Luu v. Ramparts, Inc., No. 2:2012cv00596 - Document 15 (D. Nev. 2013)

Court Description: ORDER Granting 6 Defendant's Motion to Dismiss. Plaintiffs Complaint is DISMISSED WITHOUT PREJUDICE as to his federal cause of action. Plaintiffs Complaint is DISMISSED WITHOUT PREJUDICE as to his state law causes of action. Plaintiff may fi le a complaint containing these causes of action in state court. IT IS FURTHER ORDERED that 6 Defendants Motion for a More Definite Statement is DENIED AS MOOT. The Clerk of the Court is HEREBY ORDERED to close this case. Signed by Judge Miranda M. Du on 02/21/2013. (Copies have been distributed pursuant to the NEF - AC)
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Luu v. Ramparts, Inc. Doc. 15 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 ANTHONY LUU, 2:12-cv-00596-MMD-VCF Case No. 2:12-cv-00742-MMD-PAL Plaintiff, 8 ORDER v. 9 10 RAMPARTS, INC. d/b/a LUXOR HOTEL CASINO, a Nevada Corporation, 11 (Motion to Dismiss or Motion for a More Definite Statement – dkt. no. 6) Defendant. 12 13 14 I. SUMMARY 15 Before the Court is Defendant Ramparts, Inc., d/b/a Luxor Hotel Casino’s (“LHC”) 16 Motion to Dismiss or Motion for More Definite Statement. (Dkt. no. 6.) For the reasons 17 stated below, the Motion to Dismiss is granted, and the Motion for a More Definite 18 Statement is denied as moot. 19 II. BACKGROUND 20 Plaintiff Anthony Luu uses a wheelchair for mobility. He alleges that on April 12, 21 2010, he visited Defendant’s property, Luxor Las Vegas (“Luxor”). When Luu arrived, he 22 requested an ADA accessible guest room. He was assigned East Tower Room 7337, 23 which Defendant states is an ADA accessible room with a shower chair. When Luu used 24 the shower, his disability caused him to shake and fall off the shower chair. Luu reported 25 the incident to Defendant. He received medical assistance and was reassigned to an 26 ADA accessible room with a roll-in shower and tub. 27 Plaintiff sued, alleging that the existing conditions at the Luxor violate the ADA 28 Accessibility Guidelines for buildings and facilities (“ADAAG”). See 28 C.F.R. § 36; 28 1 C.F.R. pt. 36, App. A. Plaintiff alleges that Defendant’s facility violates ADAAG 2 guidelines concerning (1) entrance access and path of travel; (2) access to goods and 3 services; and (3) access to guest rooms. Plaintiff also brings one count of violation of 4 the Nevada ADA and one count of negligence. (See dkt. no. 1.) Defendant moves to dismiss the Complaint under Federal Rule of Civil Procedure 5 6 12(b)(1), arguing that Plaintiff lacks standing to bring this lawsuit. 7 III. MOTION TO DISMISS 8 A. 12(b)(1) Legal Standard 9 Rule 12(b)(1) of the Federal Rules of Civil Procedure allows defendants to seek 10 dismissal of a claim or action for a lack of subject matter jurisdiction. Dismissal under 11 Rule 12(b)(1) is appropriate if the complaint, considered in its entirety, fails to allege 12 facts on its face that are sufficient to establish subject matter jurisdiction. In re Dynamic 13 Random Access Memory (DRAM) Antitrust Litigation, 546 F.3d 981, 984B85 (9th Cir. 14 2008). Although the defendant is the moving party in a motion to dismiss brought under 15 Rule 12(b)(1), the plaintiff is the party invoking the court=s jurisdiction. As a result, the 16 plaintiff bears the burden of proving that the case is properly in federal court. McCauley 17 v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors 18 Acceptance Corp., 298 U.S. 178, 189 (1936)). 19 Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. 20 Kroger, 437 U.S. 365, 374 (1978). AA federal court is presumed to lack jurisdiction in a 21 particular case unless the contrary affirmatively appears.@ Stock West, Inc. v. 22 Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). 23 Thus, federal subject matter jurisdiction must exist at the time an action is commenced. 24 Mallard Auto. Grp., Ltd. v. United States, 343 F. Supp. 2d 949, 952 (D. Nev. 2004). 