Perry v. Costco Wholesale Corp.
| Docket Number | 2:22-cv-00063-KJM-KJN |
| Decision Date | 26 October 2023 |
| Parties | Jeffrey Perry, Plaintiff, v. Costco Wholesale Corporation, Defendant. |
| Court | U.S. District Court — Eastern District of California |
As explained in this order, undisputed evidence shows this court lacks original jurisdiction over plaintiff Jeffrey Perry's claim under the Americans with Disabilities Act (ADA). For that reason, the court cannot exercise supplemental jurisdiction over Perry's related claims under state law, and this action is dismissed for lack of jurisdiction.
Costco Wholesale Corporation operates warehouse membership clubs throughout the United States, including in Roseville California. Graydon Decl. ¶ 2, Def.'s Ex. A, ECF No 15-1. In late 2021, the general manager of Costco's Roseville store was growing concerned about an uptick in shoplifting, break-ins, and “smash and grab” crimes nearby. Id. ¶ 9. He asked Costco's third-party private security service to send officers to patrol the store's parking lot. Id.
Perry was a former Costco employee at the time. Pl.'s Resp. Interrog. at 2, Def.'s Ex. B, ECF No. 15-1. He also shopped at the store regularly. See Perry Decl. ¶¶ 7-9, ECF No. 16-2. A back injury makes it painful and exhausting for him to walk, stand and bend over, so he uses the store's accessible parking spaces and aisleways. See id. ¶¶ 2-5. After Costco asked its private security service to patrol the parking lot, Perry often saw patrol cars parked in the access aisle, blocking it. Id. ¶¶ 5-6, 10; see also Def.'s Ex. C, ECF No. 15-1 (photograph of security car in access aisle). Perry once asked a guard to move, but despite that request, guards still blocked the aisle several times. See Perry Decl. ¶¶ 7-9.
Although Perry did not contact the store's general manager or another Costco employee directly, the store's general manager noticed independently that patrol cars were parking in the store's accessible spaces and aisles. Graydon Decl. ¶ 11. He instructed the guards to keep the spaces and aisles clear. Id. Perry did not encounter any patrol cars in the aisleways after the store manager instructed guards to keep the spaces and aisles clear. See Pl.'s Resp. Interrog. at 5-6; Perry Decl. ¶ 9.
About a month after the last time he saw patrol cars blocking the access aisles, Perry filed his complaint in this case. See generally Compl., ECF No. 1. He alleged Costco had denied him equal access to public accommodations in violation of the ADA. See id. ¶¶ 14-24. He also asserted claims under California's Disabled Persons Act and Unruh Civil Rights Act, invoking this court's supplemental jurisdiction over those claims under 28 U.S.C. § 1367. See id. ¶¶ 4-5, 25-47. He seeks attorney fees, costs, and injunctive relief under the ADA, and he seeks damages under state law. See id. at 8 (Prayer for Relief). Costco now moves for summary judgment, and the motion is fully briefed. See generally Mot., ECF No. 15; Mem., ECF No. 15-2; Opp'n, ECF No. 16; Reply, ECF No. 20. The court held a hearing on September 1, 2023. Bryce Fick appeared for Perry, and Charles Valente appeared for Costco.
In general, summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is “genuine” if “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. The parties must cite “particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1). The court then views the record in the light most favorable to the nonmoving party and draws reasonable inferences in that party's favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
These general rules apply just as well to a defendant's argument that the court lacks jurisdiction to hear the case. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). If a defendant challenges the court's jurisdiction in a motion for summary judgment, the plaintiff “must set forth by affidavit or other evidence specific facts” that, if true, would show the court has jurisdiction. Id. (citation and quotation marks omitted). If the plaintiff does not meet that requirement, the court cannot adjudicate the plaintiff's claims; it has no power to do so. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02 (1998). Federal courts also have an independent obligation to ensure they have subject matter jurisdiction, even if no party raises the issue. See Fed.R.Civ.P. 12(h)(3); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). For these reasons, the court begins by ensuring it has jurisdiction to adjudicate Perry's claims, starting with his claim under the ADA.
The Constitution limits federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. The Supreme Court has interpreted that limitation as imposing three requirements on all plaintiffs who seek relief in federal courts: they must have suffered an “injury in fact” that is “fairly traceable” to the defendant's conduct, and that injury must be “likely to be redressed by a favorable judicial decision.” See Spokeo, Inc. v. Robins, 578 U.S. 330, 337-38 (2016). Plaintiffs must satisfy these requirements “for each claim” and “each form of relief sought.” Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (quoting Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 185 (2000)). When a court determines whether it has jurisdiction, it considers the circumstances at the time the complaint was filed. See Steel Co., 523 U.S. at 106-07; Lujan, 504 U.S. at 569 n.4.
Injunctive relief is the sole remedy available to private plaintiffs who assert ADA claims, so they must show they had standing to seek an injunction at the time the complaint was filed. See Arroyo v. Rosas, 19 F.4th 1202, 1205-06 (9th Cir. 2021); Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004). To have standing to seek an injunction, plaintiffs must show there is “a sufficient likelihood that [they] will again be wronged in a similar way.” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). They cannot rely solely on “past wrongs,” id. at 103, although a past wrong may serve as evidence of a “real and immediate threat of repeated injury,” id. at 102 (quoting O'Shea v. Littleton, 414 U.S. 488, 496 (1974)). Plaintiffs must cite evidence in addition to those past wrongs, such as a written policy. See Fortyune, 364 F.3d at 1081-82. These rules echo the more general requirement that plaintiffs must show a “threatened injury” is “certainly impending” and cannot rely on “allegations of possible future injury.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013) (emphasis and alterations omitted) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).
Under the Supreme Court's decisions, these rules can be exacting. In Lyons, for example, the Supreme Court held a man did not have standing to seek an injunction against unconstitutional police chokeholds even though he alleged the police had choked him without provocation only a few months before. See 461 U.S. at 97-98, 101, 105. The Supreme Court found his allegations “did not indicate why [he] might be realistically threatened by police officers” in the future. Id. at 106.
The Supreme Court has recognized a second, independent jurisdictional limit in the Constitution's references to cases and controversies, which the parties debate in their briefs. See Mem. at 15; Opp'n at 6; Reply at 5-6. Not only must the plaintiff identify a concrete injury at the beginning of the case; an “actual controversy” must persist through “all stages” of the litigation as well. See Alvarez v. Smith, 558 U.S. 87, 92 (2009) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). “A case becomes moot-and therefore no longer a ‘Case' or ‘Controversy' for purposes of Article III-when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (citations omitted). But “a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued.” Id. “Otherwise, a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.” Id. In that situation, a defendant must make “absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189 (quoting United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203 (1968)). This exception to mootness is commonly known as the “voluntary cessation” doctrine. See, e.g., Already, 568 U.S. at 92.
These two jurisdictional requirements-standing and mootness-can seem to intertwine, which can lead to potentially confusing results. For several years the Supreme Court itself described mootness as “standing set in a time frame” only to later abandon that description as “not comprehensive” after more “[c]areful reflection.” Friends of the Earth, 528 U.S. at 190. Parties sometimes incorrectly tangle up the voluntary cessation doctrine with the standing requirement. In Steel Co., for example, the United States, acting as amicus curiae, urged the Supreme Court to find it had jurisdiction because the defendant might repeat past offenses even though the defendant had stopped before the complaint was filed. See 523 U.S. at 109. The Supreme Court disagreed. It is true that a defendant cannot easily escape a federal court's...
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