Johnson v. Rosvin, Inc.

[4] 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA [7] 8 SCOTT JOHNSON, Case No. 21-cv-06760-TSH 9 Plaintiff, ORDER RE: MOTION TO REQUIRE 10 v. PLAINTIFF TO ESTABLISH STANDING 11 ROSVIN, INC., Re: Dkt. No. 26 12 Defendant. [13] 14 Plaintiff Scott Johnson brings this case under the Americans with Disabilities Act 15 (“ADA”), 42 U.S.C. §§ 12101 , et seq. and California’s Unruh Act, Cal. Civ. Code §§ 51-53 , to 16 compel Defendant Rosvin, Inc. to provide accessible dining surfaces at Divino Ristorante, located 17 at 968 Ralston Avenue, Belmont, California. Rosvin now moves the Court “to order plaintiff and 18 his lawyer to establish that standing exists to bring this lawsuit.” ECF No. 26. Johnson opposes 19 the motion. ECF No. 32. 20 Federal courts “have an independent obligation to determine whether subject-matter 21 jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., [22] 546 U.S. 500, 514 (2006). Johnson bears the burden of establishing federal subject matter 23 jurisdiction; thus, he must prove his Article III standing to pursue his ADA claim. See Savage v. 24 Glendale Union High Sch., 343 F.3d 1036 , 1039 n.2 (9th Cir. 2003); D’Lil v. Best W. Encina 25 Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 26 555, 560 (1992)) (“A party invoking federal jurisdiction has the burden of establishing that it has 27 satisfied the ‘case-or-controversy’ requirement of Article III of the Constitution [and] standing is a 1 demonstrated (1) an injury in fact that is (a) concrete and particularized and (b) actual or 2 imminent; (2) causation; and (3) a likelihood that a favorable decision will redress the injury. 3 Lujan, 504 U.S. at 560 . 4 Injunctive relief is the only remedy available for a violation of Title III of the ADA. See 5 Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002) (“only injunctive relief is available for 6 violations of Title III.”). To prove his standing to pursue injunctive relief, Johnson must 7 demonstrate “an injury-in-fact and a sufficient likelihood of repeated harm.” Chapman v. Pier 1 8 Imports (U.S.) Inc., 631 F.3d 939, 953 (9th Cir. 2011). Johnson cannot demonstrate a sufficient 9 likelihood of repeated harm, and thus lacks standing, “if he is indifferent to returning to the store 10 or if his alleged intent to return is not genuine.” Id. Thus, to prove his constitutional standing, 11 Johnson must prove he intends, or at least intended, to return. 12 Johnson alleges he went to Divino Ristorante in March, June and July 2021 but Rosvin 13 failed to provide wheelchair accessible outside dining surfaces. Compl. ¶ 10, ECF No. 1. He 14 further alleges he “will return to the Restaurant to avail himself of its goods or services and to 15 determine compliance with the disability access laws once it is represented to him that the 16 Restaurant and its facilities are accessible,” but he “is currently deterred from doing so because of 17 his knowledge of the existing barriers and his uncertainty about the existence of yet other barriers 18 on the site.” Id. ¶ 20. Drawing all reasonable inferences from the complaint’s allegations in 19 Johnson’s favor, he has adequately alleged an intent to return to Divino Ristorante sufficient to 20 support Article III standing. See Civ. Rights Educ. and Enf’t Ctr. v. Hosp. Props. Tr., 867 F.3d 21 1093, 1098-10 (9th Cir. 2017) (holding that plaintiffs sufficiently alleged standing where they 22 alleged they “intend to visit the relevant hotels, but have been deterred from doing so by the 23 hotels’ noncompliance with the ADA. They further allege that they will visit the hotels when the 24 non-compliance is cured.”). 25 However, unlike Civil Rights Education and Enforcement Center, Rosvin brings a factual 26 attack on standing. A factual attack on subject-matter jurisdiction challenges the truth of the 27 allegations that would otherwise invoke federal jurisdiction. Safe Air for Everyone v. Meyer, 373 1 resolve a factual attack on jurisdiction. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Once a 2 moving party makes a factual attack “by presenting affidavits or other evidence properly brought 3 before the court, the party opposing the motion must furnish affidavits or other evidence necessary 4 to satisfy its burden of establishing subject matter jurisdiction.” Savage, 343 F.3d at 1039 n.2. 