Strojnik v. Patel ( 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-20-01566-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 Paradeep K Patel, et al., 13 Defendants. 14 15 Pending before the Court are three matters. First is Plaintiff’s Motion to Amend 16 Complaint (Doc. 20). Although Defendants did not file a response in opposition, they have 17 filed a Motion to Dismiss and Motion for Judgment on the Pleadings (Doc. 27), which 18 requests that the Court dismiss both Plaintiff’s original Complaint and proposed First 19 Amended Complaint (“FAC”) with prejudice. Plaintiff filed a Response and Cross Motion 20 for Summary Judgment (Doc. 28). Defendants have filed a Reply (Doc. 30). No further 21 briefing has been filed, and the time to do so has passed. 22 Given that Defendants’ Motion to Dismiss discusses the proposed FAC as if 23 Plaintiff’s Motion had been granted, (Doc. 27 at 2) (citing the proposed amended 24 Complaint), the Court will grant Plaintiff’s Motion to Amend Complaint and proceed to 25 assess the motions with the now operative FAC, currently lodged at (Doc. 20-2). 26 I. Background 27 Plaintiff Peter Strojnik has been previously declared a vexatious litigant, and his 28 “history and his modus operandi are well known.” Strojnik v. Driftwood Hosp. Mgmt. 1 LLC, 2021 WL 50456, at *8 (D. Ariz. Jan. 6, 2021), order amended on reconsideration, 2 No. 2021 WL 2454049 (D. Ariz. June 16, 2021) (“Vexatious Litigant Order”). This case 3 follows the same pattern of his many other cookie-cutter lawsuits against hotel defendants 4 for claims arising under the Americans with Disabilities Act (“ADA”). See id. In this 5 matter, Defendants are the owners and franchisor of the Knights Inn (the “Hotel”). 6 Paradeep K. Patel and Asha P. Patel (collectively, the “Patels”) own the Hotel. (Doc. 20- 7 2 at ¶ 3). Red Lion Hotels Corporation and Knights Inn Franchising Systems franchise the 8 rights to the Knights Inn brand name. (Id. at ¶ 4). 9 As alleged in the FAC, Plaintiff regularly visits Payson, Arizona. (Id. at ¶¶ 9, 11). 10 Plaintiff alleges that in late May 2020, he was travelling through Payson on his way to New 11 Mexico and wanted to stay at the Hotel, but “because of inaccessible accommodations” he 12 travelled on to Albuquerque. On his way home to Phoenix, Plaintiff again did not stay at 13 the Hotel because its accommodations are not “suited for his needs.” (Id. at ¶¶ 15, 16). He 14 alleges that he is disabled, and that hotels must meet the standards established in 28 C.F.R. 15 Part 36 and the 2010 Standards for Accessibility Design in order to accommodate his 16 disabilities. (Id. at ¶ 25). Plaintiff requires that the Hotel’s website identify and describe 17 what rooms are accessible such that he can determine whether the Hotel can accommodate 18 his needs. (Id. at ¶ 34). 19 Plaintiff took pictures of the Hotel’s parking lot, lobby, and some outside stairs. (Id. 20 at ¶ 35). He claims that the access space to the handicapped parking spot was too steep, 21 causing him to “have to grasp the car frame to get out of the car” and “risk rolling down 22 the slope in the wheelchair.” (Id. at 6). He claims the signage indicating handicapped 23 parking is too low, such that motorists could not see it and police could not observe a 24 parking violation. (Id. at 7). He claims the ramp from the parking lot to the sidewalk is 25 too steep to navigate in a wheelchair. (Id. at 8). Inside, he claims the check-in counter is 26 not accessible in a wheelchair. (Id. at 9). Back outside, he took a photograph of an 27 ascending sidewalk, with painted yellow steps, that he alleges is an inaccessible route for 28 which Defendants failed to provide an accessible alternative or signal where such an 1 alternative might be. (Id. at 10). Finally, Plaintiff shows a staircase with “open risers” and 2 “Improperly Configured Handrails [sic].” (Id. at 11, 12). Plaintiff alleges this inaccessible 3 route also lacks an accessible one or notice of a detour, that open risers causes him to hit 4 his shins, and that he is unable to grasp the handrails. (Id.) 5 As to the Hotel’s website, Plaintiff alleges it failed “to identify and describe 6 accessible features in the hotel and guest rooms in enough detail to reasonably permit 7 Plaintiff to assess independently whether the hotel or guest room meets his accessibility 8 needs.” (Id. at ¶ 34). Plaintiff also alleges the Defendants, by using the Knights Inn brand 9 name, “misled the Plaintiff . . . into believing they are dealing with” Red Lion Hotels, not 10 the Patels, and that by relying on the misleading website, Knights Inn signage, and business 11 cards caused him to suffer economic damages. (Id. at ¶ 59). 