Petition for Writ of Certiorari — Holiday Quality Foods, Inc. v. Doran

Supreme Court, U.S.

FILED

02 449 SEP 132008

INTHE

Supreme Court of the United States

HOLIDAY QUALITY FOODS, INC.

Petitioner,

Vv.

JERRY DORAN

Respondent,

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

REX DARRELL BERRY

Counsel of Record

STEPHEN CRAIG HUNTER

LIVINGSTON & MATTESICH

LAW CORPORATION

1201 “K” Street, Suite 1100

Sacramento, CA 95814

(916) 442-1111

Attorneys for Petitioner

Holiday Quality Foods, Inc.

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

QUESTIONS FOR REVIEW

1. Whether the Ninth Circuit erred in holding, directly

contrary to Article III of the United States

Constitution and this Court’s opinions in Lujan v.

Defenders of Wildlife 504 U.S. 555 (1992), Friends of the

Earth, Inc. v. Laidlaw Environmental Services (TOO),

Inc., 528 U.S. 167 (2000), Gladstone Realtors v. Village

of Bellwood 441 U.S. 91 (1979), and others, that a

plaintiff has standing to sue under Title III of the

Americans with Disabilities Act of 1990 (“ADA”)

even in the absence of a concrete and particularized

injury in fact.

- Whether the Ninth Circuit erred in holding, in

direct conflict with this Court’s authority and with

other circuits of the United States Court of Appeals,

that a plaintiff's claim under the ADA “is not

barred ... by the statute of limitations,” even though

the claim is based on acts known to have occurred

far outside the limitations period.

STATEMENT OF PARTIES AND AFFILIATES

The caption of the case in this Court contains the

names of all parties to the proceedings in the United

States Court of Appeals for the Ninth Circuit.

Before the district court, the original complaint

named the following additional plaintiffs: Brenda

Pickern, Floyd Smith, Paul Heard and Michael

Kennedy. Those plaintiffs were not named in the

second amended complaint, on which this petition is

based, leaving only plaintiff Jerry Doran.

At the time of the filing of the original complaint,

Holiday Quality Foods, Inc. owned and operated the

Anderson, Paradise and Orland stores at issue.

Subsequently, Holiday Quality Foods, Inc. merged into

North State Grocery, Inc., which continued to operate

the Anderson, Paradise and Orland stores under the

fictitious business name (“dba”) of Holiday Quality

Foods. For convenience and consistency of the record,

reference to petitioner remains “Holiday Quality

Foods, Inc.”

No publicly held company owns 10% or more of

North State Grocery, Inc.’s stock.

x Se

TABLE OF CONTENTS

Questions for REVIEW .........:cceeeseeseseeeeeereneneeneneneatens

Statement of Parties and Affiliates ..................:0+

Table CF COTUETUS. .....0000000sss00snssseesssscessvscessessnnsascenessoees

Table Of Authorities .................cccsccccscreseessreeeesssensseens

Opinion Below ........:sssssessessesssseeentenntensenseneennenneeneenneen

Statement of JuriSdictiOn.............ccccccceseeeeseeeteeneeteeees

Statutes Involved. .............cccccccceeeeeeeeees SER Se teeter

Statement of the Case ...........c:ccccesceeeeeeeeeeeeneeeeneeeeseeees

Reasons for Granting the Writ ...........:::sccseeeeeeneeee

I. The Ninth Circuit's Ruling That A Lack Of

Standing Does Not Bar A Claim Under The

ADA Creates An Intolerable Conflict With

Article II] Of The United States

Constitution And With Long Established

Supreme Court Authority ..........:-::ssees

I]. The Ninth Circuit’s Ruling That The Statute

Of Limitations Does Not Bar A Claim

Under The ADA Creates An Intolerable

Conflict With This Court’s Authority And

Among The Lower Court ........:s::sssssseeerree

ill

11]

TABLE OF CONTENTS

Continued

Conclusion........ a a a ee 19

Appendix:

Opinion of the United States Court of

Appeals for the Ninth Circuit (Doran v.

Holiday Quality Foods, Inc., 293 F.3d 1133 (9th

Ric MPU Dinkxirsentie ninncestoieenennabiaeabensdeleninatiasiiant la

Opinion of the United States District Court

for the Eastern District of California (Doran v.

Holiday Quality Foods, Inc., [not published)) ..... 13a

iv

TABLE OF AUTHORITIES

Page

CASES

Arizonans for Official English v. Arizona

I Ei He Se Biaisicssnencectnertenodaccenestimnenntehieeee )

City of Auburn v. U.S. Government

B56 BS BOS Ca. TOFD vi ececcnnievssnscnpioeennnents u

Conner v. Reckitt & Colman, Inc.

84 F.3d 1160 (Gth Cir. 1996) ...........ccseosseccrescsveneeese 14

Daill v. Sheet Metal Workers’ Local 73 Pension Fund

10D F.3G G2 (7s Ci. GGG) wnsecvccsssssecercssavecasenciorees 13

Delaware State College v. Ricks

GAD US, ZED CRF) scsncicincenivesicmnncssonnansiconsnion iz by a7

Dixon v: Anderson

FIR F.2d ZAZ GG Cie. BOGE) nsvensscicnsncsesccccvesevesissensee 14

Doe v. National Board of Medical Examiners

199 F.3d 146 (Bed Cir. 1999) ...00...ccecssscossecrecssevssenee 11

E.E.O.C. v. Penton Industrial Pub. Co., Inc.

851 F.2d 835 (6th Cir. 1988) .......:......csssrsssserssseeees 13

Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc.

528 US. 167 (2000)............sccsecesererreoressseecees 7,8,9,11

Gladstone Realtors v. Village of Bellwood

441 U.S. 91 (1979)..........cccececcccsrersreessesenssecessenensrenes 8

Goodman v. Lukens Steel Co.

EAE GD CR TEY Bemncsashinsossiisapeicomchaiciantn dunia 14

Lujan v. Defenders of Wildlife

FO Shay IO CE i siernvistasicigrenedsininncncinemienaniaa 7,8

Soignier v. American Board of Plastic Surgery

Se Ce PUT (FNC EE. BOP) scscvscesemssnrcsnecsrennens 13, 14, 15

United Air Lines Inc. v. Evans

OE Pah. PPO CRUE E Paseiinasnsciveciiedeinenmnnieseataeninapetil 18

Wilson v. Garcia

RFE, Sk Ge GOD viccinncccrennsenpsonenmsiaipuamananl 12, 14

STATUTES

Americans with Disabilities Act of 1990

ae Fn Ee CE ersnicciencnsctnsaneeecaiatenbiinianias y

Se UK. & Ree Ce tinietiinnianisnieie 3

Judiciary and Judicial Procedure

Be adns B RD TEED setiniinpseernnsnionetantttinnions 1

California Code of Civil Procedure

I oP sinkssnisstsannvicinisicassesnaanbaheanibiniietnte tasadchiaiaaiaandane 14

vi

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully requests that this Court grant

this Petition for a Writ of Certiorari to review the

judgment of the United States Court of Appeals for the

Ninth Circuit entered in this case on June 19, 2002.

OPINIONS BELOW

The judgment and memorandum and order of the

United States District Court for the Eastern District of

California were entered on October 18, 2000. The

District Court’s ruling, which has not been published

is reprinted in the Appendix, at page 12a.

The decision of the United States Court of Appeals

for the Ninth Circuit, reversing and remanding the

District Court’s judgment, was entered on June 19,

2002. The Ninth Circuit's decision, reprinted in the

Appendix, at page 1a, Is reported at 293 F.3d 1133 (9th

Cir. 2002).

