DEAN D. PREGERSON, District Judge.
Presently before the court is Plaintiffs' Motion for Class Certification. Having considered the submissions of the parties and heard oral argument, the court denies the motion and adopts the following order.
Plaintiffs Timothy Vondersaar, Orlandis Hardy, Jr., Jaarome Wilson, and Bernard Taruc (collectively, "Plaintiffs")are disabled, and use wheelchairs for mobility. (Second Amended Complaint ("SAC") ¶ 25.) Plaintiffs all live in either Los Angeles or San Bernardino counties. (SAC ¶ 24.) Defendant owns, operates, and licenses coffee shops throughout California. (SAC ¶ 26.) Plaintiffs allege, on behalf of a putative class of wheelchair and electric scooter users, that an unspecified number of Defendant's stores feature pick-up counters that are too high for Plaintiffs to reach, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12181
Plaintiffs further allege that, prior to 2003, Defendant used standard design plans that included impermissibly high pick-up counters at every store in California. (SAC ¶¶ 57, 60). Plaintiffs also allege that every store opened in the United States between 1993 and October 2003 contained an impermissibly high counter. (SAC ¶ 58.) Approximately 200 stores in California allegedly continue to utilize unlawfully high counters. (SAC ¶ 59.) Plaintiffs allege, on information and belief, that thousands more stores across the country still have high counters, and specifically identify fifty such stores in California, some of which Plaintiffs have personally visited. (SAC ¶ 56.) Plaintiffs now seek certification of a nationwide class comprised of all disabled wheelchair and scooter users who have been adversely affected by high handoff counters in Starbucks stores constructed between January 26, 1993 and 2005, as well as a similar California class under the Unruh Act.
The party seeking class certification bears the burden of showing that each of the four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b) are met.
Fed. R. Civ. P. 23(a);
Rule 23(b) defines different types of classes.
In its Opposition to the motion for class certification, Starbucks raises the threshold issue of Plaintiffs' standing to bring the ADA claim. Where a plaintiff's claim becomes moot prior to class certification, the class action generally becomes moot as well.
Defendant has submitted evidence that no California Starbucks location currently has a handoff counter higher than thirty-four inches. (Declaration of Gina Klem ¶ 4.) "Because a private plaintiff can sue only for injunctive relief . . . under the ADA, a defendant's voluntary removal of alleged barriers prior to trial can have the effect of mooting a plaintiff's ADA claim."
In an attempt to sustain their ADA class claim, Plaintiffs contend that an exception to the mootness doctrine applies here. (Reply at 8.) "Inherently transitory" class claims, which by their nature are capable of repetition or likely to repeat as to the class, are not mooted upon the mooting of the proposed class representative's claim.
Plaintiffs appear to suggest that Defendant has picked off class representatives in a "perpetual cat and mouse game whereby Plaintiffs . . . visit a store and Starbucks then fixes those counters and asserts mootness." (Reply at 8-9.) The record before the court, however, does not support that conclusion. Starbucks has not lowered handoff counters only at those stores visited by the named Plaintiffs, nor limited its alterations to the broader set of stores specifically identified in the SAC. Rather, Defendant has addressed the handoff counter height issue at each and every one of its stores in California. That course of action does not constitute a focused attempt to "pick off" the named Plaintiffs here. Nor, given the all-encompassing scope of Defendant's efforts, is the class likely to encounter or re-encounter the barriers alleged. The "transitory claim" exception to the mootness doctrine therefore does not save Plaintiffs' class claim.
Plaintiffs also contend that the absence of the alleged violations within California does not moot Plaintiffs' ADA claim because Plaintiff Taruc, at the very least, regularly travels outside California, and has encountered a high handoff counter at a Starbucks store in Arizona. (Reply at 6-7.)
Plaintiffs, however, do not allege any of these facts regarding Plaintiff Taruc in the SAC, and raise them for the first time in their reply in support of the instant motion. Defendant has therefore had no opportunity to respond to Plaintiffs' contentions. In any event, Plaintiffs have not carried their burden to demonstrate that Taruc's claims, and the defenses against them, are typical of those of the class, nor that Taruc would be an adequate class representative. While Plaintiffs are free to seek leave to amend their complaint, any attempt to certify a class by a putative representative whose claims arise hundreds of miles from his home is almost certain to raise adequacy, typicality, standing, and other issues which, at the very least, will require a much fuller discussion than that of the parties here.
For similar reasons, this court declines Plaintiffs' invitation to certify Abbey Grove, an Ohio resident, as a class representative. Plaintiffs' SAC makes no mention of Grove, who declares that she encountered a raised handoff counter at a Starbucks location in Columbus, Ohio, and that she intends to return to that location. (Declaration of Abbey Grove ¶¶ 4-5.) No motion to intervene is pending before this court. Furthermore, Plaintiffs make no effort to explain why Ms. Grove should be permitted to intervene at this juncture beyond stating that Ms. Grove "unquestionably has a live claim." This court does not, at this stage, express any opinion on whether Ms. Grove would be an appropriate intervenor in this case in this venue.
Plaintiff's ADA claim, as alleged in the SAC, is moot. Plaintiffs' motion to certify and ADA class is, therefore, denied.
Plaintiffs ADA claim serves as the basis for their claim under the Unruh Act, which incorporates the ADA.
Plaintiffs seek to certify an Unruh Act class under Rule 23(b)(3). Plaintiffs must, therefore, satisfy the requirements of Rule 23(a) and show that "questions of law or fact common to class members predominate over individual questions . . ., and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).
Courts in this circuit have explained that an ADA violation alone does not entitle an Unruh Act plaintiff to damages.
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For the reasons stated above, Plaintiffs' Motion for Class Certification is DENIED.