Gastelum v. Five Below, Inc.

• Decision Date: 11 July 2022
• Docket Number: 1:22-cv-00825-AWI-SAB
• Parties: FERNANDO GASTELUM, Plaintiff, v. FIVE BELOW, INC., Defendant.
• Court: U.S. District Court — Eastern District of California

FERNANDO GASTELUM, Plaintiff,
v.
FIVE BELOW, INC., Defendant.

No. 1:22-cv-00825-AWI-SAB

United States District Court, E.D. California

July 11, 2022

DEADLINE: AUGUST 22, 2022

ORDER SCREENING COMPLAINT

(ECF NO. 1)

Plaintiff Fernando Gastelum (“Plaintiff”) is proceeding pro se^[1] in this accessibility litigation pursuant to the Americans with Disabilities Act (ADA) and state law against Defendant Five Below, Inc. (“Defendant” or “Five Below”). (ECF No. 1.) The Court issues the following sua sponte screening order pursuant to its independent obligation under Federal Rule of Civil Procedure 12(h)(3) to determine whether it has subject-matter jurisdiction over this matter. For the reasons discussed herein, the Court finds it lacks subject-matter jurisdiction and shall dismiss the complaint with leave to amend.

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I.

LEGAL AUTHORITY

The Court has an independent obligation to determine whether it has subject-matter jurisdiction. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (“[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.”); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (noting that “subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived”); Wilson v. Lynch, 835 F.3d 1083, 1091 (9th Cir. 2016). Consequently, “[f]ederal courts are required sua sponte to examine jurisdictional issues such as standing.” Bernhardt v. Cnty. of L.A., 279 F.3d 862, 868 (9th Cir. 2002) (internal quotation marks omitted and citations omitted); accord U.S. v. Hays, 515 U.S. 737, 742 (1995).

The existence of Article III standing is not subject to waiver. Hays, 515 U.S. at 742. Rather, it must be demonstrated “at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Finally, as set forth by Federal Rule of Civil Procedure (“Rule”) 12(h)(3), “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”^[2] Fed.R.Civ.P. 12(h)(3); see also Arbaugh, 546 U.S. at 514 (“when a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety”); see also Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004) (the court is obligated to evaluate its subject matter jurisdiction in each case and to dismiss a case when such jurisdiction is lacking).

Where, as here, the Court evaluates the jurisdictional issue facially, the court must accept the complaint's factual allegations as true. Comm. for Immigrant Rts. of Sonoma Cnty. v. Cnty. of Sonoma, 644 F.Supp.2d 1177, 1189 (N.D. Cal. 2009); see also Wilhelm v. Rotman, 680 F.3d

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1113, 1121 (9th Cir. 2012) (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)) (“where the petitioner is pro se, particularly in civil rights cases, [courts should] construe the pleadings liberally and . . . afford the petitioner the benefit of any doubt.”); U.S. v. Qazi, 975 F.3d 989, 992-93 (9th Cir. 2020) (“It is an entrenched principle that pro se filings however inartfully pleaded are held to less stringent standards than formal pleadings drafted by lawyers.”) (citations and internal quotations omitted). Nonetheless, while factual allegations are accepted as true, legal conclusions are not. Bell Atlantic Corp. v. Twombly (Twombly), 550 U.S. 544, 555 (2007). Leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Cato v. U.S., 70 F.3d 1103, 1106 (9th Cir. 1995).

II.

COMPLAINT ALLEGATIONS

The Court accepts Plaintiff's factual allegations in the complaint as true only for the purpose of the instant sua sponte screening order.