25 Defendant brings a factual attack on the Complaint. Attacks on jurisdiction 26 pursuant to Rule 12(b)(1) can be either facial, confining the inquiry to the allegations in 27 the complaint, or factual, permitting the court to look beyond the complaint. See Savage 28 v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). AIn a facial 2 1 attack, the challenger asserts that the allegations contained in a complaint are 2 insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the 3 challenger disputes the truth of the allegations that, by themselves, would otherwise 4 invoke federal jurisdiction.@ Safe Air for Everyone v. Myer, 373 F.3d 1035, 1039 (9th Cir. 5 2004). 6 Once a moving party has converted the motion to dismiss into a factual motion by 7 presenting affidavits or other evidence properly brought before the court, the party 8 opposing the motion must furnish affidavits or other evidence necessary to satisfy its 9 burden of establishing subject matter jurisdiction. Savage, 343 F.3d at 1040, n. 3 (citing 10 St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); see also Trentacosta, 813 11 F.2d 1553, 1559 (9th Cir. 1987) (stating that on a factually attacked 12(b)(1) motion to 12 dismiss, the nonmoving party’s burden is that of Rule 56(e)). However, on a factual 13 attack, the court may not “resolve genuinely disputed facts where the question of 14 jurisdiction is dependent on the resolution of factual issues going to the merits.” Kohler 15 v. CJP, Ltd., 818 F. Supp. 2d 1169, 1172 (C.D. Cal. 2011) (citations and quotation marks 16 omitted). 17 B. 18 19 Standing and the ADA 1. Legal Principles “Though its purpose is sweeping . . . and its mandate ‘comprehensive,’ 42 U.S.C. 20 § 12101(b)(1), the ADA’s reach is not unlimited. 21 statutes, to invoke the jurisdiction of the federal courts, a disabled individual claiming 22 discrimination must satisfy the case or controversy requirement[s] of Article III by 23 demonstrating his standing to sue at each stage of the litigation.” Chapman v. Pier 1 24 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (citing U.S. Const. art. III, § 2; 25 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); (remaining citation omitted; 26 ellipses added)). Rather, as with other civil rights 27 To establish standing, Luu must “demonstrate that he has suffered an injury-in- 28 fact, that the injury is traceable to the [Defendant’s] actions, and that the injury can be 3 1 redressed by a favorable decision.” See Chapman, 631 F.3d at 946. Only the first 2 element, injury-in-fact, is at issue here. 3 “The existence of federal standing ‘often turns on the nature and source of the 4 claim asserted.’” Chapman, 631 F.3d at 947 (quoting Warth v. Seldin, 422 U.S. 490, 500 5 (1975)). “Under the ADA, when a disabled person encounters an accessibility barrier 6 violating its provisions, it is not necessary for standing purposes that the barrier 7 completely preclude the plaintiff from entering or from using a facility in any way.” Id. 8 (Citing Doran, 524 F.3d at 1041, n.4 (stating that the ADA “does not limit its 9 antidiscrimination mandate to barriers that completely prohibit access”)). “Rather, the 10 barrier need only interfere with the plaintiff’s ‘full and equal enjoyment’ of the facility.” 11 Chapman, 631 F.3d at 947 (citing 42 U.S.C. § 12182(a)). In fact, “[o]nce a disabled 12 individual has encountered or become aware of alleged ADA violations that deter his 13 patronage of or otherwise interfere with his access to a place of public accommodation, 14 he has already suffered an injury in fact traceable to the defendant’s conduct and 15 capable of being redressed by the courts, and so he possesses standing under Article III 16 . . . .” Doran, 524 F.3d at 1042, n.5. 