12 The FAC brings claims under the Americans with Disabilities Act, negligence and 13 negligence per se, and violation of the Arizona Consumer Fraud Act. (Id. at ¶¶ 21–64). 14 II. Motion to Dismiss 15 The Court will begin its analysis with Defendants’ Motion to Dismiss, which is 16 brought under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter 17 jurisdiction.1 They argue the FAC does not show how Plaintiff suffered an injury in fact 18 sufficient for standing purposes. 19 a. Legal Standard 20 Complaints must show that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). 21 This requires showing that the plaintiff has standing—that the plaintiff suffered (1) a 22 concrete and particularized injury in fact, that is (2) caused by or fairly traceable to the 23 defendant's conduct, and (3) that a favorable decision will redress the injury. Lujan v. 24 Defenders of Wildlife, 504 U.S. 555, 559 (1992). 25 In reviewing a motion to dismiss, “all factual allegations set forth in the complaint 26 1 Although Defendants also move for a judgment on the pleadings under Federal Rule of Civil Procedure 12(c), such a motion may only be made after pleadings are closed. As 27 Defendants have not filed an answer to the FAC, their request is premature. See Doe v. United States, 419 F.3d 1058, 1061 (9th Cir. 2005). Therefore, to the extent Plaintiff’s 28 Response also requests summary judgment on the pleadings, such a request is premature and will be denied. 1 ‘are taken as true and construed in the light most favorable to the plaintiffs.’” Lee v. City 2 of L.A., 250 F.3d 668, 679 (9th Cir. 2001) (quoting Epstein v. Wash. Energy Co., 83 F.3d 3 1136, 1140 (9th Cir. 1996)). But courts are not required “to accept as true a legal 4 conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 5 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). In alleging fraud, a party 6 must “state with particularity the circumstances constituting fraud or mistake.” Fed. R. 7 Civ. P. 9(b). 8 b. Discussion 9 The FAC fails to show a concrete, particularized injury in fact.2 In the ADA context, 10 an injury exists when a public accommodation interferes with a disabled individual’s “full 11 and equal enjoyment” of the accommodation. Chapman v. Pier 1 Imports (U.S.) Inc., 631 12 F.3d 939, 945 (9th Cir. 2011) (quoting 42 U.S.C. § 12182(a)). 13 To begin, the FAC complains that many of the Hotel’s features are inaccessible by 14 wheelchair. The FAC, however, does not actually allege that Plaintiff was using a 15 wheelchair on the day he visited the Hotel. See Strojnik v. Ashford Scottsdale LP, 2021 16 WL 2002977, at *8 (D. Ariz. May 19, 2021) (“Here, although [Mr.] Strojnik misleadingly 17 notes that his physical conditions would require the use of a wheelchair ‘[i]n their 18 2 Many courts, reading Mr. Strojnik’s many complaints, have seen the same boiler-plate 19 allegations and note Mr. Strojnik’s “longstanding practice of failing to allege basic facts about standing, such as a connection between a barrier and [his] disability.” Strojnik v. IA 20 Lodging Napa First LLC, 2020 WL 2838814, at *11 (N.D. Cal. June 1, 2020) (granting a motion to declare Mr. Strojnik a vexatious litigant, in part, because of his continued failure 21 to allege Article III standing); see also Strojnik v. Kapalua Land Co., Ltd., 801 F. App'x 531, 531 (9th Cir. 2020) (“The district court properly dismissed Strojnik’s ADA claim 22 against defendants Rand and Marr Jones Wang, LLP because Strojnik failed to allege facts sufficient to demonstrate an injury as a result of the alleged threat.”); Strojnik v. 23 Orangewood LLC, 829 F. App’x 783, 783 (9th