Summary
noting the circuit split and collecting cases
Summary of this case from Thomas v. Sacramento Cnty.Opinion
No. CIV.S-05-0984 DFL DAD PS.
March 16, 2006
FINDINGS AND RECOMMENDATIONS
This matter is before the court on defendants' motion to dismiss plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative summary judgment. Attorney Robert A. Carichoff appeared on his own behalf and on behalf of defendant Jessica Lynn Coleman at the hearing on the motion. J. Grant Kennedy appeared on behalf of plaintiff. Having considered all written materials submitted in connection with the motion, and after hearing oral argument, the undersigned will recommend that defendants' motion to dismiss be granted and this action be dismissed with prejudice.
PLAINTIFF'S AMENDED COMPLAINT
At the time defendants filed their motion to dismiss the operative pleading in this case was plaintiff's original complaint. In response to defendants' motion, plaintiff filed an amended complaint, which he was entitled to do. See Fed.R.Civ.P. 15(a) ("[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served); Doe v. United States, 58 F.3d 494, 496-97 (9th Cir. 1995). While in some instances the filing of an amended pleading moots a motion to dismiss, such is not the case here. As explained below, plaintiff's amended complaint does not cure the deficiencies detailed in defendants' motion. Therefore, the undersigned has considered defendants' motion to dismiss as directed at plaintiff's amended complaint. See Schwarzer, Tashima and Wagstaffe, Federal Procedure Before Trial, ¶ 9:262 (The Rutter Group 2004) ("An amended complaint supersedes the prior complaint as a pleading. Thus, the court will usually treat the motion to dismiss as mooted. It may, however, proceed with the motion if the amendment does not cure the defect."). The court has disregarded plaintiff's second amended complaint because it was filed without leave of court. See Fed.R.Civ.P. 15(a).
According to the amended complaint, during discovery in state court Mr. Carichoff noticed the deposition of plaintiff to occur at a local deposition reporters' office. On the same day the deposition notice was served, plaintiff, who often requires a wheelchair to travel about in public, paid a visit to the office in question and "encountered discriminatory conditions (including, but not limited to, inaccessible handicapped parking and a lack of lower service counters.") (Compl. at 3.) Plaintiff advised the deposition reporters' office of those conditions. Several weeks later, and four days prior to the noticed deposition, plaintiff advised Mr. Carichoff of the access problem and "insisted that any deposition location . . . meet federal requirements for accessibility." (Compl. at 3.) Plaintiff declined Mr. Carichoff's invitation to identify a suitable location for the deposition. Mr. Carichoff then re-noticed the deposition to be held at a large commercial office building in downtown Sacramento.
Mr. Carichoff is the main defendant. Ms. Coleman is named because, as her counsel's client, she allegedly "acted so as to precipitate" and/or "failed to prevent" Mr. Carichoff's actions. (Compl. at 3.)
A few weeks prior to the re-scheduled deposition, plaintiff visited the commercial office building in question and again "encountered discriminatory conditions (including, but not limited to, a lack of lower service counters)." (Am. Compl. at 4.) Plaintiff advised the building's management of such conditions. While it is unclear from the amended complaint, since Mr. Carichoff filed a motion in the state court proceedings to compel plaintiff's attendance at the re-noticed deposition he appears to have been made aware of plaintiff's concerns regarding conditions at that location. The amended complaint alleges that the motion to compel was filed prior to the date for plaintiff's deposition and that plaintiff did not cancel either of his depositions nor did he refuse to appear as suggested in the motion to compel. According to the amended complaint, plaintiff perceived the motion to compel as "an effort to force the abdication of federal rights. . . ." (Compl. at 4-5.) Plaintiff then initiated this ADA action.
The amended complaint alleges that Mr. Carichoff "showed that he planned to operate" the deposition reporters' office and commercial office building by noticing depositions there. (Am. Compl. at 3, 4.) The amended complaint alleges six causes of action. The first cause of action is brought under Title III of the ADA pursuant to 42 U.S.C. § 12182(b)(1)(D)(i) which provides that "[a]n individual or entity shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration . . . that have the effect of discriminating on the basis of disability[.]" The amended complaint alleges that Mr. Carichoff's "standards or criteria for the selection of venues for depositions have the effect of discriminating on the basis of disability. . . ." (Am. Compl. at 5.)
As one district court has explained:
The ADA initially was enacted as Public Law 101-336 and was organized into Titles I through V. When the ADA was codified as 42 U.S.C. § 12101, et seq., the "Titles" were re-labeled as "Subchapters." Titles I, II, and III became Subchapters I, II, and III, respectively, and Title V became Subchapter IV.Van Hulle v. Pacific Telesis Corp., 124 F. Supp. 2d 642, 643 n. 2 (N.D. Cal. 2000).
Plaintiff's second cause of action is a Title III claim brought pursuant to 42 U.S.C. § 12182(b)(2)(A)(ii) which, in prohibiting discrimination on the basis of disability, defines discrimination as follows:
a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations[.]
