Whitaker v. Marso LLC

Background

Brian Whitaker alleged that he has physical disabilities, including a C-4 spinal cord injury, is quadriplegic, and uses a wheelchair. He alleged that he visited Marso LLC’s Vitality Bowls restaurant in May 2021 and encountered inaccessible outdoor dining surfaces. Marso owned the restaurant at or about 835 Middlefield Road in Redwood City, California, at that time.

Whitaker asserted a claim under the Americans with Disabilities Act, seeking injunctive relief, and a claim under California’s Unruh Civil Rights Act, seeking an unspecified amount of statutory damages. His complaint alleged that he would return to the restaurant to use its goods or services and check compliance with disability-access laws once the restaurant and its facilities were represented to be accessible.

Motion and standing issue

Marso moved under Federal Rule of Civil Procedure 12(b)(1) to dismiss the entire complaint for lack of subject-matter jurisdiction. It argued that Whitaker lacked Article III standing to pursue the ADA claim because he had not adequately shown an intent to return to the restaurant. Marso relied on a chart listing ADA lawsuits filed by Whitaker and selected deposition pages from another case. It did not submit a request for judicial notice.

Article III standing requires an injury in fact, a connection between the injury and the challenged conduct, and a likelihood that a favorable decision will remedy the injury. Because a private ADA plaintiff may seek injunctive relief, the plaintiff must show a real and immediate threat of repeated injury. The opinion explained that this can be shown by deterrence or by an injury in fact combined with an intent to return to a noncompliant facility.

Court’s analysis

Whitaker lived about 360 miles from the restaurant. In a declaration, however, he stated that he frequently traveled to the Bay Area because he liked the area and was considering moving to Northern California. The court also considered his allegation that he would return to the restaurant if it became accessible.

The court relied on Ninth Circuit decisions holding that an ADA plaintiff may establish standing by showing an intent to return to the geographic area where the facility is located and a desire to visit the facility if it becomes accessible. The court stated that Whitaker’s distance from the restaurant did not defeat his allegations at the motion-to-dismiss stage. It also noted that the plaintiff’s history of filing more than 1,400 lawsuits based on alleged disability barriers was not, by itself, a sufficient reason to question his stated intent to return, because courts in the circuit are cautioned against relying on past ADA litigation for that purpose.

The court said it could assess Whitaker’s credibility and sincerity on a fuller factual record, and that discovery might reveal the actual frequency of his trips to the Bay Area. But, viewing the allegations in the light most favorable to Whitaker at this stage, it found that he adequately alleged an intention to return to the restaurant.

Disposition

The court denied Marso LLC’s motion to dismiss.