Strojnik v. Flagexpress, LLC ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
PETER STROJNIK, Plaintiff/Appellant,
v.
FLAGEXPRESS, LLC, d/b/a HOLIDAY INN EXPRESS; IHG
FRANCHISING, LLC, Defendants/Appellees.
No. 1 CA-CV 21-0074
FILED 11-9-2021
Appeal from the Superior Court in Coconino County
No. S0300CV202000474
The Honorable Ted Stuart Reed, Judge
AFFIRMED
APPEARANCES
By Peter Strojnik
Plaintiff/Appellant
O’Connor & Dyet, PC, Tempe
By Shane P. Dyet, Travis B. Hill, Nick Strom
Counsel for Defendants/Appellees
STROJNIK v. FLAGEXPRESS, LLC, et al.
Decision of the Court
MEMORANDUM DECISION
Judge David B. Gass delivered the decision of the court, in which Presiding
Judge D. Steven Williams and Judge James B. Morse Jr. joined.
G A S S, Judge:
¶1 Peter Strojnik, a self-represented former lawyer, appeals from
the dismissal of his complaint with prejudice and the denial of his motion
to amend his complaint. We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Strojnik brought an eight-count complaint in Coconino
County superior court against FlagExpress, d/b/a Holiday Inn Express;
IHG Franchising LLC (the Hotel). Strojnik alleged the Hotel denied him full
and equal enjoyment of the premises in violation of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101–12213. Strojnik
specifically alleged: (1) violations of the ADA; (2) negligence; (3) negligent
misrepresentation; (4) failure to disclose on website; (5) common law
fraud/consumer fraud; (6) “consumer fraud—brand deceit”; (7) civil
conspiracy to commit fraud, and (8) aiding and abetting.
¶3 The Hotel successfully moved to dismiss the complaint with
prejudice under Rule 12(b)(1) of the Arizona Rules of Civil Procedure for
lack of standing and Rule 12 (b)(6) for failure to state a claim upon which
relief could be granted. The superior court denied Strojnik’s motion to
amend his complaint, denied his motion to clarify, and filed a final
judgment under Rule 54(c). Strojnik timely appealed. This court has
jurisdiction under article VI, section 9, of the Arizona Constitution, and
A.R.S. §§ 12-120.21.A.1 and 12-2101.A.1.
ANALYSIS
¶4 Because ours is just the latest decision to address repeated
deficiencies in Strojnik’s ADA claims, we resolve his issues succinctly.
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STROJNIK v. FLAGEXPRESS, LLC, et al.
Decision of the Court
I. We affirm the superior court’s dismissal of Strojnik’s case.
A. Because Strojnik alleged no injury in fact, he lacks ADA
standing.
¶5 This court reviews de novo whether Strojnik has standing and
whether the superior court correctly granted the motion to dismiss. See
Aegis of Ariz., L.L.C. v. Town of Marana, 206 Ariz. 557, 562, ¶ 16 (App. 2003)
(standing); Coleman v. City of Mesa, 230 Ariz. 352, 355–56, ¶¶ 7–8 (2012)
(dismissal). Because Strojnik was not “entitled to relief under any
interpretation of the facts susceptible of proof,” we affirm the dismissal. See
Yes on Prop 200 v. Napolitano, 215 Ariz. 458, 464, ¶ 7 (App. 2007) (citation
omitted).
¶6 ADA plaintiffs must establish standing by showing: (1) they
suffered an “injury in fact”; (2) the injury and the defendants’ conduct are
“causal[ly] connect[ed]”; and (3) the court likely can redress the alleged
injury with a decision in the plaintiffs’ favor. Doran v. 7-Eleven, Inc., 524 F.3d
1034, 1039 (9th Cir. 2008) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61 (1992)). Arizona state courts generally defer to the federal courts’
interpretation of federal law. Cimarron Foothills Cmty. Ass’n v. Kippen, 206
Ariz. 455, 458, ¶ 6 (App. 2003).
¶7 The first element of standing requires Strojnik to have “a
distinct and palpable injury.” See Fernandez v. Takata Seat Belts, Inc., 210 Ariz.
138, 140, ¶ 6 (2005) (citation omitted). We need go no further in our analysis.
Rather than showing a distinct and palpable injury, Strojnik—as he has
done before—pleads vague disabilities, vague restrictions, and vague
connections to the hotel property. See Strojnik v. Driftwood Hospitality Mgmt.
LLC, CV-20-01532-PHX-DJH, 2021 WL 50456, at *5 (D. Ariz. Jan. 6, 2021).
The mere inclusion of hotel photos with vague captions, such as “8lbs to
push open lobby bathroom” and “inaccessible check in counter,” is
inadequate when Strojnik obfuscates his own particular restrictions. As
noted by the Federal District Court in Arizona:
The deeper issue with Mr. Strojnik’s Complaints is whether
he demonstrates an injury-in-fact. He does not. Instead of
explaining how the alleged ADA violations prevent him from
full and equal access to the hotels, Mr. Strojnik makes vague
statements about his disabilities, and it is anybody’s guess
how the particular hotel features . . . actually impact him.