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Ninth Circuit entered in this case on June 19,

2002. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1) (1994).

STATUTES INVOLVED

Title II] of the Americans with Disabilities Act of

1990 (42 U.S.C. §§ 12101, et seq. (the “ADA”), which

provides in pertinent part:

§ 12182. - Prohibition of discrimination by public

accommodations.

(a) General rule. No individual shall be

discriminated against on the basis of disability in

the full and equal enjoyment of the goods, services,

facilities, privileges, advantages, or

accommodations of any _ place of public

accommodation by any person who owns, leases (or

leases to), or operates a place of public

accommodation.

(b) Construction.

(1) General prohibition.

(A) Activities.

(i) Denial of participation. It shall be

discriminatory to subject an individual or class

of individuals on the basis of a disability or

disabilities of such individual or class, directly,

or through contractual, licensing, or other

arrangements, to a denial of the opportunity of

the individual or class to participate in or benefit

from the goods, services, facilities, privileges,

advantages, or accommodations of an entity.

“*s

(2) Specific prohibitions.

(A) Discrimination. For purposes of subsection

(a) of this section, discrimination includes -

“*

(iv) a failure to remove architectural barriers,

and communication barriers that are structural

in nature, in_ existing facilities, and

transportation barriers in existing vehicles and

rail passenger cars used by an establishment for

transporting individuals (not including barriers

that can only be removed through the

retrofitting of vehicles or rail passenger cars by

the installation of a hydraulic or other lift),

where such removal is readily achievable; and

(v) where an entity can demonstrate that the

removal of a barrier under clause (iv) is not

readily achievable, a failure to make such goods,

services, facilities, privileges, advantages, OF

accommodations available through alternative

methods if such methods are readily achievable.

**

§ 12188. - Enforcement.

(a) In general.

(1) Availability of remedies and procedures. The

remedies and procedures set forth in section

2000a-3(a) of this title are the remedies and

procedures this subchapter provides to any

person who is being subjected to discrimination

on the basis of disability in violation of this

subchapter or who has reasonable grounds for

believing that such person is about to be subjected

to discrimination in violation of section 12183 of

this title. Nothing in this section shall require a

person with a disability to engage in a futile

gesture if such person has actual notice that a

person or organization covered by this subchapter

does not intend to comply with its provisions.

“**

STATEMENT OF THE CASE

On March 1, 1999, Respondent Jerry Doran

(“Doran”) and others brought suit against Holiday

Quality Foods (“Holiday”), alleging violations of the

ADA in a number of Holiday’s grocery stores.

(Appendix (“App.”), at 5a.) On June 27, 2000, Doran

filed his second amended complaint, in which he was

the only named plaintiff. The Holiday stores in which

violations were alleged were reduced to three: the

Anderson store, the Paradise store and the Orland

store.

At the time he filed suit, Doran never had been to

the Orland store (App. at 14a), and had not visited the

Anderson store during the time period from November

16, 1997 to the date he filed his action on March 1, 1999.

Doran visited the Paradise store only once within that

time period but, even then, did not attempt to enter the

store. Rather, Doran waited in his vehicle while his

friend quickly went inside to shop. (Id.)

On August 31, 2000, in response to Doran’s lawsuit,

Holiday filed a motion for summary judgment on the

grounds that Doran lacked standing to raise an ADA

claim as to the Orland store and that his ADA claims

against the Anderson and Paradise stores were barred

by the statute of limitations. (App. at 15a.) On October

18, 2000, the district court granted summary judgment

in favor of Holiday as to Doran’s ADA claims. The

district court also dismissed Doran’s pendant state law

claims. (App. at 13a.)

The district court ruled that an ADA claim first

arises when the plaintiff knows or has reason to know

of the injury that is the basis of the claim. (App. at 19a.)

The district court also observed that Doran had been

inside both the Anderson and Paradise stores before

1997 and learned of the alleged violations at least two

years before filing his action. (App. at 20a.) Applying a

one-year statute of limitations to Doran’s claims,’ and

rejecting Doran's continuing violation argument (App.

at 19a, 22a), the district court found Doran's claims

against the Anderson and Paradise stores to barred by

the statute of limitations (App. at 22a).

As to the Orland store, the district court ruled that

the necessary element of standing of a “real and

immediate threat of future harm” was lacking because

Doran had never been to that store and was unlikely to

visit the store in the future. (App. at 23a.)

Doran appealed. In reversing the district court's

judgment, the Ninth Circuit ruled that a plaintiff

seeking injunctive relief against an ongoing ADA

violation is not barred either by the statute of

limitations or by lack of standing. (App. at 3a.) The

Ninth Circuit interpreted phrases in the ADA such as

“is being subjected to” and “ig about to be subjected to”

as meaning that a continuing or threatened violation is

an “injury” (App. at 6a), and interpreted the ADA’s

“futile gesture” language as meaning that a plaintiff

suffers injury as soon as he or she obtains knowledge

of an alleged ADA violation and, without more,

decides not to patronize that establishment (App. at

7a). The Ninth Circuit concluded

1 The parties do not dispute that the district court applied the

appropriate limitations period. (App. at 18a-19a.)

44

so long as the discriminatory

conditions continue, and so long as the

plaintiff is aware of them and remains

deterred, the injury under the ADA

continues.”

(Id.) Therefore, according to the Ninth Circuit, even

though Doran first encountered an alleged barrier at

the Paradise store well outside the statute of limitations

period, as long as that barrier remains, Doran’s claim is

not time barred. (App. at 8a.)

On the issue of standing, the Ninth Circuit,

abandoning long established requirements of standing,

ruled that Doran need not have physically visited the

Paradise store. Rather, according to the Ninth Circuit,

Doran had suffered an “injury in fact” merely by

having actual knowledge of the alleged barrier and

deciding not to patronize the store. (App. at 1la.) This

rationale is demonstrably at odds with the United

States Constitution, the prior decisions of this Court,

and the decisions of other federal appellate courts.

This petition for writ of certiorari to the United

States Court of Appeals for the Ninth Circuit follows.

REASONS FOR GRANTING THE WRIT

In its ruling, the Ninth Circuit has departed

significantly from long established authority of this

Court. In so doing, the Ninth Circuit has created a

direct and intolerable conflict with that authority and

with the law of other federal appellate courts. A

different rule of standing for ADA plaintiffs now exists

in the Ninth Circuit, and the bar of the statute of

limitations has been eliminated. Businesses operating

nationwide now are confronted with two strikingly

different sets of law, and face great uncertainty within

the Ninth Circuit. The conflict created by the Ninth

Circuit must not be tolerated. Certainty and

uniformity in the application of the requirements for

federal standing, and in the role of the statute of

limitations, must be restored.

I. THE NINTH CIRCUIT'S RULING THAT A

LACK OF STANDING DOES NOT BAR A

CLAIM UNDER THE ADA CREATES AN

INTOLERABLE CONFLICT WITH ARTICLE III

OF THE UNITED STATES CONSTITUTION

AND WITH LONG ESTABLISHED SUPREME

COURT AUTHORITY.

“When ... a plaintiff seeks injunctive relief against

an ongoing violation, he or she is not barred

from seeking relief...by lack of standing.”

Ninth Circuit (App. at 3a).

By holding that a lack of standing does not bar a

claim under the ADA, the Ninth Circuit has

disregarded the requirements of standing of Article III

of the United States Constitution, and as enunciated by

this Court, and has created a direct and intolerable

conflict with the authority of this Court.

