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Case 2:16-cv-03604-PSG-JEM Document 56 Filed 01/09/17 Page 1 of 18 Page ID #:425

1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP


A Limited Liability Partnership
Including Professional Corporations
2
GREGORY F. HURLEY, Cal. Bar No. 126791
3 ghurley@sheppardmullin.com
MICHAEL J. CHILLEEN, Cal. Bar No. 210704
4 mchilleen@sheppardmullin.com
BRADLEY J. LEIMKUHLER, Cal. Bar No. 261024
5 bleimkuhler@sheppardmullin.com
650 Town Center Drive, 4th Floor
6 Costa Mesa, California 92626-1993
Telephone: 714.513.5100
7 Facsimile: 714.513.5130
8 Attorneys for Defendants,
INSOMNIAC HOLDINGS, LLC, and
9 SPEEDWAY MOTORSPORTS, INC.
10

UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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13
14
15
16

Jonathan Corbett,

Case No. 2:16-cv-03604-PSG-JEM

Plaintiff,
v.

Insomniac Holdings, LLC, Speedway


17 Motorsports, Inc.,
Defendants.

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19
20

DEFENDANTS REPLY IN
SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, SUMMARY
ADJUDICATION
Judge:
Hearing Date:
Hearing Time:
Courtroom:

Hon. Philip S. Gutierrez


January 23, 2017
1:30 p.m.
880

Trial Date:
July 18, 2017
Action Filed: May 24, 2016

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TABLE OF CONTENTS

1
2

Page

3 I.

INTRODUCTION ............................................................................................. 1

4 II.

ARGUMENT .................................................................................................... 2

A.

SMI Is Not Subject To Personal Jurisdiction In California. ................... 2

B.

Plaintiff Has Failed To Establish Standing To Sue. ............................... 3

C.

Plaintiff Concedes His Claims Are Moot. .............................................. 6

D.

Plaintiffs Claims As To Future EDCs Are Not Yet Ripe. ..................... 7

E.

Plaintiff Did Not Request A Reasonable Modification Before


Filing This Lawsuit. ................................................................................ 8

F.

The Alleged Discrimination Took Place In Nevada. ............................ 10

G.

Plaintiff Is Not Entitled To Rule 56(d) Relief. ..................................... 11

H.

To The Extent The Court Does Not Dismiss Plaintiffs StateLaw Claims With Prejudice, It Should Dismiss For Lack Of
Supplemental Jurisdiction. .................................................................... 12

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12
13
14
15

III.

CONCLUSION. .............................................................................................. 12

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TABLE OF AUTHORITIES

2
3
4
5

Page(s)
Cases
Aguilar v. Woodring
2008 WL 4375757 (C.D. Cal. 2008) ...................................................................... 8

Alumni Cruises, LLC v. Carnival Corp.


7
987 F. Supp. 2d 1290 (S.D. Fla. 2013) ................................................................. 10
8 Artway v. Attorney General of State of N.J.
81 F.3d 1235 (3d Cir. 1996) ................................................................................... 8
9
10 Brooke v. The Irvine Company LLC
Case No. 16-00438-DOC (order dated Oct. 7, 2016)............................................. 4
11
12 Brooke v. Newport Hotel Holding LLC
Case No. 16-000426-CJC (Order dated April 29, 2016)........................................ 4
13
14 Brooke v. Peterson
2016 WL 2851440 (C.D. Cal. May 13, 2016)........................................................ 4
15
Calloway v. Thomas
16
2009 WL 1925225 (D. Or. 2009) ........................................................................... 8
17
Chapman v. Pier 1 Imports
18
631 F.3d 939 (9th Cir. 2011) .................................................................................. 5
19 Clark v. McDonalds Corp.
213 F.R.D. 198 (D. N.J. 2003) ............................................................................... 8
20
21 Data Disc. Inc. v. Sys. Tech. Assoc.
557 F.2d 1280 (9th Cir. 1995) ................................................................................ 3
22
23 Dorsett v. Southeastern Transp. Auth.
2005 WL 2077252 (E.D. Penn. Aug. 28, 2005) ..................................................... 6
24
25 Everson v. Leis
556 F.3d 484 (6th Cir. 2009) ................................................................................ 11
26
Foman v. Davis
27
371 U.S. 178 (1962) ............................................................................................... 7
28
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1 Goddarad v. Harkins Amusement Enters., Inc.


