ALEX G. TSE United States Magistrate Judge
ORDER GRANTING MOTION TO DISMISSRe: Dkt. Nos. 5, 7, 12
Peter Strojnik filed this disability discrimination case against BW RRI II, LLC, a company that owns a Red Roof Plus hotel in Burlingame, California. Currently before the Court is BW's motion to dismiss the case for lack of subject-matter jurisdiction. For the reasons that follow, the motion is granted with leave to amend.
1. For two reasons, discussed further below, BW asserts that the allegations in Strojnik's complaint are insufficient to support his standing to sue for violations of the Americans with Disabilities Act. Because BW's arguments focus on the allegations, the motion is best construed as a facial attack on Strojnik's standing. On a facial attack, the record is limited to the complaint and materials that may be judicially noticed. See Hyatt v. Yee, 871 F.3d 1067, 1071 n.15 (9th Cir. 2017). The Court must accept Strojnik's allegations as true, draw all reasonable inferences in his favor, and determine whether his allegations are sufficient to support standing. See id.
At BW's request, the Court takes judicial notice of a Google map and judicial records that BW filed with its motion to dismiss. See ECF No. 7. Courts may take judicial notice of maps and judicial records. See United States v. Perea-Rey, 680 F.3d 1179, 1182 n.1 (9th Cir. 2012); Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006).
2. To satisfy Article III's injury-in-fact requirement, Strojnik must not only identify accessibility barriers at the Burlingame Red Roof Plus, he must also explain how those barriers deprived him of "full and equal enjoyment of the facility on account of his particular disability." Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 947 (9th Cir. 2011) (emphasis added).
As BW correctly notes, Strojnik hasn't satisfied this second requirement. His complaint includes nine photographs of the hotel, seven of which are labeled with brief descriptions of why the features shown constitute accessibility barriers for persons with disabilities (e.g., a photo of washing machines is labeled "[i]mproper reach range," a photo of a desk is labeled "[i]naccessible check in counter"). ECF No. 1, Compl., add. A. No attempt is made to explain how these barriers prevented Strojnik from enjoying the hotel on account of his particular disabilities. (Which are a spinal condition, prostate and renal cancer, and a prosthetic right knee. See Compl. ¶ 3.)
Because Strojnik hasn't explained how he was harmed by the hotel's accessibility barriers, he hasn't sufficiently alleged an injury-in-fact. And on this ground, dismissal of his ADA claim is warranted. See Chapman, 631 F.3d at 954 (instructing the district court, upon remand, to dismiss the plaintiff's ADA claim for lack of standing because the plaintiff "[did] not even attempt to relate the alleged violations to his disability"). Strojnik may be able to cure this pleading defect, so he has leave to amend his complaint.
3. Under the ADA, Strojnik is limited to seeking injunctive relief. See Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011). As a consequence, he must prove not only an injury-in-fact, but also "a real and immediate threat of repeated injury in the future." Chapman, 631 F.3d at 946 (internal quotation marks omitted). He may satisfy this second requirement if he is deterred from visiting the Burlingame Red Roof Plus because of its accessibility barriers and if he intends to visit the hotel after the barriers are removed. See Civil Rights Educ. & Enf't Ctr. v. Hosp. Props. Tr. (CREEC), 867 F.3d 1093, 1098-99 (9th Cir. 2017).
Strojnik's complaint includes allegations of this kind: he alleges that he visited the hotel in 2019, encountered accessibility barriers there, is deterred from visiting again because of those barriers, and intends to return when the barriers are removed. See Compl. ¶¶ 11-12, 15-19. BW, however, argues that these allegations are too conclusory. Noting that the hotel is more than 730 miles from Strojnik's home, BW maintains that more detail is needed to support Strojnik's intent to visit the hotel after the accessibility barriers are removed.
Since the Ninth Circuit's decision in CREEC, 867 F.3d 1093, district courts within the circuit have split over how much detail is needed to sufficiently allege deterrence and post-remediation intent to visit. Compare Strojnik v. 574 Escuela, LLC, No. 18-CV-06777 JD, 2020 WL 1557434, at *3-4 (N.D. Cal. Mar. 31, 2020) (interpreting CREEC as permitting general allegations of deterrence and intent to visit), with Strojnik v. Bakersfield Convention Hotel I, LLC, 436 F. Supp. 3d 1332, 1341-43 (E.D. Cal. 2020) (holding that even after CREEC, more detailed allegations are needed, such as allegations that the plaintiff used to frequent the defendant's hotel or has concrete plans to visit the area near the hotel).
Assuming, without deciding, that more detail than what Strojnik has provided is not required to defeat a facial challenge to standing, there is nevertheless good reason to require more detail in this case. As has been documented elsewhere, Strojnik is known for filing boilerplate complaints against small businesses for ADA violations, and for demanding attorney's fees even if the businesses don't remedy the alleged violations. Due to these practices, which were referred to as "extortionate" and "ethically suspect," he was disbarred in Arizona. State Bar of Arizona, Disbarment Detail Link, https://azbar.legalserviceslink.com/attorneys-view/PeterStrojnik (last visited September 1, 2020). He was also recently declared a vexatious litigant in this district and in another district within the circuit. See Strojnik v. IA Lodging Napa First LLC, No. 19-CV-03983 DMR, 2020 WL 2838814, at *6-13 (N.D. Cal. June 1, 2020); Strojnik v. SCG Am. Constr. Inc., No. 19-CV-1560 JVS, 2020 WL 4258814, at *6-8 (C.D. Cal. Apr. 19, 2020). Given the volume of cases Strojnik has filed (numbering in the thousands according to the Arizona Bar), and his litigation practices, there is reason to doubt the veracity of his averment that he intends to visit the Burlingame Red Roof Plus after the hotel's accessibility barriers are removed. More likely is that he will try to obtain a monetary settlement and move on.
This district's order declaring Strojnik a vexatious litigant wasn't issued until after Strojnik filed his complaint in this case. As a result, the pre-filing conditions imposed by that order don't apply. If Strojnik files an amended complaint, the Clerk of the Court may accept it without first obtaining approval from the general duty judge. --------
Judicial second guessing of allegations is generally not appropriate at the pleading stage. And yet because standing relates to subject-matter jurisdiction, which federal courts are obligated to confirm, "it is within the trial court's power . . . to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing." Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)); see also Land v. Dollar, 330 U.S. 731, 735 n. 4 (1947) ("[W]hen a question of the District Court's jurisdiction is raised, either by a party or by the court on its own motion, the court may inquire by affidavits or otherwise, into the facts as they exist.") (citations omitted).
The Court exercises this discretion here. If Strojnik chooses to amend his complaint to cure the pleading deficiency identified above, he must also submit evidence supporting his intent to visit the Burlingame Red Roof Plus after the hotel's accessibility barriers are removed. His submission should include evidence of prior visits to the Burlingame area, reasons for visiting the area, concrete plans for future visits to the area, and evidence of prior stays at Red Roof branded hotels. This evidence is necessary to determine if there is subject-matter jurisdiction in the case.
4. Strojnik's complaint also includes several state-law claims against BW. See Compl. ¶¶ 23-41. Because he hasn't established standing to pursue his federal claim, the Court presently has "no authority to retain jurisdiction over [his] state law claims." Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 664 (9th Cir. 2002). The state-law claims are dismissed without prejudice.
* * *BW's motion to dismiss is granted. If Strojnik chooses to amend his complaint, he must file the amendment and the requested evidentiary support by September 30, 2020.
IT IS SO ORDERED. Dated: September 1, 2020
/s/_________
ALEX G. TSE
United States Magistrate Judge
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