Brian Whitaker v. Tesla Motors, Inc. ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN WHITAKER, No. 19-56497
Plaintiff-Appellant,
D.C. No.
v. 2:19-cv-06605-
MWF-E
TESLA MOTORS, INC., a Delaware
Corporation,
Defendant-Appellee, OPINION
and
DOES, 1–10,
Defendant.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted November 10, 2020
Pasadena, California
Filed January 25, 2021
2 WHITAKER V. TESLA MOTORS
Before: Barrington D. Parker, Jr.,* Morgan Christen, and
Paul J. Watford, Circuit Judges.
Opinion by Judge Christen
SUMMARY**
Americans with Disabilities Act
The panel affirmed the district court’s dismissal, for
failure to state a claim, of an action under Title III of the
Americans with Disabilities Act.
The panel held that plaintiff’s allegations were not
sufficient to satisfy the standards articulated by Ashcroft v.
Iqbal and Bell Atlantic Corp. v. Twombly, which, taken
together, require well-pleaded facts, not legal conclusions,
that plausibly give rise to an entitlement to relief. The panel
concluded that plaintiff’s complaint did not allege facts
sufficient to support his ADA claim against Tesla, Inc.,
because the complaint primarily recited legal conclusions and
did not put Tesla on notice of how its service counters
prevented plaintiff from full and equal access to a Tesla
dealership.
*
The Honorable Barrington D. Parker, Jr., Senior United States
Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting
by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WHITAKER V. TESLA MOTORS 3
Addressing standing sua sponte, the panel held that
plaintiff’s allegations that he uses a wheelchair for mobility,
that he visited the defendant’s premises, that he personally
encountered a barrier related to his disability, and that the
barrier deters him from returning were sufficient to establish
injury-in-fact for purposes of standing.
COUNSEL
Russell Handy (argued) and Dennis Price, Center for
Disability Access, San Diego, California, for Plaintiff-
Appellant.
Rohit A. Sabnis (argued) and Arthur Gaus, Burnham Brown,
Oakland, California, for Defendant-Appellee.
OPINION
CHRISTEN, Circuit Judge:
Brian Whitaker appeals the district court’s order granting
Defendant Tesla Motors, Inc.’s (Tesla) motion to dismiss his
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be
granted.1 Specifically, Whitaker challenges the district
court’s determination that his allegations were not sufficient
to satisfy the standards articulated by Ashcroft v. Iqbal,
556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007). We affirm the district court’s judgment.
1
Tesla’s brief states that its correct corporate name is Tesla, Inc.
4 WHITAKER V. TESLA MOTORS
I
Whitaker’s complaint alleges that he is a quadriplegic
who uses a wheelchair for mobility. Whitaker visits
privately-owned businesses to determine whether their
facilities comply with the standards set out in Title III of the
Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12181–12189. If a facility he visits is not in compliance,
Whitaker files a complaint seeking injunctive relief to force
the business to remedy the barriers he encountered. This
appeal arises from one such lawsuit.
According to the complaint, Whitaker visited a Tesla
dealership in Sherman Oaks, California in July of 2019 and
encountered inaccessible service counters that denied him full
and equal access to the Tesla dealership and “created
difficulty and discomfort.” The complaint further alleges that
Tesla’s continued failure to provide accessible service
counters deters Whitaker from returning to the dealership.
Whitaker alleges “on information and belief, that there are
other violations and barriers on the site that relate to his
disability.”
