1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Henry Hernandez, No. CV-21-00357-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Costco Wholesale Corporation, 13 Defendant. 14 15 16 Defendant Costco Wholesale Corporation (“Costco”) moved to dismiss Plaintiff 17 Henry Hernandez’s first amended complaint (“FAC”). (Doc. 47.) Instead of filing a 18 response opposing Costco’s motion, Mr. Hernandez responded by moving for leave to 19 amend (Doc. 50), which is fully briefed (Docs. 52, 53). For the following reasons, the 20 Court grants Costco’s motion and denies Mr. Hernandez’s motion. 21 I. Background 22 In December 2020, Mr. Hernandez attempted to enter a Costco store in Maricopa 23 County but was stopped when Costco’s employees asked him to wear a face mask. He 24 declined, asserting that he had a “medical reason” that prevented him from wearing a face 25 mask or face shield. (Doc. 25 at 4.) As he continued barefaced into the store, the 26 employees informed him that he was violating Costco’s posted policies and would not be 27 able to return if he would not “follow the rules.” (Id.) Mr. Hernandez noted that he felt 28 “harassed.” (Id.) Ignoring the employees’ warnings, he continued through the store while 1 employees monitored his whereabouts. (Id.) He completed his shopping and left “with his 2 purchased groceries.” (Id.) Shortly after the visit, Mr. Hernandez filed a complaint, 3 alleging that Costco had harassed him in violation of the Americans with Disabilities Act 4 (“ADA”) and asking for damages and injunctive relief. (Doc. 25.) 5 II. Motion to Dismiss 6 To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a 7 complaint must contain factual allegations sufficient to “raise a right to relief above the 8 speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The task when 9 ruling on a motion to dismiss “is to evaluate whether the claims alleged [plausibly] can be 10 asserted as a matter of law.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); 11 accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When analyzing the sufficiency of a 12 complaint, the well-pled factual allegations are taken as true and construed in the light most 13 favorable to the plaintiff. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). 14 However, legal conclusions couched as factual allegations are not entitled to the 15 assumption of truth, Iqbal, 556 U.S. at 680, and therefore are insufficient to defeat a motion 16 to dismiss for failure to state a claim, In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th 17 Cir. 2008). 18 Among other things, Costco argues that the FAC fails to plausibly allege whether 19 Costco’s conduct amounted to discrimination under the ADA.1 42 U.S.C. § 12182(a). The 20 Court agrees. 21 An entity does not commit discrimination under the ADA when it denies services 22 to an “individual [who] poses a direct threat to the health or safety of others. The term 23 ‘direct threat’ means a significant risk to the health or safety of others that cannot be 24 eliminated by a modification of policies, practices, or procedures or by the provision of 25 auxiliary aids or services.” 42 U.S.C § 12182(b)(3). In ascertaining whether an individual 26 1 Costco also argues that (1) Mr. Hernandez did not allege a disability within the 27 meaning of the ADA, (2) alternatively, Mr. Hernandez does not allege that his purported disability prevents him from wearing a face mask or shield, and (3) Mr. Hernandez did not 28 allege he was denied access to Costco’s store because of the disability, as opposed to failing to comply with store policy. (Doc. 47 at 2.) 1 poses a “direct threat,” the entity must conduct an 2 individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available 3 objective evidence, to ascertain: The nature, duration, and severity of the risk; the probability that the potential injury will 4 actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary 5 aids or services will mitigate the risk. 6 28 C.F.R. § 36.208(b). Entities may make this determination without the aid of physicians, 7 so long as is not “based on generalizations or stereotypes.” Giles v. Sprouts Farmers Mkt., 8 Inc., No. 20-CV-2131-GPC-JLB, 2021 WL 2072379, at *5 (S.D. Cal. May 24, 2021) 9 (quoting ADA Title III Technical Assistance Manual § III-3.8000). 10 In locations with a state or local mask requirement—like Maricopa County at the 11 relevant time2—Costco requires customers to wear a face mask or, if “a medical condition 12 . . . prevents them from wearing a mask, they must wear a face shield.” (Doc. 26-1 at 9.) 13 Maricopa County and the Centers for Disease Control and Prevention (“CDC”)3 considered 14 an unmasked adult at an indoor place of public accommodation to present a risk to other 15 patrons. (Doc. 47-2 at 5-9, 17-27.) Thus, a cursory visual inspection could determine 16 whether any one person presented a risk to other patrons, i.e., an individual was wearing a 17 mask or a face shield. This is an individualized assessment. Giles, 2021 WL 2072379, at 18 *5. 