United States District Court, D. Arizona
Honorable G. Murray Snow, Judge.
before the Court is the Motion to Dismiss of Defendant Canyon
Hospitality, LLC for lack of standing. (Doc. 12). Recently,
in Civil Rights Education and Enforcement Center v.
Hospitality Properties Trust, 867 F.3d 1093, 1099 (9th
Cir. 2017) (hereinafter “CREEC”), the
Ninth Circuit restated and clarified the broad scope of
standing in ADA cases involving public accommodations as it
relates both to the deterrent effect doctrine and to tester
standing. Plaintiff has filed 133 similar cases against
hotels in the Phoenix area. Because the issue of standing
affects all of Plaintiff's cases before the Court, the
Court ordered a consolidated hearing at which the Court could
consider Mr. Gastelum's standing in all his cases then
pending before this Court. In addition to the Canyon
Hospitality case, Mr. Gastelum had eleven other ADA
complaints against hotels pending in this Court. The hearing
held was noticed for ten of them.After reviewing the evidence
from the hearing, the Court determines that Plaintiff
nevertheless fails to meet the requirements for standing in
every case. Thus, the Court grants Defendant's Motion to
Dismiss and enters this Order dismissing both the Canyon
Hospitality case and all other cases brought by Plaintiff
that were the noticed subject of the motion hearing.
Fernando Gastelum's left leg is amputated below the knee,
requiring him to move around either with a prosthetic leg or
the aid of a wheelchair. He spends approximately 85% of his
time in a wheelchair. In his Complaint,  as it pertains to
his interaction with Defendant Canyon Hospitality's
hotel, Plaintiff merely alleges that “on or about
August 17, 2017” “Plaintiff reviewed a
3rd party lodging website to book an ambulatory
and wheelchair accessible room.” (Doc. 1, pp. 15, 26,
30). According to Plaintiff, this website did not contain
sufficient information for Plaintiff to determine whether
Defendant's hotel complied with the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12181-89.
(Doc. 1, p. 5). Next, Plaintiff visited Defendant's
first-party website, www.gcuhotel.com, attempting to find the
information that was not available on the third-party
website. Plaintiff found that the first-party website also
lacked enough detail on ADA compliance. Id. at p. 8.
Because he could not ascertain from the websites whether the
hotel complied with the ADA, he thereafter called
Defendant's hotel to inquire whether it was ADA compliant
and was assured by an employee, Rena, that it was.
Id. at pp. 33-35. Nevertheless, on August 18, 2017,
Plaintiff visited Defendant's hotel to verify in person
whether the hotel was ADA compliant and suitable for
Plaintiff to stay.
visit to this Defendant, Plaintiff noted 22 areas where
Defendant's external facilities were allegedly out of
compliance with the ADA. Id. at pp. 10-12. That same
day, August 18, 2017, Plaintiff filed the present lawsuit
seeking injunctive relief under the ADA. (Doc. 1). Plaintiff
does not state in his Complaint how any of the failures of
compliance discriminate against him or his disability, but
the Complaint does make the bare allegation that he
“intends to book a room at the Defendant's hotel
once Defendant has removed all accessibility barriers.”
(Doc. 1, pp. 16, 19, 30). On that same date, Plaintiff also
filed a separate complaint concerning a separate hotel with
virtually identical allegations. See Gastelum v. BRE/LQ
Properties LLC, No. 17-cv-02802-PHX-DGC (D. Ariz. filed
Aug. 18, 2017).
time of the filing of Defendant Canyon Hospitality's
Motion to Dismiss, Plaintiff had, in the previous six weeks,
filed over thirty-three ADA complaints against hotels in the
Phoenix area alleging that he has been personally harmed by
the ADA violations of those hotels. By the time the hearing
was held on this matter Plaintiff acknowledged that he has
filed a total of approximately 125 similar lawsuits in the
District of Arizona against various hotels in the Phoenix
area. At present, Plaintiff has apparently filed 133
lawsuits. He has continued to file such suits after the
hearing. The complaints filed in all the cases
pending in front of this Court are substantially similar,
boilerplate complaints. In all the complaints, Mr. Gastelum
alleges the same process of checking a third-party website,
then a first-party website, and finally an in-person visit.
