Whitaker v. Nguyen

Background

Brian Whitaker sued Jonalyn Montiel Nguyen, who owns Prettybby Beauty in Milpitas, California. Whitaker alleged that he visited the shop in May 2021, purchased more than $100 in products, and encountered a 43-inch-high sales counter. Because he uses a wheelchair, he alleged that he had to raise his arms over his shoulders to complete the transaction, causing difficulty and discomfort.

Whitaker alleged that the shop had a portable lowered counter that could have been used for customers needing an accommodation but was not used. He further alleged that, after he filed the case, Nguyen provided a lowered counter, but that the counter was on wheels and could be detached and removed. Whitaker also alleged that he would not return until Nguyen changed the shop’s practices and credibly eliminated the possibility that the prior practices would recur.

Whitaker brought claims under the Americans with Disabilities Act of 1990 and California’s Unruh Civil Rights Act. Nguyen moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal for lack of subject-matter jurisdiction.

Mootness

Nguyen argued that Whitaker’s Americans with Disabilities Act claim was moot because the shop had added a lowered counter that complied with the statute. The court explained that Nguyen therefore had to meet the demanding burden of showing that the alleged wrongful conduct could not reasonably be expected to happen again.

The court found that the evidence was not sufficient to resolve the issue at the motion-to-dismiss stage. The parties had not yet completed the required site inspection, and discovery was stayed. The court also noted a factual dispute about whether the lowered counter was permanent. Nguyen submitted a declaration stating that the counter was permanently affixed, but the court found little other evidence showing that it could not be moved. The photographs also appeared to show that the counter blocked some inventory, supporting Whitaker’s allegation that there could be a business reason not to use it.

The court denied Nguyen’s motion on mootness, without prejudice to Nguyen raising the argument again at the summary-judgment stage. The court did not decide the merits of whether the counter complied with the Americans with Disabilities Act before the site inspection or discovery.

Standing

Nguyen also argued that Whitaker lacked Article III standing to pursue his Americans with Disabilities Act claim or seek injunctive relief. Standing requires a plaintiff to show an actual injury, a connection between that injury and the defendant’s conduct, and a likelihood that a favorable court decision would address the injury. For an access-discrimination claim seeking an injunction, the plaintiff must also show a real and immediate threat of repeated injury, which can be shown through an intent to return or deterrence from returning.

The court noted that Nguyen did not develop the standing argument in the opening motion and instead provided additional explanation and factual support for it in the reply brief. The court stated that it would not credit arguments raised for the first time in a reply. Even so, it addressed the issue and found that Whitaker had adequately alleged an intention to return. His allegations that he would return to use the shop’s goods or services and to assess compliance with disability-access laws were more than speculation at this stage. The court also stated that a plaintiff’s past Americans with Disabilities Act litigation or status as an access tester does not, by itself, eliminate standing.

Unruh Act Claim and Disposition

Nguyen argued that the court should decline supplemental jurisdiction, meaning authority to hear a related state-law claim, over Whitaker’s Unruh Act claim. The court rejected Nguyen’s argument that exceptional circumstances justified declining jurisdiction. It found that sending the state-law claim to another forum would risk inefficient parallel proceedings and therefore exercised supplemental jurisdiction over the claim.

The court denied Nguyen’s motion to dismiss. The parties were directed to meet and confer and file a joint status report stating when they anticipated conducting the joint site inspection.