603 F.3d 666 (9th Cir. 2010) .................................................................................. 5
2
3 Hicks v. Johnson
755 F.3d 738 (1st Cir. 2014) ................................................................................ 11
4
Jackson v. Bank of Hawaii
5
902 F. 2d 1385 (9th Cir. 1990) ............................................................................... 6
6
Johnson v. Gambrinus Co./Spoetzl Brewery
7
116 F.3d 1052 (5th Cir. 1997) ................................................................................ 9
8
Luu v. Ramparts, Inc.
9
926 F. Supp. 2d 1178 (D. Nev. 2013) .................................................................... 5
10 Mannick v. Kaiser Foundation Health Plan
2006 WL 2168877 (N.D. Cal. 2006) ...................................................................... 9
11
12 Midgett v. Tri-County Met. Transp. Dist. of Oregon
254 F. 3d 846 (9th Cir. 2001) ................................................................................. 5
13
14 Molski v. Arbys
359 F. Supp. 2d 938 (C.D. Cal. 2005) .................................................................. 10
15
16 Moreno v. G&M Oil Co.
88 F. Supp. 2d 1116 (C.D. Cal. 2000) .................................................................... 8
17
Oliver v. Ralphs Grocery
18
654 F.3d 903 (9th Cir. 2011) ............................................................................ 6, 12
19
Omni Capital Intl, Ltd. v. Rudolph Wolff & Co., Ltd.
20
484 U.S. 97 (1987) ................................................................................................. 2
21 Parker v. Joe Lujan Enterprises, Inc.
848 F.2d 118 (9th Cir. 1988) .................................................................................. 7
22
23 Picot v. Weston
780 F.3d 1206 (9th Cir. 2015) ................................................................................ 3
24
25 Priddy v. Edelman
883 F.3d 438 (6th Cir. 1989) .................................................................................. 7
26
27 Resnick v. Magical Cruise Co., Ltd.
148 F. Supp. 2d 1298 (M.D. Fla. 2001) ............................................................. 3, 4
28
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1 Rodriguez v. Ralphs Grocery


2009 WL 1101550 (9th Cir. 2009) ....................................................................... 12
2
3 Salinas v. Edwards Theatres
Case No. 2:15-cv-07698-BRO-PJW (C.D. Cal. Aug. 24, 2016)
4
(Exh. A to Leimkuhler Decl.) ................................................................................. 6
5
Salinas v. Edwards Theatres, Inc.
6
Case No. CV 15-07698-BRO (C.D. Cal. Aug. 24, 2016) ...................................... 9
7 Small v. General Nutrition Companies, Inc.
388 F. Supp. 2d 83 (E.D.N.Y. 2005) ...................................................................... 8
8
9 Stan v. Wal-Mart Stores, Inc.
111 F. Supp. 2d 119 (N.D.N.Y. 2000) ................................................................... 5
10
11 Sullivan v. Oracle Corp.
51 Cal. 4th 1191 (2011) ........................................................................................ 11
12
13 Tat Tohumculuk, A.S. v. H.J. Heinz Co.
2013 WL 6070483 (E.D. Cal. Nov. 14, 2013) ..................................................... 10
14
Tatum v. City & Cty. of San Francisco
15
441 F.3d 1090 (9th Cir. 2006) .............................................................................. 11
16
Thompson v. Smith
17
2008 WL 1734495 (E.D. Cal. 2008) ...................................................................... 8
18 Statutes
19
42 U.S.C. 12182(b)(1)(A)(i) ..................................................................................... 9
20
Americans with Disabilities Act (ADA) ......................................................... passim
21
22 Fla. Stat. 760.07 ......................................................................................................... 11
23 Unruh Act ........................................................................................................ 2, 10, 11
24 Other Authorities
25 Rule 56(d) .................................................................................................................. 11
26
United States Constitution Article III ...................................................................... 3, 7
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1 I.