19 Any of Mr. Hernandez responses about breathing difficulties while masked “are not 20 germane to calculating the risk” that an unmasked person would pose to the public, 21 according to the CDC and Maricopa County. Id. at *6. “Instead, the risk is the same 22 between those with or without breathing difficulties, but should be accounted for by way 23 of reasonable modifications.” Id. Costco allowed face shields as an alternative to face 24 masks, and Mr. Hernandez does not explain why other alternatives, like having someone 25 26 2 The Court takes judicial notice of the guidance from Maricopa County at the pertinent time (Doc. 47-2 at 5-9) because, as a government document on a government 27 website, it is a matter of public record whose contents are not subject to reasonable dispute. See Kater v. Church Downs Incorp., 886 F.3d 784, 788 n.3 (9th Cir. 2018). 28 3 The Court takes judicial notice of the pertinent CDC guidance. (Doc. 47-2 at 17- 27); see Kater, 886 F.3d at 788 n.3. 1 shop for him, were insufficient. 2 Costco canceled Mr. Hernandez’s Costco membership and attempted to deny in- 3 person services to him after it conducted an individualized assessment of the direct threat 4 posed by his unwillingness to wear a face mask or face shield. Such action does not amount 5 to discrimination under the ADA. Absent any showing of plausibly discriminatory action, 6 Mr. Hernandez cannot maintain his ADA claim, and the FAC must be dismissed. 7 What’s more, Mr. Hernandez did not respond to Costco’s motion to dismiss, 8 implicitly conceding the merits of its argument and the deficiencies of his FAC. See 9 LRCiv. 7.2(i) (“[I]f the unrepresented party or counsel does not serve and file the required 10 answering memoranda, . . . such non-compliance may be deemed a consent to the denial 11 or granting of the motion and the Court may dispose of the motion summarily.”). The 12 Court grants the motion to dismiss. 13 II. Motion for Leave to Amend 14 Mr. Hernandez seeks leave to file a second amended complaint (“SAC”). The Court 15 denies leave to amend because (1) Mr. Hernandez did not comply with the procedural 16 requirements in Local Rule 15.1 and (2) the proposed amendments are futile. 17 “Pro se litigants must follow the same rules of procedure that govern other litigants.” 18 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986). Local Rule 15.1(a) requires a litigant 19 moving for leave to amend to “attach a copy of the proposed amended pleading as an 20 exhibit to the motion, which must indicate in what respect it differs from the pleading which 21 it amends, by bracketing or striking through the text to be deleted and underlining the text 22 to be added.” LRCiv. 15.1(a). Although Mr. Hernandez lodged a proposed SAC at the time 23 he filed his motion for leave to amend (Doc. 51), the lodged document does not indicate 24 how it differs from the FAC “by bracketing or striking through the text to be deleted and 25 underlining the text to be added.” This deficiency justifies denying leave to amend.4 26 4 The Court directed Mr. Hernandez to where he could review the District’s 27 Handbook for Self-Represented Litigants and a copy of the Local Rules. (Doc. 6.) The Handbook notes that “[a]ny documents [a pro se litigant] files in court must comply with 28 the . . . District of Arizona Local Rules of Practice.” Handbook for Self-Represented Litigants at 7, https://www.azd.uscourts.gov/handbook-self-represented-litigants. 1 Cettolin v. GMAC, No. CV 10-8036-PCT-JAT, 2010 WL 3834628, at *4 (D. Ariz. Sept. 2 24, 2010). 3 In addition to this procedural deficiency, Mr. Hernandez’s proposed SAC is futile. 4 After amending a complaint for the first time, “a party may amend its pleading only with 5 the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a). Leave to 6 amend should be freely granted “when justice so requires.” Id. Nevertheless, the Court 7 enjoys “particularly broad” discretion to deny a motion for leave to amend when “the 8 plaintiff has previously amended the complaint,” as Mr. Hernandez has done here. Ascon 9 Props. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). 10 The Court considers four factors when determining whether leave to amend is 11 appropriate: bad faith, undue delay, prejudice to the opposing party, and futility. 12 AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). 13 Futility alone justifies denying leave to amend. Bonin v. Calderon, 59 F.3d 815, 845 14 (1995). A motion to amend is futile if the amended portion fails to state a plausible claim 15 for relief. Chabrowski ex rel. ARTBE Enters., LLC v. Litwin, No. CV-16-03766-PHX- 16 DLR, 2017 WL 2841212, at *2 (D. Ariz. Jan. 19, 2017). 17 Like his FAC, Mr. Hernandez’s proposed SAC is futile because the ADA allows a 18 business to deny service to an individual after an individualized assessment determines that 19 the individual poses “a direct threat to the health or safety of others.” 42 U.S.C. § 20 12182(b)(3). Nothing in Mr. Hernandez’s proposed SAC changes the reality that Costco 21 canceled Mr. Hernandez’s membership and attempted to deny in-person services to him 22 after it conducted an individualized assessment of the direct threat posed by his 23 unwillingness to wear a face mask or face shield at a time when Maricopa County required 24 face coverings to combat the COVID-19 pandemic. Leave to amend is denied. 25 / / / 26 / / / 27 / / / 28 1 IT IS ORDERED that Costco’s motion to dismiss (Doc. 47) is GRANTED and Mr. Hernandez’s motion for leave to amend (Doc. 50) is DENIED. The Clerk of the Court 3 || is directed to enter judgment accordingly and terminate this case. 4 Dated this 8th day of December, 2022. 5 6 ‘boy tha 9 Upied States Dictria Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-