barrier and 3 other barriers related to his disability.” Id. at 944. Critically, because the plaintiff in 4 Chapman simply “attached an accessibility survey to his complaint that identified multiple 5 ADA barriers” at the facility in question, without “connect[ing] the barriers to [his] 6 disability or indicat[ing] which barrier or barriers he had personally encountered,” the 7 Ninth Circuit concluded he lacked standing. Whitaker, 985 F.3d at 1179 (citing Chapman, 8 631 F.3d at 954-55). 9 Similarly, in O’Campo v. Bed Bath & Beyond of Cal., Inc., 610 F. App’x 706 (9th 10 Cir. 2016), the Ninth Circuit held that the plaintiff “failed to sufficiently allege standing 11 for his ADA claim” because although the complaint identified “five alleged barriers” that 12 might interfere with the full and equal access of a mobility-impaired person who required 13 the use of a wheelchair, the plaintiff himself only “require[d] the use of a cane” and none 14 of the barriers at issue would “impact a person who was standing up.” Id. at 708. 15 In contrast, in Whitaker, the Ninth Circuit held that the plaintiff’s allegations were 16 “sufficient to establish injury-in-fact for purposes of standing” because he specifically 17 alleged “that he uses a wheelchair for mobility, that he visited the defendant’s premises, 18 that he personally encountered a barrier related to his disability—inaccessible service 19 counters—and that the barrier deters him from returning.” 985 F.3d at 1179. 20 With this backdrop in mind, the issue of ADA standing in this case isn’t a close call. 21 Strojnik lacks standing to advance his ADA claim because he has not demonstrated an 22 injury in fact. There is a certain irony in Strojnik’s proffer of Whitaker as an opinion that 23 supports his position. There, an ADA plaintiff who used a wheelchair had standing to 24 assert an ADA claim because he alleged that, when visiting the defendant’s facility, he 25 “personally encountered a barrier”—an inaccessible service counter—that he couldn’t 26 access by virtue of his use of a wheelchair. 985 F.3d at 1179. Here, although Strojnik 27 misleadingly notes that his physical conditions would require the use of a wheelchair “[i]n 28 their unmitigated, active state” (Doc. 1-3 ¶ 21), he doesn’t allege that he was actually using 1 a wheelchair during his visit to Forest Villas’ property. Thus, Strojnik has not come close 2 to establishing that he suffered any injury flowing from the conditions related to wheelchair 3 accessibility that are depicted in most of the pictures in the complaint. See generally 4 Ashford Scottsdale, 2021 WL 2002977 at *8-9 & n.7 (noting same flaw in nearly identical 5 complaint); Strojnik v. LADA Sedona LP, 2021 WL 2043021, *1 (D. Ariz. 2021) (same). 6 As an example, one of those pictures is of the gate near the Forest Villas pool. (Doc. 7 1-3 at 17.) The caption provided by Strojnik reads: “Pool security latch too high.” (Id.) 8 Although it may be true that a guest in a wheelchair would have trouble reaching the latch, 9 the complaint does not allege that Strojnik had any trouble reaching the latch. Cf. 10 O’Campo, 610 F. App’x at 708 (ADA plaintiff lacked standing because, although the “five 11 alleged barriers” might interfere with the full and equal access of a mobility-impaired 12 person who required the use of a wheelchair, the plaintiff himself only “require[d] the use 13 of a cane” and none of the barriers at issue would “impact a person who was standing up”). 14 Finally, although the caption appearing below one of the pictures in the complaint 15 seems to suggest that the condition at issue relates to wrist flexion rather than wheelchair 16 accessibility (Doc. 1-3 at 16 [picture of normal-looking door handle with the caption 17 “Improperly configured hardware”]), Strojnik has not established an injury-in-fact as to 18 that condition, either. Although the complaint vaguely alleges that Strojnik suffers from 19 an unspecified “musculoskeletal” condition that “[l]imits” a long litany of activities, 20 including “twisting the wrist” (id. ¶ 14), and further alleges that “[a]n encounter with a 21 non-compliant operable part” of “doors, door opening and closing hardware, AC controls” 22 will cause Strojnik “to experience pain and discomfort” (id. ¶ 23(g)(i)), the complaint 23 provides no information whatsoever as to why the specific piece of door hardware depicted 24 in the complaint should be considered “[i]mproperly configured” or why it interfered with 25 Strojnik’s use and enjoyment of the facility. Here, just as in Driftwood Hospitality, 26 “[i]nstead of explaining how the alleged ADA violations prevent him from full and equal 27 access to the hotels, Mr. Strojnik makes vague statements about his disabilities, and it is 28 anybody’s guess how the particular hotel features he photographs so meticulously actually 1 impact him.” 2021 WL 50456 at *5. 