INTRODUCTION

Plaintiff Jonathan Corbetts (Plaintiff) opposition confirms that his case is

3 wholly without merit and Defendants Insomniac Holdings, LLC (Insomniac) and
4 Speedway Motorsports, Inc. (SMI) (collectively, Defendants) motion should be
5 granted in its entirety. Plaintiff has brought this lawsuit seeking modification of a
6 policy that was in effect for a specific event that took place many months ago and
7 which he did not attend. Similarly, Plaintiff has failed to put forward any evidence
8 that he is disabled or how the alleged policy denied him access. Instead, this entire
9 lawsuit appears to be motivated by a desire to make it easier for him to smuggle
10 illegal drugs into future music festivals. Plaintiffs opposition is bereft of any facts
11 that create a genuine dispute of fact sufficient to survive summary judgment for
12 several, independent reasons.
13

First, as a threshold matter, SMI is not subject to personal jurisdiction in

14 California. Plaintiff has failed to meet his burden to come forward with facts to
15 support his contention that SMI is subject to jurisdiction. Therefore, SMI must be
16 dismissed from this lawsuit.
17

Second, Plaintiff lacks standing to sue. It is undisputed that Plaintiff did not

18 attend the 2016 EDC in Las Vegas, Nevada and it is further undisputed that Plaintiff
19 has never encountered the actual policy he complains of. Plaintiff has put forward
20 no evidence of his disability, how the policy impacted him, or demonstrated how
21 Insomniacs policy concerning OTC and prescription medications would have
22 affected him. Therefore, any injury is entirely speculative and hypothetical.
23

Third, Plaintiffs claims for injunctive relief are moot. The only remedy

24 under the Americans with Disabilities Act (ADA) is injunctive relief - i.e.
25 prospective relief. Plaintiff concedes that the injury he claims in this action is
26 moot because the event in Plaintiffs complaint already occurred.
27

Fourth, in a bid to save his claim, Plaintiff has moved to amend his

28 complaint, after the Court-imposed deadline to do so, to include injunctive relief as


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1 to future EDC events. However, no finalized policy or procedures have yet been
2 developed for any future EDC events in Las Vegas. Therefore, Plaintiffs claims as
3 to future EDC events are not yet ripe for adjudication. It is entirely speculative
4 whether Plaintiff will complain about future policies and/or whether Plaintiff will be
5 denied a reasonable accommodation.
6

Fifth, Plaintiff did not request a modification of Insomniacs policy before he

7 filed this lawsuit. Plaintiff argues he did, but he fails to produce any admissible
8 evidence to refute Defendants claim. Just as Plaintiff has not identified how
9 Insomniac should modify its policy, he has likewise failed to submit any evidence
10 on how any proposed modification is necessary and reasonable.
11

Sixth, the Unruh Act does not apply to this action as any alleged

12 discrimination would have occurred outside of California. California law does not
13 permit plaintiffs to sue for out-of-state acts.
14

Finally, to the extent the Court dismisses the ADA cause of action, it should

15 decline to exercise supplemental jurisdiction over Plaintiffs state-law claims.


16 II.

ARGUMENT

17

A.

18

Plaintiff fundamentally misunderstands the personal jurisdiction doctrine.

SMI Is Not Subject To Personal Jurisdiction In California.

19 Plaintiffs argument relies on the venue doctrine which only comes into play after
20 the threshold Constitutional requirements of subject matter and personal jurisdiction
21 have been satisfied. (Dkt. 55 at 10).
22

It is black letter law that federal courts do not have nationwide personal

23 jurisdiction. They have no broader power over persons (and companies) located
24 outside the state in which they sit than the local state court. Omni Capital Intl, Ltd.
25 v. Rudolph Wolff & Co., Ltd., 484 U.S. 97, 104-05 (1987); see also Rudder Group
26 Practice Guide: Federal Civil Procedure Before Trial, Calif. & 9th Cir. Ed., 3:23
27 (March 2016 update). In other words, federal district courts cannot assert
28 jurisdiction over defendants who lack sufficient minimum contacts with the forum
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1 state. Rudder Group 3:25; see also Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir.
2 2015) (Federal courts ordinarily follow state law in determining the bounds of their
3 jurisdiction over persons.) (citations omitted).
4

