1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 BRIAN WHITAKER, Case No. 21-cv-09362-CRB

9 Plaintiff,

ORDER DISMISSING PLAINTIFF’S 10 v. UNRUH ACT CLAIM AND DENYING PLAINTIFF’S MOTION 11 MISSION EDGE CAFÉ, INC., FOR DEFAULT JUDGMENT 12 Defendant.

13 Plaintiff Brian Whitaker filed suit against Defendant Mission Edge Café, Inc. 14 (“Mission Edge Café”) for failure to provide wheelchair-accessible outside dining surfaces 15 and door hardware in violation of the Americans with Disabilities Act (“ADA”) and the 16 California Unruh Civil Rights Act (“Unruh Act”). Compl. (dkt. 1). After Whitaker moved 17 for default judgment, Mot. for Default Judgment (“Mot.”) (dkt. 20), the Court ordered 18 Whitaker to show cause why it should not decline to exercise supplemental jurisdiction 19 over his Unruh Act claim and why this case should not be dismissed for lack of Article III 20 standing. Order to Show Cause (“OSC”) (dkt. 22). Whitaker has since responded. Pl.’s 21 Br. (dkt. 23); Potter Decl. (dkt. 23-1); Whitaker Decl. (dkt 23-2). 22 For the reasons stated below, and finding this matter suitable for resolution without 23 oral argument pursuant to Local Civil Rule 7-1(b), the Court declines to exercise 24 supplemental jurisdiction and DISMISSES Whitaker’s Unruh Act claim sua sponte. The 25 Court also VACATES the hearing set for October 14, 2022 and shall schedule an 26 evidentiary hearing that will allow Whitaker the opportunity to establish Article III 27 standing concerning his ADA claim. Accordingly, Whitaker’s motion for default 1 Whitaker establish standing at the upcoming evidentiary hearing. 2 I. BACKGROUND 3 A. Facts 4 Whitaker is a quadriplegic and ADA tester who uses a wheelchair. Compl. ¶ 1; 5 Whitaker Decl. ¶ 3. According to Whitaker, he visited Mission Edge Café in November 6 2021 and discovered that it did not have “wheelchair accessible outside dining surfaces in 7 conformance with the ADA Standards” due to “[in]sufficient knee or toe clearance.” 1 8 Compl. ¶¶ 10, 12. Whitaker also alleges that he encountered non-accessible entrance door 9 hardware that had “a pull bar style handle that required tight grasping to operate.” Id. 10 ¶¶ 15, 17. Whitaker claims to have photographed his experience, and his counsel sent an 11 investigator to the establishment to document the barriers he identified. Whitaker Decl. 12 ¶ 6; Marquis Decl. (dkt. 20-5). Whitaker also allegedly plans to revisit Mission Edge Café 13 at least once after “it is represented to him that the Restaurant and its facilities are 14 accessible” but is currently deterred from doing so. Compl. ¶ 25; Whitaker Decl. ¶ 9. 15 Whitaker subsequently filed this suit against Mission Edge Café under the ADA, 42 U.S.C. 16 § 12101, et seq., and the Unruh Act, Cal. Civ. Code §§ 51–53. Compl. ¶¶ 27–39. 17 B. Procedural History 18 Whitaker filed his complaint on December 3, 2021. Compl. at 1. After Mission 19 Edge Café failed to answer, Whitaker moved for default judgment, seeking $4,000 in 20 damages under the Unruh Act, $4,797 in attorneys’ fees and costs, and an injunction under 21 the ADA. Mot. at 2. On September 8, 2022, the Court ordered Whitaker to show cause 22 why it should not decline to exercise supplemental jurisdiction over his Unruh Act claim in 23 light of Ninth Circuit precedent,2 and why it should not dismiss his ADA claim for lack of 24 Article III standing. OSC. Whitaker responded with a brief and declarations to 25