If the websites make different levels of disclosure of ADA
accommodations, the complaints reflect the specific
disclosures, seemingly copied and pasted from the website.
See, e.g., Gastelum v. AUM Hospitality Ventures,
LLC, No. 18-cv-0104-PHX-GMS (D. Ariz. filed Jan. 11,
2018) (Doc. 1, pp. 9-10). All of the complaints contain the
same language that Mr. Gastelum “intends to book a room
at the Defendant's hotel once Defendant has removed all
accessibility barriers.” See, e.g., Id. at p.
4. No complaint contains further detail on Mr. Gastelum's
return plans. Each complaint contains a different list of ADA
barriers found on Plaintiff's inspection, though many of
the same barriers appear on each complaint. Thus, while
details gleamed from the inspections are changed, the
substance of the rest of the complaints are almost exactly
Canyon Hospitality operates the Grand Canyon University Hotel
in Phoenix, and moved the Court to dismiss on the grounds
that Plaintiff has failed to plead the necessary requirements
to establish Article III standing. (Doc. 12). In light of the
questions raised by Defendant in its motion that were similar
to virtually all of the cases filed by Mr. Gastelum in this
Court, and the Court's obligation to sua sponte determine
whether there is standing in its cases, see Bernhardt v.
County of Los Angeles, 279 F.3d 862, 868 (9th Cir.
2001), the Court held evidentiary hearings on May 4, 2018 and
May 11, 2018 that pertained to all of the cases filed by Mr.
Gastelum that were being heard by this Court.
Gastelum was present to testify on both occasions. Mr.
Gastelum testified that he lives in Casa Grande, Arizona,
approximately fifty-five miles from Phoenix, Arizona. He is
57 years old and has lived in Casa Grande all of his life.
Mr. Gastelum testified that since he began to file ADA
lawsuits against lodgings in the Phoenix area last year he
has stayed overnight at ten hotels. He never stayed in the
same hotel twice. Mr. Gastelum sued each of these ten hotels
for failure to comply with the ADA. He testified that he has not
returned to any of the hotels with which he has settled his
claims, or in which he has stayed, because they have not yet
completed their compliance with all ADA standards. In
addition to staying at the ten lodgings, he has paid visits
within the past year to many other Phoenix area lodgings to
assess whether they comply with the ADA. Inspecting hotels
for ADA compliance in the company of his attorney is one of
the principal reasons that he comes to Phoenix: Mr. Gastelum
meets with his attorney, Mr. Peter Strojnik, in Phoenix,
twice a week. Mr. Gastelum's son, Eric, who receives
compensation for the inspection of the hotels, and Mr.
Strojnik himself generally accompany Mr. Gastelum to the
hotels. In fact, Mr. Gastelum stated in a deposition that he
usually stays in the car while Eric and Mr. Strojnik inspect
the hotel. Gastelum v. Pride Hospitality,
No. 17-cv-03607-PHX-GMS (D. Ariz. filed Oct. 8, 2017) (Doc.
27, Ex. 1, p. 106:10-16). Mr. Gastelum testified that he had
been given a three-ring binder prepared by his counsel Mr.
Strojnik which contains materials and instruction
by which he can ascertain whether a lodging is in compliance
with all ADA regulations. He takes the binder with him when
he visits those lodgings. If the lodging is out of compliance
with the ADA, Mr. Strojnik files suit on his behalf. Mr.
Gastelum estimates that he visits four Phoenix-area hotels a
week, usually two per day. But he generally returns to Casa
Grande for the evening without staying at any of the Phoenix
lodgings that he has visited. In addition to bringing suit
against each of the ten lodgings at which he actually stayed
during the past year, he has brought suit against more than
120 other facilities that he has visited or otherwise
contacted to evaluate for ADA compliance. And as the facts of
some of the cases demonstrate, the lawsuit is at least
sometimes filed on the same date as Mr. Gastelum's visit.