Tesla moved to dismiss the complaint pursuant to Rule
12(b)(6) for failure to allege facts sufficient to satisfy the
pleading standards set forth in Iqbal, 556 U.S. 662, and
Twombly, 550 U.S. 544. Tesla argued that Whitaker failed to
allege how barriers at the dealership prevented Whitaker from
accessing Tesla’s facility, and which service counter or
counters were actually deficient. The district court agreed
and ruled that Whitaker’s argument was “inconsistent” with
Iqbal, 556 U.S. 662, and Twombly, 550 U.S. 544. The court
did not describe an onerous or technical pleading standard; it
observed that the necessary detail could have been shown
WHITAKER V. TESLA MOTORS 5
through allegations that “the counter was too high” or “not in
a place that had wheelchair access.” The district court
granted Whitaker leave to amend, but after Whitaker declined
to do so, Tesla moved for dismissal for failure to prosecute
and the court dismissed the complaint with prejudice. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm
the district court’s order granting Tesla’s motion to dismiss.
II
We review de novo a district court’s order granting a
motion to dismiss for failure to state a claim. Dunn v. Castro,
621 F.3d 1196, 1198 (9th Cir. 2010).
III
A defendant may move to dismiss a claim for relief
pursuant to Rule 12(b)(6) if the claim “fail[s] to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
Rule 8 requires that pleadings include “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Id. 8(a)(2). The claims in this case are that Tesla
violated Title III of the ADA and the Unruh Act,2 Cal. Civ.
Code §§ 51–53.
“Congress enacted the ADA in 1990 to remedy
widespread discrimination against disabled individuals.”
PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). The
ADA defines discrimination to include both “obviously
2
The Unruh Act is “coextensive with the ADA.” Molski v. M.J.
Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007) (citing Cal. Civ. Code
§ 51(f)). Thus, our analysis of Whitaker’s ADA claim applies equally to
his Unruh Act claim.
6 WHITAKER V. TESLA MOTORS
exclusionary conduct—such as a sign stating that persons
with disabilities are unwelcome or an obstacle course leading
to a store’s entrance”—and conduct that is not-so-
obvious—such as “difficult-to-navigate restrooms and hard-
to-open doors.” Chapman v. Pier I Imports (U.S.) Inc.,
631 F.3d 939, 945 (9th Cir. 2011) (en banc).
To meet its goal of removing barriers, Congress enacted
Title III of the ADA to prohibit disability discrimination in
the “full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any
place of public accommodation,” 42 U.S.C. § 12182(a), with
a nexus to interstate commerce, id. § 2000a(b). Title III
requires the removal of “barriers . . . where such removal is
readily achievable,” id. § 12182(b)(2)(A)(iv), in places of
public accommodation, including stores and businesses open
to the public. See 28 C.F.R. § 36.304.
In Twombly, the Supreme Court considered the adequacy
of a complaint alleging that defendants orchestrated an
antitrust conspiracy in violation of the Sherman Act.
550 U.S. at 555. The Court observed that the complaint
contained no factual allegations of an agreement as needed to
establish a conspiracy. Id. at 564. Instead, the pleading
rested on legal conclusions premised upon descriptions of
parallel conduct. Id. Twombly held that Rule 8 requires
plaintiffs to include enough facts “to raise a right to relief
above a speculative level,” and cautioned that “a formulaic
recitation of the elements of a cause of action will not do.”
Id. at 555.
The Supreme Court provided further clarification of the
necessary pleading standard in Iqbal, where it considered a
claim alleging that several high-ranking officials violated the
WHITAKER V. TESLA MOTORS 7
First and Fifth Amendments by purposefully instituting a
policy of discrimination that resulted in plaintiff’s
incarceration at a facility where the conditions of
confinement were inadequate. 556 U.S. at 668–69. Iqbal
explained that “[t]wo working principles underlie” Twombly:
(1) courts need not accept as true legal conclusions or
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements;” and (2) only a
complaint that states a plausible claim for relief with well-
pleaded facts demonstrating the pleader’s entitlement to relief
can survive a motion to dismiss. Id. at 678–79. Because the
complaint in Iqbal included only conclusory assertions of
discrimination without factual allegations that plausibly gave
rise to an entitlement of relief, the complaint was fatally
defective. Id. at 679–80. The Court explained that plaintiff’s
allegation that officials “purposefully adopted” a policy of
discrimination was inadequate because it lacked factual
allegations that could “‘nudg[e]’ [his] claim of purposeful
discrimination ‘across the line from conceivable to
plausible.’” Id. at 682–83 (quoting Twombly, 550 U.S.
at 570).
