1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VERN ROBERT THEROUX JR. Case No.: 19-cv-1902-CAB-AHG

12 Plaintiff,

ORDER DECLINING

13 v. SUPPLEMENTAL JURISDICTION

OVER STATE LAW CLAIM

14 LOURDES MEXICAN FOOD, INC. 15 Defendant. 16 17 The complaint in this action asserts one claim under federal law for violation of the 18 Americans with Disabilities Act (“ADA”), along with a claim for violation of California’s 19 Unruh Act. The complaint asserts jurisdiction based on the existence of a federal question 20 (the ADA claim), and supplemental jurisdiction over the state claim. 21 Federal courts have the discretion to exercise supplemental jurisdiction over all 22 claims that are “so related to claims in the action within such original jurisdiction that they 23 form part of the same case or controversy under Article III of the United States 24 Constitution.” 28 U.S.C. § 1367(a). Even if supplemental jurisdiction exists, however, 25 district courts may decline to exercise supplemental jurisdiction over a claim if: (1) it raises 26 a novel or complex issue of state law; (2) it substantially predominates over the claim(s) 27 over which the court has original jurisdiction; (3) the court has dismissed all claims over 28 which it has original jurisdiction; or (4) there are other compelling reasons for declining 1 jurisdiction. 28 U.S.C. § 1367(c). The Supreme Court has identified additional factors that 2 district courts should consider when deciding whether to exercise supplemental 3 jurisdiction, “including the circumstances of the particular case, the nature of the state law 4 claims, the character of the governing state law, and the relationship between the state and 5 federal claims.” City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997). 6 “While discretion to decline to exercise supplemental jurisdiction over state law 7 claims is triggered by the presence of one of the conditions in § 1367(c), it is informed by 8 the Gibbs1 values ‘of economy, convenience, fairness, and comity.’” Acri v. Varian 9 Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc) (citations omitted). A district 10 court need not “articulate why the circumstances of [the] case are exceptional” to dismiss 11 state-law claims pursuant to 28 U.S.C. section 1367(c)(1)-(3). San Pedro Hotel Co., Inc. 12 v. City of L.A., 159 F.3d 470, 478–79 (9th Cir. 1998) (citation omitted). 13 Here, the complaint states a federal claim for violation of the ADA, along with a 14 state law claim for violation of the Unruh Act. As a result, while the ADA does not entitle 15 a plaintiff to recover damages, the complaint seeks statutory damages under the Unruh Act. 16 Meanwhile, the same injunctive relief available under the ADA is also available under the 17 Unruh Act. See Schutza v. Cuddeback, 262 F. Supp. 3d 1025, 1031 (S.D. Cal. 2017) 18 (noting that “[i]t is unclear what advantage—other than avoiding state-imposed pleading 19 requirements—Plaintiff gains by being in federal court since his sole remedy under the 20 ADA is injunctive relief, which is also available under the Unruh Act.”). Thus, the state 21 claim and the issues related thereto substantially predominate over the ADA claim, which 22 appears to be a secondary claim included to justify filing the complaint in this Court, rather 23 than a necessary (let alone predominant) claim in this lawsuit. See Rutherford v. Ara 24 Lebanese Grill, No. 18-CV-01497-AJB-WVG, 2019 WL 1057919, at *3 (S.D. Cal. Mar. 25 6, 2019) (declining supplemental jurisdiction over Unruh Act claim because Unruh Act 26 27 28 1 claim substantially predominated over ADA claim). 2 In addition, the important interest of comity supports declining jurisdiction. See 3 United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (holding that comity is a factor 4 to be considered before exercising supplemental jurisdiction). California has a strong 5 interest in protecting its citizens and businesses from abusive litigation and also in 6 preventing its own laws from being misused for unjust purposes. In 2012, in an attempt to 7 deter baseless claims and vexatious litigation, California adopted heightened pleading 8 requirements for disability discrimination lawsuits under the Unruh Act. See Cal. Civ. 9 Proc. Code § 425.502; SB 1186, Chapter 383 § 24 (Ca. 2012). Mr. Theroux, who describes 10 himself as a “tester” in the complaint, has filed eleven disability discrimination cases in 11 this court over the past year, and an online search of San Diego County Superior Court 12 records reveals that Mr. Theroux filed over twenty lawsuits in that court in 2019 alone. 13 Accordingly, the need for California’s procedural protections appears particularly acute. 14 Finally, “federal courts may properly take measures to discourage forum shopping.” 15 Rutherford v. Econolodge, No. 18CV1471-LAB (JMA), 2019 WL 950329, at *3 (S.D. Cal. 16 Feb. 27, 2019) (citing Hanna v. Plumer, 380 U.S. 460, 467–68 (1965)); Schutza v. 17 Cuddeback, 262 F. Supp. 3d at 1031 (holding that plaintiff who had filed numerous ADA 18 actions in federal court was engaging in forum shopping “to avoid California’s heightened 19 pleading requirements for disability discrimination claims.”). “[I]t would be improper to 20 allow Plaintiff to use the federal court system as a loophole to evade California’s pleading 21 requirements.” Rutherford v. Ara Lebanese Grill, 2019 WL 1057919, at *5. “Therefore, 22 as a matter of comity, and in deference to California’s substantial interest in discouraging 23 unverified disability discrimination claims, the Court declines supplemental jurisdiction 24

25 26 2 Under the Unruh Act a plaintiff alleging disability discrimination must include in his complaint: (1) an explanation of the specific access barrier or barriers encountered; (2) the way in which the barrier denied 27 the individual full and equal access, or in which it deterred the individual on each particular occasion. (3) the date/s when the claimant encountered the specific barriers. The section also contains additional 28 1 || over Plaintiff's [state law claims].” Schutza v. Cuddeback, 262 F. Supp. 3d at 1031. 2 In sum, because (1) Plaintiffs state law claim predominates over his federal claim 3 || under the ADA, and (2) the interests of comity and discouraging forum shopping constitute 4 ||exceptional circumstances, the Court sua sponte declines supplemental jurisdiction over 5 ||claim two in the complaint. Claim two is DISMISSED WITHOUT PREJUDICE to 6 || refiling in state court. 7 It is SO ORDERED. 8 ||Dated: October 4, 2019 (if 9 Hon. Cathy Ann Bencivengo 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28