In Lujan v. Defenders of Wildlife 504 U.S. 955, 119

L.Ed.2d 351, 112 S.Ct. 2130 (1992), this Court stated that

the doctrine of standing is one of the landmarks which

identify disputes capable of resolution through the

judicial process. Id. at 560. Article III’s “case or

controversy” limitation on federal judicial authority

underpins standing. Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., 528 U.S. 167, 180, 145

L.Ed.2d 610, 120 S.Ct. 693 (2000).

In order to satisfy Article III’s requirement of

standing, a plaintiff must show that he has suffered

some actual or threatened injury as a result of the

defendant's putatively illegal conduct. Gladstone

Realtors v. Village of Bellwood 441 U.S. 91, 99, 60 L.Ed.2d

66, 99 S.Ct. 1601 (1979). Plaintiff's injury must be

personal, distinct and palpable. Id. at 100. Otherwise,

the exercise of federal jurisdiction “would be

gratuitous and thus inconsistent with Article III's

limitation.” Id. at 99.

This Court has developed, as an_ irreducible

constitutional minimum growing out of Article III's

“case or controversy” requirement, a three-part test for

standing. Only the first prong of that test, “injury in

fact,” is presented on this petition.

In Lujan, this Court stated unequivocally that:

. the plaintiff must have suffered an

“injury in fact” -- an invasion of a legally

protected interest which is. (a) concrete

and particularized [citations omitted] and

(b) “actual or imminent, not ‘conjectural’

or ‘hypothetical.’”

Lujan, supra, at 560; see also, Friends of the Earth, supra,

at 180. “Particularized” means that the injury must

affect the plaintiff in a personal and individual way.

Lujan, supra, at 560, nt. 1. The foregoing is not merely a

pleading requirement but an indispensable part of a

plaintiff's case. Id. at 561. This Court also has been

explicit that the focus of the inquiry is on the plaintiff's

injury, not on the defendant's alleged conduct. Friends

of the Earth, supra, at 181.

In direct contravention of the foregoing irreducible

minimum constitutional requirement for standing, the

Ninth Circuit ruled that a lack of standing does not bar

a claim under the ADA.2. Moreover, contrary to this

Court's authority, the Ninth Circuit has focused on the

defendant's “putatively illegal conduct” and not, as it

should have, on the plaintiff's alleged injury.

Ignoring long established requirements of standing,

and venturing deeply into the realm of the conjectural

and hypothetical, the Ninth Circuit adopted instead a

“deterrence” theory of standing:

We hold that in stating that he is currently

deterred from attempting to gain access to

the Paradise store, Doran has stated

sufficient facts to show concrete,

particularized harm.

(App. at 9a.)

Additionally, according to the Ninth Circuit, such

deterrence also gives rise to “actual or imminent

harm.”

* Since an appeal must be dismissed as moot upon the occurrence

of an intervening event that renders a decision unnecessary

(Arizonans for Official English v. Arizona 520 US. 43, 67, 117 S.Ct.

1055, 137 L.Ed.2d 170 (1997); City of Auburn v. U.S. Government 154

F.3d 1025, 1028, nt. 5 (9th Cir. 1998)), when Doran abandoned his

claims against the Orland store, the statute of limitations issue vis-

a-vis the Paradise store should have been the Opinion’s focus.

We hold that a disabled individual who is

currently deterred from patronizing a

public accommodation due to defendant's

failure to comply with the ADA has

suffered “actual harm.” Similarly, a

plaintiff who is threatened with harm in

the future because of existing or

imminently threatened non-compliance

with the ADA suffers “imminent harm.”

(App. at 10a-11a.)

The Ninth Circuit, thus, creates law pursuant to

which a plaintiff need not ever physically visit a

business in order to state a claim under the ADA.

Rather, such a plaintiff need merely have knowledge of

an alleged violation. In the Ninth Circuit, therefore, a

plaintiff residing in San Francisco now has standing to

sue a business in Seattle for alleged ADA violations,

even though that plaintiff never has traveled outside

California, may never do so, and may never intend to

do so. This unprecedented expansion of the

requirements of standing creates an intolerable conflict

with the authority of this Court.

Further, the Ninth Circuit’s ruling creates an

intolerable conflict among the federal appellate courts.

The Ninth Circuit’s decision stands squarely in conflict

with a decision of the Third Circuit on the same issue.

In Doe v. National Board of Medical Examiners 199 F.3d

146 (3rd Cir. 1999), adhering to the requirements

enunciated by this Court in Lujan, the Third Circuit

ruled that a violation of the ADA, in and of itself, is

insufficient to confer standing.

The District Court concluded that Doe

had standing because he “pled

infringement of the right to be free from

discrimination under the [ADA].” This

formulation of standing ... incorrectly

equates a violation of a statute with an

injury sufficient to confer standing. The

proper analysis of standing focuses on

whether the plaintiff suffered an actual

injury, not on whether a statute was

violated.

Doe, supra, at 153. Thus, unlike the Ninth Circuit, the

Third Circuit rejects, as it should, conjectural and

hypothetical injuries. The basis of the Third Circuit's

statement of law is this Court’s requirement that the

focus of standing be on the plaintiff's injury, not on the

defendant's conduct. Friends of the Earth, supra, at 181.

The Ninth Circuit has ignored this Court’s rule,

focusing instead on the defendant's “putatively illegal

conduct,” thereby permitting a long distance plaintiff

to bring claims based not on any actual injury to the

plaintiff but solely on the defendant's potential

violations of the ADA. The practical impact of this

conflict is clear: a San Francisco plaintiff, who now can

sue a Starbucks in Seattle that he never has visited,

based solely on theoretical or conjectural injury, cannot

bring that same exact lawsuit against an identically

constructed Starbucks in Philadelphia without showing

actual injury. By its ruling, the Ninth Circuit not only

creates an intolerable conflict with this Court's

authority, but creates a conflict among the lower

courts.

11

The effect of the Ninth Circuit's decision is to create

a disparity of treatment of businesses among circuits.

Within the geographic area of the Ninth Circuit, in the

Ninth Circuit’s own words, standing is not a bar to

bringing a claim for violation of the ADA. In other

parts of the country, traditional rules of standing still

apply.

Il. THE NINTH CIRCUIT’S RULING THAT THE

STATUTE OF LIMITATIONS DOES NOT BAR

A CLAIM UNDER THE ADA CREATES AN

INTOLERABLE CONFLICT WITH THIS

COURT’S AUTHORITY AND AMONG THE

LOWER COURTS.

When ... a plaintiff seeks injunctive relief against

an ongoing violation, he or she is not barred

from seeking relief ... by the statute of limitations ....

Ninth Circuit (App. at 3a).

This Court has long recognized that important

policies underlie statutes of limitations: rapid

resolution of disputes; repose for those against whom a

claim could be brought; avoidance of litigation

involving lost evidence or distorted testimony of

witnesses. Wilson v. Garcia 471 U.S. 261, 266-267, 85

L.Ed.2d 254, 105 S.Ct. 1938 (1985). Sensitive to these

policies, this Court observed in Delaware State College v.

Ricks 449 U.S. 250, 66 L.Ed.2d 431, 101 S.Ct. 498 (1980)

that a cause of action accrues at the time the injury

initially is known. Id. at 258.

Following this guidance, the Seventh Circuit, in

Soignier v. American Board of Plastic Surgery 92 F.3d 547

(7th Cir. 1996), stated:

Delaware State College v. Ricks 449 U.S. 250,

66 L.Ed.2d 431, 101 S.Ct. 498 (1980), and

its progeny in this circuit dictate that

discovery of the original act of

discrimination, not future confirmation of

the injury or determination that the injury

is unlawful, is when the statute of

limitations begins to run.

