1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 SCOTT JOHNSON, Case No. 4:21-cv-03710-YGR

7 Plaintiff, ORDER TO SHOW CAUSE RE: ARTICLE III v.

STANDING; SUPPLEMENTAL JURISDICTION

8

Re: Dkt. No. 16 9 ARS HOSPITALITY LLC, Defendant. 10

11 Plaintiff Scott Johnson has sued for alleged violations of the Americans with Disabilities 12 Act, 42 U.S.C. § 12101, et seq. (the “ADA”) and California’s Unruh Civil Rights Act, Cal. Civ. 13 Code § 51, et seq. (the “Unruh Act”). This case was reassigned to the undersigned with a pending 14 motion for default judgment. (Dkt. Nos. 16, 18.) 15 Having preliminarily considered the pleading in this case, the Court is concerned that 16 plaintiff has not sufficiently alleged standing for his ADA claim to support the issuance of default 17 judgment. Additionally, exceptional circumstances appear to support declining supplemental 18 jurisdiction over the Unruh Act claim. Accordingly, plaintiff is HEREBY ORDERED TO SHOW 19 CAUSE in writing by no later than November 10, 2022, why he has standing and why the Court 20 should continue to exercise supplemental jurisdiction over the Unruh Act claim. 21 The Court assumes plaintiff’s familiarity with the allegations in his complaint. To have 22 Article III standing, plaintiff must show that he “(1) suffered an injury in fact, (2) that is fairly 23 traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a 24 favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (citations omitted). 25 An injury in fact must be “particularized,” and it must be “concrete.” Id. at 340.1 Notably, 26 1 “Particularized” injuries “affect the plaintiff in a personal and individual way.” Id. 27 (internal quotation marks omitted). Concrete injuries are “physical, monetary, or cognizable 1 “Article III standing requires a concrete injury even in the context of a statutory violation.” 2 TransUnion LLC, 141 S. Ct. at 2205 (citation omitted). “[A]n injury in law is not an injury in 3 fact.” Id. at 2205. “[S]tanding is not dispensed in gross; rather, plaintiffs must demonstrate 4 standing for each claim that they press and for each form of relief that they seek (for example, 5 injunctive relief and damages).” Id. at 2208. 6 In order to obtain injunctive relief under the ADA, plaintiff must also demonstrate “a 7 sufficient likelihood that he will again be wronged in a similar way.” Chapman v. Pier 1 Imports 8 (U.S.) Inc., 631 F.3d 939, 948 (9th Cir. 2011) (en banc). Plaintiff “lacks standing if he is 9 indifferent to returning to the store or if his alleged intent to return is not genuine, or if the barriers 10 he seeks to enjoin do not pose a real and immediate threat to him due to his particular disability.” 11 Id. at 953. Under controlling Ninth Circuit law, a plaintiff can satisfy this requirement in one of 12 two ways. First, a plaintiff satisfies the requirement by showing an “inten[tion] to return to a 13 noncompliant place of public accommodation where [the plaintiff] will likely suffer repeated 14 injury.” Id. Second, the standing requirement is satisfied when a plaintiff is “deterred from 15 visiting a noncompliant public accommodation” because of previously-encountered barriers 16 related to the disability. Id. at 949. Thus, ADA plaintiffs can demonstrate standing “either by 17 demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a 18 noncompliant facility.” Id. at 944. Underlying both theories is the plausibility that plaintiff will or 19 would return to the noncompliant facility. 20 This Court has previously dismissed cases by plaintiff for insufficiently pleading standing. 21 See Johnson v. DK Hawaiian BB, Inc., No. 21-cv-09272, ECF No. 41 (N.D. Cal. June 24, 2022). 22 Similar concerns are implicated here. As this Court has explained before, pleading is 23 appropriately governed by the plausibility standard where formulaic recitations of jurisdictional 24 allegations are insufficient. See, e.g., Dart Cherokee Basin Operating Co., LLC v. Owens, 574 25

