Whitaker v. The Lonely Planet LLC
- William Alsup
- 3:21-cv-03365
- U.S. District Court · Northern District of California
- 2
In Whitaker v. The Lonely Planet LLC, Judge Alsup ordered plaintiff and counsel to support Article III standing or face dismissal.
Brian Whitaker and his counsel, who were required to submit declarations supporting the court’s jurisdiction and respond by June 24, 2022; the order stated that failure to respond would result in dismissal of the action with prejudice.
What happened
In Whitaker v. The Lonely Planet LLC, the court ordered Brian Whitaker to explain why the case should not be dismissed for lack of constitutional standing. The court raised the issue on its own, without relying on a party’s challenge.
The court required counsel to submit a detailed declaration supporting the allegations that Whitaker visited the establishment. The declaration also had to address whether he faced a real and immediate threat of being injured again, including his intent to return or, if he claimed deterrence, details about his distance, visits, deterrence, and desire to return if the establishment became accessible. Whitaker had to submit a separate declaration under penalty of perjury covering the same jurisdictional facts.
Whitaker and his counsel had to respond by June 24, 2022. Judge William Alsup stated that failing to respond would result in dismissal of the action with prejudice, but this order itself required a response rather than entering that dismissal.
The detailed version
- Whitaker v. The Lonely Planet LLC · No. 3:21-cv-03365
- William Alsup
- June 15, 2022
Background
The court issued an order requiring Brian Whitaker to show cause—meaning to explain—why the action should not be dismissed for lack of Article III standing. Article III standing is the constitutional requirement that a plaintiff have a sufficient personal stake in the dispute. The court emphasized that federal courts must independently determine whether subject-matter jurisdiction exists, even when no party challenges it.
The order referred to allegations by the San Francisco and Los Angeles District Attorneys concerning the conduct of the Potter Handy firm and its clients. In light of those allegations, the court required additional support for the complaint’s allegation that Whitaker had visited the establishment.
Required Declarations
The court ordered Whitaker’s counsel to submit one or more declarations substantiating, in detail, the allegations that Whitaker visited the establishment. The declaration had to adequately address the jurisdictional allegations supporting a “real and immediate threat of repeated injury,” including Whitaker’s intent to return.
If Whitaker relied on deterrence, counsel’s declaration also had to state how many miles Whitaker lived from the establishment; describe how and when he visited it; explain how and when he was deterred from patronizing it; describe his intent to return to the geographic area; and state his desire to return to the facility if it became accessible.
The court separately required Whitaker to submit his own declaration, sworn under penalty of perjury. That declaration had to swear to the facts supporting the jurisdictional requirements necessary to establish a real and immediate threat of repeated injury.
Order and Possible Disposition
Whitaker and his counsel were ordered to respond by June 24, 2022. The court stated that failure to respond would result in dismissal of the action with prejudice. The opinion provided is an order to show cause and does not state that the court had already dismissed the action. Judge William Alsup signed the order on June 15, 2022.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.