1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CHRIS LANGER, No. 2:21-cv-00328-JAM-KJN 10 Plaintiff, 11 v. ORDER GRANTING DEFENDANT’S

AMENDED MOTION TO DISMISS

12 HV GLOBAL GROUP, INC., a Delaware Corporation, 13 Defendant. 14 15 Chris Langer (“Plaintiff” or “Langer”) sued HV Global Group, 16 Inc. (“Defendant”), alleging violations of Title III of the 17 Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et 18 seq. and the California Unruh Civil Rights Act (“Unruh Act”), 19 Cal. Civ. Code §§ 51-53. See Compl., ECF No. 1. 20 Defendant moves to dismiss Plaintiff’s claims for lack of 21 standing and for failure to state a claim upon which relief can 22 be granted. See Amended Mot. to Dismiss (“Amended Mot.”), ECF 23 No. 11. Plaintiff opposes the motion. See Opp’n, ECF No. 13. 24 Defendants replied. See Reply, ECF No. 15. For the reasons set 25 forth below, the Court GRANTS Defendant’s motion to dismiss.1 26

27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for August 24, 2021. 1 I. BACKGROUND 2 Langer suffers from permanent partial hearing loss, for 3 which he uses several assistive listening devices, such as 4 hearing aids or headphones. Compl. ¶ 1. Because of his 5 disability, Langer relies on “subtitles and closed captioning to 6 hear audio in recorded content.” Id. ¶ 11. In February 2021, 7 Langer visited Defendant’s website with the root domain 8 “hyattresidenceclub.com/home.html” (“Website”) to access 9 information about the Hyatt Residence Club. Id. ¶¶ 4, 15. In 10 viewing the website, Langer wished “to confirm the business was 11 open, review any policies regarding customer safety, and look for 12 information about the company and its vacation programs.” Id. 13 ¶ 15. While perusing the Website, Langer encountered video 14 content without closed captioning, which he alleges “made him 15 unable to fully understand and consume the contents of the 16 videos.” Id. ¶ 16. As a result, he alleges he was “deterred 17 from further use of the Website” in violation of his rights under 18 the ADA and Unruh Act. Id. ¶ 17. Langer filed suit in February 19 2021. See Compl. 20 21 II. OPINION 22 A. Judicial Notice 23 Federal Rule of Evidence 201 allows the Court to notice a 24 fact if it is “not subject to reasonable dispute,” such that it 25 is “generally known” or “can be accurately and readily 26 determined from sources whose accuracy cannot reasonably be 27 questioned.” Fed. R. Evid. 201(b). The Court must take 28 judicial notice “if requested by a party and supplied with the 1 necessary information.” Fed. R. Evid. 201(d). The Court need 2 not, however, take notice of facts that do not provide any 3 additional relevant information. See Adriana Int'l Corp. v. 4 Thoeren, 913 F.2d 1406, 1410 n.2 (9th Cir. 1990) (declining to 5 take judicial notice of another action "not relevant" to the 6 case); Neylon v. Cty. of Inyo, No. 1:16-CV-0712-AWI-JLT, 2016 WL 7 6834097, at *4 (E.D. Cal. Nov. 21, 2016) (”[I]f an exhibit is 8 irrelevant or unnecessary to deciding the matters at issue, a 9 request for judicial notice may be denied.”) 10 Defendant asks the Court to take judicial notice of 11 Plaintiff’s past litigation history. Amended Mot. at 1. 12 Defendant did not, however, supply any information in support of 13 its request, such as a list of the relevant suits. Instead, 14 Defendant asks the Court to take notice based on Defendant’s 15 assertion that Plaintiff has “filed at least 32 lawsuits in both 16 federal and state courts all over California.” Id. This does 17 not satisfy the “necessary information” requirement under 18 Rule 201(d). Further, an ADA tester’s litigation history is not 19 relevant to the merits of his case. D’Lil v. Best W. Encina 20 Lodge & Suites, 538 F.3d 1031, 1040 (9th Cir. 2008) (“[W]e 21 cannot agree that [plaintiff’s] past ADA litigation was properly 22 used to impugn her credibility”). For these reasons, the Court 23 declines to take judicial notice of Plaintiff’s litigation 24 history. 