Doran v. 7-Eleven, Inc.

• Decision Date: 09 November 2007
• Docket Number: No. 05-56439.,05-56439.
• Parties: Jerry DORAN, Plaintiff-Appellant, v. 7-ELEVEN, INC., d/b/a 7-Eleven; Southland Corp., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

506 F.3d 1191

Jerry DORAN, Plaintiff-Appellant, v. 7-ELEVEN, INC., d/b/a 7-Eleven; Southland Corp., Defendants-Appellees.

No. 05-56439.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 16, 2007.

Filed November 9, 2007.

Lynn Hubbard, III and Scottlynn J. Hubbard, IV, Law Offices of Lynn Hubbard, Chico, CA, for plaintiff-appellant Jerry Doran.

Scott J. Ferrell, Julie R. Trotter, and Melinda Evans, Call, Jensen & Ferrell, Newport Beach, CA, for defendants-appellees 7-Eleven, Inc. and Southland Corp.

Appeal from the United States District Court for the Central District of California; James V. Selna, District Judge, Presiding. D.C. No. CV-04-01125-JVS.

Before JEROME FARRIS and RONALD M. GOULD, Circuit Judges, and KEVIN THOMAS DUFFY,^* District Judge.

PER CURIAM Opinion; Dissent by Judge DUFFY.

PER CURIAM:

We review an order of the district court granting summary judgment to 7-Eleven, Inc. in Jerry Doran's suit under the Americans with Disabilities Act ("ADA"). We affirm the district court's summary judgment on certain alleged ADA violations Doran encountered or of which he had personal knowledge. However, because the district court erred in concluding that Doran did not have standing to challenge other barriers related to his disability and identified in his expert's site inspection, we partially vacate the district court's order granting summary judgment, and we remand for further proceedings.

I

Doran is a paraplegic who uses a wheelchair for mobility and travels in a wheel-chair-accessible minivan. Doran lives in Cottonwood, California, but has on several occasions visited the 7-Eleven store on North Harbor Boulevard in Anaheim, California. This 7-Eleven store is about 550 miles from his home. In September 2004, Doran filed suit in the district court, alleging that the North Harbor 7-Eleven store contained barriers that denied him full and equal access to the store, that he had personally encountered barriers at the store, and that the barriers deterred him from visiting the store. He requested injunctive relief under Title III of the ADA and injunctive relief and monetary damages under California law.

In a deposition taken on May 19, 2005, Doran testified that he had encountered or had knowledge of nine alleged barriers at the 7-Eleven store: (1) that there was no van-accessible parking nor any sign denoting such parking; (2) that the striping outlining the disabled parking space was faded; (3) that there was no sign designating the location of the wheelchair ramp; (4) that the wheelchair ramp was too steep; (5) that the store aisles were too narrow; (6) that the entry mat obstructed entry to the store; (7) that disabled patrons were denied access to the employees-only restroom; (8) that the floor space was obstructed by merchandise; and (9) that there were no directional signs indicating the nearest accessible store entrance.

On June 23, 2005, the magistrate judge issued a discovery order allowing Doran to conduct a site inspection of the store but limiting the inspection to barriers that Doran testified he had encountered or knew about but did not personally encounter. The district court denied Doran's motion for review of the magistrate judge's ruling. Despite the limited scope of the discovery order, Doran's expert inspected the store and identified barriers, beyond those Doran identified in his deposition, that would potentially impact mobility-impaired individuals. The expert reported that, among other things, the cashier's counter and ATM were too high, the condiment counter required too long of a reach, and the accessible parking spaces were too sloped.

The district court granted summary judgment to 7-Eleven on all of Doran's ADA claims. The court held that Doran did not have standing to challenge the barriers first identified in the expert report because Doran neither encountered nor had personal knowledge of those barriers. As to the nine barriers that Doran testified he had encountered or had known about, the district court held either that 7-Eleven had already removed them or that Doran had failed to provide any evidence that the alleged barriers violated the ADA. As specifically relevant to this appeal, the district court held that (1) Doran produced no evidence that the store aisles were too narrow under the ADA Accessibility Guidelines or that 7-Eleven maintained an aisle-width policy that violated the ADA and (2) excluding disabled patrons from the store's employees-only restroom did not violate the ADA. After granting summary judgment to 7-Eleven on Doran's federal claims, the district court declined to exercise supplemental jurisdiction over Doran's state law claims and dismissed them without prejudice.