Therefore, this Court only has personal jurisdiction over SMI to the same

5 extent as a California state court. It is Plaintiffs burden to come forward with


6 admissible evidence to establish the existence of personal jurisdiction. Data Disc.
7 Inc. v. Sys. Tech. Assoc., 557 F.2d 1280, 1285 (9th Cir. 1995).
8

As explained in Defendants moving papers and the accompanying

9 declaration of William Brooks, SMI does not have the requisite minimum contacts
10 with California to establish a basis for personal jurisdiction. Plaintiff has come
11 forward with no evidence to rebut this conclusion.
12

Plaintiffs discussion about what statutes he wants to apply and his venue

13 choice are utterly irrelevant. For instance, Plaintiff argues that SMI is subject to
14 Nevada law because it allegedly operates the Las Vegas Motor Speedway through a
15 shell subsidiary. (Dkt. 55 at 11). Putting aside Plaintiffs speculation about
16 SMIs relationship with other entities, none of this has anything to do with SMIs
17 claim that it is not subject to personal jurisdiction in California. Therefore, SMI
18 should be dismissed from this case for lack of personal jurisdiction.
19

B.

20

Plaintiffs opposition similarly fails to establish that he has standing to sue

Plaintiff Has Failed To Establish Standing To Sue.

21 under Article III of the United States Constitution. Plaintiff claims, without any
22 explanation, that he could not attend the EDC because of Insomniacs policies that
23 he gleaned from a review of Insomniacs website. (Dkt. 55 at 12). This is
24 insufficient to confer standing upon him.
25

A case which Plaintiff ignores, Resnick v. Magical Cruise Co., Ltd., 148 F.

26 Supp. 2d 1298, 1301 (M.D. Fla. 2001), considered and rejected Plaintiffs precise
27 contention. In Resnick, the defendant cruise line moved the Court for summary
28 judgment on the grounds that plaintiffs lacked standing to bring the claims because
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1 they had not boarded or attempted to board the cruise ships at issue before the
2 lawsuit was filed. Id. Plaintiffs argued that they had standing because they had
3 reasonable grounds to believe they [were] about suffer discrimination based on
4 knowledge they [had] acquired from [their] review of [defendants] website and its
5 information regarding the amenities of the ships. Id. The Court disagreed with
6 plaintiffs and granted defendants motion. The Court reasoned that:
7

The alleged reasonable belief based only on review of

[defendants] internet website that [plaintiff] would encounter

discrimination if he attempted at some unspecified time in the future

10

to cruise on one of [defendants] ships does not constitute concrete

11

and particularized injury. Additionally, the alleged injury is merely

12

conjectural or hypothetical rather than actual or imminent.

13 Id. at 1301-02. Further, the Resnick court rejected Plaintiffs argument that he is not
14 required to actually encounter the discrimination. The Court reasoned: Plaintiffs
15 have not encountered discrimination; rather, they filed suit after merely reviewing
16 [defendants] website. A review of this website does not provide Plaintiffs with
17 knowledge of current or imminent discrimination. Id. at 1302. Courts in this
18 District have similarly denied standing to prospective ADA plaintiffs who do not
19 personally encounter the alleged discrimination. E.g. Brooke v. Peterson, 2016 WL
20 2851440 (C.D. Cal. May 13, 2016); Brooke v. Newport Hotel Holding LLC, Case
21 No. 16-000426-CJC (Order dated April 29, 2016); Brooke v. The Irvine Company
22 LLC, Case No. 16-00438-DOC (order dated Oct. 7, 2016).
23

Plaintiff attempts to distinguish these cases on the grounds that Plaintiff has

24 visited the property in the past. However, the fact Plaintiff has been to prior EDCs
25 in other years and locations makes no difference because his complaint is limited to
26 the medicine policy in effect at EDC 2016.
27

Instead, Plaintiff claims, without any support, that he would be turned away

28 given Insomniacs policies. (Dkt. 55 at 12-13). However, this claim is entirely