Plaintiff alleges that he is a senior citizen and is missing a leg; sometimes he uses a wheelchair for mobility, whereas at other times, he uses a prosthetic leg and a cane. (Compl. ¶¶ 1, 3-4, ECF No. 1.) Plaintiff resides in Casa Grande, Arizona. (See id. at 1 (caption); see also ECF No. 1-1 (“Civil Cover Sheet”).) Plaintiff alleges that Defendant Five Below owns a “public accommodation” located at 6467 Riverside Drive, Suite 112, Fresno, California 93722 (the “Store”). (Compl. ¶ 5.) Plaintiff never specifically alleges that Five Below is a store (or what kind of store it is), or other facts to establish it constitutes a “public accommodation”;^[3] however, the Court concludes Five Below is a store, based on Plaintiff's, albeit unspecified and generic, allegation that he attempted to shop for “goods or services” there. (See Compl. ¶¶ 10-11.)

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Plaintiff visited the Store on January 26, 2022, at which time he discovered it was not compliant with either the ADA or state law. (Id.) Specifically, (1) the Store's clear width of accessible routes was less than 36” between displays of merchandise, purportedly making it more difficult for Plaintiff to shop between displays of merchandise; and (2) the operable part of the public restroom door required the twisting of the wrist, which Plaintiff alleges makes it more difficult to open the door. (Id. at ¶ 11.) Plaintiff contends these “barriers” violate accessibility standards 403.5.1 and 309.4, respectively. (Id.) He also contends the barriers “relate to and impact Plaintiff's disability and denied Plaintiff full and equal access.” (Id. at ¶ 12.) Plaintiff also alleges the identified barriers “are easily removed without much difficulty or expense . . . [or that] there are numerous alternative accommodations that could be made to provide a greater level of access if complete removal were not achievable.” (Id. at ¶ 13.) Plaintiff notes he “visits the geographical area where the Store is located on a regular basis two to four times per year, and has been visiting the geographical area for many years in the past”; that he “intends to continue visiting the geographical area where the Store is located on a regular basis at the rate of two to four times per year for the near future”; that he “has conducted business at the Store numerous times in the past and desires to conduct business there in the future . . . because it is reasonably priced and within Plaintiff's budgetary limits” and “[t]he style, price and location of the Store are convenient to Plaintiff when visiting or traveling in the geographical area where the Store is located. (Id. at ¶¶ 16-20.) Finally, Plaintiff states he “has a desire to revisit the Store during his regular visits to the geographical area where the Store is located but only if the Store is made accessible.” (Id. at ¶ 21.)

Plaintiff asserts claims under the ADA and California's Unruh Civil Rights Act and Disabled Persons Act (DPA). (See generally id.) He requests an injunction requiring Defendant to close its store until the Store has fully complied with the ADA, his “costs and expenses and lawyer's fees should Plaintiff hire a lawyer,” damages under California law for “$4,000 per violation [of the Unruh Act] per encounter,” treble damages pursuant to California Civil Code § 3345(b), and at least $1,000 in monetary costs and damages “per violation per encounter” pursuant to the DPA. (Id. at ¶¶ 22, 26, 31-32.)

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III.

DISCUSSION

A. Jurisdiction: Article III Standing

“A party invoking federal jurisdiction has the burden of establishing that it has satisfied the ‘case-or-controversy' requirement of Article III of the Constitution, Lujan, 504 U.S. at 561; standing is a ‘core component' of that requirement.” D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008) (citation omitted); see also Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990); Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis, 494 U.S. at 47778) (“This case-or-controversy requirement subsists through all stages of federal judicial proceedings.”).

To establish standing, Plaintiff “must demonstrate that he has suffered an injury-in-fact, that the injury is traceable to the [defendant's] action, and that the injury can be redressed by a favorable decision.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (en banc) (citing Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)). Additionally, to establish standing for a claim of injunctive relief, as here,^[4] Plaintiff “must demonstrate a ‘real and immediate threat of repeated injury' in the future.” Chapman, 631 F.3d at 946 (quoting Fortyune, 364 F.3d at 1081). An ADA plaintiff sufficiently demonstrates such threat of future injury “when he intends to return to a noncompliant place of public accommodation where he will likely suffer repeated injury.” Id. at 948.

In sum, the Ninth Circuit has held “an ADA plaintiff can establish standing to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility.” Id. at 944, 949.

1. Deterrence

“Title III explicitly provides that it does not require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization . . . does not intend to...