II

Both parties raise standing issues. 7-Eleven argues that Doran cannot establish that the North Harbor 7-Eleven store poses an immediate threat of harm to him because it is more than 500 miles away from his home and that Doran therefore lacks standing to sue concerning any of the store's barriers. Doran, on the other hand, argues that a disabled person has standing to challenge all of the barriers related to his disability in a place of public accommodation, not just those he had encountered or those of which he had personal knowledge.¹

The doctrine of standing is based both on prudential concerns and on constitutional limitations on the jurisdiction of the federal courts. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To determine whether a dispute presents a case or controversy sufficient to give us jurisdiction under Article III of the Constitution, we apply a three-element test formulated by the Supreme Court:

First, 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. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks, citations, and footnote omitted). The Supreme Court has instructed us to take a broad view of constitutional standing in civil rights cases, especially where, as under the ADA, private enforcement suits "are the primary method of obtaining compliance with the Act." Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972); see also 42 U.S.C. § 12188(a) (providing private right of action for injunctive relief against public accommodations that violate the ADA).

We previously addressed the injury-in-fact prong of the Article III standing test in another ADA case in which Doran was the plaintiff: Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133 (9th Cir.2002). In that case, Doran brought suit challenging architectural barriers in a Holiday Foods grocery store in Paradise, California that was 70 miles from his home, but near the home of his grandmother who he visited frequently. Id. at 1135. Before filing suit, Doran had visited the Paradise Holiday Foods only twice. Id. at 1136. During his first visit, which occurred outside the relevant statute of limitations period, Doran personally encountered architectural barriers. Id. at 1135. During Doran's second visit, because of the barriers in the store, he had to wait in the parking lot while his companion went into the store on his behalf. Id. at 1136. Doran's second trip to the store occurred within the limitations period. Id. But because Doran's personal encounter with the barriers had occurred outside the limitations period, one of the questions before us was whether he had suffered an injury in fact within the limitations period sufficient to give him standing. Id. at 1137.

As to Lujan's requirement that an injury be concrete and particularized, we held "that in stating that he is currently deterred from attempting to gain access to the Paradise store, Doran has stated sufficient facts to show concrete, particularized injury." Id. at 1137-38. As to Lujan's requirement that a plaintiff's injury be actual or imminent, we held

that a disabled individual who is currently deterred from patronizing a public accommodation due to a defendant's failure to comply with the ADA has suffered "actual injury." Similarly, a plaintiff who is threatened with harm in the future because of existing or imminently threatened non-compliance with the ADA suffers "imminent injury."

Id. at 1138.

A

As noted above, 7-Eleven argues that Doran lacks constitutional standing to challenge any of the alleged barriers in the North Harbor 7-Eleven because the store is so far away from his home.

However, Doran has suffered an injury that is concrete and particularized because he alleged that he personally suffered discrimination as a result of the barriers in place during his visits to 7-Eleven and that those barriers have deterred him from continuing to patronize the store. See Pickern, 293 F.3d at 1137-38; see also Parr v. L & L Drive-Inn Rest., 96 F.Supp.2d 1065, 1079 (D.Haw.2000) ("Plaintiff's desire to patronize Defendant's restaurant free from discrimination is clearly a cognizable interest for the purposes of standing.").

As to whether Doran's injury is actual or imminent, Doran alleged that he had visited the 7-Eleven store on ten to twenty prior occasions, that he is currently deterred from visiting the store because of its accessibility barriers, that the store is conveniently located near his favorite fast food restaurant in Anaheim, and that he plans to visit Anaheim at least once a year on his annual trips to Disneyland. Allegations that a plaintiff has visited a public accommodation on a prior occasion and is currently deterred from...