Johnson v. JKLM Properties, L.L.C. ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 SCOTT JOHNSON, 8 Case No. 5:20-cv-01078-EJD Plaintiff, 9 ORDER GRANTING DEFENDANT’S v. MOTION FOR JUDGMENT ON THE 10 PLEADINGS; AUTHORIZING LEAVE JKLM PROPERTIES, L.L.C., TO AMEND 11 Defendant. Re: Dkt. No. 18 12 13 Pursuant to Federal Rule of Civil Procedure 12(c), Defendant JKLM Properties, LLC 14 moves for judgment on the pleadings against Plaintiff Scott Johnson, asserting that the Court lacks 15 subject-matter jurisdiction. Motion for Judgment on the Pleadings (“Mot.”) 1, Dkt. 18. Having 16 considered the Parties’ papers, the Court agrees and GRANTS Defendant’s motion for judgment 17 on the pleadings. 18 I. BACKGROUND 19 Plaintiff Scott Johnson is a level C-5 quadriplegic. Complaint for Damages and Injunctive 20 Relief (“Compl.”) ¶ 1, Dkt. 1. He cannot walk, has significant manual dexterity impairments, uses 21 a wheelchair, and has a specially equipped van. Id. 22 Plaintiff went to Main Street Professional Center (“MSPC”), a property owned by 23 Defendant, once in each of May, June, and October of 2019 “to avail himself of its goods or 24 services, motivated in part to determine if the defendants comply with the disability access laws.” 25 Id. ¶ 8. MSPC is located in Milpitas, California. Id. ¶ 3. Plaintiff initiated this action on February 26 5, 2020, asserting violations of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. 27 CASE NO.: 5:20-CV-01078-EJD 1 § 12101, et seq., and California’s Unruh Civil Rights Act, Cal. Civ. Code § 51-53 (“Unruh Act”). 2 Id. ¶¶ 20-22, 28. The Unruh Act provides that a violation of the ADA is a violation of the Unruh 3 Act. Id. ¶ 27. Specifically, Plaintiff alleges Defendant violated the ADA because Defendant 4 “failed to provide wheelchair accessible parking in conformance with the ADA Standards as it 5 relates to wheelchair users like the plaintiff.” Id. ¶ 10. Plaintiff alleges that he will return to MSPC 6 “to avail himself of its goods or services and to determine compliance with the disability access 7 laws once it is represented to him that [MSPC] and its facilities are accessible.” Id. ¶ 17. Plaintiff 8 also alleges that he is currently deterred from returning to MSPC because of his knowledge of the 9 existing barriers and his uncertainty about the existence of other barriers. Id. 10 II. LEGAL STANDARD 11 “After the pleadings are closed--but early enough not to delay trial--a party may move for 12 judgment on the pleadings.” Fed. R. Civ. P. 12(c). The Ninth Circuit has said “that Rule 12(c) is 13 ‘functionally identical’ to Rule 12(b)(6) and that ‘the same standard of review’ applies to motions 14 brought under either rule.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 15 1055 n.4 (9th Cir. 2011) (citing also decisions from the Second, Fifth, and Sixth Circuits). With 16 few exceptions, “[u]nder either provision, a court must determine whether the facts alleged in the 17 complaint, to be taken for these purposes as true, entitle the plaintiff to a legal remedy. If the 18 complaint fails to articulate a legally sufficient claim, the complaint should be dismissed or 19 judgment granted on the pleadings.” Strigliabotti v. Franklin Res., Inc., 398 F. Supp. 2d 1094, 20 1097 (N.D. Cal. 2005) (internal citations omitted). 21 In considering the motion, the court assumes the complaint’s allegations truth and draws 22 all reasonable inferences in the plaintiff’s favor. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 23 2004). In general, the court may not consider evidence outside the pleadings. See, e.g., MVP Asset 24 Mgmt. (USA) LLC v. Vestbirk, 2011 WL 1457424, at *1 (E.D. Cal. Apr. 14, 2011). “On a motion 25 to dismiss, however, a court may take judicial notice of facts outside the pleadings.” Mack v. South 26 Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), abrogated on other grounds, 27 CASE NO.: 5:20-CV-01078-EJD 1 Astoria Federal Sav. and Loans Ass’n v. Solimino, 501 U.S. 104, 111 (1991) (citing Sears, 2 Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir. 1956)). 