the district court had initially found a contested issue of fact when it first ruled on defendants motion for summary judgment and concluded that plaintiff did in fact have standing now the last the court on its own motion three days before trial reconsidered the summary judgment and concluded that in fact there was not a contested issue of fact in the police did not have standing primarily based upon the bare allegation of twelve other a t a i lawsuits by the which predated the subject sued and seven after the primary problem i have with what the district court did is he didn't provide an opportunity to look at the underlying merits of the other twelve suits i mean just the fact that mr hope might have filed those suits does not in another self in any way should have any bearing in my mind as to whether or not he had an intent to return or his credibility judge carlson in the eastern district the fact that plaintiff this was filling the congress in a purpose when it provided for private enforcement of the a v a is hardly evidence of bad faith i mean first off i didn't have the opportunity to show that mr holbein had wrote letters prior to filing these other issues that they were close to his house that we did actually get injunctive relief all of these things and those are factors that would have weighed i think in on the court's a lot of them might she have light on the credibility of his assertion of intention to return that resolved on summary judgment or is not a matter that should be reserved for a trial but that was the other second point i was going to make later your honor and i mean it goes without saying that this record is not to be weighing facts they're going to be brought up at all should be brought to trial not on a summary judgment stage there is a pretty well written opinion out of the southern district where the number of lawsuits did come up and it wasn't an evidentiary hearing at trial  whether he was looking for a target or he was looking for access i don't know how it can be said that he was just looking for a target to sue when he tried to avoid litigation to begin with the overall concern i have in the district courts are all over the place on this as you know is that if we're going to tie and define the contours of standing with how many lawsuits a person has filed without looking at the underlying merits of those lawsuits it's going to take standing the definition of standing well beyond what the court intended when it penley john i don't know where the courts are going to draw the line when is it three lawsuits is it five lawsuits is it ten lawsuits are we going to look at the merits or we're not going look at the merits we're going to we're going to look at what kind of facility it is a disney world or is it a hotel in carson city nevada the district courts and this court may be writing opinions defining the contours of standing for the next ten years and i don't know the answer honestly this court is much more better equipped to answer those questions than i am i just have a real fundamental conceptual problem with trying to define the scope of standing based upon how many lawsuits a person has file what about the record of intent to return so further and apart from the number of lawsuits the debate between you and your opponent about whether it was a credible or a manufactured  uncommon for people to visit their old neighborhoods or their old stomping grounds and i mean the mere fact that he went back there to begin with for the for the incident that generated this lawsuit is itself indicative that he had an intent to return to his old stomping grounds i would point out that these were family reunions that he was having in the city and in the surrounding area and these and it's somewhat in his deposition testimony but not entirely but these are good memories for him this is a time when his family was together this was when he was a kid before he became disabled this is an area and time period that holds the good memories for him and consequently it's it's not unlikely that he two thousand and four and his declaration which was filed and shane you were you over for states that he fully intends to do a scouting trip around the carson city area when the weather clears and then he made the three things i mentioned to you i don't think there's anything more i mean in this is that the complaint his declaration and his deposition i think what you're arguing though is that as far as the complaint alone goes elements but that's not that's not my point my my point is that as of the time of the summary judgment proceeding you had those three things before the court several days first off opposing counsel never specifically asked mr holbein during his deposition if what was your intent as the filing the complaint that's correct is the whole right so we  don't he never had an opportunity to say and it is my generally my practice not to ask my own client questions at a deposition i think again it's clear in his declaration he says it's my intent to return and i think the court can  because of this familial relationship with the area and the fact that he went there to begin with that there is an intent to return he said there was an intent to return as declaration a deposition he's got a long standing contacts with the area and he went there to begin with which was the genesis of this lawsuit i mean taking all those facts together i think you can infer that he had an intent to return as of the time of the filing of the complaint if i knew that  when we opposed the motion for summary judgment and initially we put what material we thought was necessary to oppose the motion in and and prevail i didn't know that i would be later before the ninth circuit to yeah i just wanted to again i don't know how the court feels about this but we were not provided the opportunity to present any evidence as to the merits of the underlying lawsuits on which the district court your response to the first being that as i understand it i don't have any quarrel with the fact that the district judge had the power to reconsider his part ruling so let's just put that off the table for purposes of my question my problem is that in reconsidering his ruling he relied on evidence in that quote of prior litigation and evidence and quotes that he made his reservation at the motel six on the day of his dock position or declaration and and cancelled the reservation the day and so as i look at the record there's just simply no support for saying that there's new evidence sufficient to