Whitaker v. URBN US Retail LLC

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION — 7 — 8 BRIAN WHITAKER, Case No. 21-cv-01480-BLF 9 Plaintiff, ORDER DENYING MOTION TO 10 v. DISMISS FIRST AMENDED COMPLAINT; AND DIRECTING 11 URBN US RETAIL LLC, DEFENDANT TO ANSWER BY FEBRUARY 18, 2022 12 Defendant. [Re: ECF 20] — 13 — — 14 — 15 Plaintiff Brian Whitaker (“Whitaker”) sues Defendant URBN US Retail LLC (“URBN”) 16 for alleged violations of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 17 12101, et seq., and California’s Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. URBN seeks 18 dismissal of the operative first amended complaint (“FAC”) under Federal Rule of Civil Procedure 19 12(b)(6). The Court previously determined that the motion is suitable for decision without oral 20 argument and vacated the hearing. See Order Submitting Motion, ECF 26. 21 The motion is DENIED for the reasons discussed below. 22 I. BACKGROUND 23 Whitaker alleges the following facts, which are accepted as true for purposes of the motion 24 to dismiss. See Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). 25 Whitaker suffers from a C-4 spinal cord injury and uses a wheelchair for mobility. FAC ¶ 1, ECF 26 14. On January 21, 2021, he visited an Anthropologie store (“store”) located in Palo Alto, 27 California, that is owned by URBN. Id. ¶¶ 2-3, 9. Whitaker recently moved into a new house and 1 for services. Id. ¶ 8. Whitaker also is “an active ADA tester,” meaning that he “actively looks for 2 law breaking businesses with the intention to haul them before the courts to be penalized and 3 forced to comply with the ADA.” Id. ¶ 17. 4 There is a Design Center on the second floor of the store, with a service counter and a 5 chair, where store employees provide services to customers. FAC ¶ 11. The counter is made 6 available to customers who wish to meet with the store’s home stylist. Id. ¶ 12. The service 7 counter is not accessible to wheelchair users because it is a uniform 40 inches high. Id. ¶ 13. No 8 portion of the service counter is 36 inches high. Id. Whitaker frequents the area where the store is 9 located on a regular and ongoing basis. Id. ¶ 19. He currently is deterred from patronizing the 10 store because of the existing barrier of the service counter. Id. ¶ 21. Whitaker will return to the 11 store to take advantage of design services once it is represented to him that the store’s facilities are 12 accessible to him. Id. ¶ 20. 13 Whitaker filed this suit on March 2, 2021. See Compl., ECF 1. He amended as of right in 14 response to URBN’s motion to dismiss the complaint, filing the operative FAC on May 6, 2021. 15 See FAC, ECF 14. Whitaker asserts claims under the ADA (Claim 1) and the Unruh Act (Claim 16 2). He seeks injunctive relief under both statutes, and damages under the Unruh Act. 17 II. DISCUSSION 18 URBN moves to dismiss both claims of the FAC under Rule 12(b)(6) for failure to state a 19 claim upon which relief may be granted. However, its notice of motion asserts that the Court 20 “does not have jurisdiction over the federal claim upon which Plaintiff’s FAC is based, because 21 Plaintiff fails to state facts sufficient to state a cause of action upon which relief may be granted 22 under the Americans with Disabilities Act (“ADA”). . . .” Am’d Not. at 1-2 (emphasis added), 23 ECF 21. Whitaker apparently understands URBN’s motion to raise a challenge to subject matter 24 jurisdiction based on lack of Article III standing, as he devotes several pages of his opposition to 25 arguing that he has established injury in fact and other requirements for Article III standing. See 26 Opp. at 1-5, ECF 22. Rule 12(b)(6) is not a proper vehicle to seek dismissal for lack of 27 constitutional standing. See Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (“The 1 under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.”). Apparently 2 recognizing that standing may not be challenged in a Rule 12(b)(6) motion, URBN argues in its 3 reply that the Court should address Whitaker’s Article III standing sua sponte. See Reply at 5, 4 ECF 23. 