Id. Various courts have called Strojnik’s ADA cases inadequate cookie-
cutter lawsuits. See, e.g., Strojnik v. State ex rel. Brnovich, 1 CA-CV 20-0423,
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STROJNIK v. FLAGEXPRESS, LLC, et al.
Decision of the Court
2021 WL 3051887, at *1, ¶ 2 (Ariz. App. July 20, 2021) (mem. decision)
(“cookie cutter”); Strojnik v. Portola Hotel, LLC, 19-cv-07579-VKD, 2021 WL
4172921, at *2 (N.D. Cal. Sept. 14, 2021) (citing Strojnik’s long history of
filing inadequate ADA claims with non-specific allegations leading to
dismissal); Strojnik v. State Bar of Ariz., 446 F. Supp. 3d 566, 570 n.3 (D. Ariz.
2020); Advocs. for Individuals with Disabilities LLC v. MidFirst Bank, 279 F.
Supp. 3d 891, 893 (D. Ariz. 2017) (litigating “minor, even trivial” ADA
violations in an “extortionate” manner). This case is no different.
¶8 On appeal, we currently have this case from Strojnik and one
other, Strojnik v. Kashyap, LLC, 1 CA-CV 21-0043. Our review of the
complaints from both cases shows the same cut-and-paste problems. See
Ariz. R. Evid. 201 (taking judicial notice). Not only has Strojnik failed to
address the procedural and jurisdictional deficiencies in his nearly 2,000
previous complaints, even his typographical errors are unchanged.
Strojnik’s complaint here even acknowledges the generic nature of each
filing in a footnote, where he admits “the referenced violations were not
necessarily encountered at Defendant’s Hotel.” (Emphasis added.) Our
decisions addressing both cases are noticeably similar but only because
Strojnik has filed the same type of “cookie cutter” lawsuit here. See Brnovich,
1 CA-CV 20-0423, at *1, ¶ 2.
¶9 We further decline Strojnik’s invitation to use our “common
sense” to fill in the holes in his inadequate pleadings. See Ramirez v. Health
Partners of S. Ariz., 193 Ariz. 325, 326 n.2 (App. 1998). When no current
injury is capable of redress, a plaintiff has no standing. Karbal v. Ariz. Dep’t
of Revenue, 215 Ariz. 114, 118, ¶ 19 (App. 2007). In short, Strojnik’s ADA
claim here is deficient as a matter of law. See Fid. Sec. Life Ins. Co. v. State
Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4 (1998).
B. Strojnik’s state law claims fail.
¶10 Strojnik raises two sets of state law claims. In the first set, he
alleges the Hotels engaged in a series of fraud-related torts resulting from
an unlawful franchise agreement between FlagExpress and IHG. And the
remainder of his state law claims hinge on his ADA claim. Because both sets
of claims are deficient as a matter of law, we affirm their dismissal.
1. Strojnik’s fraud-related tort claims are baseless.
¶11 Strojnik argues FlagExpress committed “consumer fraud—
brand deceit” under the Arizona Consumer Fraud Act (ACFA) when
FlagExpress entered into an agreement with IHG to use the name “Holiday
Inn.” See A.R.S. § 44-1522.A. Strojnik further asserts this agreement allowed
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STROJNIK v. FLAGEXPRESS, LLC, et al.
Decision of the Court
FlagExpress to engage in “a system of deceptive self-identification through
the purchase and use of nationally recognizable brand names such as . . .
IHG.” We disagree.
¶12 To state a claim under the ACFA, Strojnik’s complaint must
sufficiently allege the Hotel’s franchise agreement was fraudulent and the
agreement injured him. See Cheatham v. ADT Corp., 161 F. Supp. 3d 815,
825–26, 831 (D. Ariz. 2016) (explaining the ACFA’s prohibition against
“fraudulent, deceptive, or misleading conduct in connection with the sale
or advertisement of consumer goods and services” requires plaintiffs to
sufficiently allege the misrepresentation injured them). Instead, like his
ADA claim, he only made conclusory statements about how the Hotels’
conduct injured him, saying, he “justifiably relied on FLAGEXPRESS’s false
self-identification to his damage.” The ACFA requires something more. See,
e.g., Lorona v. Ariz. Summit Law Sch., 188 F. Supp. 3d 927, 936–37 (D. Ariz.
2016) (law school graduate sufficiently alleged her reliance on her law
school’s misrepresentation of its graduate statistics damaged her because
she was unemployable after graduating); Cheatham, 161 F. Supp. 3d at 831
(customer sufficiently alleged she was damaged by her security system
provider’s misrepresentation because she had to pay out-of-pocket
expenses after discovering the fraud).
¶13 Strojnik also cannot prevail under either his civil conspiracy
or aiding and abetting claims because each tort requires him to prove an
underlying tort. See, e.g., Wells Fargo Bank v. Ariz. Laborers, Teamsters &
Cement Local No. 395 Pension Tr. Fund, 201 Ariz. 474, 498, ¶¶ 99–101 (2002)
(civil conspiracy); Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title & Tr. of
Phx., Inc., 197 Ariz. 535, 545, ¶ 42 (App. 2000) (aiding and abetting). And
because he based both claims solely off his deficient ACFA claim, the
superior court did not err in dismissing these claims.