Cir. 2020) (“The district court properly dismissed Strojnik’s ADA claim for lack of Article III standing because Strojnik failed to 24 allege that the ADA barriers he identified affected him because of his disabilities.”); Strojnik v. BW RRI II, LLC, 2020 WL 5210897, at *1 (N.D. Cal. Sept. 1, 25 2020) (“Because Strojnik hasn’t explained how he was harmed by the hotel’s accessibility barriers, he hasn’t sufficiently alleged an injury-in-fact.”); Strojnik v. Four Sisters Inns, 26 Inc., 2019 WL 6700939, at *3 (C.D. Cal. Dec. 9, 2019) (holding Strojnik’s photographs and captions to be bare legal conclusions insufficient to show how there are purported 27 barriers his to accessibility); Strojnik v. Hotel Circle GL Holdings, LLC, 2019 WL 6212084, at *3 (E.D. Cal. Nov. 21, 2019) (same); Strojnik v. 1315 Orange LLC, 2019 WL 28 5535766, at *2 (S.D. Cal. Oct. 25, 2019) (same); Strojnik v. Bakersfield Convention Hotel I, LLC, 436 F. Supp. 3d 1332, 1340 (E.D. Cal. 2020) (same). 1 unmitigated, active state’ . . . he doesn’t allege that he was actually using a wheelchair 2 during his visit to Ashford’s property.”). Therefore, Plaintiff has not shown how 3 wheelchair impediments (ramps, slopes, stairs, and check-in counters) prevented him from 4 full and equal enjoyment of the Hotel. In addition, in the photograph with the handicapped 5 parking sign, the one he alleges to be so low that it is not visible, the parking space is 6 empty. (Doc. 20-2 at 17). It is evident, therefore, that nobody was actually blocking the 7 parking space and preventing Plaintiff’s full and equal enjoyment of the parking lot. As 8 for routes alleged to be inaccessible, Plaintiff provides no context as to what these routes 9 lead to, and why their destinations were necessary to his full and equal enjoyment of the 10 Hotel. 11 His allegation that the website is deficient is similarly void of any detail. All the 12 FAC provides is a link to the website and a conclusory allegation that it is deficient. His 13 claim of consumer fraud is similarly vague. Plaintiff has not alleged with particularity how 14 he was harmed by the Hotel’s signs and business cards. Fed. R. Civ. P. 9(b). In sum, the 15 FAC fails to demonstrate an injury in fact giving rise to standing for any of his claims. 16 III. Conclusion 17 Because the FAC fails to demonstrate an injury in fact, the Court will dismiss all 18 three Counts. Plaintiff’s Cross Motion for Summary Motion will be denied as moot. 19 Plaintiff shall have thirty days from the date of this Order in which he may file a second 20 amended complaint. 21 In addition, under the Court’s Vexatious Litigant Order, if Plaintiff elects to amend 22 his pleadings to include claims alleging violations of the ADA, Plaintiff shall post a bond 23 for $10,000 within twenty-one days of amending his pleadings. See Vexatious Litigant 24 Order at *11. If Mr. Strojnik fails to post this bond, the Court will dismiss this case for 25 failure to comply with the Court’s Vexatious Litigant Order. 26 Accordingly, 27 IT IS HEREBY ORDERED that Plaintiff’s Motion to Amend Complaint (Doc. 28 20) is granted. The Clerk of Court is kindly directed to file the First Amended Complaint lodged at (Doc. 20-2). 2 IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss and Motion for 3 || Judgment on the Pleadings (Doc. 27) is granted, in part as described in this Order. Plaintiff 4|| shall have thirty (30) days from the date of this Order in which to file a second amended 5 || complaint. 6 IT IS FURTHER ORDERED that if Plaintiff fails to file an amended complaint || thirty (30) days after this Order is entered, the Clerk of Court shall kindly dismiss this 8 || action without further order. If Plaintiff files an amended complaint but fails to post a bond 9|| for $10,000 within twenty-one (21) days after the amended complaint is filed, the Clerk of 10 || Court shall kindly dismiss this action without further order. 11 IT IS FINALLY ORDERED that Plaintiff's Cross Motion for Summary Judgment (Doc. 28) is denied. 13 Dated this 28th day of July, 2021. 14 15 oC. . je _ \Le 16 norable' Diang/4. Hunfetewa 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 -6-