Taken together, Iqbal and Twombly require well-pleaded
facts, not legal conclusions, Twombly, 550 U.S. at 570, that
“plausibly give rise to an entitlement to relief,” Iqbal,
556 U.S. at 679. The plausibility of a pleading thus derives
from its well-pleaded factual allegations. Id. Contrary to
Whitaker’s assertions, our case law reflects this Rule 8
standard. See, e.g., Eclectic Properties E., LLC v. Marcus &
Millichap Co., 751 F.3d 990, 995–97 (9th Cir. 2014)
(“Although a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof is improbable,
plaintiffs must include sufficient factual enhancement to cross
the line between possibility and plausibility.” (internal
8 WHITAKER V. TESLA MOTORS
quotations and citations omitted)); Landers v. Quality
Comms., Inc., 771 F.3d 638, 641 (9th Cir. 2014) (applying
Iqbal and Twombly to assess adequacy of Fair Labor
Standards Act claim); Starr v. Baca, 652 F.3d 1202, 1216
(9th Cir. 2011) (describing common principles of pleading
derived from Iqbal and Twombly and applying them to civil
rights complaint); Moss v. U.S. Secret Serv., 572 F.3d 962,
971–72 (9th Cir. 2009) (“The factual content contained
within the complaint does not allow us to reasonably infer
that the Agents ordered the relocation of Plaintiffs’
demonstration because of its anti-Bush message, and it
therefore fails to satisfy Twombly and Iqbal.”).
Here, the district court correctly concluded Whitaker’s
complaint did not allege facts sufficient to support his ADA
claim because the complaint primarily recited legal
conclusions. See Iqbal, 556 U.S. at 679, 682. The complaint
alleges that Tesla “failed to provide accessible service
counters,” that Whitaker “personally encountered” the
inaccessible service counters, and that he was denied “full
and equal access.” These allegations do little more than
recite the elements of an ADA claim, and fall short of putting
Tesla on notice of how the counters prevented Whitaker from
full and equal access to the Tesla facility. The complaint
failed to answer basic questions: Were the service counters
too low? Or too high? Were they positioned in an area that
was inaccessible for another reason? Without this sort of
factual detail, the district court and Tesla were left in the dark
about how the service counters denied Whitaker from full and
equal enjoyment of the premises.
Whitaker argues that civil rights litigants are entitled to
more lenient treatment. In support of this argument, he cites
our decision in Doran v. 7-Eleven, Inc., 524 F.3d 1034,
WHITAKER V. TESLA MOTORS 9
1039–40 (9th Cir. 2008). See also Trafficante v.
Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972). But
Doran noted the Supreme Court’s instruction to “take a broad
view of constitutional standing in civil rights cases;” the case
did not address sufficiency of pleadings for purposes of
surviving a motion to dismiss pursuant to Rule 12(b)(6),
524 F.3d at 1039–40 (emphasis added), and we have never
held that civil rights litigants are exempt from satisfying the
pleading standard demanded by Iqbal and Twombly. To the
contrary, we expressly recognized in Starr that it is not
sufficient for a pleading to “simply recite the elements of a
cause of action.” 652 F.3d at 1216. Starr explained that
complaints must “plausibly suggest an entitlement to relief,
such that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
litigation.” Id. (observing these requirements are common to
all pleadings).