25 Plaintiff has requested the Court take judicial notice of 26 relevant pages of Defendant’s Website, submitted as Exhibits 1- 27 3. See Pl.’s Req. for Judicial Notice (“RJN”), ECF No. 14. 28 Websites and their contents are proper subjects for judicial 1 notice. Threshold Enterprises Ltd. v. Pressed Juicery, Inc., 2 445 F.Supp.3d 139, 146 (N.D. Cal. 2020). The Court may also 3 consider documents attached to the complaint or documents that 4 the complaint necessarily relies upon. United States v. 5 Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Thus, the Court 6 grants Plaintiff’s request for judicial notice of Exhibits 1-3. 7 B. Legal Standard 8 Federal Rule of Civil Procedure 12(b)(1) governs a motion 9 to dismiss for lack of standing, as standing pertains to a 10 federal court’s subject matter jurisdiction under Article III. 11 White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Under 12 Rule 12(b)(1), when the Court finds a lack of Article III 13 standing, the Court must dismiss for lack of subject matter 14 jurisdiction. Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th 15 Cir. 2011). Defendant argues that Plaintiff failed to assert 16 allegations sufficient on their face to invoke federal 17 jurisdiction. Amended Mot. at 7. This constitutes a facial 18 attack under Rule 12(b)(1). White, 227 F.3d at 1242. To rule 19 on a facial attack, the Court “must assume the allegations in 20 the complaint are true and draw all reasonable inferences in the 21 plaintiff’s favor.” Ryan v. Salisbury, 382 F. Supp. 3d 1062, 22 1073 (D. Haw. 2019) (citing Wolfe v. Strankman, 392 F.3d 358, 23 362 (9th Cir. 2004)). Because Plaintiff is the party asserting 24 federal subject-matter jurisdiction, he has the burden of 25 establishing its existence. Kokkonen v. Guardian Life Ins. Co. 26 of Am., 511 U.S. 375, 377, (1994). 27 C. Standing Under the ADA 28 Defendant moves to dismiss Plaintiff’s complaint for lack 1 of standing under the ADA. Because standing is a “threshold 2 question” in “determining the power of the court to entertain 3 the suit,” the Court addresses this issue first. Warth v. 4 Seldin, 422 U.S. 490, 498 (1975). To establish standing, a 5 plaintiff must show he “(1) suffered an injury in fact, (2) that 6 is fairly traceable to the challenged conduct of the defendant, 7 and (3) that is likely to be redressed by a favorable judicial 8 decision." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547, 9 (2016). 10 In ADA claims, the only remedy available to the plaintiff 11 is injunctive relief, and Article III standing for injunctive 12 relief requires the plaintiff to establish a “real and immediate 13 threat of repeated injury.” Fortyune v. Am. Multi-Cinema, Inc., 14 364 F.3d 1075, 1081 (9th Cir. 2004). In the Ninth Circuit, an 15 ADA plaintiff may establish standing "either by demonstrating 16 deterrence, or by demonstrating injury-in-fact coupled with an 17 intent to return to a noncompliant facility." Chapman v. Pier 1 18 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011). When a 19 plaintiff alleges “an ADA violation based on unequal access to a 20 ‘service’ of a place of public accommodation, courts have held 21 that a plaintiff must allege that there is a ‘nexus’ between the 22 challenged service and the place of public accommodation.” 23 Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946, 952 24 (N.D. Cal. 2006). 25 A website is a type of service that may be offered by a 26 public accommodation, and, as a service, a website is not a 27 place of public accommodation without some nexus to a physical 28 location where goods and services are offered to the public. 