Here, plaintiff alleges that Mr. Carichoff "has failed to make reasonable modifications to his policies" regarding noticing depositions of disabled persons "even though he has been put on notice that the venues he has selected have repeatedly been inaccessible." (Am. Compl. at 6.)
The third cause of action is brought under Title V of the ADA and alleges that Mr. Carichoff retaliated against plaintiff in violation of 42 U.S.C. § 12203(a), which provides as follows:
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
According to plaintiff's allegations, the motion to compel filed by Mr. Carichoff, and a related motion to have plaintiff declared a vexatious litigant, amount to retaliatory conduct in response to plaintiff's "protected opposition to Carichoff's discriminatory standards . . . vis-a-vis selection of venues for depositions of disabled persons . . ." (Compl. at 6.)
The amended complaint's fourth cause of action also is brought under Title V and alleges that Mr. Carichoff engaged in coercive, intimidating and threatening conduct in violation of 42 U.S.C. § 12203(b) which states:
It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.
In this regard, plaintiff alleges that Mr. Carichoff has coerced, threatened and intimated plaintiff by "repeatedly" noticing his depositions for locations that are inaccessible and "attempt[ing] to arrogate unto himself the authority to require [plaintiff] to locate an accessible venue. . . ." (Am. Compl. at 7.)
Finally, in the fifth and sixth causes of action plaintiff alleges that defendants' conduct has denied plaintiff equal access to deposition facilities in violation of California's Unruh Civil Rights Act, California Civil Code § 51, and the California Disabled Persons Act, California Civil Code § 54, respectively.
Plaintiff's use of boilerplate allegations renders the fifth and sixth causes of action somewhat difficult to decipher. Nonetheless the fifth cause of action refers to California Civil Code § 51 and the sixth cause of action refers to § 54. Therefore, the court has construed the causes of action as described above.
LEGAL STANDARDS
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of the complaint.See Ileto v. Glock Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003), cert. denied 543 U.S. 1050 (2005); North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). Dismissal of the complaint or of any claim within it "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990); see also Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).In considering a motion to dismiss for failure to state a claim, the court accepts as true all material allegations in the complaint and construes those allegations, as well as the reasonable inferences that can be drawn from them, in the light most favorable to the plaintiff. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In a case where the plaintiff is pro se, the court has an obligation to construe the pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of a claim that are not pled. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff was proceeding pro se when he drafted the amended complaint which is the subject of the pending motion.
ANALYSIS
The allegations of plaintiff's amended complaint speak for themselves. As the undersigned observed at the hearing on defendants' motion, this action borders on frivolous. Nonetheless, the undersigned resolves the instant motion as if the allegations in the amended complaint are pled in good faith.As set forth above, plaintiff's first and second causes of action are brought under Title III pursuant to 42 U.S.C. §§ 12182(b)(1)(D)(i) and 12182(b)(2)(A)(ii), respectively. By its terms, § 12182 applies to "any person who owns, leases (or leases to), or operates a place of public accommodation." Defendants argue that plaintiff's first and second causes of action must be dismissed because they are not "operators" of a place of public accommodation as alleged in the amended complaint. The undersigned agrees.
The amended complaint alleges that Mr. Carichoff "showed that he planned to operate" the venues in question by noticing depositions at these locations. (Am. Compl. at 3, 4.)
Because the ADA does not define the term "operates," the court should "construe it in accord with its ordinary and natural meaning." See Smith v. United States, 508 U.S. 223, 228 (1993). Relying on a variety of dictionary definitions, the Ninth Circuit recently recognized that to "operate," in the context of a business, means "to put or keep in operation," "[t]o control or direct the functioning of," and "[t]o conduct the affairs of; manage."Disabled Rights Action Committee v. Las Vegas Events, Inc., 375 F.3d 861, 878 n. 14 (9th Cir. 2004) (citations omitted). In that same case the court observed:
[W]hether Title III applies to [a rodeo's sponsor and presenter] depends on whether those private entities exercise sufficient control over the Center, and in particular over the configuration of the facilities, even temporarily, with regard to accessibility, that they can be said to `operate' the stadium.375 F.3d at 878.
Here, defendants do not rise to the level of "operators" simply by noticing depositions at a space in a court reporter's office or in a commercial office building. By convening a deposition in a conference room, a person does not put or keep the entire building in operation; he or she does not control the functioning of the facilities; nor does he or she manage the affairs of the buildings. In the context of litigating the underlying state court action and conducting routine discovery, defendants did not exercise the required management, control or oversight of the subject buildings to become "operators" of those facilities. There is no allegation that the defendants exercised sufficient control over the configuration of the facilities with regard to accessibility. For all of these reasons, defendants are not "operators" of the venues in question and Title III does not apply to them. See Aikins v. St. Helena Hosp., 843 F. Supp. 1329, 1335 (N.D. Cal. 1994) (Title III did not apply to independent contractor physician at a hospital where the physician was not on hospital's board of directors, had no authority to enact or amend hospital policy, and lacked power to control hospital policy on use of interpreters). Therefore, plaintiff's first and second causes of action under Title III should be dismissed.
