Skaff v. Meridien North America Beverly Hills, LLC

Dissent — Duffy

DUFFY, District Judge, dissenting:

I respectfully dissent.

The question posed by this case before the court does not involve interpretations of the canons of construction for pleadings. The discussion of the required contents of pleadings in ADA cases in the majority opinion is mere dicta-but, like most dicta, it can be interpreted to obtain a result far from the intent of its author.1 The majority cites Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir.2002) for the proposition that we must accept as true all of the complaint’s material allegations. However, a review of the well-developed record indicates that the parties conducted what appears to be a full mutual discovery of the facts, and that the case was dismissed by the district court in response to an application for attorneys’ fees after a settlement had been reached. In Bernhardt, discovery had yet to be completed; the merits had yet to be disposed of. Unlike here, in Bernhardt the district court was forced to limit its inquiry regarding the presence of standing to the four corners of the complaint.

In this case, the scope of the district court’s probe was not so limited. During the scheduled hearing on the motion for attorney’s fees, the district court ordered that Skaff submit his entire case file to the court for an in camera review. In its Order Denying Plaintiffs Motion for An Award of Attorney’s Fees (the “Order”), the court stated that it came to its conclusion “[a]fter considering all the papers *847filed in connection with the motion, oral argument from counsel, and all matters presented_” The court specifically referred to post-complaint activity: “Plaintiff did not identify any specific violations of the Americans with Disabilities Act [the “ADA”] or California Civil Code until after (1) the case had progressed; (2) his lawyer’s consultant had thoroughly inspected the hotel and charged a fee of over $10,000.00 for doing so; and (3) settlement negotiations were underway.” Order at ¶ 4. Because this case progressed well beyond the pleading stage prior to settlement and the district court relied on subsequently discovered facts in coming to its conclusion, we were not required to assume the veracity of all statements contained in the complaint. See, e.g., Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 579 n. 6 (D.C.Cir.1980) (“Because the [] suit was dismissed with prejudice pursuant to a settlement, we do not assume that the facts alleged in the [ ] complaint are true.”).

The majority misses the mark by solely looking to the complaint to determine whether standing existed and “accepting] as true all of the complaint’s material allegations.” Opinion at 839. Regardless of my differing opinion from the majority, whether the general language of paragraph 14 of the complaint established an injury for the purposes of constitutional standing is completely irrelevant to this case. Neither party made a motion addressed to the pleadings or for summary judgment, but the presence of a developed record suggests that the dismissal was more akin to a motion for summary judgment rather than a motion to dismiss. Looking at the record as a whole, it can be said with certainty that the general allegations made in the complaint could not be substantiated by Skaff. “Although at the pleading stage general factual allegations of injury resulting from the defendant’s conduct may suffice to establish standing, at the summary judgment stage they are not.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Hubbard v. 7-Eleven, 433 F.Supp.2d at 1134, 1141 (S.D.Cal.2006).

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). As the party invoking federal jurisdiction, it is the plaintiff who bears the burden of proof and persuasion as to the existence of standing. Lujan, 504 U.S. at 561, 112 S.Ct. 2130; Hubbard, 433 F.Supp.2d at 1141. Skaff has fallen far short of meeting his burden. The majority suggests that because in its opinion the “district court’s findings of facts and conclusions of law show no suggestion that the court was making a decision on the merits by application of the summary judgment standard,” Opinion at 838, n. 5, our hands are tied and that we, too, must disregard the record in this case. Even if the district court did so err, the majority’s opinion perpetuates this mistake. This court has an independent obligation to determine whether we have jurisdiction, and whether the district court had jurisdiction below. Latch v. United States, 842 F.2d 1031 (9th Cir.1988) (citing Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)) (holding that courts have an “obligation to ‘satisfy itself not only of its own jurisdiction, but also of that of the lower courts in a cause under review[.]’ ”).2 *848Just as the outcome of this case does not turn on the niceties of pleading, nor does it involve the rights of a disabled person suing for injury sustained because of violations of the ADA. The case before us was settled by the parties. The plaintiff received $15,000, and the defendant agreed to correct some conditions pointed to by plaintiffs expert as being violative of the ADA. The settlement agreement closed out all issues, save whether the plaintiffs counsel was entitled to attorney’s fees from the defendant and, if so, the appropriate amount. Neither the district court nor this court has been called to rule upon the fairness or the wisdom of the settlement agreement.