Soignier, supra, at 551. Also recognizing the importance

of a limitations period, the Seventh Circuit, consistent

with this Court's direction, observed:

Important policies underlie statutes of

limitations: rapid resolution of disputes;

repose for those against whom a claim

could be brought; avoidance of litigation

involving lost evidence or distorted

testimony of witnesses. See Wilson, 471

U.S. at 271. Sensitive to these policies,

Ricks and its progeny dictate that the

cause of action accrues at the time of the

initial injury.

Soignier, supra, at 553; see also Daill v. Sheet Metal

Workers’ Local 73 Pension Fund 100 F.3d 62, 67 (7th Cir.

1996).

Similarly, the Sixth Circuit follows the guidance of

Ricks. In the Sixth Circuit, the general rule is “statute of

limitations ... are triggered at the time the alleged

discriminatory act occurred.” .E.0.C. v. Penton

Industrial Pub. Co., Inc. 851 F.2d 835, 837-838 (6th Cir.

1988). The Sixth Circuit also states that it is important

to note that statutes of limitations “begin to run in

response to the discriminatory act (sic) themselves, not

in response to the continuing effects of those acts.”

Dixon v. Anderson 928 F.2d 212, 216 (6th Cir. 1991).

Joining with the Sixth and Seventh Circuits, the

Eighth Circuit, also citing Ricks, has ruled that “[t]he

statute of limitations begins to run at the time of the

discriminatory act, and not when the consequences of

the act become most painful.” Conner v. Reckitt &

Colman, Inc. 84 F.3d 1100, 1102 (8th Cir. 1996).

The Ninth Circuit now is at odds with each of these

federal appellate courts.

The ADA does not contain a specific statute of

limitations. Soignier, supra, at 500. This Court,

therefore, has determined that the statute of limitations

of the states’ personal injury statutes apply. Id., at 551,

citing Goodman v. Lukens Steel Co. 482 U.S. 656, 661, 96

L.Ed.2d 572, 107 S.Ct. 2617 (1987) and Wilson v. Garcia,

supra. The statute of limitations in California for

personal injury actions is one year. (California Code of

Civil Procedure §340(3).)

Discovery of the original act of discrimination

triggers the statute of limitations, not the potential and

conjectural future confirmation of some injury. Soignier,

supra, at 551. In other words, the statute of limitations

begins to run in an action under Title III of the ADA

upon the discovery of the original act of

discrimination, not upon some _— subsequent

confirmation or consequence. Ricks, supra, at 258;

Conner v. Reckitt & Colman, supra, at 1102.

Like punching someone in the nose, this

act may lead to injury in the future, but

when there is only one wrongful act the

claim accrues with the first injury. Put

another way, “time starts to run with ‘the

discriminatory act, not the point at which

the consequences of the act become

painful.” Lever v. Northwestern University

(7th Cir. 1992) 979 F.2d 552, 553, quoting

Chardon v. Fernandez (1981) 454 US. 6, 8

70 L.Ed.2d 6, 102 S.Ct. 28.

Soignier, supra, at 552. Following this well-established

federal precedent, the district court found Doran's

claims as to the Paradise and Anderson stores barred

by the applicable statute of limitations:

... Plaintiff argues that the ongoing nature

of the alleged violations somehow

eliminates the statute of limitations, and

argues that the “futile gesture” language

of the ADA means that he did not have to

visit the stores and personally experience

the barriers within the statutory period.

Plaintiff's argument is unavailing. A

federal cause of action accrues, and the

statute of limitations begins to run, when

a plaintiff knows or has reason to know of

the injury that is the basis of the action.

Alexopoulos_v. San Francisco Unified

School District, 817 F.2d 551, 555 (9th Cir.

1987); Soignier v. American Board of

Plastic Surgery, 92 F.3d 547, 551 (7% cir.

1996), citing Delaware State College v.

Ricks, 449 US. 250 (1980). In his

deposition, plaintiff states that he has

been inside both the Anderson and

Paradise stores before 1997; that is, he

must have become aware of whatever

barriers exist at the stores more than two

years before he brought his claim on

March 1, 1999. Accordingly, plaintiff's

ADA claims are barred by the one year

statute of limitations applicable to ADA

claims because plaintiff learned of the

violations more than one year before he

filed suit.

(App., at 19a-20a.) The district court also analyzed, and

rejected, Doran’s claim that the continued existence of a

barrier constituted a continuing violation that tolled the

statute of limitations. After reviewing the cases offered

by Doran to support his contention, the district court

found them inapposite:

Plaintiff alleges merely that barriers,

which he must have noticed during the

visits he made prior to 1997, have

remained in place since then. The

“continuing violation” doctrine is not

applicable, and plaintiff's ADA claims

with regard to the Anderson and Paradise

stores are therefore barred.

(App., at 22a.) Rejecting the district court's analysis, the

Ninth Circuit deemed the violations at Holiday's stores

to be of a continuing nature and, as a result, deemed

Doran’s injury to be continuing. In the words of the

Ninth Circuit: .

16

So long as the discriminatory conditions

continue, and so long as a plaintiff is

aware of them and remains deterred, the

injury under the ADA continues.

A plaintiff has no cause of action under

the ADA for an injury that occurred

outside the limitations period. [Footnote

omitted.] But he or she has a cause of

action, and is entitled to injunctive relief,

for an injury that is occurring within the

limitations period, as well as for

threatened future injury. Doran states

that he is currently aware of barriers to

access that now exist at the Paradise store,

and that these barriers currently deter

him. Indeed, he states that the barriers

deterred him from entering the store just

before filing suit even though he needed

something from the store and was in the

parking lot. Doran’s suit for injunctive

relief is therefore not time-barred.

(App., at 7a-8a.)

In ruling that a single act allegedly in violation of

the ADA, occurring more than two years previously,

constitutes a continuing injury to the plaintiff, the

Ninth Circuit has created an intolerable conflict with

the authority of this Court. In Ricks, this Court stated

that the statute of limitations begins to run at the time

of the discriminatory act (i.e., the discovery of the ADA

violation), not upon some subsequent confirmation or

consequence of that act. Ricks, supra, at 258. Further, in

17

ee

United Air Lines Inc. v. Evans 431 U.S. 553, 97 S.Ct. 1885,

52 L.Ed.2d 571 (1977), this Court held that the

continuing impact of a past violation was not

actionable. Id. at 558. By ruling that the statute of

limitations is tolled so long as the discriminatory act

remains, the Ninth Circuit is at odds with the authority

of this Court.

According to the authority of this Court, and of that

employed by other circuits, Doran’s initial discovery of

the alleged ADA violations at Holiday’s Paradise store

is the time when the statute of limitations began to run,

not at some later date when the a‘leged violations

continued to exist, Doran re-encountered them, or was

allegedly deterred by them.

With the Ninth Circuit’s ruling, a different law

applies in the states within the Ninth Circuit. Consider

a nationwide company employing the same store

design throughout the United States, which design

contains a barrier potentially in violation of the ADA.

In every city except those within the Ninth Circuit, the

statute of limitations would bar stale claims. Not so for

its stores in Phoenix, Portland, Los Angeles and other

cities within the Ninth Circuit. There, in the view of the

Ninth Circuit, a statute of limitations no longer exists.

An ADA plaintiff encountering a barrier today may

bring an action two, three, five or ten years from now.

This result simply cannot be reconciled with Ricks and

its progeny.

18

at ee I eee eee ane

CONCLUSION

For the foregoing reasons, Holiday Quality Foods,

Inc. respectfully requests that this Court grant

certiorari in this case.

REX DARRELL BERRY

Counsel of Record

STEPHEN CRAIG HUNTER

LIVINGSTON & MATTESICH

LAW CORPORATION

1201 “K” Street, Suite 1100

Sacramento, CA 95814

(916) 442-1111

Attorneys for Petitioner

September 12, 2002 Holiday Quality Foods, Inc.

