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Advocates for Individuals With Disabilities LLC v. Midfirst Bank

United States District Court, D. Arizona

September 1, 2017

Advocates for Individuals With Disabilities LLC, and David Ritzenthaler, Plaintiffs,
MidFirst Bank, Defendant.



         Can a Tibetan Sherpa who has never set foot in Arizona sue an Arizona business for disability discrimination? The question bears on whether plaintiffs David Ritzenthaler and Advocates for Individuals with Disabilities LLC (collectively “AID”), both Arizona residents, can sue defendant MidFirst Bank (“MidFirst”), an Arizona business, for noncompliance with state and federal disability laws. AID insists they can despite never having visited MidFirst's business location and alleging no injury beyond Ritzenthaler's awareness that MidFirst may have failed to conform its parking lot to the precise requirements of both the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181 through 12189, and the Arizonans with Disabilities Act (“AZDA”), A.R.S. §§ 41-1492 through 41-1492.012. The federal claims are being dismissed for lack of standing, but AID asks this Court to remand its state claims to Arizona state court, where they believe even a Tibetan Sherpa would have standing to bring them. Before the Court is their Motion to Remand the state law claims. (Doc. 24.) For the reasons that follow, the Motion to Remand the state law claims will be denied, and this case will be dismissed in its entirety.

         I. BACKGROUND

         On May 17, 2016, AID filed a civil complaint in Maricopa County Superior Court alleging that MidFirst, located in Gilbert, Arizona, violated both the ADA and the AZDA. (Doc. 1-1 at 7.) MidFirst removed the case to federal court. (Doc. 1.) The allegations state no unique facts about MidFirst or its facilities but simply recite generalized allegations that MidFirst failed to maintain various parking lot specifications (adequate spaces and proper signage) required by state and federal disability laws. What's more, rather than alleging particular harm to Ritzenthaler (or anyone else), the complaint only states, “On or about Tuesday, March 15 2016 [sic], Plaintiff became aware” of various purported insufficiencies involving parking spot size and signage. (Doc. 1-1 at 7.) It is never asserted that Ritzenthaler, who the complaint characterizes as legally disabled, personally visited MidFirst's business. (The complaint never specifies what Ritzenthaler's disability is or how the MidFirst parking lot's purported deficiencies denied him access to any facilities. The Court assumes for the purpose of this order that Ritzenthaler does in fact have a disability recognized under both the ADA and the AZDA.) The complaint merely says he will avoid visiting MidFirst in the future unless it comes into compliance with the law. (Doc. 1-1 at 8.)

         Template complaints filled with non-specific allegations have become the stock-in-trade of attorneys Peter Strojnik and Fabian Zazueta. As in many of their cases, the discrepancies in parking signage and striping here were minor, even trivial. MidFirst immediately corrected them, as it would have if Strojnik and Zazueta had written a demand letter or just made a phone call. Though the minor discrepancies are often corrected immediately, Strojnik and Zazueta generally refuse to dismiss the cases they bring unless the defendants pay them attorney's fees, in this case “no less than $5, 000.” (Doc. 1-1 at 11.) They worry that just fixing the minor discrepancies will jeopardize their fee claim, as their template complaint seeks award of fees “[i]rrespective of Defendants' ‘voluntary cessation' of the AzDA [sic] and ADA violation.” (Id.) That then forces the defendants to retain counsel to resist the fee claim-or to pay Strojnik and Zazueta their fee demands to avoid retaining and paying their own attorneys.

         This extortionate practice has become pervasive. With Ritzenthaler listed as the aggrieved co-plaintiff, AID has pursued upwards of 160 cookie-cutter lawsuits in federal court and, from early to later 2016, more than 1, 700 such suits in Arizona state court. They come under the heading of different organizations with closely related names: “Advocates for Individuals with Disabilities Foundation, ” “Advocates for Individuals with Disabilities LLC, ” and “American Advocates for Disabled Individuals.” (Doc. 42-1 at 4.) (Some have also been filed under the name “Advocates for American Disabled Individuals LLC.” See, e.g., Advocates for American Disabled Individuals LLC v. Price Company, No. CV-16-02141-PHX-GMS, 2016 WL 5939467, at *1 (D. Ariz. Oct. 13, 2016).) The pleadings here follow the same script recited in other complaints right down to the same typographical errors. See, e.g., Doc. 42-2 at 4 (complaint in separate case alleging, among other things, that “Plaintiff suffers from disability [sic]” and that MidFirst's parking lot suffers from “inadequacy of handicapped parking spaces, insufficient designation or signage and or [sic] insufficient disbursement of such parking spaces”).