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1 speculative, unexplained, and contrary to Insomniacs policies. This kind of


2 hypothetical injury is simply not enough to confer standing on Plaintiff.
3

The Ninth Circuit has held that, in order to be entitled to injunctive relief, an

4 ADA plaintiff must prove that he faces a threat of real and immediate harm.
5 Midgett v. Tri-County Met. Transp. Dist. of Oregon, 254 F. 3d 846, 850 (9th Cir.
6 2001). Instead, Plaintiff disavows his burden and dooms his claim. (Dkt. 55 at 14).
7

First, Plaintiff has come forward with no evidence, or even a description, of

8 his claimed disability. In the Ninth Circuit, only a person with a disability can bring
9 a discrimination claim under Title III of the ADA. Goddarad v. Harkins
10 Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010). Plaintiff must also
11 adduce evidence of his disability and link the alleged barrier to it. Chapman v. Pier
12 1 Imports, 631 F.3d 939, 944 (9th Cir. 2011) (limiting injunctive relief to barriers
13 related to a persons particular disability). Plaintiffs declaration contains no
14 information as to what medication he needs that would otherwise be unavailable to
15 him or even any disability that would be affected by the policy.
16

Second, Plaintiff has failed to explain why he would be turned away on

17 account of his disability. As detailed in the declaration of Maren Steiner, the policy
18 at issue merely would have required Plaintiff to disclose any prescription medication
19 upon arrival at EDC and leave behind any over-the-counter medications (available
20 for free inside the festival). He would not be turned away. Moreover, as discussed
21 below, the record is entirely speculative as to whether Insomniac would have made a
22 reasonable accommodation to him, if necessary under the circumstances.
23

Third, Plaintiff cannot establish that he faces a real and immediate threat of

24 future harm because any relevant policies concerning over-the-counter and/or


25 prescription medication for any future EDC festivals in Nevada have yet to be
26 developed. Isolated, past incidents do not support an inference that a plaintiff faces
27 a real and immediate threat of future harm. Luu v. Ramparts, Inc., 926 F. Supp. 2d
28 1178, 1182 (D. Nev. 2013); Stan v. Wal-Mart Stores, Inc., 111 F. Supp. 2d 119
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1 (N.D.N.Y. 2000); Dorsett v. Southeastern Transp. Auth., 2005 WL 2077252 (E.D.


2 Penn. Aug. 28, 2005); Salinas v. Edwards Theatres, Case No. 2:15-cv-07698-BRO3 PJW at 16, fn. 6 (C.D. Cal. Aug. 24, 2016) (Exh. A to Leimkuhler Decl.).
4

Therefore, Plaintiffs claimed injury is conjectural and hypothetical and

5 insufficient to confer standing.


6

C.

Plaintiff concedes that the claims in his operative Complaint are moot because

Plaintiff Concedes His Claims Are Moot.

8 the event already took place. (Dkt. 55 at 17).


9

Oliver v. Ralphs Grocery, 654 F.3d 903, 909 (9th Cir. 2011), requires that all

10 ADA barriers must be plead in the complaint for Defendants to have fair notice of
11 the claims. Instead, Plaintiff attempts to save his claim by filing a motion to amend
12 his complaint to include future Insomniac events.1 Plaintiffs argument should be
13 denied. Defendants informed Plaintiff of their intention to move for summary
14 judgment on November 1, 2016, as part of the meet and confer process and
15 promptly filed their motion on November 14, 2016. Plaintiff then waited until
16 December 3, 2016 to file his motion to amend.2
17

Plaintiffs bad faith tactics should not be condoned. First, Plaintiff delayed

18 for months before seeking to amend his complaint. The EDC took place in June
19 2016, after which point Plaintiff concedes that his claim was moot. Defendants are
20 prejudiced by Plaintiffs belated attempts to revive his lawsuit by setting forth a new
21 legal theory. Jackson v. Bank of Hawaii, 902 F. 2d 1385, 1388 (9th Cir. 1990)
22
1