17 A barrier “will only amount to such interference if it affects the plaintiff’s full and 18 equal enjoyment of the facility on account of his particular disability.” Chapman, 631 19 F.3d at 947. “Because the ADAAG establishes the technical standards required for “full 20 and equal enjoyment, if a barrier violating these standards relates to a plaintiff’s 21 disability, it will impair the plaintiff’s full and equal access, which constitutes 22 discrimination under the ADA. Id. (internal quotation marks omitted). “That discrimination 23 satisfies the ‘injury-in-fact’ element of Lujan.” Id. “As [the Ninth Circuit has] held, once a 24 disabled plaintiff has encountered a barrier violating the ADA, that plaintiff will have a 25 personal stake in the outcome of the controversy so long as his or her suit is limited to 26 barriers related to that person’s particular disability.” Id. (internal quotation marks and 27 citations omitted). 28 /// 4 1 “Damages are not recoverable under Title III of the ADA-only injunctive relief is 2 available for violations of Title III.” Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002). 3 Moreover, “[a]lthough encounters with the noncompliant barriers related to one’s 4 disability are sufficient to demonstrate an injury-in-fact for standing purposes, a plaintiff 5 seeking injunctive relief must additionally demonstrate ‘a sufficient likelihood that he will 6 again be wronged in a similar way.’” Chapman, 631 F.3d at 948 (citing Lyons, 461 U.S. 7 at 111). “That is, he must establish a ‘real and immediate threat of repeated injury.’” Id. 8 (quoting Lyons 461 U.S. at 102 (other citation omitted)). 2. 9 Analysis 10 An ADA Title III plaintiff may establish standing in one of two ways: (1) 11 demonstrating an intent to return to a noncompliant accommodation; or (2) 12 demonstrating that s/he is deterred from visiting a noncompliant public accommodation 13 because s/he has encountered barriers related to his/her disability there. 1 Chapman, 14 631 F.3d at 949. a. 15 Intent to Return 16 Defendant first argues that Luu lacks standing because he fails to demonstrate an 17 intent to visit the Luxor and encounter the alleged ADA violations again. Importantly, 18 isolated, past incidents of ADA violations do not support an inference that a plaintiff 19 faces a real and immediate threat of continued, future violations of the ADA in the 20 absence of injunctive relief. See Midgett v. Tri-Cnty. Met. Trans. Dist. of Or., 254 F.3d 21 846, 850 (9th Cir. 2001). 22 Plaintiff has not demonstrated an intent to return to the Luxor. Plaintiff’s affidavit 23 contains only conclusory statements about Plaintiff’s plans to return to the Luxor. He 24 25 26 27 28 The Court notes that Plaintiff’s standing argument in his Response Brief contains few references to facts establishing Plaintiff’s standing. Instead, the section primarily consists of several lengthy block quotes from Doran v. 7-Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008) and Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939 (9th Cir. 2011), among other cases. Merely providing the Court with conclusory statements like “Plaintiff can show injury in fact,” (dkt. no. 8 at 5) and then citing to a page-and-a-half block quote, is not a proper legal argument (id. at 8-9). 1 5 1 states that he plans on revisiting the Luxor on “a spontaneous but fair and equal basis.” 2 (Dkt. no. 8-1 at ¶ 3.) He continues, stating “Las Vegas is an exciting city, it is not too far 3 away from my home in California and I believe many people travel from California to Las 4 Vegas on a ‘spontaneous’ basis,” (id. at ¶ 4) and that “[t]he Luxor is an exciting facility 5 and fits with my desire for a hotel in Las Vegas which I can sometimes get away without 6 traveling very far.” (Id.) 7 In Norkunas v. Wynn Resorts Holdings, LLC, 2:07CV00096-RLH-PAL, 2007 WL 8 2949569, at *1 (D. Nev. Oct. 10, 2007), aff’d sub nom. Norkunas v. Wynn Las Vegas, 9 LLC, 343 F. App’x 269 (9th Cir. 2009), plaintiff Norkunas alleged that he experienced a 10 series of ADA violations at defendant’s property. Defendant brought a factual attack 11 under Fed. R. Civ. P. 12(b)(1). Id. at *2. The Court