26 1 Whitaker does not specify how many times he visited Mission Edge Café, but his declaration 27 indicates that he went only once. See Whitaker Decl. ¶ 4 (“My claims in this case arise from my personal visit to Mission Edge Café”). 1 substantiate his experience and intent to return. See Pl.’s Br.; Potter Decl.; Whitaker Decl. 2 II. DISCUSSION 3 Before deciding whether to grant default judgment, a court has “an affirmative duty 4 to look into its jurisdiction over both the subject matter and the parties.” In re Tuli, 172

, 712 (9th Cir. 1999). An entry of judgment lacking subject matter or personal 6 jurisdiction is void. See id. 7 Because the Court declines subject matter jurisdiction over the Unruh claim and 8 finds that Whitaker has not clearly established Article III standing to bring the ADA claim, 9 the analysis ends here. 10 A. Supplemental Jurisdiction 11 After reviewing Whitaker’s response to the Court’s order, the Court is unconvinced 12 that it should exercise supplemental jurisdiction over his Unruh Act claim in this case. 13 Federal courts may decline to exercise supplemental jurisdiction over a state law 14 claim “in exceptional circumstances.”

(c)(4). When a “high-frequency” 15 litigant asserts a California Unruh Act claim in federal court with an ADA claim, it may 16 constitute an exceptional circumstance that justifies dismissal of the Unruh Act claim. See 17 Arroyo, 19 F.4th at 1211–14; Vo,

, at *2–4.3 Such situations implicate 18 strong federal–state comity concerns because “high-frequency” litigants can evade 19 heightened California-law rules by filing Unruh Act claims with ADA claims in federal 20 court. See Vo,

, at *4 (citing Arroyo, 19 F.4th at 1212–13). If a court 21 finds that such circumstances exist, it must then show that balance of the “Gibbs values” of 22 comity, fairness, judicial economy, and convenience provides “compelling reasons for 23 declining jurisdiction” in each case.

at *5 (citing United Mine Workers of Am. v. 24 Gibbs,

(1966)). 25 Whitaker argues that the concerns in Arroyo are not applicable in this case because 26

27 3 The Ninth Circuit reasserted its commitment to its reasoning in Arroyo just a few weeks ago, 1 General Order 56, which governs ADA access cases in this District, functions like 2 California’s “high-frequency” litigant statute. Pl.’s Br. at 3–5, 7. However, the Court is 3 unconvinced. Whitaker is a frequent filer of Unruh Act and ADA claims in federal court.4 4 And as other courts have held, General Order 56 does not “address the particular concerns 5 that motivated the California legislature to adopt heightened pleading standards for ‘high- 6 frequency litigants.’” Johnson v. Constantia Capital Ltd., 22-CV-01456-RS,

3925290, at *2 (N.D. Cal. Aug. 30, 2022) (citing Garcia v. Maciel, 21-CV-03743-JCS, 8

, at *4–5 (N.D. Cal. Feb. 9, 2022)). Thus, plaintiffs like Whitaker can 9 still avoid state restrictions by filing Unruh Act claims in federal court. See Johnson v. 10 Shasta Corp., 20-CV-00703-HSG-RMI,

, at *6 (N.D. Cal. Feb. 24, 2022), 11 report and recommendation adopted, 20-CV-00703-HSG,

(N.D. Cal.

, 2022). As in Vo and Arroyo, the comity concerns in this case present an 13 exceptional circumstance under

(c)(4). See Vo,

, at *4 14 (citing Arroyo, 19 F.4th at 1212–13). 15 Whitaker also argues that fairness, economy, and convenience disfavor declining 16 supplemental jurisdiction because litigating his claims in separate forums would duplicate 17 work, increase costs, and risk inconsistent results. See Pl.’s Br. at 1–3. However, fairness 18 favors declining jurisdiction because Whitaker can pursue identical remedies in state court. 19 See Shasta,

, at *7. Judicial economy also supports declining 20 supplemental jurisdiction because, unlike the court in Arroyo, this Court has not waited 21 until a “very late stage” of litigation to do so. See 19 F.4th at 1214 (holding that the 22 district court abused its discretion in declining supplemental jurisdiction over the 23 plaintiff’s Unruh Act claim after ruling on the ADA claim on summary judgment). As in 24 Vo, the Court has not reached the merits of Whitaker’s claims and therefore “sidesteps the 25 core concern articulated in Arroyo.” See