As discussed in section II(D) below, Plaintiff has even more standing problems
with this claim. Courts have repeatedly rejected attempts to expand ADA claims to
24 properties that plaintiffs have never visited.
25 2 The Court set a deadline of November 28, 2016 for all motions to amend to be
26 filed. (Dkt. 46). Plaintiff delayed until November 26, 2016 to file his first motion to
amend almost two weeks after Defendants filed their motion. However, given
27 Plaintiffs failure to comply with this Courts rules for setting his motion for
28 hearing, the Court struck Plaintiffs motion. (Dkt. 52).
23

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1 (affirming grant of summary judgment and denial of leave to amend due to undue
2 prejudice to defendant and undue delay by plaintiffs in amending pleading when
3 aware of requisite facts for months); Parker v. Joe Lujan Enterprises, Inc., 848 F.2d
4 118, 120-121 (9th Cir. 1988); Priddy v. Edelman, 883 F.3d 438, 447 (6th Cir. 1989)
5 (Putting the defendants through the time and expense of continued litigation on a
6 new theory, with the possibility of additional discovery, would be manifestly unfair
7 and unduly prejudicial.); Foman v. Davis, 371 U.S. 178, 182 (1962) (leave to
8 amend inappropriate where there is alone, or in combination, undue delay, bad
9 faith or dilatory motive on the part of movant, repeated failure to cure deficiencies
10 by amendments previously allowed, undue prejudice to the opposing party by virtue
11 of the allowance of the amendment, futility of the amendment, etc.).
12

Therefore, as Plaintiff concedes his claims for injunctive relief are moot as to

13 the 2016 EDC in Las Vegas, this Court should dismiss for lack of jurisdiction.
14

D.

15

Even if Plaintiff could assert a claim as to a future EDC, his claims are not yet

Plaintiffs Claims As To Future EDCs Are Not Yet Ripe.

16 ripe. Insomniac develops policies and procedures for each event separately. As
17 explained in Defendants moving papers, Insomniac has not finalized any relevant
18 policies for over-the-counter and prescription medication for any future events in
19 Nevada. (Dkt. at 48-1 at 19-20). Therefore, Plaintiffs claims are not yet ripe.
20

In a bid to avoid the ripeness doctrine, Plaintiff first claims that discovery

21 may reveal that Insomniac is planning to implement the same policy next year.
22 Even assuming Plaintiffs unsupported theories are correct, circumstances may
23 change leading the Court to make an advisory opinion which is contrary to the
24 requirements of Article III jurisdiction.
25

In the alternative, Plaintiff claims that Insomniac utilized a similar policy

26 for other Insomniac-produced events. (Dkt. 55 at 17). However, Plaintiffs


27 argument fails for two reasons. First, Plaintiffs case is limited to the EDC in Las
28 Vegas in 2016. In ADA cases, claims are limited to individual locations where the
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1 plaintiff had actually visited and encountered barriers. See Small v. General
2 Nutrition Companies, Inc., 388 F. Supp. 2d 83 (E.D.N.Y. 2005) (rejecting ADA
3 plaintiffs attempt to expand standing to stores he had never visited); Moreno v.
4 G&M Oil Co., 88 F. Supp. 2d 1116 (C.D. Cal. 2000) (concluding standing was site
5 specific and did not extend to locations where plaintiff had not personally suffered
6 discrimination); Clark v. McDonalds Corp., 213 F.R.D. 198 (D. N.J. 2003) (same).
7 Put simply, Plaintiff indisputably has no standing to challenge the policies for events
8 he has never attended and has no intentions of attending.
9

Second, Plaintiff fundamentally misses the point. Plaintiff, by virtue of not

10 attending EDC or requesting a reasonable modification to Defendants policies, has


11 left a record devoid of any possible analysis by this Court. There is no facts by
12 which this Court can evaluate how Insomniacs purported discriminatory policy
13 was applied to Plaintiff and how that denied him access. E.g. Calloway v. Thomas,
14 2009 WL 1925225 (D. Or. 2009) (challenge to policy not yet ripe as the rules had
15 not been applied to petitioner in concrete and particularized way); Thompson v.
16 Smith, 2008 WL 1734495, *4 (E.D. Cal. 2008), adopted in full, 2008 WL 1970318
17 (E.D. Cal. 2008); Aguilar v. Woodring, 2008 WL 4375757, *3-4 (C.D. Cal. 2008);
18 Artway v. Attorney General of State of N.J., 81 F.3d 1235, 1246-52 (3d Cir. 1996).
19 Plaintiff does not bother to address this case law at all.
20

As discussed below, this is why the case law requires an ADA plaintiff who

21 seeks a policy modification to request that modification from Defendants and permit
22 them an opportunity to modify the request if reasonable and necessary to do so prior
23 to filing a lawsuit.
24
25

E.