held that Norkunas and the other 12 plaintiffs had not provided facts in the form of an affidavit or other evidence 13 demonstrating an intent to return to the property. Id. at 3. The Court noted that the 14 plaintiff did not present “any evidence, or even argument, of a definite and concrete plan” 15 to return to the Wynn. Id. 16 U.S. at 564, noting that “‘some day’ intentions – without any description of concrete 17 plans, or indeed even any specification of when the some day will be – do not support a 18 finding of [ ] ‘actual or imminent’ injury.” Id. (emphasis in Lujan; brackets in Norkunas.) 19 Though Norkunas and the other plaintiffs there alleged “in their Amended Complaint that 20 they desire[d] to use the goods and services of Wynn Las Vegas . . ., a mere expressed 21 desire does not, by itself, imply an intent to return.” Id. (citing Tandy v. City of Wichita, 22 380 F.3d 1277, 1288 (10th Cir. 2004)). The Court cited the Supreme Court’s holding in Lujan, 504 23 “[F]ailure to respond to [d]efendants’ substantive attacks constitutes a concession 24 to their truth.” Norkunas, 2007 WL 2949569, at *3. In Norkunas, the court determined 25 that merely stating their intent to return to the Wynn Las Vegas was not an adequate 26 response to the defendant’s 12(b)(1) factual attack on standing. Id. Likewise here, 27 Luu’s representation that he may travel from his home in California to Las Vegas on a 28 “spontaneous” basis (dkt. no. 8-1 at ¶ 4) and that he may stay at the Luxor on “a 6 1 spontaneous but fair and equal basis” (id. at ¶ 3) demonstrates no more than a desire to 2 return to the Luxor. Luu’s affidavit contains classic “some day,” non-concrete plans to 3 stay at the Luxor, and these statements accordingly cannot survive Defendant’s Motion. 2 4 Accord Lujan, 504 U.S. at 564. Contra Fiedler v. Ocean Properties, Ltd., 683 F. Supp. 5 2d 57, 71-73 (D. Me. 2010) (holding that the plaintiff’s sworn affidavit testimony stating 6 that he intended to spend a summer vacation staying at the defendant’s hotel if and 7 when it was brought into ADA compliance sufficed to establish standing for the purposes 8 of summary judgment). b. 9 Deterred from Visiting 10 Plaintiff’s affidavit statements about deterrence are substantially similar to his 11 statements about his intent to return there. For example, Luu states that he intends “to 12 once again stay at” the Luxor “on a spontaneous but fair and equal basis if it can be 13 made accessible between now and the next time” he visits. (Dkt. no. 8-1 at 2.) 14 The Pickern v. Holiday Quality Foods Inc. court held that the plaintiff was deterred 15 from visiting defendant’s store and had standing where the plaintiff had visited the 16 defendant’s store “in the past and state[d] that he ha[d] actual knowledge of the barriers 17 to access at that store[,] [and stated that he] prefer[red] to shop at [defendant’s property] 18 and that he would shop at the [store] if it were accessible.” 293 F.3d 1133, 1137-38 (9th 19 Cir. 2002) (citing for the purposes of comparison Dudley v. Hannaford Bros. Co., 146 F. 20 Supp. 2d 82, 86 (D. Me. 2001) (disabled plaintiff alleged actual injury where he evinced 21 a desire to patronize a store that had discriminated against him in the past and had not 22 changed its discriminatory policies or practices . . . ) with Moreno v. G & M Oil Co., 88 F. 23 Supp. 2d 1116, 1116 (C.D. Cal. 2000) (disabled plaintiff could not show actual injury with 24 25 26 27 28 LHC presents evidence that Plaintiff has an “M Life” card, a customer rewards program for Luxor and other MGM Resorts International properties in Las Vegas. According to Defendant’s records, Plaintiff applied for his card on the Internet on March 22, 2010, and used it only on April 12-13, 2010. (Dkt. no. 6, Ex. A.) In his affidavit, Plaintiff does not state that he intends to use the M Life card in the future. This further supports Defendant’s argument that Plaintiff does not intend to return to the Luxor. 