, at *5. Finally, the comity 26 concerns mentioned above outweigh any loss of convenience the parties may face if 27 1 Whitaker refiles his claim in state court. See, e.g., Maciel,

, at *5. 2 After balancing the Gibbs values in this case, the Court finds that exceptional 3 circumstances exist that justify declining supplemental jurisdiction over Whitaker’s Unruh 4 Act claim. See Vo,

, at *6–7 (holding that the district court did not 5 abuse its discretion in concluding the same). 6 B. Article III Standing 7 Because Whitaker has not clearly established that he in fact visited Mission Edge 8 Café and has a genuine intent to return, the Court requires an evidentiary hearing to 9 determine if Whitaker has Article III standing to maintain his ADA claim. 10 To have Article III standing, a plaintiff must demonstrate (1) that they have suffered 11 an injury in fact, (2) that their injury is fairly traceable to a defendant’s conduct, and (3) 12 that their injury would likely be redressed by a favorable decision. See Lujan v. Defs. of 13 Wildlife,

, 560–61 (1992). In the ADA context, “encounters with the 14 noncompliant barriers related to one’s disability are sufficient to demonstrate an injury-in- 15 fact for standing purposes.” Chapman v. Pier 1 Imps. (U.S.) Inc.,

(9th 16 Cir. 2011). Where, as here, a plaintiff seeks injunctive relief, they must also establish 17 “either that [they are] deterred from returning to the facility or that [they] intend[] to return 18 to the facility and [are] therefore likely to suffer repeated injury.” See

. 19 However, if a plaintiff is “indifferent to returning” or if their “intent to return is not 20 genuine,” Article III standing requirements are not met. See

21 As ordered by this Court, Whitaker supplied declarations from himself and his 22 counsel to substantiate his alleged visit to Mission Edge Café and his intent to return. 23 Whitaker Decl.; Potter Decl. However, substantial questions remain about the veracity of 24 these jurisdictional claims. Regarding his initial visit to Mission Edge Café, Whitaker 25 largely repeats the information in his complaint, though he adds that he photographed his 26 experience (without producing any images).5 See Whitaker Decl. ¶¶ 1–6. Whitaker also 27 1 || states that he “sometimes travel[s] to the Bay Area” and intends to revisit Mission Edge 2 || Cafe at least once after the alleged barriers are removed, but neither assertion sheds light 3 |} on his likelihood to return to the establishment or the genuineness of his intent to return. 4 || See id. at 3,9. Counsel’s declaration is similarly unhelpful, as it vaguely describes the 5 |} processes his firm uses to verify client visits and their intent to return, as opposed to 6 || providing details about this matter beyond speaking to Whitaker. See generally Potter 7 || Decl. Although counsel hired an investigator to document Whitaker’s allegations, this also 8 || does not establish that Whitaker himself visited the establishment. See Potter Decl; 9 || Marquis Decl.; Mot. Ex. 4. 10 The Court requires more information before it can determine whether Whitaker has 11 || Article III standing for his ADA claim, so it shall hold an evidentiary hearing on this topic. 12 || I. CONCLUSION € 13 For the foregoing reasons, the Court declines to exercise supplemental jurisdiction 14 |} and DISMISSES Whitaker’s Unruh Act claim sua sponte. The Court shall also schedule 3 15 |] an in-person evidentiary hearing to allow Whitaker to sufficiently demonstrate Article III 16 || standing as to his remaining ADA claim. At this time, the Court DENIES Whitaker’s 5 17 || motion for default judgment, without prejudice to a future motion should Whitaker 18 || establish standing at the upcoming evidentiary hearing. 19 IT IS SO ORDERED. 20 Dated: October 12, 2022 a i> 21 United States District Judge 22 23 24 25 26 27 28