Plaintiff Did Not Request A Reasonable Modification Before Filing


This Lawsuit.
Plaintiff contends that he was not required to request a modification to

26 Defendants policies in order to obtain injunctive relief under the ADA. This is
27 simply wrong. Plaintiff cites no authority for his contentions and misunderstands
28 how the ADA operates and the case law.
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Plaintiff first cites to the general prohibition on discrimination under the

2 ADA. 42 U.S.C. 12182(b)(1)(A)(i) (defining general prohibition of


3 discrimination on account of disability). However, what constitutes discrimination
4 is defined by subsection 12182(b)(2)(A) (For purposes of subsection (a) of this
5 section, discrimination includes. . .).
6

Therefore, the question is what specific prohibition does Plaintiff contend

7 Defendants are violating. Plaintiffs complaint is unclear, so he contends in his


8 opposition that Defendants have violated subsection 12182(b)(2)(A)(i), which
9 prohibits the imposition of application of eligibility criteria that screen out an
10 individual with a disability. However, Plaintiffs contention in this lawsuit is that
11 Insomniacs alleged policy concerning OTC and prescription medication violates
12 the ADA. It is not an eligibility criteria. To illustrate, the Department of Justice
13 Technical Assistance manual for Title III claims provides examples such as (1) a
14 parking garage that prevents vans from parking there to save space even though that
15 prevents persons with mobility disabilities from parking there or (2) a cruise ships
16 policy that denies a wheelchair user from boarding the ship without a travel
17 companion. See III-4.1100. Insomniac did not screen out individuals with
18 disabilities and its policy did not require Plaintiff, or anyone else, to disclose their
19 disability it just confirmed the prescription matched the owner. (Dkt. 48-4 at 9).
20

Plaintiffs demands that Insomniac modify its policy concerning OTC and

21 prescription medications are more properly understood as a request to make a


22 reasonable modification. Case law is uniform in requiring Plaintiff to make the
23 request before filing a lawsuit and, if denied, Plaintiff bears the burden of proving
24 that the request is reasonable and necessary. Mannick v. Kaiser Foundation Health
25 Plan, 2006 WL 2168877, *2 (N.D. Cal. 2006); Johnson v. Gambrinus Co./Spoetzl
26 Brewery, 116 F.3d 1052 (5th Cir. 1997). This rule has been recently applied in the
27 Central District of California in Salinas v. Edwards Theatres, Inc., Case No. CV 1528 07698-BRO, *14-16 (C.D. Cal. Aug. 24, 2016) (granting summary judgment to
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1 defendants where plaintiff failed to request modification).


2

Plaintiff wrongly cites to an architectural barrier case (Molski v. Arbys, 359

3 F. Supp. 2d 938 (C.D. Cal. 2005) involving a construction-related accessibility


4 claim that is entirely inapposite here.
5

To the extent Plaintiff contends that Insomniacs policy denied him access,

6 Plaintiff was required to provide Defendants with an opportunity to accommodate


7 him in advance of filing suit. Plaintiffs declaration fails to identify, in any manner,
8 how the policy denied him access. Indeed, most of Plaintiffs grievances, such as
9 his allegation that he does not want to explain his prescription medication (Dkt. 1
10 at 23), are simply irrelevant and not consistent with Insomniacs actual policy.
11

In a last ditch effort to save his claim, Plaintiff pretends that he did, in fact,

12 make a pre-suit request for accommodation, but he fails to provide the Court with
13 any evidence that he ever did so. Plaintiff has further failed to provide the Court
14 with any evidence to establish that the modification sought was necessary and
15 reasonable further dooming his claim. Alumni Cruises, LLC v. Carnival Corp.,
16 987 F. Supp. 2d 1290 (S.D. Fla. 2013) (granting summary judgment where plaintiff
17 adduced no evidence on reasonableness of proposed policy modifications).
18

F.