5 “[W]hether or not the parties raise the issue, federal courts are required sua sponte to 6 examine jurisdictional issues such as standing.” D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 7 1031, 1035 (9th Cir. 2008) (internal quotation marks, citation, and brackets omitted); see also 8 Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1178 (9th Cir. 2021) (considering standing sua 9 sponte on appeal of Rule 12(b)(6) ruling). Accordingly, the Court sua sponte discusses 10 Whitaker’s constitutional standing before turning to the merits of URBN’s Rule 12(b)(6) motion. 11 A. Whitaker has Established Article III Standing 12 Federal subject matter jurisdiction is premised on Whitaker’s assertion of a claim under a 13 federal statute, the ADA. A plaintiff claiming discrimination under the ADA “must satisfy the 14 case or controversy requirement of Article III by demonstrating his standing to sue at each stage of 15 the litigation.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011). “Under 16 the oft-repeated standing formulation, [the plaintiff] must demonstrate that he has suffered an 17 injury-in-fact, that the injury is traceable to the Store’s actions, and that the injury can be redressed 18 by a favorable decision.” Id. “In addition, to establish standing to pursue injunctive relief, which 19 is the only relief available to private plaintiffs under the ADA, he must demonstrate a real and 20 immediate threat of repeated injury in the future.” Id. (internal quotation marks, citation, and 21 footnote excluded). 22 Whitaker alleges that he uses a wheelchair for mobility, he visited the Anthropologie store, 23 he personally encountered a barrier related to his disability – the inaccessible Design Center 24 service counter – and the barrier deters him from returning to the store. Compl. ¶¶ 1, 11-15, 21. 25 The Ninth Circuit found similar allegations sufficient to establish standing in another ADA case 26 brought by the same plaintiff, Whitaker v. Tesla Motors, Inc., 985 F.3d 1173 (9th Cir. 2021). In 27 Tesla, the Ninth Circuit summarized the plaintiff’s allegations as follows: “Whitaker’s complaint 1 personally encountered a barrier related to his disability – inaccessible service counters – and that 2 the barrier deters him from returning.” Id. at 1179 . The Ninth Circuit concluded that “[t]hese 3 allegations are sufficient to establish injury-in-fact for purposes of standing.” Id. Applying Tesla 4 to the facts of this case, this Court finds that Whitaker has alleged injury in fact. The alleged 5 injury is traceable to the store’s actions and would be redressed by a favorable decision. 6 URBN argues that the alleged barrier identified by Whitaker is not a “service counter” 7 within the meaning of the ADA, but is merely a table used by the store’s home stylist. URBN 8 asks the Court to take judicial notice of the declaration of Melinda Cowan, “the General Brand 9 Leader of the Anthropologie store” that is the subject of this lawsuit, which was submitted in 10 connection with URBN’s prior motion to dismiss the original complaint. See Cowan Decl. ¶ 1, 11 ECF 13-1. Ms. Cowan states that there is no service counter in the Design Center; there is a table 12 used by the store’s home stylist; and customers can meet with the stylist either at the table or at a 13 home showroom. See id. ¶¶ 3-4. Ms. Cowan’s declaration is not a proper subject for judicial 14 notice, as the facts contained therein are not “generally known within the trial court’s territorial 15 jurisdiction,” and cannot “be accurately and readily determined from sources whose accuracy 16 cannot reasonably be questioned.” Fed. R. Evid. 201(b). However, the Court may consider 17 evidence beyond the complaint when evaluating subject matter jurisdiction. See Safe Air For 18 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 19 The current record is not sufficiently developed for the Court to determine whether the 20 alleged barrier is a service counter under the ADA. Even if the record were more fully developed, 21 a dismissal on jurisdictional grounds “is inappropriate when the jurisdictional issue and 22 substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution 23 of factual issues going to the merits of an action.” Safe Air, 373 F.3d at 1039 . Whether the 24 alleged barrier qualifies as a service counter is an issue going to the merits of Whitaker’s ADA 25 claim. 