5 Here, Rosvin’s attack on Johnson’s standing is a declaration from one of its owners, Juan 6 Carlos Vargas, stating that Johnson never visited the restaurant and that any alleged intent to 7 return should therefore be suspect. ECF No. 28. However, the Court finds Vargas’s declaration 8 improper on several grounds: it isn’t signed under penalty of perjury; it contains statements that 9 are factually incorrect (e.g., stating “I recognize Mr. Johnson from the settlement conference that 10 has been conducted in this matter,” when no settlement conference had taken place); and contains 11 inadmissible hearsay (“I have two servers who work with me, neither of them has any recollection 12 of ever seeing Mr. Johnson at Divino.”). 13 In opposition, Johnson submitted a sworn declaration, testifying: “I intend to return at least 14 once after I have been made aware that all barriers have been removed and after the conclusion of 15 the case to test the adequacy of any remedial measures that are taken. I am deterred from 16 returning until this occurs.” Johnson Decl. ¶ 8, ECF No. 32-1. Johnson also states he travels to 17 the Bay Area “sometimes” as an ADA advocate and tester. Id. ¶ 3. 18 The Court finds Johnson’s declaration provides sufficient factual support of his intent to 19 return to Divino Ristorante. Johnson’s statements, though somewhat broad, are made under 20 penalty of perjury and provide direct evidence of his intent. Further, Rosvin did not file a reply 21 and has not presented any argument to rebut Johnson’s declaration. At this stage of the 22 proceedings, and in the absence of evidence that Johnson does not actually intend to return to 23 Divino Ristorante, these statements are enough to support the complaint’s allegations pertaining to 24 standing. See, e.g., Garcia v. Chung Enterprises, L.P., 2021 WL 7285264 , at *5 (N.D. Cal. Dec. 25 14, 2021). 26 Where defendants assert factual attacks on ADA plaintiffs’ standing to bring suit, some 27 courts have permitted evidentiary hearings to evaluate plaintiffs’ intent to return to the public 1 5257868, at *1 (S.D. Cal. Sept. 3, 2020)). The Court acknowledges that a jurisdictional 2 evidentiary hearing could be proper under certain circumstances—for instance, where a 3 declaration is internally inconsistent as to the material jurisdictional facts asserted. Overall, 4 however, the Court agrees that “if an ADA plaintiff is going to be disbelieved on the issue of 5 standing, it should be in the context of factfinding, not in the context of a Rule 12(b)(1) motion.” [6] Id. (brackets omitted). 7 Here, given Johnson’s asserted intent to return to Divino Ristorante and the absence of 8 direct evidence rebutting that intent, an evidentiary hearing is not warranted. That said, the Court 9 is under a continuing obligation to ensure subject matter jurisdiction exists over Johnson’s claims 10 at all times. At the same time, the Court recognizes that the relevant facts are in dispute, yet 11 discovery is currently stayed under General Order 56. In situations such as this, “where pertinent 12 facts bearing on the question of jurisdiction are in dispute, discovery should be allowed” to test the 13 veracity of the jurisdictional allegations. Am. W. Airlines, Inc. v. GPA Grp., Ltd., 877 F.2d 793 , 14 801 (9th Cir. 1989) (stating that district court has discretion to grant discovery where there is a 15 dispute regarding the court’s subject matter jurisdiction). Accordingly, the Court will allow both 16 parties the opportunity to conduct limited discovery bearing on the jurisdictional facts in this case. 17 Should subsequent facts arise in the course of discovery that would provide a direct basis to doubt 18 Johnson’s sworn statements of his intentions to return to Divino Ristorante, Rosvin is welcome to 19 renew its standing challenge at that point. See, e.g., Whitaker v. Peet’s Coffee, Inc., 2022 WL 20 1189888, at *5 (N.D. Cal. Apr. 21, 2022) (denying motion to dismiss ADA case on standing 21 grounds but recognizing that subsequent facts might arise in discovery that warrant a renewed 22 motion to dismiss) (citing Brooke v. Kashl Corp., 362 F. Supp. 3d 864 , 876 n.3 (S.D. Cal. 2019)). 23 For the reasons stated above, Rosvin’s motion “to order plaintiff and his lawyer to 24 establish that standing exists to bring this lawsuit.” is DENIED WITHOUT PREJUDICE. The 25 Court ORDERS the parties to meet and confer to establish a plan for limited jurisdictional 26 discovery, including the taking of Johnson’s deposition. This limited discovery period shall not 27 exceed 60 days. If Rosvin subsequently chooses to file a motion to dismiss for lack of subject 1 to test the veracity of the jurisdictional allegations. 2 IT IS SO ORDERED. [3] 4 Dated: June 6, 2022 5 TAA. | 6 THOMAS S. HIXSON United States Magistrate Judge [13] © [16] = 17 Z 18