2 Turning to the state-law claims, Strojnik does not respond to—and thus implicitly 3 accedes to—Forest Villas’ argument that he lacks standing to advance them because they 4 are derivative of his failed ADA claim. Scott v. City of Phoenix, 2011 WL 3159166, *10 5 (D. Ariz. 2011) (“Scott does not respond to this argument, and by failing to do so, Scott is 6 deemed to have waived the issue.”); Reyes v. Wells Fargo Bank, 2017 WL 11568871, *4 7 (C.D. Cal. 2017) (collecting cases); Hurry v. Fin. Indus. Regul. Auth., Inc., 782 F. App’x 8 600, 602 (9th Cir. 2019) (“[F]ailure to respond to that argument constitutes waiver.”). 9 Alternatively, even if Strojnik hadn’t conceded the issue, Forest Villas is correct on 10 the merits. Strojnik’s state-law claims for negligence/negligence per se and failure to 11 disclose both hinge on the notion that the accessibility barriers at Forest Villas caused him 12 to suffer injury. (Doc. 1-3 ¶¶ 33-54) They fail for the same reasons as his ADA claim. 13 Driftwood Hospitality, 2021 WL 50456 at *5-6 (“Each [of the] remaining claims are 14 different species of fraud and negligence, and they almost all rely on Defendants’ alleged 15 ADA violations. . . . ”); Ashford Scottsdale, 2021 WL 2002977 at *9 (same). 16 III. Dismissal Or Remand 17 A. Background 18 For the reasons discussed above, the Court lacks subject-matter jurisdiction over all 19 of Strojnik’s claims. Under 28 U.S.C. § 1447(c), the usual rule in a case that has been 20 removed from state court is that “[i]f at any time before final judgment it appears that the 21 district court lacks subject matter jurisdiction, the case shall be remanded.” However, in 22 Bell v. City of Kellogg, 922 F.2d 1418 (9th Cir. 1991), the Ninth Circuit recognized an 23 exception to this principle. Under Bell, when a district court “determines that it lacks 24 subject matter jurisdiction in a removal case,” it has discretion to dismiss, rather than 25 remand, the action “[w]here the remand to state court would be futile.” Id. at 1424. This 26 is because “[d]istrict court resolution of the entire case,” where there is no “conceivable” 27 chance the plaintiff would succeed on remand, “prevents any further waste of valuable 28 judicial time and resources.” Id. at 1424-25. Although other Circuits have rejected Bell’s 1 approach, holding that a remand is always required when a district court determines it lacks 2 subject-matter jurisdiction in a removal action, Bell remains good law in the Ninth Circuit. 3 Polo v. Innoventions Int’l, LLC, 833 F.3d 1193, 1198 (9th Cir. 2016).3 4 B. The Parties’ Arguments 5 Forest Villas argues that dismissal is warranted under the Bell doctrine because a 6 remand would be futile. (Doc. 11 at 5-7.) As an initial matter, Forest Villas submits 7 evidence that the Yavapai County Superior Court—the court where this case would 8 otherwise be remanded—recently dismissed a nearly identical claim brought by Strojnik. 9 (Id. at 5-6.) More broadly, Forest Villas argues that a remand would be futile because 10 Arizona courts “closely . . . follow the federal standard in determining standing,” because 11 other courts have previously declined to remand Strojnik’s removal cases pursuant to the 12 Bell doctrine, and because Strojnik “cannot point to any actual substantive difference 13 between state law and federal law on standing that would compel a different result here.” 14 (Id. at 6-7.) 15 In his response, Strojnik does not even mention Bell. (Doc. 16.) Instead, he 16 incorrectly asserts that “where the district court finds lack of standing, the dismissal is 17 without prejudice and the remand mandatory” and then suggests that, because some (but 18 not all) judges of this Court have chosen to remand his prior cases after finding a lack of 19 standing, this Court should do the same in an effort to “maintain[] intradistrict 20 consistency.” (Id. at 5-7.) Strojnik also argues, in conclusory fashion, that he has 21 “prudential standing” under Arizona law even if he lacks “jurisdictional standing” under 22 federal law. (Id. at 2.) 