warrant really looking at the prior rulings so that's the first question in the second one i got i assume it don't both cancel late the cancellation occurs after the complaint filed and so assume with me for a moment that you could infer from both of those things that his and i would just agree that it has to be we need to keep in mind as to different reasons why the district court judge could have dismissed this case for lack of jurisdiction you had upon one of those in your questioning to mr holbein's attorney a few what he actually being sure and this court can affirm the district court's ruling on any grounds supported by the record what you're pointing to now is the second basis that it could be a firm and that is if in fact we were to assume that there was some evidence in this record that mr holbein intended to return as of october eighteenth two thousand and two the question becomes what is the role of the court in deciding whether or not there is sufficient evidence to warrant jurisdiction that decision district court and toss something on the table that that provides a basis for summary judgment it has to be a statement under oath by somebody who's competent i'm not talking about whether the form of it is  wasn't even a disputed issue at that point the plaintiff's attorney even conceded his client had filed that number of lawsuits that also goes to the next question does that even make a difference in determining whether summary judgment was appropriate in this case and i go back to the initial issue and that is is there any evidence in this record that would show that has up to date he filed the complaint on october eighteenth two thousand and two he intended to return to cars nevada and if he did return would he have the need for the use of a hotel such as the hartman house we have no record no evidence in this record before this court to indicate that is the case what we have here is what the would just agree and i realize judge thompson was one of the judges that actually sat on the panel that decided that case but let's look at what the holding in that case was and what the facts in that case were because they are completely different from what we have in this particular case in the pick decision dischord specifically said that a single exposure to past illegal conduct that big architectural barriers to access can be sufficient to establish standing providing that the plaintiff currently deterred from reusing those facilities another words the court recognize the futile gesture doctrine and that is you don't have to engage in the futile gesture of going back if you know barriers exist which did not have to do  the standing inquiry you said to turn that's i mean sure but it's currently the target is what the words were in the decision so what you have to have is you have to have exposure to that past illegal conduct and that exposure currently deters in other words but for the existence of that barrier i would in fact return my intent is to return but for the existence of this this deterrence and the facts of the pickering case the court even specifically noted that the gentleman in question who l seventy miles away would tend to visit his grandmother at least once a week every sunday he was that in the town on a regular basis he used that particular grocery store in his own hometown so he would use it in his grandmother's town if it was available and in fact just prior to the lawsuit being filed the facts indicated he was actually in the parking lot of that particular grocery store and would have used that store if it had been available we don't have that situation this particular case what it stands for is that you don't have to go back if you know would be futile but you still have to have that intent you have to be currently deter if you have no intent to use it you're not currently deterred so i'm just trying to understand how those record evolve there's a complaint that does not have specificity as to intent as of the pleading then discovery occurs and then summary judgment ensues what are we looking at the complaint or everything that was in the record and then we assess whether or not that relates back to intent as of the time it was filed or that it's only post filing and therefore doesn't make any difference what he does i'm not sure i understand words where it goes i believe you make two different points i believe this court has the right if not the obligation to look at the entire record that is presented the question becomes what portions of that record you can consider obviously standing has to be considered as of the date the complaint is file standing cannot be created after the fact a subsequent declared intact at a later point in time or subsequent actions cannot be considered to create standing so when you look at a statement made in a deposition as of that point in time that deposition was more in the loving months after the complaint was filed a declaration that was filed in january of two thousand and four is approximately fourteen to asked what year do you intend to go back and he says you know i mean it doesn't cut one way or another i mean nobody said is that your intent now that you have that intent then no one specifically said is that your intent now is that your intent then the question was as of the date of the deposition do you plan to return to carson city any intent you may have had probably return without any concrete plans no reservations was not environmentalist going all the way down to a foreign country where it may be remote that they would do it but here we have as a pragmatic matter well travel industry involved now i don't know do you have plans to go to kansas city you were there last year had a good enough time but it's not the highest thing on your list to return to kansas city in the next four five years but you this is not something that the plaintive would necessarily have a current you know every day intent but it certainly was a logical destination and at on a summary judgment taking the facts most favorable to the point of should we be doing you seem to be arguing that his case failed from the outset he didn't move to dismiss  no opportunity to amend the complaint if that were the posture of it you're saying you look at the evidence now on a summary judgment and what we wind up doing is weighing as it seems to me the credibility of the of the evidence and and we may not even get to the evidence for some as jim said with respect to some of it but that's the problem i have with you and to do it in the form of