Sullivan v. Storer Transit Sys.

FATIMA SULLIVAN, Plaintiff, v. STORER TRANSIT SYSTEMS, et al., Defendants.

Case No. 20-cv-00143-JCS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

June 16, 2020

ORDER REGARDING MOTION TO DISMISS FIRST AMENDED COMPLAINT

Re: Dkt. No. 24

I. INTRODUCTION

Plaintiff Fatima Sullivan brings this action against Defendant Storer Transit Systems ("Storer") asserting disability discrimination in violation of the Americans with Disabilities Act ("ADA") and related claims under California law. On a motion by Storer, the Court previously dismissed Sullivan's complaint with leave to amend. Sullivan has now filed a first amended complaint, and Storer once again moves to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim under Rule 12(b)(6), and moves to strike portions of Sullivan's complaint under Rule 12(f). The Court finds the matter suitable for resolution without oral argument and VACATES the hearing previously set for June 19, 2020. For the reasons discussed below, Storer's motion is DENIED.¹

The case management conference previously set for June 19, 2020 at 9:30 AM is CONTINUED to 2:00 PM the same day. The Clerk will separately provide instructions for the parties to appear remotely at that conference.

II. BACKGROUND

A. Factual Allegations and Previous Order

Sullivan, a resident of San Francisco, is a regular patron of the Graton Resort & Casino ("Graton") in Sonoma County, where she enjoys "platinum card" privileges. 1st Am. Compl. ("FAC," dkt. 23) ¶¶ 7, 15. Sullivan asserts that she is disabled due to injuries to her left knee and right hand. Id. ¶ 10-12.

Sullivan first injured her left knee on April 19, 2008, when she was struck by a motor vehicle. Id. ¶ 10. Following the injury, Sullivan was treated with physical therapy. Id. In May 2012, Sullivan underwent surgery on her left knee to treat her continuing knee pain. Id. As a result of the surgery, Sullivan claims that her left knee occasionally buckles. Id. ¶ 11. In May 2015, Sullivan's left knee buckled causing her to fall, and Sullivan was then prescribed a brace for her knee. Id. In August 2018, Sullivan applied for a disabled person placard and license plates from the California Department of Motor Vehicles ("DMV"). Id. ¶ 13. In her application, Sullivan's primary care physician described Sullivan's relevant illness or disability as "[a]dvanced osteoarthritis (L) knee." Id. The DMV approved Sullivan's application and issued Sullivan a disabled person parking placard and license plates, which expired on June 30, 2019. Id. ¶ 14.

Sullivan first injured her right hand when she fell in May 2015. Id. ¶ 11. Sullivan fractured her right hand during the fall. Id. On May 29, 2018, Sullivan further injured her hand while pulling a wheel block at work. Id. ¶ 12. Sullivan complained of radiating pain and numbness. Id. Sullivan's right hand was found to be 5% permanently disabled. Id.

Storer operates shuttle bus transportation from San Francisco to Graton, among other bus routes. Id. ¶ 8. Sullivan boarded a Storer bus around 7:15 PM on October 20, 2018 and traveled from San Francisco to Graton without incident, riding in the front of the bus in the "priority seating" area. Id. ¶ 15. Sullivan attempted shortly before midnight to return to San Francisco on a Storer bus and sat in the same area at the front, in order to alleviate her knee and hand problems by reducing the distance she needed to walk and her need to grasp objects while walking to a seat further back on the bus. Id. ¶ 16. The bus driver, however, shouted at her that she could not sit there because it was reserved for people with disabilities. Id. ¶¶ 16-17. Sullivan identified herselfas disabled and attempted to show the driver documentation that she had in her purse, but the driver said that Sullivan did not "have a walker or a cane" and called a Graton security guard. Id. ¶¶ 17-18. Another passenger also shouted at Sullivan to go to the back of the bus. Id. ¶ 17.

When the security guard arrived, the driver told the guard that Sullivan threatened other passengers and the driver feared for his life. Id. ¶ 18. Sullivan denied threatening passengers "and said that the driver was not being truthful," but the guard told Sullivan to leave the bus, that "we'll do it just like they did at Starbucks,"² and that he would call law enforcement if Sullivan refused. Id. When a supervisor from Graton arrived, the supervisor believed the bus driver's version of events and told Sullivan that she was trespassing and would be banned from the casino. Id. ¶ 19. Sullivan eventually left the bus and had to wait until 3:00 AM for another bus to take her home to San Francisco. Id. ¶¶ 19, 22. Another passenger, who was not disabled, was allowed to sit in the priority seating area of the bus that Sullivan was forced to vacate. Id. ¶ 20.

