Whitaker v. Sunhill Enterprises, LP

Background

Brian Whitaker, who uses a wheelchair for mobility, alleged that he visited Gaters restaurant in December 2021. He alleged that A-1 Excel, Inc. owns Gaters and that he encountered three accessibility problems: insufficient knee or toe clearance under indoor dining surfaces, a sales counter higher than 36 inches, and door hardware requiring tight grasping to operate. Whitaker alleged that he was deterred from returning because he knew about these barriers, but also intended to return after being told that the facility complied with the Americans with Disabilities Act (ADA).

Whitaker asserted claims under the ADA and California’s Unruh Civil Rights Act. A-1 moved to dismiss, arguing that Whitaker lacked standing, meaning a sufficient connection to the alleged injury to invoke the federal court’s authority. The court analyzed the challenge under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal for lack of subject-matter jurisdiction. A-1 made both a facial challenge, based on the complaint’s allegations, and a factual challenge supported by evidence.

ADA Claim

The court explained that Whitaker had to show a concrete injury, a connection between that injury and A-1’s conduct, and a likelihood that judicial relief would address the injury. Because the ADA relief at issue was primarily an injunction, Whitaker also had to show a real and immediate threat that he would suffer the same injury again. An ADA plaintiff may meet that requirement by intending to return to a noncompliant business or by being deterred from returning, but the alleged future injury cannot be speculative.

The court concluded that Whitaker’s complaint did not contain enough facts supporting his intent to return to the Bay Area. The complaint stated that he would return to Gaters, but the court found that statement conclusory. Whitaker’s opposition included a declaration stating that he planned to move to the Sacramento area, intended to return to Gaters after the barriers were removed, and had tracked businesses to which he returned after accessibility barriers were removed. The court said the declaration prevented it from finding as a matter of law that Whitaker lacked standing and also prevented it from concluding that amendment would be futile.

The court therefore granted A-1’s motion to dismiss the ADA claim, with leave to amend. The ruling did not finally resolve whether the alleged accessibility barriers violated the ADA.

Unruh Act Claim

The court stated that A-1’s motion focused on standing to seek injunctive relief under the ADA. It found no facts establishing original federal jurisdiction over the Unruh Act claim, which Whitaker alleged was within the court’s supplemental jurisdiction. After dismissing the only claim over which it had federal jurisdiction, the court dismissed the Unruh Act claim without prejudice and declined to exercise supplemental jurisdiction over it.

The court ordered Whitaker, if he amended, to show why extraordinary circumstances would justify retaining supplemental jurisdiction over the Unruh Act claim. The response had to be filed with any amended complaint and served on all defendants.

Additional Orders

The court temporarily relieved the parties from the deadlines in General Order 56 while it considered the jurisdictional issues. It set August 24, 2022, as the deadline for any amended complaint. If Whitaker amended the standing allegations, he had to submit a declaration under penalty of perjury describing particular facts showing his intent to return to Gaters, including steps toward moving from Southern California to Northern California.

The court also required counsel to submit a declaration addressing steps taken to confirm Whitaker’s visit to Gaters and his intent to return, along with a chart identifying cases Whitaker filed in December 2021 alleging access barriers and information about those cases. The court allowed for possible jurisdictional discovery and reserved the possibility of an in-person evidentiary hearing concerning the credibility of the jurisdictional allegations.