standing  as counsel said at the outset i'd be interested in your reaction to it you're putting us in the position of now drawing a whole lot of lines as to what constitutes a nuff in the category of standing which doesn't have any evidentiary hearing the component to it and again to stoop to complete the picture they may have said they were agreed there were seven lawsuits but i don't know whether the seven lawsuits one of the seven lawsuits were you know up and down the state of california were this gentleman likes to drive his van and he's repeatedly been denied access because the nature of the cities that he visits inherently don't have  one is there any evidence in the record to show as of the date of the complaint october eighteenth two thousand and two the plaintiff intended to return or there isn't to the supplemental case as i started to use one with from the southern district of california wilton vs cosco the other one from the central district a little versus best western in siena law it's both address that specific issue sending us the plaintiff you referred to the wrong time frame you're telling me about your intent at a subsequent time you haven't told me what your intent was at the date of the complaint they dismissed the complaint but even if we were to assume and i would respectfully disagree that the plaintiff has enough contacts with this area to keep any and chance to return what wasn't mentioned by the plants attorney when he he hasn't been back to that cabin since that time and in fact he could remember the last time he had been to that cabin prior to one thousand nine hundred seven or nine hundred ninety eight furthermore he said that he had been in carson city a total of maybe ten times in his life starting in  sixty five when he was seven years of age so from one nine hundred sixty five through two thousand and two thirty seven years and he'd been there maybe ten times could not remember the last time he had been in carson city prior to two thousand and two i definitely never stayed  hope teller motel in carson city prior to two thousand and two and i never even heard of the hartman house prior to two thousand and two so his contacts or very slight but even if we were to assume that there was some evidence in this record to show what his intent  as of the date he filed his complaint now we come to the next issue the judge primary present it how can the just record judge rule on this isn't this a question of fact how can you do it on the summary judgment and i would respectfully submit the court can in fact any number of just district courts in this circuit have done so already which i've cited to this court the issue of standing as a question of law is for the court to decide it's up to the court to look at the evidence and we'll get back to the issue of prior lawsuits and the second to look at the evidence to weigh the evidence and to resolve any factual disputes that may exist providing the jurisdictional issue is separable from the merits of the case which it is in this case the jurisdiction issue is did he intend to return to the merits of the case pertain to were there or are there any ongoing veriest access the need to be remedied so the district court judge has the duty to determine if in fact he has court the courts have looked at a number of different factors and have ruled as a matter of law and granting summary judgment a certain individual does not have standing now i know this circuit court has not specifically said that and i'm not aware of any circuit court in this country that has this whole eighty eight litigation is stopping that has been exploding in the last four or five years and it's created a lot of discussion and a lot of concern among the district courts and perhaps we need some guidance from this court as to what they're supposed to do court in tears such emotion in the court issued its order or a standing requiring that the parties confer instead a date for an evidentiary hearing on the issue why isn't that the appropriate way to go and the judge said that they did not have standing and has no jurisdiction to proceed but in addition it's not the case i'm reading i'm sorry i'm looking at the little versus best western for stuff second ten forty eight you know and it was a motion for attorneys fees and cost of been filed by the plaintiff's attorney following a stipulated judgment and the court said before i can even get to that issue i have to see if i have different judges may feel they need different evidence other judges have looked at what's available and they have granted summary judgment there is no guidance from this court as to a blanket rule that it can't be done as a matter of law and i respectfully submit that the court can take the evidence presented to it and make its ruling whether it's in the form of a summary judgment order or in the form of a finding of fact in this particular case judgment given said there is no standing based upon the various factors the lack of contact no indication of concrete plans to return he specifically found what he called the summary judgment or finding of fact there was no jurisdiction if this court decides it wants to remain and to tell him to have an evidentiary hearing i'm sure he'll be problem that's the well and again many courts have and as has been indicated many judges say i need further evidence and if i need to be further guidance from this court so be it but i would respectfully submit that is something that has been decided as a matter of law but in any of it you still have to get over the initial hurdle was there any evidence as of the date the complaint was filed of an intent through return the plaintiff never submitted any such evidence so for that reason alone the order should be affirmed and i would thank you for your time district of california where the court found that the issues are necessarily intertwined because the relief sought e g removal of barriers to access there's a nexus there between that a weekly or biweekly on a regular basis is that market that's a market that he preferred to shop at always and that's the place that he would have gone had he had access to it i mean there's none of that here or sell regard i can't believe you're really saying that because if that's true then the cancelling the making and cancelling of the reservations is directly relevant dismissed by some of the district courts there are no concrete plans to return or the courts that examined the individual underlying cases thank you point in reiterating that we'll i take it