3 III. DISCUSSION 4 Defendant contends that Plaintiff lacks standing to bring suit under the ADA because the 5 Plaintiff fails to sufficiently allege a “real and immediate threat of repeated injury in the future.” 6 Memorandum of Points and Authorities (“Mem. of P. & A.”) 1, Dkt. 18-1. As this is a challenge 7 on the pleadings, the Court will not consider evidence outside Plaintiff’s complaint, except for 8 facts properly subject to judicial notice. Mack, 798 F.2d at 1282. 9 A. Requests for Judicial Notice 10 1. Defendant’s Request for Judicial Notice 11 Defendant requests that this Court take judicial notice of six documents. Defendant’s 12 Request for Judicial Notice (“Def. RJN”), Dkt. 18-2. Plaintiff does not oppose this request. 13 Federal Rule of Evidence 201(b) allows a court to take judicial notice of a fact that is “not 14 subject to reasonable dispute” because it is either “generally known within the trial court’s 15 territorial jurisdiction” or “can be accurately and readily determined from sources whose accuracy 16 cannot reasonably be questioned.” Public records maintained on government websites are 17 generally subject to judicial notice. See, e.g., Nat’l Grange of the Order of Patrons of Husbandry 18 v. Cal. State Grange, 182 F. Supp. 3d 1065, 1075 n.3 (E.D. Cal. 2016) (collecting cases). 19 Geographical information from Google Maps is also proper for judicial notice because it can be 20 “accurately and readily determined from sources whose accuracy cannot reasonably be 21 questioned.” United States v. Perea-Rey, 680 F.3d 1179, 1182 n.1 (9th Cir. 2012). 22 Defendant’s Requests 1-2 are public records maintained on California government 23 websites, showing Plaintiff’s home and business addresses in Carmichael, California. Def. RJN at 24 2, Exhibits A-B. These requests are GRANTED. See Nat’l Grange of the Order of Patrons of 25 Husbandry, 182 F. Supp. 3d at 1075 n.3. Requests 3–4 are Google Maps navigation directions, 26 showing the distance and driving time between MSPC and the aforementioned addresses. Def. 27 CASE NO.: 5:20-CV-01078-EJD 1 RJN at 3, Exhibits C-D. These requests are GRANTED. See Perea-Rey, 680 F.3d at 1182 n.1. 2 Requests 5-6 are docket reports from the United States District Court for the Eastern District of 3 California, as well as this Court, that list over 3,809 ADA cases initiated by Plaintiff. Def. RJN at 4 3-4, Exhibits E-F. These requests are GRANTED. See Nat’l Grange of the Order of Patrons of 5 Husbandry, 182 F. Supp. 3d at 1075 n.3. 6 2. Plaintiff’s Request for Judicial Notice 7 Plaintiff requests that this Court take judicial notice of “a number of cases filed by 8 [Plaintiff], wherein he alleges numerous visits to businesses at locations within 10 miles of” 9 MSPC. Plaintiff’s Request for Judicial Notice (“Pl. RJN”) 1, Dkt. 20-1. Defendant objects to this 10 request, arguing among other things, that “(iii) it is not appropriate to take judicial notice of the 11 contents of pleadings in other cases.” Objections to Plaintiff’s Request for Judicial Notice 2-3, 12 Dkt. 24. 13 A district court may take judicial notice of undisputed matters of public record, including 14 documents on file in federal or state courts. Harris v. Cnty. of Orange, 682 F.3d 1126, 1131–32 15 (9th Cir. 2012). Accordingly, to the extent that Plaintiff requests judicial notice of 26 complaints 16 filed in the Northern District of California, Plaintiff’s request is GRANTED. See id.; See also 17 Nat’l Grange of the Order of Patrons of Husbandry, 182 F. Supp. 3d at 1075 n.3. 18 However, it is not clear whether a court may take judicial notice of allegations in 19 complaints, which are often disputed, in proceedings not before it. See, e.g., Gardiner Family, 20 LLC v. Crimson Res. Mgmt. Corp., 147 F. Supp. 3d 1029, 1032 (E.D. Cal. 2015) (agreeing with 21 Pollstar v. Gigmania, Ltd., 170 F. Supp. 2d 974 (E.D. Cal. 2000) in finding that there was “no 22 authority for judicial notice of pleadings in an unrelated case.”). Accordingly, to the extent that 23 Plaintiff seeks judicial notice of the allegations in the 26 complaints of “numerous visits to 24 businesses at locations within 10 miles of” MSPC, Plaintiff’s request is DENIED. See Gardiner 25 Family, LLC, 147 F. Supp. 3d at 1032 (E.D. Cal. 2015). 