19

APPENDIX

Sone

~~

Court of Appeal Opinion - 6/19/02

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed June 19, 2002]

Nos. 00-17203 / CV-99-03386-WBS

BRENDA PICKERN; FLOYD SMYTH;

PAUL HEARD,

Plaintiffs,

and

JERRY DORAN,

V.

HOLIDAY QUALITY Foops

INCORPORATED

Defendant-Appellee.

)

)

)

)

}

Plaintiff-Appellant, )

)

)

)

)

)

)

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

Before: David R. Thompson, William A. Fletcher

and Marsha S. Berzon, Circuit Judges

Opinion by Judge William A. Fletcher

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Court of Appeal Opinion - 6/19/02

COUNSEL

Mark D. Potter and Russell C. Handy, Center for

Disability Access, San Diego, California, for the

appellant.

Rebecca M. Ceniceros and S. Craig Hunter, Livingston

& Mattesich Law corp., Sacramento, California, for the

appellee. -

OPINION

W. FLETCHER, Circuit Judge:

Plaintiff Jerry Doran appeals the district court’s

dismissal of his suit seeking injunctive relief for an

alleged violation of Title III of the Americans with

Disabilities Act, 42 U.S.C. § 12181 et seq. (“ADA” or

“Title III”). Doran, a paraplegic who uses a wheelchair,

alleges that because defendant Holiday Quality Foods’

(“Holiday”) grocery stores are “public

accommodations” within the meaning of the ADA, 42

U.S.C. § 12181(7)(E), Holiday is required to remove

architectural barriers that make it difficult for Doran to

gain access to one of Holiday’s stores. On motion for

summary judgment, the district court held that because

Doran had not attempted to enter the store during the

limitations period, and thus had not actually

encountered any barriers during that period, his claim

was time-barred and he did not have standing.

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Court of Appeal Opinion - 6/19/02

We hold that when a plaintiff who is disabled

within the meaning of the ADA has actual knowledge

of illegal barriers at a public accommodation to which

he or she desires access, that plaintiff need not engage

in the “futile gesture” of attempting to gain access in

order to show actual injury during the limitations

period. When such a plaintiff seeks injunctive relief

against an ongoing violation, he or she is not barred

from seeking relief either by the statute of limitations

or by lack of standing.

We therefore reverse and remand.

I. Background

Doran has patronized a number of Holiday stores

and is a regular customer of the Holiday store in his

hometown of Cottonwood, California. He states in a

declaration: “My favorite grocery store chain is the

Holiday Foods grocery stores. When I need to buy

groceries, I look first to Holiday Foods grocery stores.”

Doran’s complaint does not allege ADA violations by

the Cottonwood store; rather, he alleges a failure to

comply with the ADA at the Holiday in Paradise,

California, which is about 70 miles from Cottonwood.!

' The complaint also sought injunctive relief against store in

Orland, California, and Anderson, California. After oral

argument, we ordered a limited remand to the district court for

the purpose of determining whether intervening action by the

defendant had rerdered any of Doran's claims moot. After

receiving evidence and hearing testimony, the district court

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Court of Appeal Opinion - 6/19/02

Doran’s grandmother lives in Paradise, and Doran

visits Paradise frequently to see her. He states in his

deposition that “I try to go every Sunday to see my

grandmother. She lives there [in Paradise], so I go up

all the time.” At some time prior to 1998, Doran visited

the Paradise store and encountered the architectural

barriers of which he now complains. He states that he

would like to patronize the Paradise store when he

visits his grandmother, but is deterred from doing so

by the store’s allegedly unlawful barriers.

Title III of the ADA provides that “[nJo

individual shall be discriminated against on the basis

of disability” in places of public accommodation. 42

U.S.C. § 12182(a). Title III defines “discrimination” as,

among other things, a failure to remove “barriers .. .

where such removal is readily achievable.” 42 U.S.C. §

12182(b)(2)(A)(iv). If removal of a barrier is not

“readily achievable,” a public accommodation must

make its facilities available through “alternative

methods if such methods are readily available.” 42

U.S.C. § 12182(b)(2)(A)(v).

concluded, without expressing an opinion on the merits of

Doran’s claims, that his claim as to the Paradise store is not moot.

Becausé the parties stipulated that the Anderson store has closed,

the district court found Doran’s claims as to that store moot. The

district court also determined that, because Doran did not pursue

his claim against the Orland store on appeal, that claim is also

moot. The claim against the Paradise store is thus the only live

claim.

4a

Court of Appeal Opinion - 6/19/02

Doran alleges that the Paradise store has inadequate

access to and from the parking lot; inadequate

checkstand access; inadequate signs; and inadequate

access to the restroom and to vending machines. After

visiting the store prior to 1998, he visited it again only

once before filing his complaint on March 1, 1999. On

that second visit, in late 1998, he was obliged, because

of. the barriers, to wait in the parking lot while his

companion went into the store on his behalf. Because

Doran delayed for more than a year in filing his

complaint after he first became aware of the barriers at

the Paradise store, the district court dismissed his

complaint. Doran timely appealed from the dismissal.

We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the district court’s grant of summary

judgment de novo. Lopez v. Smith, 203 F.3d 1122, 1131

(9% Cir. 2000) (en banc). We view the evidence in the

light most favorable to Doran, the non-moving party.

Id.

II. Statute of Limitations

The enforcement provisions of Title III provide only

for injunctive relief. Damages are not available to

individuals. See 42 U.S.C. § 12188(a) (providing that

the remedies available to individuals shall be those set

forth in 42 U.S.C. § 2000a-3(a), which allows only

injunctive relief for violations of Title II of the Civil

Rights Act of 1964, Pub. L. 88-352, codified as amended at

42 US.C. § 2000a et seq.); Newman v. Piggie Park

Enterprises, Inc., 390 U.S. 400, 402 (1968) (Title II allows

5a

Court of Appeal Opinion - 6/19/02

injunctive relief only). Injunctive relief is available to

“any person who is being subjected to discrimination on

the basis of disability” or who has “reasonable grounds

for believing that such person is about to be subjected to

discrimination. 42 U.S.C. § 12188(a)(1) (emphases

added). By employing the phrases “is being subjected

to” and “is about to be subjected to,” the statute makes

clear that either a continuing or a threatened violation

of the ADA is an injury within the meaning of the Act.

A plaintiff is therefore entitled to injunctive relief to

stop or to prevent such injury.

Seeking to avoid unreasonable burdens on ADA

plaintiffs, Title III explicitly provides that it does not

require “a person with a disability to engage in a futile

gesture if such person has actual notice that a person or

organization . . . does not intend to comply” with the

ADA. Id. (emphasis added). The “future gesture”

language of Title III is taken from Teamsters v. United

States, 431 U.S. 324, 366 (1977). In Teamsters, the Court

held that plaintiffs who did not actually apply for

promotions could _ nevertheless’ challenge the

employer’s racially discriminatory seniority system

under Title VII of the Civil Rights Act of 1964, Pub. L.

88-352, codified as amended at 42 U.S.C. § 2000e et seq,., if

they could show that they would have applied for the

job if not for the employer’s discriminatory practices.

See Teamsters, 431 U.S. at 367-68. The Court reasoned

that “[w]hen a person’s desire for a job is not translated

into a formal application solely because of his

unwillingness to engage in a futile gesture he is as much a

victim of discrimination as is he who goes through the

6a

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Court of Appeal Opinion - 6/19/02

motions of submitting an application.” Id. at 365-66

(emphasis added).

Congress specifically intended that Teamsters’

“futile gesture” reasoning be applied to ADA claims.

