1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN WHITAKER, Case No. 21-cv-07867-EMC

8 Plaintiff, ORDER TO SHOW CAUSE 9 v.

10 CUMAICA CORPORATION, 11 Defendant.

12 13 14 Plaintiff Brian Whitaker has sued Defendant Cumaica Corporation for violations of the 15 Americans with Disabilities Act and the California Unruh Civil Rights Act. Mr. Whitaker alleges 16 that he is a quadriplegic who uses a wheelchair for mobility and that, in September 2021, he went 17 to Cumaica Coffee (which is owned by Cumaica Corporation and is located in San Francisco), but 18 it did not have “wheelchair accessible dining surfaces in conformance with the ADA Standards.” 19 Compl. ¶ 10 (specifying that one problem encountered was “insufficient toe and knee clearance 20 under the dining surfaces”). According to Mr. Whitaker, he

21 will return to Cumaica Coffee to avail himself of its goods or services and to determine compliance with the disability access laws 22 once it is represented to him that Cumaica Coffee and its facilities are accessible. Plaintiff is currently deterred from doing so because 23 of his knowledge of the existing barriers and his uncertainty about the existence of yet other barriers on the site. If the barriers are not 24 removed, the plaintiff will face unlawful and discriminatory barriers again. 25 26 Compl. ¶ 20. 27 Currently, Mr. Whitaker has a motion for default judgment pending with the Court. That 1 the hearing on the motion for default judgment and issues the following ORDER TO SHOW 2 CAUSE. See, e.g., Johnson v. T&V Investment, Inc., No. C-21-9060 VC (N.D. Cal.) (Docket No. 3 26) (order to show cause). 4 First, with respect to the ADA claim, Mr. Whitaker is ordered to show cause as to why the 5 claim should not be dismissed for lack of Article III standing. See Arroyo v. Rosas,

, 6 1211 (U.S. 9th Cir. 2021) (“Congress crafted the ADA so that the only remedy available in private 7 suits is prospective injunctive relief, and damages are only available in suits that the Government 8 elects to bring.”); Chapman v. Pier 1 Imps. (U.S.), Inc.,

(9th Cir. 2011) (“[A]n 9 ADA plaintiff can show a likelihood of future injury when he intends to return to a noncompliant 10 accommodation and is therefore likely to reencounter a discriminatory architectural barrier. 11 Alternatively, a plaintiff can demonstrate sufficient injury to pursue injunctive relief when 12 discriminatory architectural barriers deter him from returning to a noncompliant 13 accommodation.”). In response, Mr. Whitaker must file a declaration substantiating his allegation 14 that he intends to return to Cumaica Coffee or would but for the ADA violation. Furthermore, 15 given the allegations of the San Francisco and Los Angeles District Attorneys regarding the 16 conduct of the Potter Handy firm and its clients, Mr. Whitaker’s declaration must substantiate, in 17 detail, the allegation that he visited the establishment in the first place, including the precise date 18 of the visit. See People v. Potter Handy LLP, No. CGC-22-599079 (Cal. Super. Ct.). The 19 declaration shall also state how many other business establishments, if any, Mr. Whitaker visited 20 on that date and where they are located. See generally Whitaker v. Peet’s Coffee, No. C-21-7055 21 WHA (Docket No. 36) (order, filed on 3/31/22) (considering declaration submitted by plaintiff as 22 well as deposition testimony by plaintiff; concluding that “plaintiff is an ADA tester who lives far 23 away from Burlingame, has no history of regularly visiting Burlingame, and has no specific plan 24 to visit in the future”). The Court may schedule an evidentiary hearing to test the veracity of the 25 jurisdictional allegations submitted in response to this order to show cause. See generally 26 Whitaker v. Slainte Bars LLC, No. 21-cv-03750-JSC,

(N.D. Cal. 27 May 5, 2022) (holding an evidentiary hearing and concluding that plaintiff lacked standing). 1 Cumaica Corporation the opportunity to conduct jurisdictional discovery relative to standing. 2 Second, Mr. Whitaker is ordered to show cause as to why the Court should exercise 3 supplemental jurisdiction over the state law claim. “When a ‘high-frequency’ litigant asserts a 4 California Unruh Act claim in federal court alongside an ADA claim, this will typically constitute 5 an exceptional circumstance that justifies dismissal of the Unruh Act claim.” Johnson v. T&V 6 Investment, Inc., No. C-21-9060 VC (N.D. Cal.) (Docket No. 26) (Order at 1). 7 Mr. Whitaker shall file a response to this order to show cause within three weeks of the 8 date of this order. Failure to respond shall result in a dismissal of this action with prejudice. In 9 the meantime, all other deadlines are vacated in this case (which includes, as noted above, the 10 hearing on the motion for default judgment), and the parties are temporarily relieved from the 11 requirements of General Order 56. 12 13 IT IS SO ORDERED. 14 15 Dated: June 14, 2022 16 17 ______________________________________ EDWARD M. CHEN 18 United States District Judge 19 20 21 22 23 24 25 26 27