Plaintiff's citation to Martin v. PGA Tour, Inc., 204 F.3d 994 (9th Cir. 2000), aff'd, 532 U.S. 661 (2001) in a post-hearing letter brief is not persuasive with respect to the issue posed here. The court in Martin was not called upon to address the meaning of "to operate" in that it appears to have been undisputed in that case that "[o]n days of tour competition, PGA is the operator of the golf course." 204 F.3d at 996.
The undersigned also will recommend dismissal of the third and fourth causes of action for retaliation and intimidation under Title V, respectively. There currently is a split among the circuits as to whether individuals can be liable under Title V of the ADA. Compare Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1179-80 (11th Cir. 2003) (holding that an individual may be sued in his personal capacity for violating § 12203) with Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999) (holding that Congress did not intend individuals to be liable under § 12203). The Ninth Circuit has not addressed the issue in a published opinion and district courts within this circuit are split on the matter. Compare Cable v. Dep't. of Dev. Servs. of the State of Cal., 973 F. Supp. 937, 943 (C.D. Cal. 1997) ("individuals cannot be held liable under Title V of the ADA") and Stern v. California State Archives, 982 F. Supp. 690, 691 (E.D. Cal. 1997) ("the court holds that individuals who do not qualify as `employers' are not subject to personal liability under section 12112(a)" with Ostrach v. Regents of the Univ. of Cal., 957 F. Supp. 196, 200 (E.D. Cal. 1997) ("[p]laintiff may sue the individual defendants under the anti-retaliation provision of the ADA").
Nonetheless, even if the Ninth Circuit were to determine that individuals can be held liable under § 12203(a) and (b), the court finds that the actions allegedly engaged in by defendants Carichoff and Coleman do not fall within the "retaliation," "coercion," "intimidation," "threats," or "interference" contemplated by Congress in enacting § 12203. A motion to compel plaintiff's deposition within the context of a civil lawsuit initiated by plaintiff, and after at least two unsuccessful attempts to secure plaintiff's deposition testimony, can hardly be characterized as retaliation. Nor can defendants' efforts in noticing the deposition, and attempting to cooperate with plaintiff to find a suitable location for the deposition, be characterized as any kind of coercive or threatening behavior. The unfortunate events leading to the initiation of this action amount to a routine discovery dispute in state court, not a federal civil rights lawsuit. For these reasons, the undersigned finds that plaintiff's Title V claims fail as a matter of law and will recommend that the third and fourth causes of action be dismissed with prejudice. See Douris v. Office of the Pennsylvania Attorney General, No. Civ. A. 03-CV-5661, 2004 WL 322907, *3 (E.D. Pa. Feb. 9, 2004) (even if individuals could be held liable under Title V, "[c]ertainly the refusal to pay money to settle a claim and the refusal to capitulate to all demands of accommodation cannot be characterized as `retaliation'").
Next, plaintiff's state law claims are predicated on his ADA claims. A violation of the ADA also constitutes a violation of California's Unruh Civil Rights Act, Cal. Civ. Code § 51(f), and the California Disabled Persons Act, Cal. Civ. Code § 54(c).Molski v. Mandarin Touch Restaurant, 347 F. Supp. 2d 860, 862-63 (C.D. Cal. 2004); Moeller v. Taco Bell Corp., 220 F.R.D. 604, 607 (N.D. Cal. 2004). Because plaintiff is unable to state a cognizable claim under the ADA, plaintiff's state law claims must also be dismissed without leave to amend.
Finally, defendants seek an order declaring plaintiff a vexatious litigant and subjecting him to a pre-filing order. Defendants seek such an order on the grounds that plaintiff has filed over 1,000 lawsuits alleging violations of the ADA. They rely on the decision in Molski v. Mandarin Touch Restaurant, 347 F. Supp. 2d 860 (C.D. Cal. 2004). However, the reasoning of the district court in the Molski decision has recently been compellingly refuted. See Wilson v. Pier 1 Imports, Inc., 411 F. Supp. 2d 1196 (E.D. Cal. 2006) Moreover, vexatious litigant orders are rarely justified. See De Long v. Hennessey, 912 F.2d 1144, 1146-47 (9th Cir. 1990); Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1523-26 (9th Cir. 1993); Wilson, 347 F. Supp. 2d at 1199. Clearly "mere litigiousness is insufficient" to justify such an order. De Long, 912 F.2d 1147; Wilson, 347 F. Supp. 2d at 1200.
Here, defendants have not even attempted to demonstrate that any of plaintiff's previously filed lawsuits were frivolous. There has been no representation by defendants that plaintiff has filed other meritless actions arising out of discovery disputes in state court actions. Therefore, the court will recommend that defendants' request for an order declaring plaintiff a vexatious litigant be denied without prejudice to renewal in the event plaintiff were to pursue additional abusive lawsuits of this same nature.
CONCLUSION
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Defendants' motion to dismiss be granted and this entire action be dismissed with prejudice; and
2. Defendants' request for an order declaring plaintiff a vexatious litigant be denied without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).