This case does, however, involve the right of an attorney to be paid $118,000 in “attorney’s fees” in connection with the institution and conduct of the instant case, particularly in light of the fairly nominal result. Even if we were to assume that the sum was reasonable, we must still determine whether the district court properly held that Skaff lacked standing at the outset of the case, taking into account all information available to it at the time it rendered its decision. The parties knew the facts involved and conveyed them to the district judge, who made specific factual findings when he rendered his decision. My review of the record indicates that the facts are as follows:

Skaff, a disabled person who requires the use of a wheelchair and has filed over twenty lawsuits pursuant to the ADA and related California laws in the federal court system in California, alleges that he visited Le Meridien on May 9, 2004 and was delayed in taking a shower because he was given a room without a roll-in shower or a wall-hung shower chair. He concedes that after complaining to hotel staff he was accommodated that evening and took a shower the following morning. After Skaff checked out of the hotel, he again voiced his dissatisfaction to hotel staff about his experience with the shower via email, and provided vague, unsubstantiated allegations of various other barriers throughout the hotel.3 Skaff filed his complaint on January 13, 2005, and there was no shortage of detail regarding his claims pertaining to his lack of access to the roll-in shower and chair. However, with respect to the multitude of other barriers that Skaff allegedly encountered throughout the course of his stay, his account is limited to the skeletal, boilerplate paragraph 14: “[djuring the course of his stay at the Hotel, Plaintiff encountered numerous other barriers to disabled persons, including ‘path of travel,’ and guest room, bathroom, telephone, elevator, and signage barriers to access, all in violation of federal and state law and regulation.” Skaffs amorphous allegations did not give details as to how these supposed violations affected him or any specific hotel feature to which he was denied access, or how their removal was “readily achievable” as required by the ADA. 42 U.S.C. §§ 12181(9), 12182(b)(2).

After Skaff filed the complaint, Le Meridien attempted to procure as much information regarding the allegations as possible through discovery. Skaff, strategically it seems, refused to identify or provide *849specifics as to the barriers at the hotel, which prompted Le Meridien to serve Skaff with interrogatories. Skaffs responses again were vague and did not identify any specific violations of the ADA or similar California statutes.4 Le Meri-dien attempted to commence settlement discussions in April of 2005, but Skaff refused to do so until Le Meridien consented to an inspection of the hotel by his consultant. Le Meridien conceded, and the consultant identified 69 items he believed to be in violation of ADA guidelines or California state regulations, most of which were in rooms that had not been occupied by Skaff or even alluded to in his complaint or interrogatory responses. Skaff never amended the complaint to reflect the alleged violations identified by his consultant or to provide any greater details regarding his initial allegations. The parties reached their settlement in October of 2005.5 When Appellant first went to the offices of his attorney to discuss his case, the starting point of the litigation clearly involved solely questions of the roll-in shower and fixed shower seat. We know from the majority opinion that, in the circumstances of this case, such a delay in providing these items does not give rise to an “injury” sufficient to give plaintiff standing to start a lawsuit. As an officer of the court, the plaintiffs attorney should have told plaintiff that he lacked the requisite injury and standing to maintain this action.6 To the contrary, counsel drafted a complaint with no want for detail regarding the specifics of the shower incident in addition to inserting a boilerplate recitation of categories in which other violations might have existed. The plaintiff conveniently refused to answer interrogatories as to the particulars of the violations in such categories until after counsel was able to obtain an expert’s opinion as to possible violations and his counsel had built up a considerable amount of attorney’s fees, but even these did not form the basis for any assertion of injury by Skaff. Appellant, in his mere recitation of categories of potential injuries, has not shown us that there were any barriers to access that he either personally encountered or specifically knew about such that he would have been deterred from visiting Le Meridien in the future.

A plaintiffs standing to sue is an indispensable Constitutional requirement; “the threshold question in every federal case, determining the power of the court to entertain the suit.” Warth v. Seldin, 422 *850U.S. 490, 502, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To establish standing, Appellant must demonstrate that: (i) he suffered an injury in fact; (ii) the injury in question is traceable to the Appellee’s challenged conduct; and (iii) the injury can be redressed by a favorable outcome. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Standing is determined at the time of the lawsuit’s commencement, and we must consider the facts as they existed at that time the complaint was filed, with the effect of subsequent events generally analyzed under mootness principles. Id. at 569 n. 4, 112 S.Ct. 2130.7 The elements of standing are not mere pleading requirements, but rather must be supported by sufficient evidence. Piney Run Preservation Ass’n v. County Com’rs of Carroll County, MD, 268 F.3d 255, 262 (4th Cir.2001).

