Susan Oki Mollway, United States District Judge.
Defendants Marr Jones & Wang LLP, a law firm, and Richard Rand, a partner at Marr Jones & Wang LLP (together, "Law Defendants"), have filed a motion to dismiss pro se Plaintiff Peter Strojnik's claim against them. ECF No. 11. Strojnik, an attorney who has been suspended from practicing law in Arizona, alleges that Law Defendants threatened him by suggesting that they would contact the Arizona State Bar regarding Strojnik's communications with Law Defendants and Law Defendants' client. Based on this alleged threat, Strojnik asserts a claim of interference, coercion, and intimidation under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"). Law Defendants argue that this claim is frivolous and should be dismissed. The court addresses Law Defendants' motion without a hearing pursuant to Local Rule 7.2(d), concluding that Strojnik fails to allege facts going to a cognizable injury caused by Law Defendants.
According to a press release issued by the State Bar of Arizona on July 13, 2018,
Id.
On February 13, 2019, Strojnik, proceeding pro se, filed a Complaint
According to the Complaint, Strojnik has never visited the Kapalua Villas Maui, but rather "is deterred from visiting the Hotel based on Plaintiff's knowledge that the Hotel is not ADA or State Law compliant." See id. at 3. This "knowledge" appears based on information that Strojnik obtained from hotel booking websites. See id. at 18-23 ("Addendum A" showing screenshots from www.hotels.com and www.outrigger.com).
The Complaint asserts several claims against KLC based on alleged accessibility issues at Kapalua Villas Maui. These claims include (1) denial of equal access to public accommodations on the basis of disability in violation of the ADA and chapter 489 of Hawaii Revised Statutes, (2) unfair and deceptive acts or practices in violation of chapter 480 of Hawaii Revised Statutes, (3) nondisclosure, and (4) negligence. Id. at 3-13.
The Complaint also asserts an ADA claim of interference, coercion, and intimidation against KLC and Law Defendants. See id. at 13-14. The claim arises out of letters between Law Defendants, as lawyers for KLC, and Strojnik. The correspondence is attached to the Complaint and is summarized as follows:
Strojnik alleges that the February 8 letter
On March 15, 2019, Law Defendants filed the present motion to dismiss. ECF No. 11. On April 26, 2019, Strojnik and KLC filed a stipulation to dismiss with prejudice all claims against KLC. ECF No. 22. Strojnik then filed a First Amended Complaint on April 29, 2019, that is largely identical to the original Complaint, but names Outrigger Hotels and Resorts as a defendant in place of KLC. See ECF No. 25. On May 6, 2019, Strojnik filed a notice of withdrawal of the First Amended Complaint and a motion for leave to file a First Amended Complaint. ECF No. 31. That motion is pending before the court.
Law Defendants bring their motion under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 11, PageID #94.
Under Rule 12(b)(1), a complaint may be dismissed for lack of subject matter jurisdiction. An attack on subject matter jurisdiction "may be facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack asserts that "the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction[,]" while a factual attack "disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id.
Law Defendants appear to bring a facial attack. See ECF No. 11-1, PageID #100. In deciding a Rule 12(b)(1) facial attack motion, a court must assume the facts alleged in the complaint to be true and construe them in the light most favorable to the nonmoving party. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). However, courts "do not accept legal conclusions in the complaint as true, even if `cast in the form of factual allegations.'" Lacano Invs., LLC v. Balash, 765 F.3d 1068, 1071 (9th Cir. 2014) (emphasis in original) (quoting Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009)).
Under Rule 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief can be granted. The court's review is generally limited to the contents of a complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). If matters outside the pleadings are considered, the Rule 12(b)(6) motion is treated as one for summary judgment. Keams v. Tempe Tech. Inst., Inc., 110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). However, the
On a Rule 12(b)(6) motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). However, conclusory allegations of law, unwarranted deductions of fact, and unreasonable inferences are insufficient to defeat a motion to dismiss. Sprewell, 266 F.3d at 988; In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996). Dismissal under Rule 12(b)(6) may be based on either "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. 1988) (citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)).
