F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

B R I A N W H I T A K

E R , Plaintiff-Appellant
,

v

.

T E S L A M O T O R S , I

N C ., a Delaware Corporation, Defendant-Appellee
,

and

D O E S , 1–10, Defendant. N o. 19-56497

D.C. No. 2:19-cv-06605- MW F -E

OPI NI ON

A ppeal from the United States District Court for the Central District of California Michael W . F itz g erald, District J udg e, Presiding

A rg ued and Submitted November 10, 2020

Pasadena, California

F iled J anuary

25, 2021W H I T A K E R V

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A M O T O R S 2

B efore: B arring ton D. Parker, J r., * Morg an Christen, and

Paul J . W atford, Circuit J udg e s.

Opinion by J udg e Christen

SUMMARY * *

Am ericans w ith Disabilities Act

The panel aff

i rmed the d istrict court’s dismissal, for failure to state a claim, of an action under T itle I I I o f the Americans with Disabilities Act.

The panel held that plaintiff’s alleg ations we r e not sufficient to satisfy the standard s a r t iculated b y Ashcroft v

. I q b a l and Bell Atlantic Corp. v. Twombly
, which, taken
to ge t h er, require well-pleaded facts, not leg al conclusions, that plausibly g ive rise to a n entitlement to relief. The panel concluded that plaintiff’s complaint did n ot alleg e fac ts sufficient to support his ADA claim ag ainst Tesla, I n c., because the complaint primarily recited leg al c onclusions a nd did n ot put Tesla on n o tice o f h o w its service counters pr e v e nted p laintiff f

r om full and equal access to a Tesla dealership.

* T he H o n orab le B arrin g to n D. P ark er, J r., Sen io r Un ited States Circu it J u d g e f

o r th e U.S. Co u rt of A

p p eals f o r th e Seco n d Circu it, sittin g b y d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.W H I T A K E R V

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A M O T O R S 3

Addressing standing sua sponte, the panel he ld that plaintiff’s alleg ations that he uses a wheelchair for mobility
, that he visited the defendant’s p remises, that he personally encountered a barrier related to his d i sability
, and that the barrier deters him f

rom returning were sufficient to establish injury -in-fact for purposes of standing

.

COUNSEL

Russell Handy (arg

ued) and D e n n i s Price, Center for Disability A ccess, San Di e go , California, for PlaintiffAppellant.

Rohit A

. Sabnis (arg

ued) and Arthur Gaus, B urnham B rown, Oakland, California, for Defendant-Appellee.

OP INION

CHRI STEN, Circuit J udg e:

B r ian W hitaker appeals the district court’s order g ranting Defendant Tesla Motors, I nc.’s (Tesla) motion to dismiss his complaint pursuan t t o F ederal Rule of Civil Procedure 12(b)(6) for failure to state a claim u pon which relief can be
g ranted. 1 Specifically
, W hitak e r challeng es the district court’s determination that his alleg ations were not sufficient
to satisfy the standards articulated by Ashc r o ft v. Iqbal
, 556 U.S. 662 (2009), and Bell A t lantic Corp. v

. Twombly
, 550 U.S. 544 (2007). W e affirm the d istrict court’s judg ment.

1 T esla’ s b rief

states th at its co rrect co rp o rate n am e is T esla, In c.W H I T A K E R V

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I

W h itaker’s complaint alleg es that h e is a q u a d ripleg ic wh o uses a wheelchair for mobility

. W hitaker visits privately -owned businesses to d ete rmine whether their facilities comply

with the standards set out in Title I I I of the Americans w ith Disabilities Act (AD A )
, 42 U .S.C. §§ 12181–12189. I f a facility he visits is not in compliance, W h itaker files a complaint seeking injunctive relief to force the business to remedy the ba r r i e rs he encountered. This appeal arises from one such lawsuit.

