Antonio Fernandez v. Tom Paziouros ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 ANTONIO FERNANDEZ, ) CV 19-05055-RSWL-SK ) 13 Plaintiff, ) ) ORDER TO SHOW CAUSE RE: 14 ) SUBJECT MATTER v. ) JURISDICTION 15 ) ) 16 TOM PAZIOUROS, and DOES 1 ) to 10, ) 17 ) ) 18 Defendants. ) ) 19 ) ) 20 ) 21 Plaintiff Antonio Fernandez (“Plaintiff”) filed his 22 Complaint [1] against Defendant Tom Paziouros 23 (“Defendant”) on June 11, 2019, alleging violations of 24 the Americans with Disabilities Act (“ADA”) and the 25 Unruh Civil Rights Act (“Unruh Act”). 26 In order to “invoke jurisdiction of the federal 27 court, a disabled individual claiming discrimination 28 must satisfy the case or controversy requirement of 1 Article III by demonstrating his standing to sue at 2 each stage of the litigation.” Chapman v. Pier 1 3 Imports (U.S.), Inc., 631 F.3d 939, 946 (9th Cir. 4 2011). “To qualify for standing, a claimant must 5 present an injury that is concrete, particularized, and 6 actual or imminent; fairly traceable to the defendant’s 7 challenged behavior; and likely to be redressed by a 8 favorable ruling.” Davis v. Federal Election Com’n, 9 554 U.S. 724, 732 (2008) (citing Lujan v. Defenders of 10 Wildlife, 504 U.S. 555, 560-61 (1992)). 11 Here, the real property in question was owned and 12 is currently owned by Adelphia Properties, LLC 13 (“Adelphia Properties”). Compl. ¶¶ 3, 4. Plaintiff 14 identifies Defendant as a member/manager of Adelphia 15 Properties. Id.; see Public Records in Supp. of Pl.’s 16 Appl. for Default J. (“Public Records”), ECF No. 13-7. 17 But instead of bringing this Action against Adelphia 18 Properties, Plaintiff seeks recovery against Defendant 19 in his individual capacity. Plaintiff has neither 20 shown that his injury is traceable to an action that 21 Defendant took as an individual, nor that the injury 22 will be redressed by a favorable decision against 23 Defendant as an individual. 24 Pursuant to Title III of the ADA, a defendant can 25 only be liable for the discriminatory conduct if, in 26 his individual capacity, he can be considered an owner, 27 operator, or lessor. 42 U.S.C. § 12182(a). “Operate” 28 in this context is interpreted as “being in a position 1 of authority and having the power and discretion to 2 perform potentially discriminatory acts.” Codding v. 3 Adelphi Univ., 45 F. Supp. 2d 211, 215 (E.D. N.Y. 4 1999); see Howe v. Hull, 873 F. Supp. 72, 78 (N.D. Ohio 5 1994) (holding on-call admitting physician “operated” 6 within the meaning of the ADA because he was in a 7 position of authority at the hospital, was vice chief 8 of staff and medical director of special service, and 9 had authority to admit patients). 10 The fact that Defendant is one of three members of 11 the LLC that owns the property and was a former owner 12 of the property is insufficient to show that 13 Plaintiff’s injury is “fairly traceable” to an action 14 by Defendant, or further, that a decision by this Court 15 against Defendant will provide redress. 16 As such, Plaintiff is HEREBY ORDERED to show, in 17 writing, on or before December 20, 2019, that Plaintiff 18 has standing to bring this Action. 19 20 IT IS SO ORDERED. 21 22 DATED: December 11, 2019 /s/ Ronald S.W. Lew 23 HONORABLE RONALD S.W. LEW Senior U.S. District Judge 24 25 26 27 28