To survive a Rule 12(b)(6) motion to dismiss, "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted); accord Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("[T]he pleading standard ... does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." (internal quotation marks omitted)). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotation marks omitted). A complaint must "state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
Strojnik alleges that Law Defendants violated 42 U.S.C. § 12203(b) and 28 CFR § 36.206 when they threatened to contact the Arizona State Bar regarding his draft complaint against Law Defendants' client, KLC. See ECF No. 1, PageID #s 13-14. Strojnik's claim against Law Defendants fails.
Section 12203(b) provides: "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." The language of § 12203(b) is mirrored in 28 C.F.R. § 36.206(b): "No private or public entity shall 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 the Act or this part."
The Ninth Circuit in Brown declined to "defin[e] precisely what constitutes `interference' —or even `coercion' or `intimidation' —within the terms of [§ 12203]," but noted that "[f]or whatever else that provision may prohibit, it clearly makes it unlawful to `threaten ... any individual in the exercise or enjoyment of ... any right granted or protected by this chapter.'" Id. (quoting 42 U.S.C. § 12203(b)). In the employment context, for example, § 12203 "clearly prohibits a supervisor from threatening an individual with transfer, demotion, or forced retirement unless the individual foregoes a statutorily protected accommodation." Id. at 1193. Brown further explained that a plaintiff bringing a claim under § 12203 must demonstrate a "distinct and palpable injury":
Id.
Law Defendants argue that the allegations in the Complaint are insufficient to allege an injury under § 12203. The court agrees.
Strojnik's claim against Law Defendants is based solely on their alleged "threat to file charges against Plaintiff with the Arizona State Bar for Plaintiff's exercise of his rights under the ADA." ECF No. 1, PageID #14. No such threat is included in the correspondence attached to the Complaint.
In his letter of February 8, 2019, Rand stated, "We believe the State Bar of Arizona will be interested to learn of your attempt to continue in other states the same activity that you were suspended for in Arizona." ECF No. 1, PageID #32.
More importantly, Strojnik does not identify any "distinct and palpable injury" as a result of Law Defendants' alleged threat. As stated in Brown, an injury underlying a § 12203 claim "could consist of either the giving up of [his] ADA rights, or some other injury which resulted from [his] refusal to give up [his] rights, or from the threat itself." 336 F.3d at 1193. As Law Defendants point out, "Plaintiff does not claim that he was forced to forgo his rights under the ADA or suffered an injury because he refused to forgo those rights." ECF No. 11-1, PageID #103. Law Defendants did not tie any contact with the Arizona State Bar to Strojnik's filing of his Complaint or to any other right under the ADA. The language in the letter suggests that Law Defendants would contact the Arizona State Bar regardless of whether Strojnik proceeded with or voluntarily dismissed his ADA claims against KLC. Further, Strojnik does not dispute that he was suspended from the practice of law by the Arizona State Bar for his filing of numerous ADA cases. Nor does he allege that, if Law Defendants did in fact contact the Arizona State Bar, any additional injury might result or has resulted. The Complaint is devoid of any indication of any injury flowing from Law Defendants' statement.
Strojnik responds that he "has been, at least temporarily, forced to forgo his right to bring suit against another of Law Defendants' clients, HKVC LLC dba Honua Kai Resort & Spa." ECF No. 17, PageID #172. This alleged injury, even if Strojnik could tie it to this case, is implausible. Honua Kai Resort is mentioned in the correspondence attached to the Complaint, but the Complaint itself does not mention HKVC LCC or Honua Kai Resort & Spa. Strojnik's claim against Law Defendants establishes that he is far from deterred.
The Complaint does not allege a § 12203 injury. The court therefore dismisses Strojnik's claim against Law Defendants.
Law Defendants ask that the claim be dismissed with prejudice. ECF No. 11-1, PageID #104. In the usual case, this court freely grants leave to file amended complaints that cure deficiencies. Leave to amend may be denied when further amendment would be futile. See, e.g., Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008); Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009). The court declines to dismiss Strojnik's claim with prejudice because it is not clear that amendment would be futile at this point.
Law Defendants also ask the court to "consider sua sponte the imposition of severe sanctions."' ECF No. 11-1, PageID
Law Defendants' Motion to Dismiss is granted, and Strojnik's claim against Law Defendants is dismissed. The hearing scheduled for May 13, 2019, is cancelled.
Strojnik has filed a motion for leave to file a First Amended Complaint, which this court refers to the Magistrate Judge. The court does not here indicate whether that motion should be granted.
IT IS SO ORDERED.