See H. Rep. No. 101-485(II) at 82-83 (1990) reprinted in

1990 U.S.C.C.A.N. 303, 365 (“The Committee intends

for this doctrine to apply to this title”); S. Rep. No. 101-

116 at 43 (1989). Thus, under the ADA, once a plaintiff

has actually become aware of discriminatory

conditions existing at a public accommodation, and is

thereby deterred from visiting or patronizing that

accommodation, the plaintiff has suffered an injury.

See also Davoll v. Webb, 194 F.3d 1116, 1132-33 (10% Cir.

1999) (disabled employee not required to initiate

interactive process leading to _ reasonable

accommodation where employer has made clear it will

not engage in the interactive process). So long as the

discriminatory conditions continue, and so long as a

plaintiff is aware of them and remains deterred, the

injury under the ADA continues.

A plaintiff has no cause of action under the ADA

for an injury that occurred outside the limitations

period.2 But he or she has a cause of action, and is

2 The parties agree that a one-year limitations period applies.

Because the ADA does not contain a statute of limitations, the

court must apply the statute of limitations of the most analogous

state iaw. See Goodman v. Lukens Steel Co., 482 U.S. 656, 660; Addisu

v. Fred Meyer, Inc., 198 F.3d 1130, 1140 (9% Cir. 2000). Most district

courts have applied California’s one-year limit for personal injury

actions to federal disability discrimination claims brought in

7a

Court of Appeal Opinion - 6/19/02

entitled to injunctive relief, for an injury that is

occurring within the limitations period, as well as for

threatened future injury. Doran states that he is

currently aware of barriers to access that now exist at

the Paradise store, and that these barriers currently

deter him. Indeed, he states that the barriers deterred

him from entering the store just before filing suit even

though he needed something from the store and was in

the parking lot. Doran’s suit for injunctive relief is

therefore not time-barred.

III. Standing

If Doran’s statements are true, he has suffered and

is suffering an injury within the meaning of Title III of

the ADA. However, his injury must also satisfy the

“case” or “controversy” requirement of Article III of

the Constitution. As the Supreme Court has recently

construed that requirement, a plaintiff must show three

things:

First [he must have] suffered an injury in

fact—an invasion of a legally protected

interest which is (a) concrete and

particularized, and (b) actual or

California. See Daviton v. Columbia/HCA Healthcare Corp. 241 F.3d

1131, 1136 n.8 (9 Cir. 2001) (citing cases, but not deciding the

issue of whether a one-year limitations period applied to a

disability claim brought under § 1983). Because the parties agree

that the applicable limitations period is one year and do not argue

the point to us, we assume without deciding that they are correct.

8a

Court of Appeal Opinion - 6/19/02

imminent, not conjectural or hypothetical.

Second, there must be a causal connection

between the injury and the conduct

complained of. . . . Third, it must be

likely, as opposed to merely speculative,

that the injury will be redressed by a

favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)

(quotations and citations omitted). The second and

third elements are not at issue; Holiday’s

noncompliance with Title III has caused Doran’s injury,

and an injunction requiring Holiday to comply with

the ADA would redress it. The only question is

whether Doran is suffering a sufficiently “concrete and

particularized” and “actual or imminent” injury to

, 4s:

satisfy the Court's “injury in fact” requirement.

“By particularized, we mean that the injury must

affect the plaintiff in a personal and individual way.”

Lujan, 504 U.S. at 560 n.1. In the context of the ADA,

we understand that to mean that Doran must himself

suffer an injury as a result of the Paradise store’s

noncompliance with the ADA. We hold that in stating

that he is currently deterred from attempting to gain

access to the Paradise store, Doran has stated sufficient

facts to show concrete, particularized harm.

In so holding, we agree with Steger v. Franco, Inc.,

228 F.3d 889 (8 Cir. 2000), in which the Eighth Circuit

held that a blind plaintiff who had only once attempted

to enter the defendant's building had standing to bring

9a

Court of Appeal Opinion - 6/19/02

an ADA challenge. The plaintiff was thwarted in his

attempt to gain access to the men’s restroom in the

building because the signage did not comply with the

ADA. Id. at 893-94. Like that plaintiff, Doran has

personally encountered certain barriers that bar his

access to Holiday’s Paradise store. Further, the Steger

court rejected the defendant’s argument that the blind

plaintiff could challenge the ADA violation only as to

the restroom he had attempted to access, stating that

such a “narrow construction” of the ADA would be

“not only . . . inefficient, but impractical.” Id. See also

Parr v. L&L Drive-Inn Restaurant, 96 F. Supp. 2d 1065,

1080-81 (D. Haw. 2000) (“This court is reluctant to

embrace a rule of standing that would allow an alleged

wrongdoer to evade the court's jurisdiction so long as

he does not injure the same person twice.... Plaintiff

should not be required to encounter every barrier

seriatim . . . to obtain effective relief.” (internal

quotations and citation omitted)). We agree with the

Eighth Circuit that Doran need not necessarily have

personally encountered all the barriers that bar his

access to the Paradise store in order to seek an

injunction to remove those barriers.

In addition to suffering a concrete injury particular

to himself, Doran must also have suffered actual or

imminent harm. We hold that a disabled individual

who is currently deterred from patronizing a public

accommodation due to a defendant's failure to comply

with the ADA has suffered “actual harm.” Similarly, a

plaintiff who is threatened with harm in the future

10a

Court of Appeal Opinion - 6/19/02

because of existing or imminently threatened non-

compliance with the ADA suffers “imminent harm.”

Doran has visited Holiday’s Paradise store in the

past and states that he has actual knowledge of the

barriers to access at that store. Doran also states that he

prefers to shop at Holiday markets and that he would

shop at the Paradise market if it were accessible. This

is sufficient to establish actual or imminent harm for

purposes of standing. Compare Dudley v. Hannaford

Bros. Co., 146 F. Supp. 2d 82, 86 (D. Me. 2001) (disabled

plaintiff alleged actual injury where he evinced a desire

to patronize a store that had discriminated against him

in the past and had not changed its discriminatory

policies or practices; the plaintiff “[did] not claim he

wants to visit the other stations, or will ever do so.”).

See also Parr, 96 F. Supp. 2d at 1978-80 (disabled

plaintiff established likelihood of future injury by

submitting evidence that he would like to visit

defendant’s restaurant in the future, had patronized

other restaurants in the chain, and the restaurant was

close to his residence and was on a familiar bus line);

Dudley, 146 F. Supp. 2d at 86 (plaintiff's attempt to

purchase liquor had occurred outside the limitations

period, but “a single past incident of discrimination can

provide . . . grounds for a plaintiff's standing, as long

as the lack of accommodation continues to exist” (citing

Parr, 96 F. Supp. 2d at 1077-83)).

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Court of Appeal Opinion - 6/19/02

IV. Conclusion

Viewing the evidence in the light most favorable to

Doran, we hold that his suit for injunctive relief is not

time-barred and that he has standing under the ADA

and under Article III.

REVERSED AND REMANDED.

12a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

[Filed October 18, 2000]

No. CIV S-99-386 WBS DAD

JERRY DORAN,

Plaintiff,

V.

HOLIDAY QUALITY

FOODS, INC., A California

Corporation,

Defendant.

Nm ee ee ee ee ee”

JUDGMENT IN A CIVIL CASE

“XX -- Decision by the Court. This action came to trial

or hearing before the Court. The issues have been tried

or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

THAT JUDGMENT IS HEREBY ENTERED IN

ACCORDANCE WITH THE COURT’S

ORDER OF OCTOBER 18, 2000.

