1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SCOTT JOHNSON, Case No. 21-cv-05928-JSW

8 Plaintiff, ORDER DISMISSING UNRUH ACT 9 v. CLAIM AND SETTING EVIDENTIARY HEARING 10 ROBERT S. FISCHER, Re: Dkt. No. 33 Defendant. 11

12 13 Plaintiff Scott Johnson (“Plaintiff”) sued Defendant Robert S. Fischer for failure to provide 14 wheelchair accessible outside dining surfaces at Palo Alto Creamery in violation of the Americans 15 with Disabilities Act (“ADA”) and the California Unruh Civil Rights Act (“Unruh Act”). On 16 September 23, 2022, the Court ordered Plaintiff to show cause why this case should not be 17 dismissed for lack of Article III standing and why the Court should not decline to exercise 18 supplemental jurisdiction over his Unruh Act claim. (Dkt. No. 33, Order to Show Cause 19 (“OSC”).) Plaintiff responded with a brief and a declaration to substantiate his experience and 20 intent to return. Defendant submitted a response to Plaintiff’s brief. 21 A. Supplemental Jurisdiction 22 Federal courts may decline to exercise supplemental jurisdiction over a state law claim in 23 “exceptional circumstances.”

(c)(4). The Ninth Circuit has held that when a 24 high-frequency litigant asserts an Unruh Act claim in federal court with an ADA claim, it may 25 constitute an exceptional circumstance that justifies dismissal of the Unruh Act claim. See Arroyo 26 v. Rosas,

(9th Cir. 2021). If a court finds that such circumstances exist, it 27 must show that the balance of comity, fairness, judicial economy, and convenience provide 1 Cir. 2022) (citing United Mine Workers of Am. v. Gibbs,

(1966)). 2 The Court concludes that this case presents an exceptional circumstance under 28 U.S.C. 3 section 1367(c)(4) (“Section 1367(c)(4)”) similar to that in Arroyo. Plaintiff is a high frequency 4 litigant asserting an Unruh Act claim in federal court with an ADA claim. (Dkt. 35-1, Declaration 5 of Scott Johnson ¶¶ 10-12.) This is sufficient to constitute exceptional circumstances under 6 Arroyo. See Vo, 49 F.4th at 1171. 7 Plaintiff contends that Arroyo does not apply here because General Order 56, which 8 governs ADA cases in this District, puts procedural protections in place that are akin to those of 9 California’s high-frequency litigant statute. The Court disagrees. Other courts in this district have 10 rejected this exact argument, finding that General Order 56 “is not designed to…address the 11 particular concerns that motivated the California legislature to adopt heightened pleading 12 standards for ‘high-frequency litigants.’” Johnson v. Constantia Cap. Ltd., No. 22-cv-01456-RS, 13

, at *2 (N.D. Cal. Aug. 30, 2022) (citing Garcia v. Maciel, No. 21-cv-03743- 14 JCS,

, at *5 (N.D. Cal. Feb. 9, 2022)). For this reason, the same comity concerns 15 that were present in Arroyo and in Vo exist here and constitute an exceptional circumstance for 16 declining supplemental jurisdiction under Section 1367(c)(4). 17 Next, the Court next considers the Gibbs values of judicial economy, convenience, fairness 18 to litigants, and comity to determine whether there are compelling reasons for declining 19 supplemental jurisdiction in this case. Vo, 49 F.4th at 1171. Here, the Gibbs factors favor 20 declining supplemental jurisdiction over Plaintiff’s Unruh Act claim. Judicial economy favors 21 declining supplemental jurisdiction because, unlike in Arroyo, the Court has not ruled on the 22 merits of Plaintiff’s ADA claim. See

(district court abused its discretion in 23 declining supplemental jurisdiction over Unruh Act claim when it had already ruled on the ADA 24 claim on summary judgment). It would not be unfair to Plaintiff to decline jurisdiction as he can 25 pursue the same remedies in state court. Additionally, to the extent Plaintiff is inconvenienced by 26 the decision to decline supplemental jurisdiction, the inconvenience is in large part due to 27 Plaintiff’s choice to file this action in federal court rather than state court, where he would have 1 here outweigh considerations of inconvenience or fairness that might be impacted by declining 2 supplemental jurisdiction. 3 The Court finds that exceptional circumstances exist that justify declining supplemental 4 jurisdiction over Plaintiff’s Unruh Act claim. The Court DISMISSES the Unruh Act claim 5 without prejudice to refiling in state court. 6 B. Article III Standing 7 The Court also ordered Plaintiff and Plaintiff’s counsel to show cause why the Court 8 should not dismiss the case for lack of Article III standing. The Court required Plaintiff and 9 Plaintiff’s counsel to submit separate declarations that substantiate the jurisdictional allegations, 10 including allegations regarding Plaintiff’s initial visit to the establishment, Plaintiff’s intent to 11 return to the establishment, and counsel’s pre-filing investigation on the jurisdictional allegations. 12 To have Article III standing, a plaintiff must demonstrate (1) that they have suffered an 13 injury in fact, (2) that their injury is fairly traceable to a defendant’s conduct, and (3) that their 14 injury would likely be redressed by a favorable decision. See Lujan v. Defs. of Wildlife,

555, 560-61 (1992). In the ADA context, “encounters with the noncompliant barriers related to 16 one’s disability are sufficient to demonstrate an injury-in-fact for standing purposes.” Chapman v. 17 Pier I Imps. (U.S.) Inc.,

(9th Cir. 2011). A plaintiff who seeks injunctive relief 18 must also establish “either that [they are] deterred from returning to the facility or that [they] 19 intend [] to return to the facility and [are] therefore likely to suffer repeated injury.” See

. 20 A plaintiff cannot establish Article III standing if they are “indifferent to returning” or if their 21 “intent to return is not genuine.” See

22 Although Plaintiff and his counsel have submitted declarations as required by the Court’s 23 OSC, the declarations are insufficient to resolve the Court’s questions about the jurisdictional 24 claims. Plaintiff’s declaration largely repeats the complaint’s sparse allegations about Plaintiff’s 25 initial visit to the establishment and contains vague and conclusory allegations about his intent to 26 return. Plaintiff’s counsel has submitted a boilerplate declaration that offers no meaningful facts 27 about his pre-filing investigation into this specific matter. Thus, consistent with the Court’s ] concludes that an evidentiary hearing regarding subject matter jurisdiction is appropriate. 2 The parties shall complete limited jurisdictional discovery consisting of Plaintiff's 3 deposition and the deposition of Defendant prior to the hearing. The depositions shall each be 4 |} limited to four hours and may be conducted remotely. 5 CONCLUSION 6 For the foregoing reasons, the Court declines to exercise supplemental jurisdiction and 7 || DISMISSES Plaintiff's Unruh Act claim without prejudice to refiling in state court. The Court 8 SETS an evidentiary hearing on January 20, 2023, at 9:00 a.m. to resolve the issue of □□□□□□□□□□□ 9 || Article III standing to pursue his ADA claim. 10 IT IS SO ORDERED. 11 Dated: November 16, 2022 /?} / 12 \ Kite JEFFREY S//WHI United Statls Disthct Judge (14

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