         On September 8, 2016, the Court ordered AID to show cause why this case should not be dismissed for lack of standing. (Doc. 20.) The Court also permitted AID to file an amended complaint if that would cure any standing defects. (Doc. 23.) AID did not file an amended complaint but instead asked that the case be remanded to state court. (Doc. 24.) Having previously found that AID failed to establish standing requisite for federal jurisdiction (Doc. 26), this Court determined MidFirst was entitled to have a federal court adjudicate that AID lacks standing to bring the federal claims. The Court ruled at a hearing on the Order to Show Cause that the ADA claims should be dismissed outright rather than remanded. (Doc. 45 at 81.) However, AID demanded that the state law claim be remanded for further consideration in the state court, not dismissed by this Court. The sole state law question is whether AID's lack of standing requires dismissal of the identical Arizona statutory claims, too. If not, then AID intends to litigate its state law claims in state court for which it has no standing and no injury. The state law issue of standing is nearly the same question this Court has already decided in dismissing the federal claims for lack of standing.

         Shortly before the Show Cause Hearing, on request of the Arizona Attorney General, more than 1, 000 identical cases filed by Strojnik and Zazueta were consolidated in Arizona superior court. By written order of March 2, 2017, the superior court dismissed all the consolidated cases with prejudice for lack of standing, except one. (Doc. 48-1 at 5-6.) The judge's ruling contained the following findings:

THE COURT FINDS that there are no allegations in the [consolidated] Complaint that would support the tester argument raised by Plaintiffs in their memorandum. Plaintiff has failed to show a distinct and palpable injury in these cases. The Court previously found that the Complaints are substantially similar for purposes of the standing issue.

(Doc. 48-1 at 6.) That court exempted only one case from its blanket dismissal order. (Id.) In that one case, Advocates for American Disabled Individuals, LLC, et al. v. Tartan Properties, a different judge had previously ruled the complaint was “sufficient to withstand a Motion to Dismiss based on lack of standing.” (Doc. 47-1 at 2.) The court declined to overturn that aberrant ruling, probably under the Arizona courts' strong admonition against “horizontal appeals, ” a rare and disfavored practice in which a superior court judge revisits rulings previously made in the same case by a prior judge. See Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 Ariz. 275, 278-79, 860 P.2d 1328, 1331-32 (Ct. App. 1993) (“We criticize horizontal appeals because they waste judicial resources by asking two judges to consider identical motions and because they encourage ‘judge shopping.'”). (Unlike federal court where cases remain assigned to the same judge, in superior court cases are routinely reassigned to different judges, who rotate departments every few years.)


         Federal statute requires that, where a case has been removed to federal court, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). The Ninth Circuit has recognized an exception to this requirement where there is “absolute certainty that remand would prove futile.” Bell v. City of Kellogg, 922 F.2d 1418, 1425 (9th Cir. 1991) (internal quotation marks omitted). The Bell court premised this “futility doctrine” on the assumption that Congress did not “intend[] to ignore the interest of efficient use of judicial resources.” Id. at 1424-25. Some courts have questioned the legitimacy of Bell, noting the statutory language that “the case shall be remanded.” See, e.g., Polo v. Innoventions Int'l, LLC, 833 F.3d 1193, 1197-98 (9th Cir. 2016) (questioning Bell but declining to overrule it despite circuit split on the futility doctrine).

         III. ANALYSIS

         The Bell standard for dismissing rather than remanding the state law claim is whether there is “absolute certainty that remand would prove futile.” Bell, 922 F.2d at 1425. In Bell the Ninth Circuit affirmed the trial court's decision to dismiss rather than remand a remaining state law claim ...

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