23 In reply, Forest Villas argues that Strojnik’s reliance on the Arizona courts’ 24 “prudential standing” requirement is misplaced because, “[u]nfortunately for [Strojnik], 25 3 As the Ninth Circuit has acknowledged, Bell’s recognition of a futility exception is difficult to reconcile with “the literal words of § 1447(c), which, on their face, give no 26 discretion to dismiss rather than remand an action.” Polo, 833 F.3d at 1197-98 (citation and internal quotation marks omitted). Nevertheless, because Polo expressly declined to 27 overrule Bell, it remains valid Ninth Circuit law. As such, it must be followed here. Hasbrouck v. Texaco, Inc., 663 F.2d 930, 933 (9th Cir. 1981) (“District courts are bound 28 by the law of their own circuit . . . no matter how egregiously in error they may feel their own circuit to be.”) (citation omitted). 1 courts throughout the state have exercise[d] this prudence to conclude that [Strojnik] does, 2 in fact, lack standing under state law.” (Doc. 17 at 3.) Additionally, Forest Villas submits 3 evidence that Strojnik was recently declared a vexatious litigant by the Yavapai County 4 Superior Court. (Id. at 3, citing Doc. 17-1.) 5 C. Analysis 6 The Court agrees with Forest Villas that it would be futile to remand this action to 7 state court and therefore dismisses Strojnik’s claims pursuant to Bell. The record before 8 the Court is that Strojnik has been responsible for the filing of an avalanche of meritless 9 ADA-related lawsuits in recent years. Nearly all of those lawsuits have been dismissed 10 based on a lack of standing. Along the way, Strojnik has been disbarred once, has been 11 declared a vexatious litigant at least four times, and has incurred the opprobrium of 12 innumerable judges who’ve been dismayed by his tactics. Some of those judges have made 13 findings of futility under Bell. MidFirst Bank, 279 F. Supp. 3d at 895 (“This is even a 14 better case for the futility doctrine than Bell.”). Strojnik has tellingly not identified a single 15 case in which he ever prevailed. 16 Furthermore, whatever his track record in other cases, the futility of a remand in this 17 case is apparent. Polo, 833 F.3d at 1198 (under Bell, futility exists if there is an “absolute 18 certainty that a state court would simply dismiss the action on remand”) (cleaned up). 19 Although the complaint largely identifies barriers at Forest Villas’ facility that might 20 interfere with a wheelchair-bound customer’s ability to enjoy full and equal access to the 21 facility, Strojnik doesn’t allege that he was using a wheelchair during his visit. 22 The bottom line is that Arizona courts “have established a rigorous standing 23 requirement,” which requires a plaintiff to “allege a distinct and palpable injury.” 24 Fernandez v. Takata Seat Belts, Inc., 108 P.3d 917, 919 (Ariz. 2005). Strojnik has not 25 done so here. “Moreover, it is certain that Arizona law would not wink at standing to allow 26 . . . Strojnik to bring these injury-free lawsuits in light of the ethically suspect tactics 27 Strojnik employs.” MidFirst Bank, 279 F. Supp. 3d at 897. And indeed, Arizona courts 28 have been requiring Strojnik to “bear[] the burden of pleading ADA Title III standing” and || have determined that Strojnik fails to meet this burden where his “complaint does not 2 || adequately describe actual barriers at [a defendant’s] hotel or how the alleged barriers at the hotel affected [Strojnik’s] use [or] enjoyment of the facility in light of his particular 4|| disabilities.” (Doc. 17-1 at 6-7 [Navajo County Superior Court order dismissing one of 5 || Strojnik’s cases for lack of standing]). 6 Finally, the fact that Strojnik was recently declared a vexatious litigant by the 7\| Yavapai County Superior Court, which is where this case originated, underscores why a 8 || remand would be futile. 9 Accordingly, IT IS ORDERED that: 10 1. Defendant’s motion to dismiss (Doc. 11) is granted. 11 2. The Clerk of Court shall enter judgment accordingly and terminate this action. 12 Dated this 26th day of May, 2021. 13 14 fm ee” 15 f t _o——— Dominic W. Lanza 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 -ll-