A ccording to the c omplaint, W hitaker visited a T es l a dealership in Sherman Oaks, California in J uly of 2019 a nd encountered inaccessible service count e r s that denied him full and equal access to the T es l a d ealership and “created difficulty and d iscomfort.” The c omplaint further alleg es that Tesla’s continued failure to p rovide a c c e ssible service
counters deters W hitaker from returning t o t he dealership. W h itaker alleg es “on information and be l i e f
, that there a

re other violations and barriers on the s i t e that relate to his disability .”

Tesla moved to d ismiss the complaint pursuant t o Rule 12(b)(6) fo r f

ailure to alleg e facts sufficient to satisfy the pleading standards set f orth in Iqbal
, 556 U.S. 662, a nd Twombly
, 550 U.S. 544. Tesla arg u ed that W hitaker failed to alleg e how barriers at the d ealership p revented W hitaker from accessing Tes l a ’ s facility
, and which service counter o r counters w ere actually deficient. The d istrict court ag reed and r uled that W hitaker’s arg ument was “inconsistent” with Iqbal
, 556 U.S. 662, and Twombly
, 5 50 U.S. 544. The court did not d escribe an onerous or technical pleading standard; it observed that the necessary d e t ai l could have been shownW H I T A K E R V

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throug h alleg ations that “the counter was too hig h” o r “ not in

a place that had wheelchair access.” The di s t r ict court g ranted W hitaker leave to amend, but after W hitaker declined
to d o so, Tesla moved for dismissal f or failure to prosecute and the c ourt d ismissed t he complaint with prejudice. W e have jurisdiction pursuant to 28 U.S.C. § 1291, and w e affirm the district court’s o rder g ranting T e sla’s motion to dismiss.

I I

W e review d e novo a district court’ s order g ranting a motion to dismiss for failure to state a claim. Dunn v. Castro
, 621 F .3d 1196, 1198 (9th Cir. 2010).

I I I

A defendant may move to dismiss a claim f or relief pursuant to Rule 12(b)(6) if the c laim “ fail[ s] to state a claim upon which relief can be g ranted.” F ed. R. Civ. P. 12(b)(6). Rule 8 requires that pleading s include “ a short and plain
statement o f the claim showing that the p leader is entitled to relief.” Id. 8 (a)(2). The claims i n t h i s case are that Tesla violated Title I I I of the A DA a nd the Unruh Act, 2 Cal. Civ. Code §§ 51–53.

“Cong re s s enacted the ADA in 1990 to remedy widespr e a d d iscrimination ag ainst d isabled individuals.” PGA Tour, Inc. v. Martin
, 532 U.S. 661, 674 (2001). The ADA defines discrimination to include b oth “obviously

2 T h e Un ru h A ct is “ co e x t e n si v e w ith th e A DA .” Mo lski v. M .J. C a ble, In c ., 4 81 F.3 d 7 2 4
, 7 3 1 (9 th C ir. 2 0 0 7 ) (citin g Cal. Ci v

. C o d e § 5 1 (f )). T h u s, o u r an aly sis o f W h itak er’ s A DA claim ap p lies eq u ally to h is Un ru h A ct claim

.W H I T A K E R V

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ex c lusionary conduct—such as a sig n stati n g t h at persons with disabilities are u n welcome or an o bstacle course leading
t o a store’s entrance”—and conduct that is not- s o

obvious—such as “difficult-to-navig ate restrooms and hardto-open doors.” Chapman v. P ier I Imports ( U.S.) Inc.
, 631 F .3d 939, 945 (9th Cir. 2011) (en banc).

To meet its g oal of removing barriers, Con gress enacted Ti t l e I I I of the ADA to prohibit disability discrimination in the “full and equal enjoy m e n t o f the g oods, services, facilities, privileg es, advantag es, or accommodations of any place of public accommodation,” 42 U.S.C. § 12182(a), with

a nex us to interstate commerce, id. § 2000a(b )

. T i t le I I I requires the removal of “bar ri er s

. . . where such r emoval is

r eadily achievable,” id. § 12182(b)(2)(A)(iv), in plac es o f public a ccommodation, including stores and businesses open to the public. See 28 C.F .R. § 36.304.

I n Twombly
, the Supreme Court considered the a dequacy of a complaint alleg ing that defendants orchest r a t e d an antitrust conspirac y i n violation of the Sherman Act. 550 U.S. at 5 55. The Court observed that the complaint contained no factual alleg ations o f an a g reement as needed to establish a conspiracy

. Id

. at 564. I n stead, the pleading rested on leg al conclusions premised upon de s c r i p tions o f parallel c onduct. Id. Twombly held that Rul e 8 requires plaintiffs to include enoug h facts “to raise a rig ht t o r e lief above a speculative level,” and cautioned that “a formulaic recitation o f the elements of a cause of acti o n w ill not do.” Id. at 555.

The Supreme Court provided further clarification of t h e

n e c e s sary pleading standard in Iqbal
, where it considered a claim alleg ing that several hig h-ranking officials violated theW H I T A K E R V

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F irst and F ifth Amendments by purposefull y instituting a policy o f d iscrimination that r esulted in plaintiff’s incarceration at a fa cility w here the conditions o f confinement were inadequate. 556 U.S. at 668–69. Iqbal

ex p lained that “[ t] w o working principles underlie” Twombly : (1) courts need not accept as tr u e l e gal conclusions o r “[ t] hreadbare recitals of the e lements of a cau s e o f action,
suppor t e d b y mere c onclusory statements;” and (2) only a

co m p l aint that states a plausible claim for relief with wellpleaded facts demonstrating the p leader’s entitlement to relief

can survive a motion to dismiss. I d. at 678–79. B ecause the complaint in Iqbal included only conclusory assertions o f discrimination without factual alleg ations that p lausibly g ave rise to an entitlement of relief, the complaint was fatally defective. Id. at 6 79–80. The Court ex plained that plaintiff’s al l e ga tion that officials “purposefully adopted” a policy o f discrimination was inadequate be c a u se it lacked f actual alleg ations that could “‘nudg [ e] ’ [ his] c laim o f p urposeful discrimination ‘across t h e line from conceivable to p l a u s i b le.’” Id. at 682–83 ( quoting Twombly
, 550 U.S. at 570).

Taken tog ether, Iqbal and Twombly require well-pleaded facts, not leg al conclusions, Twombly
, 550 U.S. at 570, that “plausibly g ive rise to an entitlement to re l i e f, ” Iqbal
, 556 U.S. at 679. The plausibility of a pleading thus derives from it s w e l l-pleaded factual alleg ations. I d. Contrary to W h itaker’s a s sertions, o ur case law reflects this Rule 8 standard. S

ee, e.g. , Eclectic Properties E., LLC v. Marcus & Millichap Co.
, 7 51 F .3d 990, 995–97 (9th Cir. 2 014) (“Althoug h a well-pleaded complaint may proceed even if it strikes a savvy judg e that act u a l p roof is improbable, plaintiffs must include sufficient factual enh a n c e m e n t t o c ross the line between possibility a n d plausibility .” (inte rn alW H I T A K E R V

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quotations and citations omit ted)); Landers v. Quality Comms., Inc.
, 771 F

. 3 d 6 3 8, 6 41 (9th Cir. 2 014) (apply ing Iqbal and Twombly to assess adequacy of F air L abor Standards Act claim); Starr v. B a ca , 652 F .3d 1202
, 1 216 (9th Cir. 2011) ( describ i n g common principles of pleading derived from I

qbal and Tw o m b l

y and apply ing them to civil rig hts complaint); Moss v. U.S. Secret Serv.
, 572 F .3d 962, 971–72 (9th Cir. 2009) ( “ T h e factual content contained within the complaint d oes not allow us to r easona b l y i n fer that the Ag e nts ordered th e r e l ocation of Plaintiffs’ demonstration because of its anti-B ush messag e, and it therefore fails to satisfy Twombly and Iqbal .”).

Here, the d istrict court c o r rectly concluded Whitaker’s complaint did not a lleg e facts sufficient to support his ADA claim because the complaint primari l y recited leg al conclusions. See Iqbal
, 556 U .S. at 679, 682

. The complaint alleg es that Tesla “ failed to provid e a c cessible service

c ounters,” that W hitaker “personally encountered” the inaccessible service counters, and that he was denied “full and equal access.” These alleg ations do l i t t l e more than recite the elements of an ADA claim, a nd fall short of putting Tesla on notice of how the counters prevented W hitaker from full a nd equal access to th e Tesla facility

. The complaint failed to answer basic q u e s tions: W ere the service counters too low? Or too hig h? W ere they positioned in an area that

was inaccessible for another re ason? W ithout this sort o f factual detail, the district court and Tesla were left in the dark about how the service counters denied Whitaker from full a nd equal enjoy

ment of the premises.

W h i t a ker arg ues that civil rig hts litig ants are entitled to

more lenient treatment. I n support o f this arg ument, he cites

our dec ision in Doran v

. 7-Eleven, Inc.
, 524 F .3d 1034,W H I T A K E R V

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1039–40 (9th Cir. 2008). S ee a lso Traffi ca nte v

. M e tropolitan Life Ins. Co.
, 409 U.S. 205, 209 (1972). Bu t Doran noted the Supreme Court’s instruction to “take a broad view of constitutional standing in civil rig hts cases;” the case did n ot address sufficiency of pleading s for purposes o f

s u r viving a motion to dismiss pursuant to Rule 12(b)(6), 524 F .3d at 1039–40 (emphasis added), a n d w e have never held that civil rig hts litig ants are ex e mpt from satisfy ing the pleading standard demanded by I qbal and Twombly

. To the contrary , we ex pressly recog n iz ed in Starr that it is not sufficient f

or a pleading to “simply recite the e l e ments of a

cause of action.” 6 52 F .3d at 1 216. Starr ex p l a ined that complaints must “plausibly sug g est an entitlement to relief, such that it is not unfair to require the oppo s i n g p arty to be subjected to the ex p en s e o f discovery and continued litig ation.” I

d. (observing these requirements are c ommon to all pleading s).

W h itaker separately a

r g u es that he is e n t i t l ed to rely on discovery to fill in the g aps left by his compl a i n t ’ s g eneral alleg ations, and he urg es us to rule that relying on discovery
to flesh out the c ontours of a p laintiff’ s claims is preferable

as a matter of policy

. W hitaker al s o p redicts that if ADA complaints are requ ired to detail every barrier the p laintiff

en c o u ntered, defendants will remedy only the specific infractions identifie d a

n d their establishments will not be broug ht into overall comp l i an c e with the ADA. This
arg ument f

ails because the Supreme Court has b een clear that discovery cannot cure a facially insufficient pleading

. Iqbal specifically c autioned that “Rule 8

. . . does not unlock the doors of discovery for a pl a i ntiff armed with nothing more than conclusions,” Iqbal
, 5 56 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 g roundless,W H I T A K E R V

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be weeded out early in the discovery process throug h careful

case manag ement

. . . ,” 550 U .S. at 559 (internal quotation marks and c itation omitted)). O u r case law does not p ermit plaintiffs t o rely on anticipated discovery to satisfy Rules 8 and 12(b)(6); rather, pleading s must assert well-plea d ed factual alleg a tions to advance to discovery

. Id.

W h itaker a lso arg ues that r e q uiring ADA plaintiffs to provide factual support for g eneral a lleg ations o f inaccessibility will allow d efen d a nts to “pick off” disabled plaintiffs’ c laims by r emedy ing the barriers identified in their complaints and r endering their c l a i m s moot. He points to Duart e v. M&

L Bros. Pharmacy Inc.
, No. 2:14-0029, 2014 W L 5 663921, at *1 ( No v

. 4, 2014), as an ex ample of this
outcome. There, the plaintiff alleg ed that the defend ant’s parking lot contained improper s i g nag e, striping
, and an inadequate number of handicap-acc e s s ible parking spaces. Id. at *1. The defendant repaired these barriers
approx imately seven months after the complaint w a s filed a nd

m o v e d for summary judg ment two months a fter that. Id. Duarte arg ued the parking lot still c o n t a ined an inadequate slope, but the district court g r anted sum m ar y judg ment in favor of the defendant because Duarte did not allege t he defective slope in his complaint a nd it was too late to amend. Id. at *3. Contrary to W hitaker’s a rg u ment, Duarte does not show that r equiring compliance with Iqbal a nd Twombly will allow defendants to u n f a i r ly moot ADA claims. F irst, defendants should be encourag ed to remove barriers from
t h e i r establishments. This is an important objective of t h e ADA. Sec o n d
, it appears the p laintiff in Duarte could have avoided dismissal by conducting discovery sometime in the nine months that passed b efore the summ a r y judg ment

mo t i o n was filed, identify ing other barriers within the defendant’s facility
, and amending his complaint. Id. ; seeW H I T A K E R V

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Doran
, 524 F

. 3d at 1043 ( affirming ADA plaintiff’s standing and ability t o conduct discovery into a dditional barriers at defendant’s facility once he pleaded one valid claim, because th e first barrier d eterred him from returning ). W e conclude the district c ourt correctly held W hitaker to the ple a d i n g standard a r t i c u lated b y the Supreme Court in Iqbal a nd Twombly

.

I V

Tesla did not s p ecifically challeng e W hitaker’s standing
to bring h is ADA claim, but we consider that issue sua sponte to address confusion apparent from the parties’ b riefing

. See D ’ Lil v. Best W

. E ncina Lodge & Suites
, 538 F .3d 1 031, 1035 ( 9 th Cir. 2008) (observing “that w hether or not the p a r t i e s raise the issu e , ‘[ f] ederal courts are required sua sponte to

ex a mine jurisdictional issues such a s s t anding ’” (quoting Bernhardt v. County of Los Angeles , 279 F .3d 862, 868 (9th Cir. 2001))).

O n a ppeal, W hitaker leans heavily o n Skaff v. Meridi en , 506 F .3d 832 (9th Cir. 2007), a case addressing standing pursuant to Rule 12(b)(1), not compliance with the pleading requirements o f Rule 8 or survival of a mot i on to dismiss filed pursuant to Rule 12(b)(6). Whitaker c i t e s Skaff a s support for his a

rg ument that, to survive a R u le 1 2(b)(6) motion, it is sufficient for a complaint to recite the elements of an ADA claim: (1) the plainti ff is disabled; (2) the defendant is a private entity that o w n s , leases, or operates a place of public accommodation; a n d (3) barriers a ffecting
p l a i n t i f f ’ s d i s a b i l i t y w i t h i n d e f e n d a n t ’ s p l a c e o f accommodation barred the plaintiff from full enjoy m e n t o f the f acility

. See Ar i

zona e x rel. Goddard v. H

arkins Amusement Enters., Inc. , 603 F .3d 666, 670 (9th Cir. 2010).W H I T A K E R V

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A careful reading

of Skaff shows that it does not support W h itaker’s position. Skaff was mistakenly assig ned to a hotel room that lacked necessary accommodations

. Skaff
, 506 F .3d at 836. The parties settled Skaff’s ADA c laims but submitted the issue of attorney ’s fees to the district c ourt for resolution. Id. at 836–37. The court concluded that it lacked jurisdiction in lig ht of Skaff’s failure to alleg e a cog niz able injury -in-fact a

nd it declined to award any fees. I d

. On appeal, the Skaff

panel ag reed the delay s plaintiff encountered while waiting to be assig ned to an accessible hotel room were too “trifling ” to establish standing
, but we vacated the district court’s order d e n y ing attorney ’s f e e s because other alleg ations within the complaint sufficiently i n formed the defendant that Skaff had personally encounte r e d additional barriers, establishing his standing t o s e ek injunctive relief. Id. at 840–41. Skaff observed that as lon g as a complaint satisfies Rule 8, g e n eral alleg ations may be cured in discovery : “when n otice of a claim is g i v en t h at satisfies Rule 8
, c oncerns about specificity in a complaint are properly addressed throug h discovery

. . . . According ly
, . . . there is

no sound basis on which to override our normal standing a nd notice p leading requirements in a q uest for more specificity

. ” Id. at 842 (emphasis added).

W h itaker treats S

k a f f ’s d iscussion o f Rule 8’s pleading standard as a holding , and he arg ues that district courts have inconsi s t ently applied what he perceives to b e the rule from Skaff

. W e see no reason for confusion. F irst, as e x plained, the issue in Skaff was standing
, not the standard f or pleading

a claim upon whi c h r elief c an be g ranted. Second, Skaff predates Iqbal and cites a notice pleading standard that Iqbal and Twombly r ejected. Id. a t 8 41–42; s ee Chapman
, 631 F .3d
at 955 & n.9; see also A l e x a nder A. Reinert, Measuring the I mpact o f Plausibility Pleading
, 101 V A

. L

. R E V

. 2 117, 2125W H I T A K E R V

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( 2015) (“As a doctrinal matter, there is little question t h at I q b a l a n d T

w o m b l y m ar k a chang e in pleadin g requirements.”). Iqbal and Twombly set the bar for assessing compliance with Rule 8’s requirement.

Our en b anc d e c ision in Chapman describes in detail the standard for plea d i n g standing to pursue an A DA c laim. 631 F .3d a t 954; see also O liver v. Ralphs G r o cery Co.
, 654 F .3d 903, 907 (9th Cir. 2 0 1 1 ) ( reaffirming Chapman a s the g o verning standard). C h apman alleg e d that he was phy sically disabled, that he visited defendant’s premises, a nd that he encountered barriers that denied him e q ual access. W e h el d that his complaint failed to adequately a lleg e standing because “he never alleg es what those barriers w e r e and how his disability was a ffected by them so as to deny him the ‘full and e qual’ access that would satisfy the injury -in-fact requirement.” Chapman
, 631 F .3d a t 954. The facts o f C h a p m an provide c r itical c ontex t for the reasons the complaint was dismissed for lack of jurisdiction. Id. at 955. R a t h e r than identify

ing a barrier, Chapman attached an accessibility survey to his c omplaint that id e ntified multiple ADA barriers t h a t he claimed “denied him access to the Store, or w hich he [ soug ht] to remove on b ehalf of others under related state statutes.” Id. a t 954 ( emphasis in orig inal). The survey did not connec t the barriers to Chapman’s disability or indicate which barrier or barriers he h ad personally encountered. Id. at 955.

Here, W hitaker’s c omplaint a l l e g es that he uses a wheelchair for m o bility
, that he visited the defendant’s premises, that he personally en countered a barrier related to his disability

—inaccessible service counters—and that the b arrier deters him from r eturning

. These alleg ation s a r e sufficient to establish injury -in-fact for purposes of standing

.W H I T A K E R V

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See Chapman
, 631 F .3d at 954. W hitaker’s identification o f

a specific barrier disting uishes his complaint from Chapman
, and contrary to W hitaker’s arg ument, nothing in the opinion

we issue today varies from the Supreme Court’s instruc t i o n to take a “broad view” of standing in civil rig hts complaints. See Chapman
, 631 F .3d a t 9 54; Trafficante
, 409 U.S. a t 209.

AF F IRMED.