26 URBN also argues that Whitaker cannot establish a likelihood of future injury as required 27 to seek injunctive relief under the ADA. As noted above, in order to establish standing to pursue 1 injury in the future.” Chapman, 631 F.3d at 946 (internal quotation marks, citation, and footnote 2 excluded). “[A]n ADA plaintiff can show a likelihood of future injury when he intends to return 3 to a noncompliant accommodation and is therefore likely to reencounter a discriminatory 4 architectural barrier.” Id. at 950 . “Alternatively, a plaintiff can demonstrate sufficient injury to 5 pursue injunctive relief when discriminatory architectural barriers deter him from returning to a 6 noncompliant accommodation.” Id. “Just as a disabled individual who intends to return to a 7 noncompliant facility suffers an imminent injury from the facility’s existing or imminently 8 threatened noncompliance with the ADA, a plaintiff who is deterred from patronizing a store 9 suffers the ongoing actual injury of lack of access to the store.” Id. (internal quotation marks and 10 citation omitted). 11 Whitaker alleges that he personally encountered a barrier related to his disability – the 12 alleged inaccessible service counter – and that the barrier deters him from returning to the store. 13 Compl. ¶¶ 8-15, 21. Whitaker also alleges that he frequents the area where the store is located on 14 a regular and ongoing basis, and that he will return to the store once it is represented to him that 15 the store’s facilities are accessible. Compl. ¶¶ 19-20. These allegations are sufficient to establish 16 likelihood of future injury under Chapman. 17 URBN submits evidence that Whitaker lives in Los Angeles and that Anthropologie stores 18 with Design Centers are located near his home. See Buddingh Decl. ¶¶ 2-3, ECF 20-1. URBN 19 argues that this evidence suggests that Whitaker will not return to the Anthropologie store in Palo 20 Alto. URBN’s evidence arguably undermines Whitaker’s allegation that he intends to return to 21 the store. However, the evidence does not undermine his allegation that he personally encountered 22 a barrier that deters him from returning to the store even though he is frequently in the store’s area. 23 The Supreme Court has instructed courts to “take a broad view of constitutional standing” in the 24 ADA context, as “private enforcement suits are the primary method of obtaining compliance with 25 the Act.” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 (9th Cir. 2008) (internal quotation marks 26 and citation omitted). Keeping the Supreme Court’s instruction in mind, the Court finds that 27 Whitaker has established standing to seek injunctive relief under the ADA. 1 2. Whitaker has Stated Claims for Relief 2 The Court next turns to URBN’s motion to dismiss under Rule 12(b)(6). “A motion to 3 dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which 4 relief can be granted tests the legal sufficiency of a claim.” Conservation Force v. Salazar, 646 5 F.3d 1240 , 1241-42 (9th Cir. 2011) (internal quotation marks and citation omitted). While a 6 complaint need not contain detailed factual allegations, it “must contain sufficient factual matter, 7 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 8 U.S. 662 , 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 9 facially plausible when it “allows the court to draw the reasonable inference that the defendant is 10 liable for the misconduct alleged.” Id. 11 When evaluating a Rule 12(b)(6) motion, the district court is limited to consideration of the 12 allegations of the complaint, documents incorporated into the complaint by reference, and matters 13 which are subject to judicial notice. See Louisiana Mun. Police Employees’ Ret. Sys. v. Wynn, 829 14 F.3d 1048, 1063 (9th Cir. 2016). Consequently, although the Court may consider URBN’s 15 evidence when evaluating subject matter jurisdiction, the Court cannot consider that evidence 16 when evaluating the Rule 12(b)(6) motion. None of the evidence submitted by URBN has been 17 incorporated by reference into the FAC, nor is it a proper subject for judicial notice. See Fed. R. 18 Evid. 201(b). 