26 B. Standing 27 CASE NO.: 5:20-CV-01078-EJD 1 A disabled person claiming access discrimination must establish Article III standing to 2 maintain a suit under the ADA. Chapman v. Pier 1 Imps. (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 3 2011). “Under the oft-repeated standing formulation, [a plaintiff] must demonstrate that he has 4 suffered an injury-in-fact, that the injury is traceable to the [defendant’s] actions, and that the 5 injury can be redressed by a favorable decision. Id. (citing Fortyune v. Am. Multi-Cinema, Inc., 6 364 F.3d 1075, 1081 (9th Cir. 2004)). An injury-in-fact is an invasion of a legally protected 7 interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or 8 hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 9 The only remedy available to a private litigant under the ADA is an injunction, and so 10 Plaintiff must allege and ultimately prove that he suffered an injury-in-fact and that there exists “a 11 sufficient likelihood that he will again be wronged in a similar way.” Id. at 948 (quoting City of 12 Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). In other words, a plaintiff seeking injunctive 13 relief under the ADA must demonstrate an injury-in-fact and “a real and immediate threat of 14 repeated injury.” Id. (quoting Lyons, 461 U.S. at 102). Past exposure to an ADA violation does not 15 in itself establish standing for injunctive relief. Lyons, 461 U.S. at 102. Accordingly, to 16 demonstrate standing under the ADA, a plaintiff must show that he has suffered an “injury-in-fact 17 coupled with an intent to return,” or alternatively “deterrence from returning to the premises.” 18 Chapman, 631 F.3d at 944. While courts take a broad view of constitutional standing in disability 19 access cases, the ADA’s reach is “not unlimited.” Id. at 946. 20 Defendant challenges the sufficiency of Plaintiff’s allegations regarding the threat of future 21 harm, asserting that the Plaintiff has alleged “no likelihood of a genuine intent-to-return,” Mem. of 22 P. & A. at 4, and that Plaintiff “does nothing more than plead a conclusory allegation that he is 23 ‘currently deterred,’” id. at 7. In response, Plaintiff argues that consistent with Federal Rule of 24 Civil Procedure 8, he need make only “minimal” allegations as to deterrence and intent-to-return, 25 Opp. at 4, and that as a matter of law the Court need not examine intent-to-return factors because 26 “ADA ‘testers’—folks actively looking for non-complying businesses—have full standing,” id. 27 CASE NO.: 5:20-CV-01078-EJD 1 The Court first addresses the threshold argument of tester standing, before turning to intent-to- 2 return and deterrence. 3 1. Tester Standing 4 Plaintiff’s argument that ADA testers “have full standing” is based upon his reading of the 5 Ninth Circuit’s decision in Civil Rights Education and Enforcement Center v. Hospitality 6 Properties Trust., 867 F.3d 1093 (9th Cir. 2017) (“CREEC”). Opp. at 10-11. Plaintiff is only 7 partially correct. In CREEC, a nonprofit civil rights organization and hotel patrons sued a real 8 estate investment trust alleging that hotels owned by the trust failed to provide equivalent 9 wheelchair-accessible transportation at its hotels. CREEC, 867 F.3d at 1097. At issue was whether 10 a plaintiff has constitutional standing where her only motivation for visiting a facility is to test it 11 for ADA compliance. Id. at 1096. The Ninth Circuit held that the “[n]amed [p]laintiffs’ status as 12 ADA testers did not deprive them of standing.” Id. at 1102. Thus, Plaintiff is partially correct 13 insofar as he contends that his status as a tester in this case does not deprive him of standing. 14 Plaintiff is incorrect, however, insofar as he suggests that tester status automatically 15 confers standing under the ADA. Simply being a “tester” plaintiff does not eliminate basic 16 standing principles—a disabled plaintiff may not sue a business for injunctive relief simply 17 because an ADA violation exists. Instead, a plaintiff—even a “tester” plaintiff—must allege 18 sufficient facts to show an intent to return (Chapman, 631 F.3d at 949) or that “a defendant’s 19 failure to comply with the ADA deters her from making use of the defendant’s facility.” Id. at 20 1098. Indeed in CREEC, the Ninth Circuit concluded that the named plaintiffs had standing not 21 because they were “testers” but because they had sufficiently alleged that they intended to visit 22 defendant’s hotels; they had been deterred from doing so by the hotels’ noncompliance with the 23 ADA; and that they will visit the hotels when the non-compliance is cured. Id. at 1099. Thus, the 24 alleged ADA violations prevented the plaintiffs from staying at the hotels. Id. The Ninth Circuit 25 observed that without these averments, the plaintiffs would lack standing. Id. 26 In sum, no bright line-rule about “tester” standing exists. District courts must “[m]ak[e] 27 CASE NO.: 5:20-CV-01078-EJD 1 case-by-case determinations about whether a particular plaintiff’s injury is imminent.” Id. at 1100. 2 (citing Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335–37 (11th Cir. 2013) (assessing 3 various factors in determining whether plaintiff suing under ADA Title III was likely to actually 4 visit the supermarket, including prior visits, proximity of residence to store, plans for future visits, 5 and status as an “ADA tester who has filed many similar lawsuits”)). 6 2. Intent to Return 7 “[A] plaintiff seeking injunctive relief must additionally demonstrate ‘a sufficient 8 likelihood that he will again be wronged in a similar way.’” Chapman, 631 F.3d at 948 (quoting 9 City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). To determine whether a plaintiff’s 10 likelihood of returning to a place of public accommodation is sufficient to confer standing, courts 11 examine factors such as “(1) the proximity of defendant’s business to plaintiff’s residence, (2) 12 plaintiff’s past patronage of defendant’s business, (3) the definitiveness of plaintiff’s plans to 13 return, and (4) the plaintiff’s frequency of travel near defendant.” Johnson v. Overlook at Blue 14 Ravine, LLC, 2012 WL 2993890, at *3 (E.D. Cal. 2012) (collecting cases). 15 Plaintiff contends that, at the pleading stage, he need not “provide additional evidentiary- 16 level details such as the proximity of the business to his home, his past patronage of the business, 17 the definitiveness of his plans to return, the frequency of his travel near the area, his ties to the 18 business, the geographic location or reasons to return.” Opp. at 3. Plaintiff bases this argument on 19 Lujan’s statement that “[a]t the pleading stage, general factual allegations of injury resulting from 20 the defendant’s conduct may suffice, for on a motion to dismiss we presume that general 21 allegations embrace those specific facts that are necessary to support the claim.” Lujan, 504 U.S. 22 at 561 (internal citations omitted). Plaintiff also cites as an example D’Lil v. Best W. Encina Lodge 23 & Suites, 538 F.3d 1031 (9th Cir. 2008), wherein no “evidentiary-level details” were provided in 24 the complaint, but rather emerged at later phases of the case. D’Lil, 538 F.3d at 1038-39. 25 However, even at the pleading stage, “a complaint must contain sufficient factual matter, 26 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 27 CASE NO.: 5:20-CV-01078-EJD 1 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Here, that 2 means that Plaintiff “must allege ‘facts giving rise to an inference that he will suffer future 3 discrimination by the defendant’ to establish standing under the ADA.” D’Lil v. Stardust Vacation 4 Club, 2001 WL 1825832 at *3 (E.D. Cal. Dec. 21, 2001) (emphasis added) (citing Shotz v. Cates, 5 256 F.3d 1077, 1081 (11th Cir. 2001)). As discussed previously, to have standing to pursue 6 injunctive relief under the ADA, a plaintiff must show either an intent to return or deterrence. 7 Chapman, 631 F.3d at 944. A “mere profession of an intent, some day, to return” is not enough. 8 Lujan, 504 U.S. at 564. The four intent-to-return factors discussed in Overlook are helpful in 9 determining whether a plaintiff has plausibly alleged a genuine intent to return or merely professed 10 an intent some day to return. 11 Plaintiff further contends that it is inappropriate to weigh evidence or make credibility 12 determinations at the pleading stage. This is a correct. See, e.g., Martin v. Hotel & Transp. 13 Consultants, Inc., 2018 WL 2470981, at *4 (D. Haw. June 1, 2018) (“[T]he plausibility 14 requirement stated in Twombly and Iqbal does not allow this court to make credibility 15 determinations at the motion-to-dismiss stage.”) (citing Twombly, 550 U.S. at 556)). This does not 16 mean, however, that conclusory allegations lacking a factual basis must be accepted as true. A 17 claim will only have the requisite facial plausibility “when the plaintiff pleads factual content that 18 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 19 alleged.” Iqbal, 556 U.S. at 662. In analyzing the Plaintiff’s complaint, all factual allegations are 20 accepted as true and, in the context of the intent-to-return factors identified in Overlook, used to 21 determine whether Plaintiff has plausibly alleged a genuine intent to return. 22 a. Proximity of Place of Public Accommodation 23 This factor considers the proximity of the subject business to the plaintiff’s residence/place 24 of business as an indication of the sincerity of plaintiff’s intent to return to the business. See 25 Overlook at Blue Ravine, 2012 WL 2993890, at *8. In Blue Ravine, the court concluded that while 26 a distance of “approximately fifteen miles” between the business and plaintiff’s home was 27 CASE NO.: 5:20-CV-01078-EJD 1 relatively close, it only weighed slightly in Plaintiff’s favor. Id. 2 By contrast, in Johnson v. DTBA, LLC, this Court found that a distance of “more than 130 3 miles from Plaintiff’s home,” which was a “two-hour drive (in good traffic),” weighed in 4 Defendant’s favor. 424 F. Supp. 3d 657, 664 (N.D. Cal. 2019). Here, MSPC is approximately 120 5 miles from Plaintiff’s home or business, or approximately a two-hour drive from either one. See 6 Def. RJN Exhibits C-D. Given the distance and lengthy drive, this factor weighs in Defendant’s 7 favor. 8 b. Past Patronage of Public Accommodation 9 Plaintiff alleges that he has visited MSPC three times within 6 months in 2019, but never 10 before then. Compl. ¶ 8. It is unclear whether these visits constitute patronage of a public 11 accommodation given that the Complaint lacks any factual allegations regarding MSPC. Plaintiff 12 alleges only in conclusory terms that MSPC is a place of “public accommodation.” Id. ¶ 9. The 13 paucity of allegations suggests that Plaintiff may have only visited MSPC’s parking lot. This 14 factor, thus, weighs at least slightly in Defendant’s favor. 15 c. Definitiveness of Plans to Return 16 Much like in Blue Ravine and DTBA, Plaintiff alleges no specific plans to return to MSPC. 17 He alleges only a general plan to return to MSPC to “avail himself of its goods or services and to 18 determine compliance with the disability access laws.” Compl. ¶ 17; Blue Ravine, 2012 WL 19 2993890, at *3; DTBA, 424 F. Supp. 3d at 664. This language is nothing more than a vague 20 formulaic recitation of an element of ADA standing, and so does nothing to meet the 21 Twombly/Iqbal “plausibility” standard. See, e.g., Iqbal, 556 U.S. at 678. It lacks “any description 22 of concrete plans, or indeed even any specification of when [Plaintiff will visit MSPC].” DTBA, 23 424 F. Supp. 3d at 664 (citing similar language by Plaintiff in Blue Ravine, 2012 WL 2993890, at 24 *3). In DTBA, Plaintiff at least alleged that the ADA inaccessible business was a bar. In this case, 25 Plaintiff does not even identify what MSPC is beyond a “facility open to the public, a place of 26 public accommodation, and a business establishment.” Compl. ¶ 9. Nor does Plaintiff identify 27 CASE NO.: 5:20-CV-01078-EJD 1 what type of “goods or services” he seeks at MSPC. See id. ¶¶ 8-18. The Supreme Court was clear 2 in Lujan—”some-day” intentions are, without more, insufficient to show concrete plans. 504 U.S. 3 at 564. 4 To rebut this, Plaintiff argues that his “extensive litigation history as a veteran tester 5 supports his claim that he will return” and that he “has an important litigation reason to return: to 6 have standing.” Opp. at 11 (emphasis in original). As discussed before, Plaintiff’s status as a tester 7 does not automatically confer standing. Additionally, the Complaint lacks any allegations 8 regarding Plaintiff’s litigation history or intent to return for the purpose of maintaining standing. 9 “[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to 10 dismiss.” Frenzel v. AliphCom, 76 F. Supp. 3d 999, 1009 (N.D. Cal. 2014) (quoting Car Carriers, 11 Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) and citing Lee v. City of Los Angeles, 12 250 F.3d 668, 688 (9th Cir. 2001)). As currently pled, Plaintiff’s ADA claim lacks sufficient facts 13 to show concrete plans to return to MSPC and so he does not show a “sufficient likelihood that he 14 will be again be wronged in a similar way.” Lyons, 461 U.S. at 111. As such, this factor weighs in 15 Defendant’s favor. 16 d. Frequency of Travel Near Public Accommodation 17 Plaintiff contends that the frequency of travel factor weighs in his favor. The Court has 18 taken judicial notice of 26 complaints filed in the Northern District of California, San Jose 19 Division, as requested by Plaintiff. See Pl. RJN 2-4. The Court has also taken judicial notice of the 20 1,094 cases filed by Plaintiff in the Northern District of California, San Jose Division, as requested 21 by Defendant. See Def. RJN Exhibit F. Frequency of travel to MSPC, however, cannot reasonably 22 be inferred from Plaintiff’s prolific lawsuits unless Plaintiff makes personal appearances at the San 23 Jose courthouse. Plaintiff has not alleged that he makes personal appearances in his cases, much 24 less that he “frequently” makes personal appearances in his cases. As such, this factor favors the 25 Defendant. 26 Having weighed the relevant factors, the Court finds that Plaintiff’s alleged intent to return 27 CASE NO.: 5:20-CV-01078-EJD 1 to MSPC is not plausible. Plaintiff’s geographic distance from MSPC, his lack of concrete or 2 definitive plans to return to MSPC and his lack of frequent travel near MSPC are inconsistent with 3 Plaintiff’s professed intent to return to a place of public accommodation, notwithstanding his 4 alleged three visits to MSPC. As such, the Court finds that while Plaintiff has an injury-in-fact, he 5 has not sufficiently alleged that he intends to return to MSPC. 6 3. Deterrence 7 “A disabled individual also suffers a cognizable injury if he is deterred from visiting a 8 noncompliant accommodation because he has encountered barriers related to his disability there.” 9 Chapman, 631 F.3d at 949. As discussed above, the threat of a future injury must be sufficiently 10 “imminent” to permit a plaintiff to sue for injunctive relief. Id.; Doran v. 7-Eleven, Inc., 524 F.3d 11 1034, 1040 (9th Cir. 2008) (“Doran has suffered an injury that is concrete and particularized 12 because he alleged in his amended complaint that he personally suffered discrimination as a result 13 of the barriers in place during his visits to 7–Eleven and that those barriers have deterred him on at 14 least four occasions from patronizing the store.” (emphasis added)); Pickern v. Holiday Quality 15 Foods, Inc., 293 F.3d 1133, 1138 (9th Cir. 2002) (“Doran has visited Holiday’s Paradise store in 16 the past …. [He] also states that he prefers to shop at Holiday markets and that he would shop at 17 the Paradise market if it were accessible. This is sufficient to establish actual or imminent injury 18 for purposes of standing.” (emphasis added)); Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 1065, 19 1079–80 (D. Haw. May 16, 2000) (holding that disabled plaintiff established likelihood of future 20 injury by submitting evidence that he would like to visit defendant’s restaurant in the future, had 21 patronized other restaurants in the chain, and that the restaurant was close to his residence and was 22 on a familiar bus line). 23 By contrast, Plaintiff alleges only that the ADA violations deter him from returning to 24 MSPC. Compl. ¶ 17. Plaintiff, relying on Wilson v. Kayo Oil Co., 563 F.3d 979, 980 (9th Cir. 25 2009), argues that “at the pleading stage, only the minimal allegations that a plaintiff … is 26 currently deterred from visiting that accommodation” are sufficient. Opp. at 4. Plaintiff also argues 27 CASE NO.: 5:20-CV-01078-EJD 1 that the Court should not rely on Doran and Pickern because those cases did not “involve[] a 2 facial attack at the pleading stage.” Id. at 5. 