Whitaker v. Old Town Sushi, Inc.

Background

Brian Whitaker sued Old Town Sushi, Inc., asserting a claim under the Americans with Disabilities Act and a related claim under California’s Unruh Civil Rights Act. The order states that the court was independently examining whether federal subject-matter jurisdiction existed, even though no party had challenged it.

Order to Show Cause

The court ordered Whitaker to show cause—meaning to explain why a future order should not take a particular action—on two issues. First, assuming the court had subject-matter jurisdiction over the ADA claim, the court questioned whether it should decline supplemental jurisdiction over the Unruh Act claim. Supplemental jurisdiction is a federal court’s authority to hear a related state-law claim along with a federal claim. The court cited authority stating that a litigant’s “high-frequency” status may, in exceptional circumstances, justify declining to hear an Unruh Act claim brought alongside an ADA claim. The opinion does not itself determine that Whitaker is a high-frequency litigant or dismiss the Unruh Act claim.

Second, the court ordered Whitaker to show cause why the case should not be dismissed for lack of Article III standing. Standing is the requirement that a plaintiff show a legally sufficient injury and a real, immediate threat of repeated injury. The court required Whitaker to submit a separate declaration, sworn under penalty of perjury, addressing the facts needed to establish that threat. The declaration had to address whether Whitaker personally visited Old Town Sushi, whether he was deterred from patronizing it, his intent to return to the geographic area, and his desire to return to the establishment if it became accessible.

Required Declarations and Possible Further Proceedings

The court also required counsel to submit one or more detailed declarations substantiating the allegations that Whitaker visited the establishment. If Whitaker relied on deterrence, counsel had to describe how and when he visited, how and when he was deterred, his intent to return to the area, and his desire to return to the facility if it became accessible. The defendant could elect to conduct jurisdictional discovery—limited discovery concerning facts bearing on the court’s jurisdiction—about Whitaker’s intent to return and whether he personally visited. The court stated that, whether or not such discovery occurred, an in-person evidentiary hearing would likely be scheduled to test the truth of the jurisdictional allegations.

Disposition

Whitaker and his counsel were ordered to respond by May 19, 2022. The order warned that failure to respond would result in dismissal of the action with prejudice. The opinion provided does not state that the court had already dismissed the case, ruled on standing, or decided the merits of either claim.