Gastelum v. Five Below, Inc.

• Decision Date: 06 October 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

October 6, 2022

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR LACK OF JURISDICTION AND FAILURE TO STATE A CLAIM (ECF NO. 4)

I. INTRODUCTION

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 sua sponte screened the complaint pursuant to its independent obligation under Federal Rule of Civil Procedure (“Rule”) 12(h)(3) to determine whether it has subject-matter jurisdiction over this matter on July 12 2022. (ECF No. 2.) Finding the complaint did not allege facts sufficient to establish subject- matter jurisdiction, the Court dismissed the complaint with leave to amend. (Id.) Currently before the Court for screening is Plaintiff's first amended complaint. (ECF No. 4.) For the reasons discussed herein, the Court finds it lacks subject-matter jurisdiction and recommends dismissal.

II. 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.” D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008); 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 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 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).

III. 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. (1st Am. Compl. (“FAC”) ¶¶ 1, 3-4, ECF No. 4.)

Defendant Five Below owns two “public accommodations,” located at (1) 6467 Riverside Drive, Suite 112, Fresno, California 93722 (the “Riverside Store”); and (2) at 7628 North Blackstone Ave., Fresno, California 93720 (the “Blackstone Store”). (Id. at ¶ 5.) Defendant's stores are specialty discount stores that sell products that are less than $5, plus a small assortment of products from $6 to $25, and create a pleasant flea market-type atmosphere which Plaintiff enjoys. (Id. at ¶¶ 26-27.)

Plaintiff resides in Casa Grande, Arizona; however, he has family in California (Shafter, Bakersfield, Fresno, San Jose, Modesto, and Merced). (Id. at ¶¶ 2, 24.) Plaintiff stops in the Fresno area at least 2-4 times per year to lodge, eat or attend a 49ers Empire SoCal barbeque, or on his way to Sacramento, Stockton, and/or Northern California. (Id. at ¶ 31.) Most recently, Plaintiff visited Fresno on July 2, 2021, January 25-26, 2022, May 17-19, 2022, and August 10, 2022. (Id. at ¶ 32.) Plaintiff alleges that when he visits Fresno, he “visits various big box stores, including Five Below, to shop there and, in part, to determine whether they are compliant with accessibility laws.” (Id. at ¶ 33.)

Plaintiff alleges he visited Defendant's Riverside Store on January 26, 2022, with the intention to avail himself of their goods or services. (Id. at ¶ 34.) A Five Below receipt dated January 26, 2022, indicates Plaintiff purchased a “BT TWS Classic AST B” for eight dollars. (Id. at 8.) During that trip, Plaintiff discovered the Riverside Store was not compliant with either the ADA or state law. (Id. at ¶ 35.) Specifically, (1) the store's clear width of accessible routes was less than 36” between displays of merchandise, in violation of accessibility standards at 403.5.1., and purportedly making it more difficult for Plaintiff to shop between displays of merchandise and access the merchandise with his wheelchair; (2) the bathroom door requires the push-pull force greater than five pounds, in violation of accessibility standards at 309.4.2, and making it more difficult for Plaintiff to open the door from his wheelchair “because it does not permit Plaintiff to push open the door with his upper body as most fully abled persons do”; and (3) the operable part of the public restroom door required the twisting of the wrist, in violation of accessibility standards at 309.4, and making it more difficult for Plaintiff to open the door, as it “substantially limits Plaintiff's ability to twist his elbow to open the door.” (Id. at ¶¶ 35(a)-(b), 42(a)-(b), 43.) Plaintiff alleges he advised Defendant's President, Joel Anderson, that the Riverside Store was not accessible and requested Defendant use best efforts to remediate the barriers, but Mr. Anderson did not respond to Plaintiff. (Id. at ¶ 36.)

After initiating the instant lawsuit (ECF No. 1), Plaintiff visited the Riverside Store again on August 10, 2022, “to conduct business there and to determine whether the Riverside Store [had attempted to remove the identified barriers]”; it had not. (FAC ¶¶ 38-40.) Another Five Below receipt with no date visible indicates Plaintiff purchased a “stylus 10-pack” for $5.25. (Id. at 9.)

Plaintiff alleges he was denied full and equal access based on the same previously-identified barriers. (Id. at ¶ 40.)

That same day (August 10, 2022), Plaintiff also visited Defendant's Blackstone Store.^[3](Id. at ¶ 41.) An attached receipt with no visible date indicates Plaintiff purchased another two pens, for a total of $8.25. (Id. at 10.) Plaintiff alleges that, during this visit, he discovered the Blackstone Store was also not compliant with either the ADA or state law, and had the exact same “barriers” as the Riverside Store. (Id. at ¶¶ 42-43.)

Plaintiff contends the barriers “relate to and impact Plaintiff's disability and denied Plaintiff full and equal access because Plaintiff uses a wheelchair, and the barriers directly relate [to] wheelchair use ….” (Id. at ¶ 43.) Plaintiff also alleges the identified barriers “are easily removed without much difficulty or expense … For example, Defendant could simply space the merchandise to permit access between the rows of merchandise. Likewise, Defendant could change the bathroom door operating hardware to the push-pull type and adjust the automatic closing device to less than 5 lbs. Moreover, there are numerous alternative accommodations that could be made to provide a greater level of access if complete removal were not achievable.” (Id. at ¶ 44.)

The FAC asserts the following causes of action: (1) a new cause of action, titled “Federal Pre-Emption of Unruh's ‘Heightened' and ‘Special Procedural Requirements Aimed at Limiting Suits by [Disabled Individuals]' ”; (2) Violations of the ADA; (3) Violations of California's Unruh Act; and (4) Violations of the Disabled Persons Act. (Id. at 12-18.) In his prayer for relief as to each cause of action, Plaintiff seeks: (1) a declaration that the Unruh Act's “heightened” and “special procedural requirements aimed at limiting suits by [disabled individuals]” are “expressly, field and conflict preempted by the ADA, and an injunction against California from enforcing Unruh's “heightened” and “special procedural requirements aimed at limited suits by [disabled individuals]”; (2) declaratory and injunctive relief...