3 As previously stated, even at the pleading stage, “a complaint must contain sufficient 4 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 5 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Thus, a plaintiff is required to allege “more than 6 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 7 Twombly, 550 U.S. at 555. Although the Court recognizes that Doran and Pickern were decided 8 on summary judgment, they are nonetheless instructive in determining whether Plaintiff has 9 alleged sufficient factual matter to state a cognizable claim. Indeed, in Wilson the Ninth Circuit 10 relied on Doran—a summary judgment decision—in deciding the sufficiency of the plaintiff’s 11 allegations. The analysis of standing in Wilson consists of two sentences: 12 Allegations that a plaintiff has visited a public accommodation on a prior occasion 13 and is currently deterred from visiting that accommodation by accessibility barriers establish that a plaintiff’s injury is actual or imminent.” Doran v. 7–Eleven, 524 14 F.3d 1034, 1041 (9th Cir. 2008). Here, Wilson makes these minimal allegations, and therefore survives a facial attack on standing. See id. at 1041 (“Notwithstanding 15 the [500–mile] distance between Doran’s home and the 7–Eleven, there is an actual and imminent threat that, during his planned future visits to Anaheim, Doran will 16 suffer harm as a result of the alleged barriers.”). 17 The Wilson court’s citation to Doran and explanatory parenthetical reinforces the requirement to 18 plead facts, notwithstanding Plaintiff’s argument to the contrary. 19 In this case, Plaintiff does not allege: (1) that he prefers MSPC over other “professional 20 centers,” (2) any specific instances of deterrence, or (3) that he often patronizes Bay Area 21 “professional centers” and would patronize MSPC but-for the violations. Cf. Doran, 524 F.3d at 22 1040; Pickern, 293 F.3d at 1138; Parr, 96 F. Supp. 2d at 1079–80. Indeed, Plaintiff does not even 23 allege what goods or services a professional center such as MSPC provides, or what goods or 24 services he may seek there. See Compl. ¶¶ 8-18. The Court finds that Plaintiff has not adequately 25 alleged that he is likely to return to MSPC or that he is deterred from doing so. Accordingly, 26 Plaintiff cannot meet the “imminence” requirement of standing and this Court lacks subject-matter 27 CASE NO.: 5:20-CV-01078-EJD 1 || jurisdiction over his ADA claims. 2 IV. CONCLUSION 3 For the above reasons, the Court GRANTS Defendant’s motion for judgment on the 4 || pleadings under Rule 12(c). Because at present Plaintiff’s Complaint fails to state a legally 5 || cognizable ADA claim, the Court declines to exercise supplemental jurisdiction over Plaintiff’s 6 || related Unruh Act claim, which is DISMISSED without prejudice. See Johnson v. Torres Enters. 7 LP, 2019 WL 285198, at *4 (N.D. Cal. Jan. 22, 2019) (declining to exercise supplemental 8 || jurisdiction over a claim for violation of the Unruh Act premised solely on a violation of the 9 || ADA). 10 Although Rule 12(c) does not mention leave to amend, courts have discretion to grant 11 motions for judgment on the pleadings with leave to amend. Toma v. Univ. of Hawaii, 2017 WL 12 4782629, at *5 (D. Haw. Oct. 23, 2017) (collecting cases). As with a motion to dismiss, “[a] 5 13 complaint should not be dismissed without leave to amend unless amendment would be futile.” 14 Carolina Cas. Ins. Co. v. Team Equipment, Inc., 741 F.3d 1082, 1086 (9th Cir. 2014) (applied by 3 15 the Ninth Circuit in Hip Hop Beverage Corp. v. Michaux, 729 F. App’x 599, 600 (9th Cir. 2018) a 16 || to review of a motion for judgment on the pleadings). The Court finds amendment would not be 3 17 || futile. Accordingly, Plaintiff’s claims are DISMISSED with leave to amend. He may file an 18 amended complaint no later than October 5, 2020. 19 IT IS SO ORDERED. 20 || Dated: September 14 2020 21 EDWARD J. DAVILA 22 United States District Judge 23 24 25 26 CASE NO.: 5:20-CV-01078-EJD 28 || ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS; AUTHORIZING LEAVE TO AMEND