Johnson v. Lyndon Partners, LLC

Background

Scott Johnson alleged that he is a level C-5 quadriplegic who uses a wheelchair and has significant manual-dexterity impairments. He visited DTBA, LLC’s bar in San Jose twice in November 2018. Johnson alleged that the bar had several accessibility barriers, including inadequate signage for an accessible route to an outside patio, no accessible route to a unisex restroom, inaccessible restroom door hardware, missing grab bars, and inadequate knee clearance under bathroom sinks.

Johnson sued under the Americans with Disabilities Act of 1990 (ADA) and California’s Unruh Civil Rights Act. He alleged that the barriers deterred him from returning to the bar. DTBA moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal for lack of subject-matter jurisdiction.

Jurisdiction and standing

DTBA made a facial challenge, meaning it argued that the complaint itself did not adequately establish federal jurisdiction. The court therefore considered the complaint’s allegations but did not consider Johnson’s declaration as outside evidence. The court granted DTBA’s six requests for judicial notice, including requests concerning public records and Google Maps information.

The court held that a private ADA plaintiff seeking an injunction must show an actual injury and a sufficiently imminent threat of future harm. A plaintiff may do this by showing an intent to return to the property or that disability-related barriers deterred a likely return.

The court accepted that Johnson had suffered an injury from encountering the alleged barriers. But it found that he had not shown a sufficient likelihood of returning to the bar. The court relied on the bar’s distance—more than 130 miles from Johnson’s home and over a two-hour drive in good traffic—his only two alleged visits, his lack of specific plans to return, and his lack of evidence of specific ties to the San Francisco Bay Area or the bar. The court also found that Johnson had not adequately alleged deterrence because he did not allege that he preferred this bar, identify specific instances of deterrence, or allege that he frequently visited Bay Area bars and would visit this one if it were accessible.

The court rejected Johnson’s argument that the Ninth Circuit’s recognition of “tester standing” eliminated the need to show a risk of future harm. It explained that a plaintiff need not personally encounter every barrier or even have visited the business before, but still must show a sufficient likelihood of future injury. The court stated that Johnson’s history of ADA litigation did not form the basis of its holding.

Disposition

The court held that Johnson had not met the imminence requirement for standing and that it therefore lacked subject-matter jurisdiction over his ADA claims. It granted DTBA’s motion to dismiss the ADA claim for lack of subject-matter jurisdiction. The court declined to exercise supplemental jurisdiction—the authority to hear a related state-law claim—over the Unruh Act claim and dismissed that claim without prejudice.

The court found that amendment would not be futile. It dismissed the claims with leave to amend and permitted Johnson to file an amended complaint by December 27, 2019. The court stated that new claims or parties could not be added without the court’s permission or the parties’ agreement.