Whitaker separately argues that he is entitled to rely on
discovery to fill in the gaps left by his complaint’s general
allegations, and he urges us to rule that relying on discovery
to flesh out the contours of a plaintiff’s claims is preferable
as a matter of policy. Whitaker also predicts that if ADA
complaints are required to detail every barrier the plaintiff
encountered, defendants will remedy only the specific
infractions identified and their establishments will not be
brought into overall compliance with the ADA. This
argument fails because the Supreme Court has been clear that
discovery cannot cure a facially insufficient pleading. Iqbal
specifically cautioned that “Rule 8 . . . does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions,” Iqbal, 556 U.S. at 678–79, and Twombly
went further, observing “[i]t is no answer to say that a claim
just shy of a plausible entitlement to relief can, if groundless,
10 WHITAKER V. TESLA MOTORS
be weeded out early in the discovery process through careful
case management . . . ,” 550 U.S. at 559 (internal quotation
marks and citation omitted)). Our case law does not permit
plaintiffs to rely on anticipated discovery to satisfy Rules 8
and 12(b)(6); rather, pleadings must assert well-pleaded
factual allegations to advance to discovery. Id.Whitaker also argues that requiring ADA plaintiffs to
provide factual support for general allegations of
inaccessibility will allow defendants to “pick off” disabled
plaintiffs’ claims by remedying the barriers identified in their
complaints and rendering their claims moot. He points to
Duarte v. M&L Bros. Pharmacy Inc., No. 2:14-0029, 2014
WL 5663921, at *1 (Nov. 4, 2014), as an example of this
outcome. There, the plaintiff alleged that the defendant’s
parking lot contained improper signage, striping, and an
inadequate number of handicap-accessible parking spaces.
Id. at *1. The defendant repaired these barriers
approximately seven months after the complaint was filed and
moved for summary judgment two months after that. Id.Duarte argued the parking lot still contained an inadequate
slope, but the district court granted summary judgment in
favor of the defendant because Duarte did not allege the
defective slope in his complaint and it was too late to amend.
Id. at *3. Contrary to Whitaker’s argument, Duarte does not
show that requiring compliance with Iqbal and Twombly will
allow defendants to unfairly moot ADA claims. First,
defendants should be encouraged to remove barriers from
their establishments. This is an important objective of the
ADA. Second, it appears the plaintiff in Duarte could have
avoided dismissal by conducting discovery sometime in the
nine months that passed before the summary judgment
motion was filed, identifying other barriers within the
defendant’s facility, and amending his complaint. Id.; see
WHITAKER V. TESLA MOTORS 11
Doran, 524 F.3d at 1043 (affirming ADA plaintiff’s standing
and ability to conduct discovery into additional barriers at
defendant’s facility once he pleaded one valid claim, because
the first barrier deterred him from returning). We conclude
the district court correctly held Whitaker to the pleading
standard articulated by the Supreme Court in Iqbal and
Twombly.
IV
Tesla did not specifically challenge Whitaker’s standing
to bring his ADA claim, but we consider that issue sua sponte
to address confusion apparent from the parties’ briefing. See
D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035
(9th Cir. 2008) (observing “that whether or not the parties
raise the issue, ‘[f]ederal courts are required sua sponte to
examine jurisdictional issues such as standing’” (quoting
Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th
Cir. 2001))).
On appeal, Whitaker leans heavily on Skaff v. Meridien,
506 F.3d 832 (9th Cir. 2007), a case addressing standing
pursuant to Rule 12(b)(1), not compliance with the pleading
requirements of Rule 8 or survival of a motion to dismiss
filed pursuant to Rule 12(b)(6). Whitaker cites Skaff as
support for his argument that, to survive a Rule 12(b)(6)
motion, it is sufficient for a complaint to recite the elements
of an ADA claim: (1) the plaintiff is disabled; (2) the
defendant is a private entity that owns, leases, or operates a
place of public accommodation; and (3) barriers affecting
plaintiff’s disability within defendant’s place of
accommodation barred the plaintiff from full enjoyment of
the facility. See Arizona ex rel. Goddard v. Harkins
Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010).