To establish that the plaintiff suffered an injury in fact, it must be “concrete and particularized,” which requires that “the injury must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 561 n. 1, 112 S.Ct. 2130. The majority agrees that a slight delay in being able to procure a room with a roll-in shower and hanging chair, remedied the same night and months before Skaff filed the complaint, is not a concrete injury. Upon review of the record, with regards to the additional assertions in the complaint, it is evident that: (1) the complaint contained mere categories of potential ADA violations; (2) Skaff was only able to provide details to these alleged barriers to access after his expert inspected the premises and identified certain possible ADA violations, many of which were in rooms or areas of the hotel to which Skaff never ventured; (3) there are no statements in the appellate or district court record, by affidavit or otherwise, of Skaff or his attorneys that Skaff personally encountered or knew about any of the barriers that were identified by his expert during inspection of the premises.8 Taking these factors into account, it is evident to me that Skaff lacked standing at the time the complaint was filed. To make more clear my point, I will borrow from symbolic syllogisms used in mathematical logic. Let us assume that “A + B -» C” is used to represent the Rule of Law in ADA cases, and A is an annoyed disabled person; B is injury; and C is the right to redress the violations which gave rise to the injury.

The majority would seek to change this syllogism by including in C the right to redress the violations which gave rise to the injury and other incidental violations discovered before entry of judgment. This case, however, is not the appropriate one in which to announce such a sweeping *851change, for here, B is no injury, which is recognized by the majority as it states that “Skaff suffered no cognizable injury concerning the shower because Le Meridien promptly corrected its errors. The ancient maxims of de minimis non curat lex and lex non curat de minimis teach that the law cares not about trifles.”

Thus, we do not have the syllogism “A + B -» C,” because B here is zero. In other words, by seeking to extend the Rule of Law in ADA cases by the use of this decision, the majority basically rules that any annoyed disabled person has the right to bring a suit to redress any violation discovered before the judgment is entered, even if the violation was totally unknown to and unencountered by the plaintiff. This is a result that flies in the face of the long standing precedent and should be barred by the constitutional requirements that the courts rule only in situations involving “cases or controversies.” Therefore, as I would find that Skaff lacked standing at the time the complaint was filed, I would affirm the district court and deny attorney’s fees. I dissent.

. In its Order Denying Plaintiff's Motion for Attorney’s Fees, the district court correctly referred to Smith v. Brady, 972 F.2d 1095, 1097 (9th Cir.1992) and Latch v. United *848Slates, 842 F.2d 1031, 1033-34 (9th Cir.1988) in holding that a court does not even have the authority to award attorneys' fees to a plaintiff who lacked standing. The Smith and Latch courts held this to be so even when, as here, the case has been effectively closed by virtue of a settlement.

. In this e-mail dated May 15, 2004, Appellant noted that there were "[n]umerous other state and federal access code/regulatoiy violations,” but that he would not "go into detail here.”

. With respect to these additional barriers, Skaffs interrogatory responses state: “Plaintiff identifies the following: lobby bar, room thermostat, room doors, room closet (clothes racks, raised floor, iron), guest bathroom (grab bar dimensions and distance, towel racks), public men's room, lobby pay phones, elevator (control buttons), and building directory.”

. Despite the efforts taken by Le Meridien to procure information from Skaff, the majority faults the hotel for its failure to move to compel more complete answers or to ”ask[] Skaff formally what barriers he had encountered, where they were in the hotel, when he encountered them, what he did about it, whether any person was present when he encountered the barriers, and, for each barrier, what damages he claimed to have suffered.” Opinion at 14348. The majority's insistence that Le Meridien have used "available discovery and procedural tools that could have compelled specificity” ignores the facts that: (1) it was not Meridien's burden to establish jurisdiction; (2) the attorneys' fees required to implement such "procedural tools” would potentially have had to be paid by Le Meridien alone; and (3) regardless of the merits, it was in Le Meridien’s interest to settle the claim as early as possible to avoid additional litigation costs.

.See Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1063 (9th Cir.2007).

. The majority states that "[a]t the time Skaff filed his suit, Le Meridien had not remedied any of the violations Skaff alleged that he encountered during his visit and identified in paragraph 14.” Based on the sparse language of paragraph 14 and the plaintiff's refusal to give specifics about these categories until after his consultant had filed the report, it remains a mystery to me how this conclusion was reached.

. The affidavit of Skaff’s attorney merely incorporates the boilerplate language of paragraph 14: "During the course of his stay at the Hotel, Plaintiff encountered numerous barriers to disabled access, including 'path of travel,’ guestroom, bathroom, telephone, elevator, and signage barriers to access, all in violation of federal and state law and regulation.” Declaration of Sidney J. Cohen in Support of Plaintiff's Motion at ¶ 7. In Skaff's declaration, he claims that he had a telephone conversation with one of Le Meridien's employees whereby he "identified a multitude of barriers to access to the Hotel” prior to filing the complaint. Declaration of Richard Skaff at ¶ 6. He did not put forth that these were the same violations identified by the consultant or provide any other documentation to substantiate this claim.