26 “close relationship” analysis, in which the “inquiry [is] whether plaintiffs have identified a close historical or common-law analogue for their asserted injury.” Id. at 2204. “Those include, for 27 example, reputational harms, disclosure of private information, intrusion upon seclusion . . . [and] 1 U.S. 81 (2014) (applying plausibility standard to subject matter jurisdiction); Ashcroft v. Iqbal, 2 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). TransUnion LLC v. 3 Ramirez, 141 S. Ct. 2190 (2021) has changed the legal landscape for standing for statutory 4 violations. Prior to TransUnion, courts would take a “broad view” of standing in civil rights 5 complaints enforcing statutory violations. Chapman, 631 F.3d at 954; Trafficante v. Metro. Life 6 Ins. Co., 409 U.S. 205, 209 (1972). However, TransUnion, which roots the standing analysis in 7 separation of powers, casts doubt on the proposition that any special pleading requirement applies 8 to civil rights cases premised upon statutory violations. Plausibility controls. 9 Existing case law is instructive for what plaintiff may be able to add to satisfy a 10 plausibility standard. For instance, in Doran v. 7-Eleven, Inc., the plaintiff visited the store on 11 “ten to twenty prior occasions,” it was near his favorite restaurant in the city, and he planned to 12 take annual trips to the city. 524 F.3d 1034, 1040 (9th Cir. 2008). In Pickern v. Holiday Quality 13 Foods Inc., the plaintiff preferred the defendant’s market chain over others. 293 F.3d 1133, 1138 14 (9th Cir. 2002). Such factual allegations are in plaintiff’s possession and control and may tip the 15 scale from conceivable to plausible for purposes of the standing inquiry, consistent with Rule 11 16 obligations. Here, the complaint is filed with conclusory recitations of the standing elements, with 17 no factual enhancement to support any intent to return, on any theory. Any default judgment 18 would be void for lack of subject matter jurisdiction. 19 At this juncture, plaintiff must demonstrate why his complaint should not be dismissed 20 with leave to amend and the motion for default judgment denied as moot. Failure to timely file a 21 response to this order to show cause will be construed as a concession that plaintiff does not have 22 standing to seek injunctive relief and that dismissal of the entire action is appropriate. 23 In addition, plaintiff is HEREBY ORDERED TO SHOW CAUSE why the Court should not 24 decline supplemental jurisdiction over the Unruh Act claim. A federal court may decline to 25 exercise supplemental jurisdiction over a state law claim “in exceptional circumstances.” 28 26 U.S.C. § 1367(c)(4). Supplemental jurisdiction “is a doctrine of discretion, not of plaintiff’s 27 right.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). When a “high- 1 ADA claim, this constitutes an exceptional circumstance that justifies dismissal of the Unruh Act 2 claim. See, e.g., Arroyo v. Rosas, 19 F.4th 1202, 1211-14 (9th Cir. 2021); Vo v. Choi, No. No. 20- 3 55737, -- F.4th --, 2022 WL 4362289 (9th Cir. Sept. 21, 2022); Garcia v. Maciel, No. 21-cv- 4 03743-JC, 2022 WL 395316 (N.D. Cal. Feb. 9, 2022); but see Lammey v. Plaza Segundo, LLC, 5 No. 20-55070, 2022 U.S. App. LEXIS 16457, 2022 WL 2128900 (9th Cir. June 14, 2022) 6 (declining supplemental jurisdiction inappropriate after default judgment is granted). Based upon 7 this Court’s prior orders with plaintiff, there is no doubt that plaintiff in this case views these 8 lawsuits as a mission-based business that seeks to avoid California’s heightened pleading 9 standards and cash settlements.2 Having balanced the interests in federal-state comity, 10 convenience, fairness, and judicial economy at this early juncture of the litigation before default 11 judgment has been entered, the Court finds that exceptional circumstances appear to exist that 12 justify declining jurisdiction over the Unruh Act claim. 13 Accordingly, plaintiff must explain in writing why the Court should not decline 14 supplemental jurisdiction. Failure to respond to this order to show cause will be construed as a 15 concession that exceptional circumstances support declining supplemental jurisdiction. 16 IT IS SO ORDERED. 17 Dated: October 26, 2022 ______________________________________ 18

YVONNE GONZALEZ ROGERS

19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 2 Under the Unruh Act, plaintiffs are entitled to $4,000 in statutory damages plus 27 attorneys’ fees. Accordingly, from a business perspective, assuming a base payment of $4,000,