ENTERED: Jack L. Wagner,

October 18, 2000 Clerk of the Court

: by: _/s/

P. Buzio, Deputy Clerk

13a

District Court Mem. and Order & Judgment

MEMORANDUM AND ORDER

This action involves claims under Title III of the

Americans with Disabilities Act (“ADA”), 45 U.S.C.

§ 12101 et seq.; the Unruh Civ] (sic) Rights Act (“Unruh

Act”), Cal. Civ. Code § 51 et_seg.; and the Unfair

business Practices Act (“CUBPA”), Cal. Bus. & Prof.

Code § 17200, based on lack of wheelchair accessibility

at three of defendant’s supermarkets. Defendant

moves for summary judgment pursuant to Federal

Rule of Civil Procedure 56.

I. Factual 3ackground

Defendant owns and operates a chain of

supermarkets (“Holiday Markets”) in various

locations, including the California cities of Anderson,

Orland, and Paradise. (Am. Compl. { 6).

Plaintiff, who is a paraplegic, regularly shops for

groceries at defendant’s market near his home in

Cottonwood, CA} Plaintiff has never visited the

Orland store. Since 1997, plaintiff has visited the

Anderson store one time. (Opp’n at 3). Plaintiff has

visited the Paradise store one time. On that occasion,

he waited for his companion in the parking lot and did

not attempt to enter the store (Doran Dep. at 36:15-16).

According to plaintiff, he would regularly shop at the

Anderson and Paradise stores if they were

’ The Cottonwood store is not at issue in this case.

14a

District Court Mem. and Order & Judgment

handicapped-accessible because he frequently visits

family and friends in those locations.

Plaintiff alleges that various “architectural barriers”

exist at the three stores, preventing his access to

parking, paths of travel, restrooms, and checkout

facilities. (Compl. § 8). Plaintiff seeks injunctive relief

compelling defendant to bring the three stores into

compliance with the ADA. 42 U.S.C. §12101 et_ seq.

Plaintiff's complaint contains four claims against all

three stores: (1) injunctive relief under the ADA ; (2)

injunctive relief and damages under the Unruh Civil

Rights Act, Cal. Civ. Code § 51 et seq; (3) injunctive

relief and damages under California’s Disabled Persons

Act, § 54 et seq., (4) injunctive relief under the

California Unfair Business Practices Act, Cal Bus &

Prof. § 172100 et seq.

Defendant moves for summary judgment on

plaintiff's ADA claims on the basis that plaintiff lacks

standing to seek injunctive relief because (1) plaintiff

faces no imminent injury, and (2) plaintiff failed to

bring the action within the applicable statute of

limitations. | Defendant also moves for summary

judgment on plaintiff's state law claims for the same

reasons, and on the basis that plaintiff has suffered no

injury.

15a

District Court Mem. and Order & Judgment

II. Applicable Law

A. Standard for Summary Judgment

The court grants summary judgment to a moving

party “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 judgment as a matter of law.” Fed. R.

Civ. P. 56(c). The non-moving (sic) may not simply

deny the pleadings of the movant; the adverse party

must designate “specific facts showing that there is a

genuine issue for trial.” Fed. R. Civ. P. 56(e); see

Celotex Corp. v. Catrett 317, 324 (1986). “[A] summary

judgment motion cannot be defeated by relying solely

on conclusory allegations unsupported by factual

data.” Taylor v. List, 880 F.2d 1040, 1045 (9t Cir. 1989).

The non-moving party must shore more than a mere

“metaphysical doubt” as to material facts. Matsushita

Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587

(1986).

B. Standing

Standing refers to “whether the particular plaintiff

is entitled to an adjudication of the particular claims

asserted.” Allen v. Wright, 468 U.S. 737, 752 (1984).

When standing is challenged, the party claiming

federal jurisdiction has the burden to clearly “allege

facts demonstrating that he is a proper party to invoke

judicial resolution of the dispute and the exercise of the

l6a

District Court Mem. and Order & Judgment

court’s remedial powers.” Warth v. Seldin, 422 USS.

490, 518 (1975); see also Lujan v. Defenders of Wildlife,

904 U.S. 555 (1992).

Plaintiff must meet three constitutional

requirements to establish standing: (1) plaintiff must

have suffered an injury in fact; (2) there must be a

causal connection between the injury and the conduct

complained of; and (3) it must be likely that the injury

will be redressed by a favorable decision. See id. at

960-561. When, as here, a plaintiff seeks injunctive

relief, he must also demonstrate that he faces a “real

and immediate threat” of future harm. It is not enough

to plead past exposure to illegal conduct. See DeLil v.

El Torito Restaurants, 1997 WL 714866 (N.D. Cal. 1997)

(quoting Los Angeles v. Lyons, 461 U.S. 95 (1983),

(“[Plaintiff] cannot obtain standing to sue for injunctive

relief merely by alleging that [defendant] has a policy

and practice of discriminating against disabled persons

generally; she must demonstrate that she herself faces a

‘real and immediate threat’ of future harm.”).

A vague statement of intention to visit a place

where one’s rights may be infringed, without a

concrete plan or showing of likelihood, does not suffice

to show imminence of injury. See Lujan v. Defenders

of Wildlife, 504 U.S. 555 (1992). However, where the

contemplated activity is not one which lends itself to

advance planning, courts have examined the totality of

circumstances to determine the likelihood of the injury

occurring. See Parr v. L & L Drive-Inn Restaurant, 96

F, Supp. 2d 1065 (E.D. Haw. 2000).

17a

District Court Mem. and Order & Judgment

C. The ADA

The ADA authorizes injunctive relief ordering

owners and operators of public accommodations to

make their facilities readily accessible to disabled

individuals. See 43.U.S.C. § 12188 (a) (2). Section 12188

also states in pertinent part: “Nothing in this section

shall require a person with a disability to engage in a

futile gesture if such person has actual notice that [a

facility owner] does not intend to comply with its

provisions.” 42 U.S.C. § 12188 (a) (1).

The ADA does not contain its own statute of

limitations. Where federal statutes do not contain their

own limitations periods, federal courts apply the

statute of limitations of the most analogous state laws.

See Goodman v. Lukens Steel Co., 482 U.S. 656, 660

(1987). Many courts have analogized ADA cases to

state personal injury actions. See Holmes v. Texas A &

M Univ., 145 F.3d 681, 683-84 (5t* Cir. 1998); Soignier v.

American Bd. of Plastic Surgery, 92 F.3d 547, 551 (7%

Cir. 1996) cert. denied, 519 U.S. 1093, 117 S.Ct. 771, 136

L.Ed.2d 716 (1997). Many California district cases have

applied.a one year statue of limitations to ADA actions.

See Alberti v. City, County of San Francisco Sheriff's

Dept., 32 F. Supp. 2d 1164, 1172 (N.D. Cal. 1998);

(Larramendy v. San Mateo county Transit Dist., 1998

WL 456283 (N.D. Cal. 1998); Avery _v. Tri-County

Extradition, Inc., 1999 WL 183604 (N.D. Cal. 1999);

Schneider v. City and County of San Francisco, 999 WL

144878 (N.D. Cal. 1999); McColm_v. Santa Clara

18a

District Court Mem. and Order & Judgment

County, 1997 WL 33016 (N.D. Cal. 1997); Schonfeld v.

City of Carlsbad, 978 F.Supp. 1329, 1332-33 (S.D. Cal.

1997). On the other hand, at least one Northern District

case has held that a three year statute of limitations

should apply, based on Ninth Circuit dicta regarding

the Unruh Act. See Kramer_v. Regents of the

University of California, 81 F. Supp. 2d 972 (N.D. Cal

1999). The parties in this case agree that a one year

statute of limitations applies, and this court follows the

majority of the decided cases. See Cal. Civ. Code of

Civil Procedure §340(3).

