United States District Court, D. Arizona
Advocates for American Disabled Individuals LLC, et al., Plaintiffs,
The Price Company, Defendant.
Honorable G. Murray, Snow United States District Judge
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). After reviewing the
complaint in this action, the Court has serious questions
about whether Plaintiffs have standing to proceed. The Court
will order Plaintiffs to show cause as to why this case
should not be dismissed for lack of standing.
Advocates for Individuals with Disabilities, LLC
(“Advocates”) makes no allegations in the
complaint regarding its status, nature, or interest in this
case. Plaintiff David Ritzenthaler alleges that he is legally
disabled, that he has a state-issued handicapped license
plate, and that, on or about December 13, 2015, he
“became aware” that Defendant's place of
business lacked sufficient handicapped parking spaces,
designation, signage, or disbursement of those parking spaces
“in order to provide the shortest accessible route from
parking to an entrance[, ]” at Defendant's place of
business. (Doc. 1, Ex. 2 at 9-11, ¶¶ 1, 9, 10.)
Plaintiff does not allege that he personally visited
Defendant's business, but alleges that he will avoid
visiting the business in the future unless it comes into
compliance with the ADA. (Id. at 12, ¶ 15.)
complaint alleges that Defendant owns and operates a business
at 4502 E. Oak Street, Phoenix, Arizona, 85018, “which
is a commercial facility.” (Id. at 10, ¶
2.) The complaint does not identify the nature of
Defendant's business. The complaint alleges that
Defendant's facility has “insufficient handicapped
parking spaces, insufficient designation or signage and or
insufficient disbursement of such parking spaces[.]”
(Id. at 11, ¶ 10.) The complaint alleges that
Defendant has violated Title III of the ADA and its
implementing regulations, and seeks declaratory, injunctive,
and damages relief as well as the payment of attorney's
fees. (Id. at 15-16.)
plaintiff has standing to pursue injunctive relief only if he
“is likely to suffer future injury” absent the
requested injunction. 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 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”). “In determining whether a
plaintiff's likelihood of returning to a defendant is
sufficient to confer standing, courts have examined factors
such as (1) the proximity of the place of public
accommodation to plaintiff's residence, (2)
plaintiff's past patronage of defendant's business,
(3) the definitiveness of plaintiff's plans to return,
and (4) the plaintiff's frequency of travel near
defendant.” Harris v. Del Taco, Inc., 396
F.Supp.2d 1107, 1113 (C.D. Cal. 2005) (internal quotation
marks and citation omitted).
have dismissed Title III claims for lack of standing where
the plaintiff fails to assert a personalized injury stemming
from the alleged violation. See Payne v. Chapel Hill N.
Props., LLC, 947 F.Supp.2d 567, 578 (M.D. N.C. 2013)
(disability advocacy 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 Cos., Inc., 388 F.Supp.2d 83, 90-99 (E.D. N.Y.
have also dismissed Title III claims on standing grounds
where the plaintiff fails to plausibly allege that he intends
to return to the defendant's accommodation if the barrier
to access is removed. The Eleventh Circuit provided examples
of such cases in Shotz v. Cates, 256 F.3d 1077 (11th
In Proctor [v. Prince George's Hosp.
Ctr., 32 F.Supp.2d 830 (D. Md. 1998)], the plaintiff
admitted that it was purely speculative whether he would have
to visit the hospital, given the fact that his only other
visit was because of a motorcycle accident. In
Hoepfl [v. Barlow, 906 F.Supp. 317 (E.D.
Va. 1995)], the court stated “because [the plaintiff]
now resides in a different state, it is highly unlikely that
she will ever again be in a position where any discrimination
by [the defendant] against disabled individuals will affect
her personally.” In Aikins [v. St. Helena
Hosp., 843 F.Supp. 1329 (N.D. Cal. 1994)], the plaintiff
owned a mobile home at which she stayed only several days a
year. During one such visit, she alleged that she was
discriminated against by a nearby hospital. The court
concluded that the limited amount of time she spent in the
area, coupled with the fact that she visited the hospital
only because of her husband's illness, failed to suggest
a “real or immediate threat” of future
discrimination by the hospital. See also Tyler v. The
Kansas Lottery, 14 F.Supp.2d 1220 (D. Kan. 1998)
(plaintiff who had since moved to Wisconsin was unlikely to
be harmed by discrimination at lottery outlets in Kansas).
Id. at 1081-82 (some internal citations omitted). In
Harris, 396 F.Supp.2d 1107, the court dismissed a
claim for injunctive relief against a restaurant because the
plaintiff lived approximately 570 miles from the restaurant
and made no allegation that he was likely to return.
complaint appears to fall short of establishing standing. It
provides no information from which the Court could conclude
that Advocates has suffered injury or will suffer injury in
the future from Defendant's actions. Advocates appears to
be suing on the basis of a generalized interest in ensuring
that Defendant complies with the ADA, but such an interest is
insufficient to confer standing. See Lujan, 504 U.S.
at 575; Simon, 426 U.S. at 40. The fact that
Advocates seeks to promote the interests of disabled
individuals does not change this analysis. See
Payne, 947 F.Supp.2d at 578; Small, 388 F.Supp.
2d. at 90-99.
there information from which the Court could conclude that
Plaintiff Ritzenthaler has suffered injury or will suffer
injury in the future from Defendant's actions. Plaintiff
Ritzenthaler does not allege that he as ever visited
Defendant's business. Indeed, he fails even to identify
the nature of Defendant's business. Although he alleges
that he will be deterred from visiting Defendant's
business in the future, he provides no facts-like those
discussed in the cases above-from which the Court can
plausibly conclude that he will visit Defendant's
business in the future if the barrier to access is removed.
Indeed, the complaint alleges only that “Plaintiff,
or an agent of Plaintiff, intends to return to
Defendant's Commercial Facility to ascertain whether it
remains in violation of the . . . ADA.” (Doc. 1 at 13,
¶ 21 (emphasis added).)
these reasons, the Court orders Plaintiffs to show cause as
to why this case should not be dismissed for want of
standing. Cf. Chapman, 631 F.3d at 955
(“Because Chapman lacked standing at the outset of this
litigation to assert the ADA claims, the district court
should have dismissed them.”).
HEREBY ORDERED that Plaintiff and its attorney individually
are directed to show cause why this case should not be
dismissed for lack of standing by September 8, 2016.
Defendant, if it wishes to do so, may file a response by