1 Id. Thus, for accessibility barriers on a website to form the 2 basis of ADA standing, that website must have “connect[ed] 3 customers to the goods and services of [the defendant’s] 4 physical [locations].” Robles v. Domino's Pizza, LLC, 913 F.3d 5 898, 905-06 (9th Cir. 2019) (discussing how the alleged 6 inaccessibility of Domino’s website and app impeded access to 7 the goods and services of its physical pizza franchises.); See 8 also Nat’l Fed’n of the Blind, 452 F.Supp.2d at 955 (where 9 “plaintiffs have alleged that the inaccessibility of Target.com 10 denies the blind the ability to enjoy the services of Target 11 stores.”) A plaintiff who does not allege a connection between 12 an inaccessible website and a physical location does not have 13 standing under the ADA. See Brooks v. See’s Candy, No. 2:20-cv- 14 01236-MCE-DB, 2021 WL 3602153, at *11 (E.D. Cal. Aug. 12, 2021) 15 (holding plaintiff failed to state an ADA claim because she 16 failed to “identify any comparable integration between the See's 17 website and its physical stores.”). 18 Defendant argues Plaintiff has failed to do exactly that. 19 Defendant points out that “Plaintiff makes no attempt to allege 20 that he was trying to access a service of a physical location.” 21 Amended Mot. at 7-8. Plaintiff objects to this 22 characterization, pointing to Paragraph 14 of his complaint, 23 which states, “[he] was a prospective customer who wished to 24 access Defendant’s goods and services.” Opp’n. at 6; Compl. 25 ¶ 14. Plaintiff’s allegation, however, does not specify that he 26 wished to access the goods and services of a physical location. 27 Rather, his contentions about accessibility are limited to 28 Defendant’s Website. In Plaintiff’s own words, he contends that 1 “[i]f the Website had been constructed equally accessible to all 2 individuals, Plaintiff would have been able to navigate the 3 website [sic] and avail himself of its goods and/or services.” 4 Compl. ¶ 24 (emphasis added). Thus, to the extent Plaintiff 5 alleged he wished to access goods and services, they were the 6 goods and services of Defendant’s Website. Without more, 7 Plaintiff’s allegations that he could not access certain parts 8 of Defendant’s Website because of the lack of closed captioning 9 is not sufficient to allege standing under the ADA. 10 As a result, Plaintiff lacks standing because he has not 11 sufficiently alleged that he was deterred from a place of public 12 service or demonstrated an injury-in-fact coupled with an intent 13 to return to the noncompliant facility. Accordingly, 14 Plaintiff’s ADA claim is dismissed without prejudice. See 15 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th 16 Cir. 1003).2 17 D. Unruh Act Claim 18 The only remaining claim is Plaintiff’s state law Unruh Act 19 claim. Having dismissed Plaintiff’s only federal claim for lack 20 of subject matter jurisdiction, the Court declines to exercise 21 supplemental jurisdiction and dismisses the state law claim. 22 Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 806 23 (9th Cir. 2001). Accordingly, Plaintiff’s Unruh claim is 24 dismissed without prejudice. See Eminence Capital, LLC, 316 25 F.3d at 1052. 26 /// 27 2 Because the Court finds dismissal is warranted under 12(b)(1), 28 it does not address Defendant’s 12(b)(6) arguments. eee eee I IRE EIR EIEIO EE OS OSE ED EE

1 Til. SANCTIONS 2 This Court issued its Order re Filing Requirements (“Filing 3 Order”) on February 22, 2021. ECF No. 3-2. The Filing Order 4 limits reply memoranda to five pages. Filing Order at 1. The 5 Filing Order also states that an attorney who exceeds the page 6 limit must pay monetary sanctions of $50 per page. Id. 7 Defendant exceeded the Court’s five-page limit on reply 8 memoranda by two pages. See Reply. The Court therefore ORDERS 9 Defendant’s counsel to pay $100.00 to the Clerk for the Eastern 10 District of California no later than seven days from the date of 11 this Order. 12 13 Iv. ORDER 14 For the reasons set forth above, the Court DISMISSES WITHOUT 15 PREJUDICE Plaintiff’s claims under the ADA and Unruh Civil Rights 16} Act. If Plaintiff elects to amend his complaint with respect to 17 these claims, he must do so within twenty (20) days of this 18 Order. Defendant’s responsive pleading is due twenty (20) days 19 thereafter. 20 IT IS SO ORDERED. 21 Dated: October 12, 2021 22 Me 23 Benlek, sunk 24 25 26 27 28