2. Strojnik’s state law claims hinging on his ADA claim
fail.
¶14 Strojnik’s remaining state law claims hinge on his ADA claim.
But the ADA does not provide any support for these claims. See Strojnik v.
Bakersfield Convention Hotel I, LLC, 436 F. Supp. 3d 1332, 1344 (E.D. Cal.
2020). For instance, his negligence claim must fail because the ADA does
not establish an “independent duty of care.” See id. And because
FlagExpress owes no duty under the ADA, his negligent misrepresentation
claim relying on FlagExpress’s breach of a duty under the ADA also fails.
See, e.g., Van Buren v. Pima Cmty. Coll. Dist. Bd., 113 Ariz. 85, 87 (1976)
(explaining negligent misrepresentation is governed by negligence
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STROJNIK v. FLAGEXPRESS, LLC, et al.
Decision of the Court
principles and, thus, requires “a duty owed and a breach of that duty”);
Bakersfield, 436 F. Supp. 3d at 1344 (explaining Congress did not enact the
ADA “as a separate duty of care to give rise to an independent negligence
claim under state laws”).
¶15 Next, Strojnik cannot prevail under his claim of failure to
disclose because he did not show how he could not reasonably discover the
Hotels’ alleged “non-compliance with the ADA” on his own. See Lerner v.
DMB Realty, LLC, 234 Ariz. 397, 403–04 (App. 2014) (A party is not entitled
to relief if “the undisclosed or partially disclosed fact concerns a matter that
would-be buyers reasonably can discover on their own.”). On the contrary,
Strojnik readily discovered the alleged ADA violations on his own—as
evidenced by the photos he used in his complaint to support his ADA
claim—and he, therefore, cannot prevail on his failure to disclose claim.
¶16 Lastly, Strojnik’s “common law and consumer fraud” claim
regarding FlagExpress’s alleged ADA violations fail because he rests this
claim under the ACFA and he did not specifically allege how he was injured
by these violations. See Cheatham, 161 F. Supp. 3d at 825–26 (explaining the
ACFA requires claimants to allege facts showing how they were specifically
harmed by their reliance on the tortfeasor’s misrepresentation). Instead,
Strojnik merely alleged he “justifiably and reasonably rel[ied] on those
representations and was damaged.”
¶17 Accordingly, the superior court did not err in dismissing
Strojnik’s state law claims.
II. The superior court did not abuse its discretion when it denied
Strojnik’s motion to amend.
¶18 Strojnik next argues the superior court should have allowed
him to amend his complaint rather than dismissing it with prejudice. We
disagree.
¶19 This court reviews a motion for leave to amend the pleadings
for an abuse of discretion. See Hall v. Romero, 141 Ariz. 120, 124 (App. 1984).
As is amply evidenced, Strojnik has a track record of failing to comply with
basic jurisdictional and procedural requirements when filing lawsuits. See
Ariz. R. Evid. 201 (taking judicial notice); see generally Strojnik v. SCG Am.
Constr., Inc., SACV 19-1560 JVS (JDE), 2020 WL 4258814, at *4–6 (C.D. Cal.
Apr. 19, 2020); Driftwood, CV-20-01532-PHX-DJH, at *2, 7. Three
jurisdictions have even designated Strojnik a vexatious litigant and he was
disbarred in Arizona for litigation practices like those listed above. SCG,
SACV 19-1560 JVS (JDE), at *7–8; Driftwood, CV-20-01532-PHX-DJH, at *2,
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STROJNIK v. FLAGEXPRESS, LLC, et al.
Decision of the Court
10 (Strojnik “harasses and coerces parties into agreeing to extortive
settlements”); Brnovich, 2021 WL 3051887, at *1, ¶ 2; Strojnik v. Kashyap, 1
CA-CV 21-0043 (decision to follow).
¶20 Strojnik’s continuing failure to cure the deficiencies in his
lawsuits highlights the futility of allowing him an opportunity to amend his
complaint. See Bishop v. State Dep’t of Corr., 172 Ariz. 472, 474–75 (App. 1992)
(explaining “a [superior] court does not abuse its discretion by denying a
motion to amend if it finds . . . futility in the amendment”); see also Driftwood,
CV-20-01532-PHX-DJH, at *6 (denying Strojnik’s motion to amend because
of his well-established pattern of filing deficient lawsuits). Because Stojnik
has failed to show error, the superior court did not abuse its discretion.
ATTORNEY FEES AND COSTS
¶21 FlagExpress did not request attorney fees. But, as the
prevailing party, FlagExpress is entitled to its costs incurred on appeal
under A.R.S. § 12-342 upon compliance with ARCAP 21.
CONCLUSION
¶22 We affirm the dismissal with prejudice.
AMY M. WOOD • Clerk of the Court
FILED: AA
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