United States District Court, D. Arizona
Advocates for Individuals with Disabilities Foundation Incorporated, Plaintiff,
Golden Rule Properties LLC, Defendant.
G. Murray Snow United States District Judge.
has filed a Motion to Dismiss Federal Claims pursuant to
Federal Rule of Civil Procedure 41(a)(2), together with a
Motion to Remand once his federal claim under the Americans
with Disabilities Act, 42 U.S.C. §§ 12101, et seq.
(“ADA”) has been dismissed (Doc. 8).
Ninth Circuit has held that Rule 41(a)(1) “does not
allow for piecemeal dismissals.” Hells Canyon Pres.
Council v. U.S. Forest Serv., 403 F.3d 683, 687 (9th
Cir. 2005). “Instead, withdrawals of individual claims
against a given defendant are governed by [Rule] 15, which
addresses amendments to pleadings.” Id.
(citing Ethridge v. Harbor House Restaurant, 861
F.2d 1389 (9th Cir. 1988)); see also Gen. Signal Corp. v.
MCI Telecomms. Corp., 66 F.3d 1500, 1513 (9th Cir. 1995)
(“[W]e have held that Rule 15, not Rule 41, governs the
situation when a party dismisses some, but not all, of its
claims.”) (citations omitted). Thus, “‘a
plaintiff may not use [Rule 41(a)(1)] to dismiss,
unilaterally, a single claim from a multi-claim
complaint.'” Hells Canyon, 403 F.3d at 687
(quoting Ethridge, 861 F.2d at 1392). Other circuits
agree. See Id. n.4 (collecting cases); see
also S. Gensler, Federal Rules of Civil Procedure, Rules
and Commentary, at 1014 (Thomson Reuters 2016) (“[I]f a
plaintiff has multiple claims against a defendant and wishes
to dismiss one or more - but not all - of those claims, the
appropriate procedural mechanism is to file an amended
complaint under Rule 15(a).”). The analysis in Hells
Canyon applies equally to attempts to dismiss using
either Fed.R.Civ.P. 41(a)(1) or 41(a)(2). Therefore, if
Plaintiff wishes to dismiss its federal claim, it is obliged
to file a separate motion to amend that comports with LRCiv.
well, however, “[f]ederal courts are required sua
sponte to examine jurisdictional issues such as
standing.” Chapman v. Pier 1 Imports (U.S.)
Inc., 631 F.3d 939, 954 (9th Cir. 2011) (en banc)
(citation omitted and alteration in the original). After
reviewing the complaint, the Court is unconvinced that the
Plaintiff, as a “charitable non-profit
foundation” that allegedly “has a close
relationship with former, current and future [unnamed]
disabled individuals[, ]” has standing to pursue
injunctive relief under the ADA. (Doc. 1, Ex. 1 at 1-2.)
plaintiff has standing to pursue injunctive relief only if he
“is likely to suffer future injury.” City of
Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). The
threatened injury must be “concrete and
particularized”; that is, it must affect the plaintiff
“in a personal and individual way.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 & n.1
(1992). An “undifferentiated” interest in
ensuring compliance with the law will not suffice.
Id. at 575 (citing United States v.
Richardson, 418 U.S. 166, 176-77 (1974)); see also
Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26,
40 (1976) (“an organization's abstract concern with
a subject that could be affected by an adjudication does not
substitute for the concrete injury required by” Article
cases under Title III of the ADA, a disabled plaintiff can
establish standing to pursue injunctive relief either by
showing that “he intends to return to a noncompliant
accommodation and is therefore likely to reencounter a
discriminatory architectural barrier, ” or by showing
that “discriminatory architectural barriers deter him
from returning to a noncompliant accommodation” that he
otherwise would visit. Chapman, 631 F.3d at 950. In
either case, the plaintiff must show that he is personally
affected by the barrier. Id. (claim for injunctive
relief must seek to “vindicate the rights of the
particular plaintiff rather than the rights of third
parties”). Courts dismiss Title III claims on standing
grounds where the plaintiff fails to assert a personalized
injury stemming from the alleged violation. See Payne v.
Chapel Hill N. Properties, LLC, 947 F.Supp.2d 567, 578
(M.D. N.C. 2013) (disability rights organization lacked
standing to seek injunction under Title III, where it failed
to identify any member personally affected by the barrier);
Small v. Gen. Nutrition Companies, Inc., 388
F.Supp.2d 83, 90-99 (E.D. N.Y. 2005) (same).
of asserting that any actual disabled individual encountered
the Defendant's allegedly ADA-noncompliant public
accommodation, Plaintiff's complaint alleges the
Plaintiff, who is known to have a relationship or association
with individuals with disabilities, conducted an
investigation into Defendant's public accommodation for
purposes of ascertaining whether it complies with the ADA.
Plaintiff's investigation confirmed that Defendant's
public accommodation was not accessible to individuals with
disabilities in the following particulars: . . .
(Doc. 1, Ex. 1 at 5.) Plaintiff appears to identify only a
generalized interest in ensuring that Defendant complies with
the ADA. Such an interest is insufficient to confer standing.
See Lujan, 504 U.S. at 575; Simon, 426 U.S.
at 40. The fact that Plaintiff is an association that
advocates on behalf of disabled individuals does not change
this analysis. See Payne, 947 F.Supp.2d at 578;
Small, 388 F.Supp. 2d. at 90-99.
those reasons, and in the interest of judicial economy, the
Court orders that before Plaintiff files the requisite motion
to amend in compliance with LRCiv. 15.1, Plaintiff and its
attorney individually are ordered to show cause as to why
this case should not be dismissed for a lack of standing.
the Defendant asserts that the Plaintiffs pre- and
post-removal conduct suggests gamesmanship and a deliberate
attempt to waste the Defendant's time and to raise its
costs. (See Doc. 11 at 4-6.) The Court may sanction
a party who has “acted in bad faith, vexatiously,
wantonly, or for oppressive reasons.” Chambers v.
NASCO, Inc., 501 U.S. 32, 46 (1991) (internal quotation
marks and citation omitted). Moreover, an attorney “who
so multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys'
fees reasonably incurred because of such conduct.” 28
U.S.C. § 1927. Accordingly, the Court also orders
Plaintiff and its attorney individually to show cause as to
why it should not be sanctioned for its pre- and post-removal
conduct as outlined by Defendant's response brief and
corroborated by its attached exhibits. (Doc. 11 at 4-6, Exs.
HEREBY ORDERED that Plaintiffs Notice of Voluntary Dismissal
of Federal Claims Without Prejudice and Motion to Remand
(Doc. 10) is denied.
FURTHER ORDERED that before filing a motion to amend,
Plaintiff and its attorney individually are directed to show
cause why: (1) this case should not be dismissed for lack of
standing; and (2) why it should not be sanctioned, by
September 8, 2016. Defendant, if it wishes to do so, may file
a response by September 15, 2016. Plaintiff may file a reply
by September 22, 2016.
FURTHER ORDERED that an Order to Show Cause Hearing is set
for September 29, 2016 at 3:30 p.m. in Courtroom 602, Sandra
Day O'Connor U.S. Federal Courthouse, ...