At the hearing, Mr. Gastelum testified that it was his intent
and desire in bringing these suits to represent all persons
with disabilities in asserting their rights to ADA
compliance, and that he had a general desire to live in
communities and stay at lodgings that accommodated persons
with disabilities as full members of the community.
been discussed, an examination of the Complaints in these
lawsuits reveals that the Complaints are boilerplate
complaints that have identical language in many particulars
and are minimally tailored to accommodate the facts of the
individual lodging defendant. Mr. Gastelum has not personally
paid the filing fees for any of the cases brought. His
attorney covers the filing fee. The amount of filing fees
alone paid to file the suits in the last year exceeds Mr.
Gastelum's yearly household income of $44,
000.His wife is employed and works a regular
work week from Monday to Friday. In his deposition in the
Pride Hospitality case, Mr. Gastelum testified that
his wife of over twenty years is unaware that he is a
plaintiff in ADA cases and that he frequently travels to
Phoenix with his son to investigate hotels and meet with his
attorney. No. 17-cv-03607-PHX-GMS (Doc. 27, Ex. 1, pp.
Gastelum's counsel has already settled 6 of the suits
that were filed in this Court for undisclosed sums. Mr.
Gastelum is paid $350 for every case that is successfully
terminated by his counsel. Pride Hospitality, No.
17-cv-03607-PHX-GMS (Doc. 27, Ex. 1, pp. 173:24-174:10). In
two of the cases that are currently before this Court the
parties have resolved the underlying matters but have asked
the Court to award attorneys' fees to Mr. Gastelum's
counsel as representing the prevailing party. In both cases,
Mr. Gastelum's counsel has quickly settled the case
against the Defendants and then sought attorney's fees
and costs awards of $21, 291 and $12, 643, respectively,
without doing any substantial discovery in the case.
Pride Hospitality, No. 17-cv-03607-PHX-GMS (Doc.
22); AUM Hospitality Ventures LLC, No.
18-cv-00104-PHX-GMS (Doc. 15).
Gastelum stated that he likes to come to Phoenix to attend
baseball games, and to go to karaoke bars and shopping with
his wife, and meet with his attorney. Mr. Gastelum filed an
evidentiary memorandum with the court, prior to the first
hearing. In the evidentiary memorandum he provided receipts
from all of the hotels at which he has stayed and all of the
sporting events he attended in Phoenix in the last year. The
sporting events are for Diamondback games together with two
football related events. (Doc. 28). To the extent that Mr.
Gastelum attempts to suggest that he stays overnight in
Phoenix when he attends Diamondbacks games, the receipts and
dates of the tickets demonstrates that he does not. The dates
he has stayed in lodgings in the Phoenix in the last year do
not coincide with dates on which he was attending
Diamondbacks games, and he provides no corroboration that he
stayed with his wife on such occasions when shopping or going
to karaoke with her.
to the time he began initiating these lawsuits, Mr. Gastelum
generally returned to Casa Grande for the night when he had
business in Phoenix, or he stayed with his friend who lived
in Phoenix or with his sister who lives in Mesa. He believed
he had stayed at hotels in the Phoenix area approximately ten
other times in his life during all of which he has resided in
Casa Grande. On his family's household income--$44, 000
per annum--Mr. Gastelum estimated that he would be able to
stay in hotels in the Phoenix area a maximum of twelve to
fifteen times per year. Mr. Gastelum stated that it would be
impossible to stay at all of the approximately 125 (now 133)
hotels he has sued, but he would like to stay at
some. He testified that he would return to and
stay at any of the hotels he has sued if the alleged ADA
violations were fixed.
Gastelum has never before visited Defendant Canyon
Hospitality, nor has he since visited. Nor at the hearing was
he able to set forth any persuasive reasons why he is likely
to visit the Defendant Canyon Hospitality in the future. The
Court finds that although Mr. Gastelum did visit the
Defendant's facility as a tester, he did so only with the
purpose of filing a lawsuit to obtain injunctive relief as a
part of pattern of litigation against many Phoenix area
hotels. He has offered no sufficiently persuasive reason to
believe that he would revisit the facility, or any other
facility in the cases for which the hearing was noted, except
to the extent that such a revisitation or an avowal of
willingness to revisit would be necessary to maintain
standing to obtain injunctive relief.
Gastelum did identify a few generalized reasons why he might
want to return to other hotels he has sued, including, for
example, their proximity to water parks or malls. But he
offered no reasonable plans to believe that he had any
specific intent or likelihood of doing so. Further, Mr.
