1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8

9

10 BRIAN WHITAKER, 11 Plaintiff, No. C 21-09996 WHA

12 v.

13 OLD TOWN SUSHI, INC., ORDER TO SHOW CAUSE 14 Defendant.

15 16 First, federal courts may decline to exercise supplemental jurisdiction over a state law 17 claim “in exceptional circumstances.”

(c)(4). When a “high-frequency” 18 litigant asserts in federal court a claim under the California Unruh Civil Rights Act alongside a 19 claim under the ADA, their “high frequency” status may constitute an exceptional 20 circumstance that justifies dismissal of the Unruh Act claim. Arroyo v. Rosas,

, 21 1211 (9th Cir. 2021); see also Garcia v. Maciel,

, at *2–5 (N.D. Cal. Feb. 9, 22 2022) (Judge Joseph C. Spero). 23 Plaintiff is now ORDERED TO SHOW CAUSE why, assuming, arguendo, subject-matter 24 jurisdiction over the ADA claim exists, a future order should not decline to exercise 25 supplemental jurisdiction over the Unruh Act claim for the reasons stated in Arroyo.

at 1207. 27 In Arroyo, our court of appeals concluded “that the district court did not abuse its 1 circumstances’” sufficient to decline supplemental jurisdiction over an Unruh Act claim, had 2 the court done so at an earlier stage.

(reversing on judicial economy and 3 convenience grounds because when it declined supplemental jurisdiction, the district court had 4 granted judgment to the plaintiff on the ADA claim). 5 In light of the well-pleaded allegations by the San Francisco and Los Angeles District 6 Attorneys regarding the conduct of the Potter Handy firm and its clients, plaintiff’s counsel 7 must submit one or more declaration(s) substantiating, in detail, the allegations that the 8 plaintiff visited the establishment in the first place. See Complaint, People of the State of 9 California v. Potter Handy LLP, No. CGC-22-599079 (Cal. Super. Ct. 2022),

1102496. The declaration must substantiate the jurisdictional allegations as to any “real and 11 immediate threat of repeated injury.” Ervine v. Desert View Reg’l Med. Ctr. Holdings, LLC, 12

(9th Cir. 2014) (cleaned up). This must adequately address plaintiff’s intent 13 to return to the defendant’s establishment. Alternatively, if plaintiff alleges deterrence, 14 counsel’s declaration must describe how and when plaintiff visited the establishment, how and 15 when he was deterred from patronizing it, plaintiff’s intent to return to the geographic area, and 16 finally his desire to return to the facility were it made accessible. See D’Lil v. Best W. Encina 17 Lodge & Suites,

(9th Cir. 2008). 18 Second, with respect to the plaintiff’s ADA claim, federal courts “have an independent 19 obligation to determine whether subject-matter jurisdiction exists, even in the absence of a 20 challenge from any party.” Arbaugh v. Y&H Corp.,

(2006). Consistent with 21 that independent obligation, plaintiff is likewise also ORDERED TO SHOW CAUSE why this case 22 should not be dismissed for lack of Article III standing. Plaintiff must submit a declaration 23 separate from that of counsel. Plaintiff must swear this declaration under penalty of perjury. 24 Just like the declaration of counsel, plaintiff’s declaration must swear to the facts supporting all 25 jurisdictional requirements detailed above that are necessary to support a “real and immediate 26 threat of repeated injury.” Ervine, 753 F.3d at 867–68. 27 Third, assuming that a future order herein finds the jurisdictional allegations contained in 1 discovery. If defendant opts for jurisdictional discovery, it will be permitted to take discovery 2 on plaintiff's intent to return and whether plaintiff did, in fact, personally visit defendant’s 3 establishment in the first place. Regardless of whether jurisdictional discovery takes place, an 4 in-person evidentiary hearing will likely be scheduled to test the veracity of the jurisdictional 5 allegations submitted in response to this order to show cause. 6 Plaintiff and counsel must respond by MAY 19, 2022. Failure to respond will result in a 7 dismissal of this action with prejudice. 8 IT IS SO ORDERED. 9 Dated: May 5, 2022. A Pee 11 = ILLIAM ALSUP 12 UNITED STATES DISTRICT JUDGE

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