2 7 1 respect to defendant’s other gas stations, because plaintiff “[did] not claim he want[ed] to 2 visit the other stations, or will ever do so.”); see also Parr v. L&L Drive-Inn Restaurant, 3 96 F. Supp. 2d 1065, 1079-80 (D. Haw. 2000) (disabled plaintiff established likelihood of 4 future injury by submitting evidence that he would like to visit defendant’s restaurant in 5 the future, had patronized other restaurants in the chain, and the restaurant was close to 6 his residence and was on a familiar bus line) (remaining citation omitted). 7 Conversely, the plaintiff in Johnson v. Overlook at Blue Ravine, LLC, stated that 8 defendant’s ADA violations deterred him from returning to the property and that he would 9 like to return once the property was ADA-compliant. 2:10-CV-02387, 2012 WL 2993890, 10 at *4 (E.D. Cal. July 20, 2012). Because the plaintiff merely stated that he was deterred 11 from returning, and presented no corroborating evidence to support this contention, the 12 court determined that he was not in danger of an “imminent injury,” and lacked standing. 13 Id. at *4-5.3 14 Luu has not presented evidence that he is deterred from returning to the Luxor 15 because of its ADA non-compliance. Unlike the plaintiffs in Pickern and Dudley, Luu 16 does not state that he has visited the Luxor at any other time. See Pickern, 293 F.3d at 17 1137-38; Dudley, 146 F. Supp. 2d at 86. Unlike the plaintiffs in Pickern and Parr, Luu 18 cannot demonstrate that he either prefers to stay at the Luxor or that it is the most 19 convenient hotel and casino location for him. See Pickern, 293 F.3d at 1137-38; Parr, 20 96 F. Supp. 2d at 1079-80. Finally, Luu cannot demonstrate that the Luxor has 21 discriminated against him in the past and failed to change its discriminatory practices 22 and/or policies, as the plaintiff in Dudley demonstrated. See 146 F. Supp. 2d at 86. 23 Rather, like the plaintiff in Johnson, Luu merely states that he is aware of the ADA 24 barriers at the Luxor and will stay there on a “spontaneous but fair and equal basis” 25 should the property be made accessible. Accord Johnson, 2012 WL 2993890, at *4; 26 27 28 The Johnson court dismissed the plaintiff’s case on summary judgment rather than a 12(b)(1) factual attack. 2012 WL 2993890, at *1. 3 8 1 (dkt. no. 8-1 at ¶ 8). This is not sufficient evidence to demonstrate that Luu is in danger 2 of suffering an “imminent injury.” Accord id. 3 C. 4 Both parties agree that this Court has supplemental rather than original 5 jurisdiction over Plaintiff’s state law claims. (Dkt. nos. 6 at 12 and 8 at 9.) Plaintiff 6 presents no argument regarding why this Court should retain jurisdiction over the state 7 law claims should the federal claims be dismissed. (See dkt. no. 8 at 9.) The Court 8 accordingly dismisses Plaintiff’s state law claims without prejudice to their filing in state 9 court. See 28 U.S.C. § 1367(c)(3); Warren v. Fox Family Worldwide, Inc., 328 F.3d 10 State Law Claims 1136, 1139, 1143 n.7 (9th Cir. 2003). 11 D. 12 The parties briefed two additional issues not discussed herein: (1) Luu’s standing 13 to challenge barriers unrelated to his specific disability, and (2) whether Luu should file a 14 more definite statement. This Order moots both of these issues. 15 IV. 16 Remaining Issues CONCLUSION IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (dkt. no. 6) is 17 GRANTED. 18 federal cause of action. Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE as 19 to his state law causes of action. Plaintiff may file a complaint containing these causes 20 of action in state court. 21 22 23 24 Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE as to his IT IS FURTHER ORDERED that Defendant’s Motion for a More Definite Statement (dkt. no. 6) is DENIED AS MOOT. The Clerk of the Court is HEREBY ORDERED to close this case. ENTERED THIS 21st day of February 2013. 25 26 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 27 28 9