Gastelum has sued 133 hotels in the Phoenix area and avowed
in doing so that he intended to book a room at each one of
them once the defendant resolved its ADA issues. However, Mr.
Gastelum testified that he has never stayed at a hotel more
verified complaints Mr. Gastelum does not avow that he would
actually return to any of the facilities against which he is
bringing suit, only that he would “book a room”
in such facilities. In none of the complaints does Mr.
Gastelum allege a specific persuasive reason why he would
return to the lodging he sues. Because of the volume of cases
he has brought, his limited reasons for staying in Phoenix,
the proximity to Casa Grande to which he easily can, and
frequently does, return for his overnight stays, the evident
enterprise in conjunction with his attorney to sue many
hotels in the Phoenix area for ADA compliance, his personal
finances, his past travel habits, and his testimony that he
could not return to all hotels he has sued, the Court finds
that he has failed to establish a sufficient likelihood that
he would return to any of the hotels that are the defendants
in the cases in which this hearing is noticed.
upon the above facts the Court concludes that Mr. Gastelum
and his counsel Mr. Strojnik are engaged in a joint
enterprise in which they are filing multiple suits against
any Phoenix area lodgings that they believe to be out of
compliance with the ADA in some respect or respects. They are
filing such suits without reference to whether Mr. Gastelum
actually had any intent to make future visits to those
facilities for reasons not related to his pursuit of ADA
claims against them. Given the facts of this case Mr.
Gastelum has failed to establish that he would have any
likelihood of revisiting these facilities except to the
extent it would be deemed necessary for him to do so to bring
suit against each of the Defendants.
under Article III of the Constitution is a constitutional
limitation on a court's subject matter jurisdiction and
cannot be granted by statute. See Cetacean Cmty. v.
Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-77
(1992)). Because standing is a jurisdictional question, it is
properly addressed in a Rule 12(b)(1) motion instead of a
Rule 12(b)(6) motion. Cetacean Cmty., 386 F.3d at
1174. “A district court may hear evidence and make
findings of fact necessary to rule on the subject matter
jurisdiction question prior to trial, if the jurisdictional
facts are not intertwined with the merits.” Rosales
v. United States, 824 F.2d 799, 803 (9th Cir. 1987).
Constitution requires that litigants “who seek to
invoke the jurisdiction of the federal courts must satisfy
the threshold requirements imposed by Article III . . . by
alleging an actual case or controversy.” City of
Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). This
Constitutional prerequisite of standing is so fundamental
that federal courts are required to consider these issues sua
sponte. See Bernhardt, 279 F.3d at 868. Three
elements must be present for a Plaintiff to have standing:
(1) the Plaintiff must have “suffered an injury in
fact-an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical;” (2) there must be a
“causal connection between the injury and the conduct
complained of;” and (3) it must be “likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Lujan, 504
U.S. at 560-61. When a plaintiff seeks injunctive relief,
there is an additional requirement of showing “a
sufficient likelihood that [the plaintiff] will again be
wronged in a similar way . . . [t]hat is, . . . a real and
immediate threat of repeated injury.” Fortyune v.
American Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th
Cir. 2004) (quoting Lyons, 461 U.S. at 111, and
O'Shea v. Littleton, 414 U.S. 488, 496 (1974))
(internal quotations omitted). In the context of civil rights
statutes, such as the ADA, courts are instructed to take a
“broad view” of constitutional standing.
Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039-40 (9th
Cir. 2008) (citing Trafficante v. Metro. Life Ins.
Co., 409 U.S. 205, 209 (1972)).
Congress “cannot erase Article III's standing
requirements by statutorily granting the right to sue to a
plaintiff who would not otherwise have standing.”
Raines v. Byrd, 521 U.S.811, 820 n. 3 (1997). As
such, “Congress' role in identifying and elevating
intangible harms does not mean that a plaintiff automatically
satisfies the injury-in-fact requirement whenever a statute
grants a person a statutory right and purports to authorize
that person to sue to vindicate that right.”
Spokeo, Inc. v. Robbins, 136 S.Ct. 1540, 1549