19 To prevail on a claim under Title III of the ADA, a plaintiff must show that (1) he is 20 disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or 21 operates a place of public accommodation; and (3) the plaintiff was denied public 22 accommodations by the defendant because of his disability. See Molski, 481 F.3d at 730. To 23 succeed on an ADA claim based on architectural barriers, the plaintiff “must also prove that: (1) 24 the existing facility presents an architectural barrier prohibited under the ADA; and (2) the 25 removal of the barrier is readily achievable.” Ridola, 2018 WL 2287668 , at *5. “The Unruh Act 26 is coextensive with the ADA.” Molski, 481 F.3d at 731. Thus, to the extent Whitaker has stated a 27 claim under the ADA, he also has stated a claim under the Unruh Act. See id. 1 the ADA and that URBN is a private entity that owns the Anthropologie store in question. 2 However, URBN argues that Whitaker has not alleged facts showing that he was denied public 3 accommodations because of his disability. Specifically, URBN contends that Whitaker has not 4 alleged facts showing that the alleged barrier is a service counter governed by the ADA or what 5 defects in the service counter deprived him of rights protected by the ADA. URBN likens this 6 case to Tesla, in which the Ninth Circuit found that Whitaker had failed to state an ADA claim 7 based on allegedly inaccessible service counters. See Tesla, 985 F.3d at 1177 . 8 URBN’s reliance on Tesla is misplaced. In that case, the Ninth Circuit observed that 9 Whitaker had alleged that Tesla “failed to provide accessible service counters” but had not 10 explained how the counters deprived him of full and equal access to the Tesla facility. See Tesla, — 11 — 985 F.3d at 1177 . The Ninth Circuit summarized the pleading deficiency as follows: 12 The complaint failed to answer basic questions: Were the service counters too low? Or too high? Were they positioned in an area that was inaccessible for another 13 reason? Without this sort of factual detail, the district court and Tesla were left in the dark about how the service counters denied Whitaker from full and equal 14 enjoyment of the premises. — 15 — Id. 16 In contrast, Whitaker alleges specific facts that inform URBN how he was denied full and 17 equal enjoyment of the premises. He alleges that he went to the store to shop and to consult at the 18 Design Center; the Design Center provides services at a “service counter” where customers can 19 meet with the store’s home stylist; the service counter is not accessible to wheelchair users 20 because it is 40 inches high rather than 36 inches high; and he personally encountered this barrier. 21 Compl. ¶¶ 8-9, 11-15. Whitaker identifies the specific regulations that he alleges are violated by 22 the service counter. Compl. ¶ 25. These allegations are sufficient to inform URBN of the basis 23 for Whitaker’s claim. 24 URBN argues that the claim is insufficient because Whitaker does not allege that the 25 height of the alleged service counter prevented him from doing business in the store. Based on the 26 Cowan declaration, URBN argues that the alleged barrier in fact is not a service counter, and that 27 Whitaker could have obtained a design consultation in a home showroom area. The Court cannot 1 The Court concludes that Whitaker has stated a claim for relief under the ADA. Because 2 || the Unruh Act is coextensive with the ADA, “[a]ny violation of the ADA necessarily constitutes a 3 violation of the Unruh Act.” Molski, 481 F.3d at 731. 4 URBN’s motion to dismiss the FAC under Rule 12(b)(6) is DENIED. 5 IV. ORDER 6 (1) URBN’s motion to dismiss the FAC is DENIED. 7 (2) URBN shall file an answer to the FAC by February 18, 2022. 8 (3) This order terminates ECF 20. — 9 — — 10 — 11 Dated: January 28, 2022 2 mice) BETH LABSON FREEMAN 13 United States District Judge — 15 — — 16 — = 17 Z 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —