FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN WHITAKER,

Plaintiff-Appellant,

v.

TESLA MOTORS, INC., a Delaware

Corporation,

Defendant-Appellee,

and

DOES, 1–10,

Defendant.

No. 19-56497

D.C. No.

2:19-cv-06605-

MWF-E

OPINION

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 PlaintiffAppellant.

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 countersthat 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-soobvious—such as “difficult-to-navigate restrooms and hardto-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 wellpleaded 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

approximatelyseven months after the complaint wasfiled 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.