12 WHITAKER V. TESLA MOTORS
A careful reading of Skaff shows that it does not support
Whitaker’s position. Skaff was mistakenly assigned to a
hotel room that lacked necessary accommodations. Skaff,
506 F.3d at 836. The parties settled Skaff’s ADA claims but
submitted the issue of attorney’s fees to the district court for
resolution. Id. at 836–37. The court concluded that it lacked
jurisdiction in light of Skaff’s failure to allege a cognizable
injury-in-fact and it declined to award any fees. Id. On
appeal, the Skaff panel agreed the delays plaintiff encountered
while waiting to be assigned to an accessible hotel room were
too “trifling” to establish standing, but we vacated the district
court’s order denying attorney’s fees because other
allegations within the complaint sufficiently informed the
defendant that Skaff had personally encountered additional
barriers, establishing his standing to seek injunctive relief.
Id. at 840–41. Skaff observed that as long as a complaint
satisfies Rule 8, general allegations may be cured in
discovery: “when notice of a claim is given that satisfies
Rule 8, concerns about specificity in a complaint are properly
addressed through discovery . . . . Accordingly, . . . there is
no sound basis on which to override our normal standing and
notice pleading requirements in a quest for more specificity.”
Id. at 842 (emphasis added).
Whitaker treats Skaff’s discussion of Rule 8’s pleading
standard as a holding, and he argues that district courts have
inconsistently applied what he perceives to be the rule from
Skaff. We see no reason for confusion. First, as explained,
the issue in Skaff was standing, not the standard for pleading
a claim upon which relief can be granted. Second, Skaff
predates Iqbal and cites a notice pleading standard that Iqbal
and Twombly rejected. Id. at 841–42; see Chapman, 631 F.3d
at 955 & n.9; see also Alexander A. Reinert, Measuring the
Impact of Plausibility Pleading, 101 VA. L. REV. 2117, 2125
WHITAKER V. TESLA MOTORS 13
(2015) (“As a doctrinal matter, there is little question that
Iqbal and Twombly mark a change in pleading
requirements.”). Iqbal and Twombly set the bar for assessing
compliance with Rule 8’s requirement.
Our en banc decision in Chapman describes in detail the
standard for pleading standing to pursue an ADA claim.
631 F.3d at 954; see also Oliver v. Ralphs Grocery Co.,
654 F.3d 903, 907 (9th Cir. 2011) (reaffirming Chapman as
the governing standard). Chapman alleged that he was
physically disabled, that he visited defendant’s premises, and
that he encountered barriers that denied him equal access.
We held that his complaint failed to adequately allege
standing because “he never alleges what those barriers were
and how his disability was affected by them so as to deny him
the ‘full and equal’ access that would satisfy the injury-in-fact
requirement.” Chapman, 631 F.3d at 954. The facts of
Chapman provide critical context for the reasons the
complaint was dismissed for lack of jurisdiction. Id. at 955.
Rather than identifying a barrier, Chapman attached an
accessibility survey to his complaint that identified multiple
ADA barriers that he claimed “denied him access to the
Store, or which he [sought] to remove on behalf of others
under related state statutes.” Id. at 954 (emphasis in original).
The survey did not connect the barriers to Chapman’s
disability or indicate which barrier or barriers he had
personally encountered. Id. at 955.
Here, Whitaker’s complaint alleges that he uses a
wheelchair for mobility, that he visited the defendant’s
premises, that he personally encountered a barrier related to
his disability—inaccessible service counters—and that the
barrier deters him from returning. These allegations are
sufficient to establish injury-in-fact for purposes of standing.
14 WHITAKER V. TESLA MOTORS
See Chapman, 631 F.3d at 954. Whitaker’s identification of
a specific barrier distinguishes his complaint from Chapman,
and contrary to Whitaker’s argument, nothing in the opinion
we issue today varies from the Supreme Court’s instruction
to take a “broad view” of standing in civil rights complaints.
See Chapman, 631 F.3d at 954; Trafficante, 409 U.S. at 209.
AFFIRMED.