1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4 5 BRIAN WHITAKER, Case No. 5:21-cv-09248-EJD

6 Plaintiff, ORDER TO SHOW CAUSE WHY THECOURT SHOULD 7 v. EXERCISESUPPLEMENTAL JURISDICTIONAND WHY SUBJECT 8 TASHI VN GRILL, INC, MATTERJURISDICTION EXISTS

Defendant. 9

10 1. Federal courts may decline to exercise supplemental jurisdiction over a state law claim 11 “in exceptional circumstances.”

(c)(4). When a “high-frequency” litigant asserts 12 a California Unruh Act claim in federal court alongside an ADA claim, this will typically 13 constitute an exceptional circumstance that justifies dismissal of the Unruh Act claim. See Arroyo 14 v. Rosas,

, 1211–14 (9th Cir. 2021); Garcia v. Maciel,

, at *2–5 15 (N.D. Cal. Feb. 9, 2022); Johnson v. Right Crons Inc.,

(N.D. Cal. Aug. 11, 16 2021). Plaintiff is therefore ordered to show cause why this Court should not decline to exercise 17 supplemental jurisdiction over the Unruh Act claim. 18 In the interests of efficiency, assuming the Court declines to exercise supplemental 19 jurisdiction over the Unruh Act claim, it is not obvious whether Plaintiff would want to continue 20 pursuing his ADA claim in this Court, rather than proceeding on his Unruh Act claim and ADA claim 21 in state court. Plaintiff is therefore ordered to inform the Court whether he would prefer to dismiss his 22 ADA claim to proceed on that claim in state court with his Unruh Act claim. 23 2. With respect to Plaintiff’s ADA claim, federal courts “have an independent obligation to 24 determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any 25 party.” Arbaugh v. Y&H Corp.,

(2006). Consistent with that independent 26 obligation, Plaintiff is ordered to show cause why this case should not be dismissed for lack of 27 1 Article III standing. In response, both Plaintiff and Plaintiff's counsel must submit separate 2 || declarations sworn under penalty of perjury. Plaintiff's declaration must substantiate the 3 || jurisdictional allegations as to Plaintiffs intent to return to Defendant’s establishment. 4 || Furthermore, considering the well-pled allegations by the San Francisco and Los Angeles District 5 Attorneys regarding the conduct of the Potter Handy firm and its clients, these declarations must 6 substantiate, in detail, the allegations that Plaintiff visited the establishment in the first place. See 7 Complaint, People of the State of California v. Potter Handy LLP, No. CGC-22-599079 (Cal. 8 Super. Ct. 2022),

. Counsel’s declaration must describe, in detail, the 9 investigation counsel conducted to ensure that their client visited the establishment and intends to 10 || return there. 11 3. Assuming the Court finds the jurisdictional allegations contained in the declarations to 12 || be facially adequate, Defendant shall have the option to conduct jurisdictional discovery. If 5 13 Defendant opts for jurisdictional discovery, they will be permitted to take discovery on □□□□□□□□□□□ 14 || intent to return and whether Plaintiff did, in fact, personally visit Defendant’s establishment. 3 15 Regardless of whether jurisdictional discovery takes place, the Court will likely schedule an in- 16 || person evidentiary hearing to test the veracity of the jurisdictional allegations submitted in 3 17 response to this order to show cause. 18 Plaintiff and counsel must respond within 21 days of this order. Failure to respond and 19 || failure to appear in-person will result in a dismissal of this action with prejudice. In the 20 || meantime, all other deadlines are vacated in this case and the parties are temporarily relieved from 21 the requirements of General Order 56. 22 23 IT IS SO ORDERED. 24 || Dated: July 22, 2022 25 xe EDWARD J. DAVILA 27 United States District Judge 28 || Case No.: 5:21-cv-09248-EJD ORDER TO SHOW CAUSE .