III. Discussion

A. Statute of Limitations: Paradise and Anderson

Stores

Defendant argues that plaintiff's injuries fall

outside the one-year statute of limitations for personal

injury actions, and that plaintiff is therefore barred

from seeking relief. Plaintiff argues that the ongoing

nature of the alleged violations somehow eliminates

the statute of limitations, and argues that the “futile

gesture” language of the ADA means that he did not

have to visit the stores and personally experience the

barriers within the statutory period. (Opp’n at 5-6.)

Plaintiff's argument is unavailing. A federal cause

of action accrues, and the statute of limitations begins

to run, when a plaintiff knows or has reason to know of

the injury that is the basis of the action. Alexopoulos v.

San Francisco Unified School District, 817 F.2d 551, 555

19a

District Court Mem. and Order & Judgment

(9th Cir. 1987); Soignier v. American Board of Plastic

Surgery, 92 F.3d 547, 551 (7 cir. 1996), citing Delaware

State College v. Ricks, 449 U.S. 250 (1980). In his

deposition, plaintiff states that he has been inside both

the Anderson and Paradise stores before 1997; that is,

he must have become aware of whatever barriers exist

at the stores more than two years before he brought his

claim on March 1, 1999. Accordingly, plaintiff's ADA

claims are barred by the one year statute of limitations

applicable to ADA claims because plaintiff learned of

the violations more than one year before he filed suit.

Plaintiff suggests that the statute of limitations has

been tolled because the barriers, i.e., the alleged harm,

have continued to exist until the present time. While

plaintiff has provided no authority for this proposition,

the court has found some cases which address the

point: Schonfeld v. City of Carlsbad, 978 F. Supp. 1329

(S.D. Cal. 1997); and Deck v. City of Toledo, 56 F. Supp.

2d 886 (N.D. Ohio 1998).

The District Court in Schonfeld stated, in dicta,

that an ADA suit to cure ongoing “subjection to

discrimination” would not be barred by the applicable

statute of limitations. The sold support cited is Indep.

Housing Services v. Fillmore ctr., 840 F. Supp. 1328,

1346 (N.D. Cal. 1993(. The relevant discussion in

Indep. Housing is also dictum, but it does cite the

applicable authority of Green v. Los Angeles County

Superintendent of Schools, 883 F.2d 1472, 1480 (9% Cir.

1989):

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District Court Mem. and Order & Judgment

“[A] systematic policy of discrimination is

actionable even if some or all of the events

evidencing its inception occurred prior to

the limitations period. The reason is that

the continuing system of discrimination

operates against the employee and

violates his or her rights up to a point in

time that falls within the applicable

limitations period. Such continuing

violations are most likely to occur in the

matter of placements or promotions.

Williams v. Owens-Illinois, Inc. 665 F.2d

918, 924 (9% Cir.) (citation omitted), cert.

denied, 459 U.S. 971, 103 S.Ct. 302, 74

- L.Ed.2d 283 (1982)”

The plaintiff in Green was not attempting to bring

stale claims. Rather, she was alleging that events

occurring outside the statutory period were so related

to subsequent events, occurring within the statutory

period, as to be actionable. The discussion above is

dictum, because the court ruled that the “continuing

violation” doctrine did not apply. Moreover, the

language does not address conditions such as those at

issue in this case, but refers to policies which manifest

themselves in separate, sequentially occurring

incidents.

Deck vs. City of Toledo, 56 F. Supp. 2d 886 (N.D.

Ohio 1998), inquired whether a city’s ongoing failure to

install ADA-compliant ramps constituted a continual

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violation that would toll the statute of limitations. The

court ruled that as long as at least one noncompliant

ramp had been installed within the statutory period,

the previous failures would be deemed part of a

pattern continuing into the statutory period and thus

representing a continuing violation.

Plaintiff's case is not analogous to either of these

situations. With regard to Green and its progeny,

plaintiff has not alleged that sequential events occurred

which indicate an ongoing policy. With regard to

Deck, plaintiff has not alleged that any new action,

such as the construction of a barrier, has occurred

within the statutory period. Plaintiff alleges merely

that barriers, which he must have noticed during the

visits he made prior to 1997, have remained in place

since then. The “continuing violation” doctrine is not

applicable, and plaintiff's ADA claims with regard to

the Anderson and Paradise stores are therefore barred.

B. Standing: Orland Store

Plaintiff has not established a likelihood of future

harm with respect to the Orland store, because he has

not alleged any likelihood that he would shop for

groceries in Orland. He has not alleged that Orland is

near his home or that he has friends or family whom he

* Plaintiffs had previously requested, and received, an

injunction mandating the modification of existing ramps: there

was no statute of limitations argument raised in that proceeding.

Deck v. city of Toledo, 29 F. Supp. 2d 431, 433 (N.D. Ohio 1998).

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District Court Mem. and Order & Judgment

is likely to visit in Orland. The fact that he has never

been to the Orland store strongly suggests that he has

no reason to go there.

Plaintiff relies on the language of 42 U.S.C. § 12188

for the proposition that his alleged desire to visit the

Orland store is sufficient to establish standing.

However, the “futile gesture” language on which

plaintiff relies cannot abrogate the constitutional

requirements of standing, including the requirement of

a “real and immediate threat” for a claim for injunctive

relief. See, e.g., DeLil v. El Torito Restaurants, 1997 WL

714866, *4 (N.D. Cal. 1997). (“Although a plaintiff need

not repeatedly suffer discrimination in order to assert

her rights .. . ADA plaintiffs who seek injunctive relief

must still demonstrate that they themselves face a real

and immediate threat of future harm.”); Hoepfl _v.

Barlow, 916 F. Supp 316, 323 (E.D. Va. 1995) (“A

plaintiff who cannot demonstrate a likelihood that she

will ever again suffer discrimination at the hands of a

defendant, even one who has discriminated against her

in the past, does not have standing to obtain an

injunction under the ADA.”); Schroedel_v. New_York

University Medical Center, 885 F. Supp. 594, 598-99

(S.D.N.Y. 1995( (denying standing to seek injunction

under ADA against local hospital because the potential

injury was speculative rather than imminent). Here,

plaintiff has not alleged any facts showing that his

expectation of injury at the Orland store is concrete or

imminent. Plaintiff's claim regarding the Orland store

therefore fails for lack of standing.

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District Court Mem. and Order & Judgment

C. California State Law Claims

Under 28 US.C. § 1367(c) (3), the court has

discretion to dismiss state law claims when it has

dismissed all of plaintiff's federal claims. “In the usual

case in which federal law claims are eliminated before

trial, the balance of factors will point toward declining

to exercise jurisdiction over the remaining state law

claims.” Reynolds _v. County of San Diego, 84 F.3d

1162, 1171 (9 Cir 1997). Some circuits have held that a

court may retain jurisdiction over state law claims if

extraordinary or unusual circumstances justify their

retention. See, e.g., Wentzka v. Gellamn, 991 F.2d 423,

425 (7 cir. 1993); Musson Theatrical, Inc. v. Federal

Express_corp., 89 F.3d 1244, 1255 (6 Cir. 1996).

However, here there has been no showing of

extraordinary or unusual circumstances. Accordingly,

the court declines to exercise supplemental jurisdiction

under 28 U.S.C. § 1367 as to the remaining state law

claims.

IT IS THEREFORE ORDERED that defendant's

motion for summary judgment as o the each of the

claims be, and the same hereby is, GRANTED.

DATED: October 17, 2000

[s/

WILLIAM B. SHUBB

UNITED STATES DISTRICT JUDGE

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