Sullivan alleges that these events caused her humiliation and to experience symptoms of a panic attack. Id. ¶ 21. Sullivan later experienced difficulty sleeping, agitation, and passive suicidal ideation and was subsequently diagnosed with post-traumatic stress disorder. Id. ¶¶ 21, 23.

The FAC asserts three claims: (1) discrimination based on disability by "failing to provide full and equal enjoyment of . . . goods, services, facilities, privileges, advantages, or accommodations"—specifically, the Storer bus—in violation of the ADA, id. ¶¶ 24-28; (2) disability discrimination based on the same conduct in violation of sections 54 and 54.1 of the California Civil Code, id. ¶¶ 29-35; and (3) negligent infliction of emotional distress, id. ¶¶ 36-40.

The Court previously dismissed Sullivan's claims with leave to amend for failure to state a claim on which relief may be granted. Order Granting Mot. to Dismiss (dkt. 22).³ The Court heldthat Sullivan had not sufficiently alleged disability under the ADA and stated, "[a]ny amended complaint should clearly identify the disability or disabilities underlying Sullivan's ADA claim, explain how they limit a major life activity, and clarify Sullivan's theory of how Storer failed to provide her equal access on account of those disabilities." Id. at 8-9.

B. Parties' Arguments

1. Storer's Motion

Storer argues that Sullivan's ADA claim is not sufficiently alleged in two respects and should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Mot. (dkt. 24) at 6. First, Storer contends that Sullivan has not sufficiently alleged that she is disabled under the ADA. Id. at 8. Storer provides the definition of disability under the ADA and argues that Sullivan has not alleged that she is substantially limited in performing a major life activity. Id. Instead, Storer argues that Sullivan has only described her medical issues and, thus, failed to allege, beyond conclusory allegations, how these issues are a substantial limitation on her performing major life activities. Id.

Second, Storer argues that Sullivan has failed to allege that she was discriminated against because of her disability. Id. at 9. Storer asserts that Sullivan's claim must allege either intentional discrimination by Storer or a failure to provide appropriate modifications by Storer to accommodate those with disabilities. Id. Storer argues that Sullivan fails to allege intentional discrimination by Storer because Storer's employee did not perceive Sullivan to be disabled and argues that Sullivan fails to allege a lack of appropriate modifications by Storer because Sullivan alleges that Storer indeed provided preferred seating to the disabled. Id.

Storer then turns to Rule 12(b)(1) of the Federal Rules of Civil Procedure and argues that Sullivan's complaint should be dismissed for lack of subject matter jurisdiction because there is no actual case or controversy before the Court. Id. Storer argues that Sullivan can only seek injunctive relief under the ADA and such relief cannot be granted because Storer has already voluntarily complied with the injunction Sullivan seeks. Id. at 9-10. Storer claims that if a defendant voluntarily ceases its wrongful conduct and meets its burden in showing that its wrongful conduct will not recur, the defendant can moot an issue. Id. at 10. Here, Storer assertsthat it has changed its policies in December 2018 to allow any passenger self-identifying as disabled to use the bus seats reserved for the disabled. Kelley Decl. (dkt. 24-1) ¶ 3. Additionally, Storer claims to have trained its bus drivers and communicated its new policy in January 2019. Id. ¶ 5. As a result, Storer contends, there remains no possibility that a Storer bus employee could ask Sullivan again to change her seat on the basis of any perceived lack of a disability. Mot. (dkt. 24) at 10. Storer concludes that, because Storer has shown compliance with the ADA, there is no further remedy available to Sullivan, and thus her ADA claim is moot. Id. at 11.

Additionally, Storer argues that if Sullivan's ADA claim is dismissed, the Court should decline to exercise supplemental jurisdiction over Sullivan's remaining state law claims and dismiss them. Id. Finally, Storer moves that the Court strike Sullivan's request for compensatory damages under Title III of the ADA, because Storer argues that the ADA only provides for injunctive relief. Id.

2. Sullivan's Opposition Brief

Sullivan first argues that she adequately pleaded her ADA claim in the FAC. Opp'n (dkt. 25) at 4. Sullivan reiterates the injuries to her left knee and right hand set out in the FAC and the resulting physical impairments that limit her ability to perform major life activities. Id. at 5. Accordingly, Sullivan concludes that she adequately alleged her disability under the ADA. Id. at 6. In response to Storer's contention that Sullivan was not denied transportation by Storer on account of her disability, Sullivan argues that she told the Storer bus driver that she was disabled and offered to show the bus driver evidence from her purse. Id. at 6-7....