19

Plaintiffs claim under the Unruh Act should separately fail because the

The Alleged Discrimination Took Place In Nevada.

20 alleged discrimination, if it had occurred, took place in Nevada where the event
21 actually took place (i.e. where Plaintiff would have been denied access). Plaintiff
22 first argues that the Unruh Act nevertheless applies because Insomniacs officers are
23 alleged to have instituted the policy from California. (Dkt. 55 at 19). This argument
24 has been rejected. Tat Tohumculuk, A.S. v. H.J. Heinz Co., 2013 WL 6070483, *7
25 (E.D. Cal. Nov. 14, 2013) (rejecting claim that Unruh Act applied because alleged
26 discrimination approved by corporate officers in California).
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Second, Plaintiff argues that he experienced the discrimination in California

28 because, he claims, he was present in California when he attempted to book flights


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1 to the festival. Plaintiff cites no authority for this unprecedented expansion of the
2 Unruh Act. Under Plaintiffs theory, a person residing in California could sit at his
3 or her computer screen and sue under the Unruh Act for an alleged discriminatory
4 act anywhere in the world. Such a construction is nonsense. Further, Californias
5 Supreme Court has indicated a strong presumption against the extra-territorial
6 application of California law. Sullivan v. Oracle Corp., 51 Cal. 4th 1191 (2011).
7 Therefore, Plaintiffs Unruh Act claim should be dismissed.3
8

G.

Much of Plaintiffs opposition is devoted to his allegation that he has not had

Plaintiff Is Not Entitled To Rule 56(d) Relief.

10 sufficient time to conduct discovery in this matter. In order to be granted relief


11 under Rule 56(d), Plaintiff must submit a declaration with his opposition showing
12 the following: (1) facts indicating a likelihood that controverting evidence exists as
13 to a material fact; (2) specific reasons why such evidence was not discovered or
14 obtained earlier; (3) the steps or procedures by which the opposing party proposes to
15 obtain such evidence; and (4) an explanation of how those facts will suffice to defeat
16 the summary judgment motion. Tatum v. City & Cty. of San Francisco, 441 F.3d
17 1090, 1101 (9th Cir. 2006); Everson v. Leis, 556 F.3d 484, 493 (6th Cir. 2009)
18 (vague assertions insufficient). Even when required materials are submitted, the
19 district court may deny a Rule 56(d) motion if it concludes that the party opposing
20 summary judgment is unlikely to garner useful evidence from supplemental
21 discovery. Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014). Plaintiff has failed
22 to meet his burden.
23

Here, no additional discovery is required for the Court to rule on Defendants

24 summary judgment motion. Plaintiffs lack of standing is established by his failure


25 to personally encounter Insomniacs policy. Plaintiffs claim for injunctive relief is
26

Plaintiff also misstates Florida law. Under Florida law, a private plaintiff may
27 only sue for damages after the plaintiff has exhausted an administrative claim under
28 the Florida Human Rights Commission. Fla. Sta. 760.11(1)-(15); Fla. Stat. 760.07.
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1 moot because he has conceded that the EDC event discussed in his complaint
2 occurred last year. Plaintiffs claim is not yet ripe because he has not established
3 how any future unspecified EDC policy would be applied to him in a discriminatory
4 fashion. Finally, Plaintiffs failure to request a reasonable modification, or indeed
5 provide any evidence on why a modification was reasonable or necessary, is based
6 on information entirely within Plaintiffs possession. Moreover, none of Plaintiffs
7 discovery aimed at SMI to date has anything to do with its arguments concerning
8 personal jurisdiction. Plaintiff has failed to show how any of the requested
9 discovery is relevant to the material facts at issue in Defendants motion.
10

Further, Plaintiffs declaration misrepresents the factual record. Defendants

11 filed their motion papers on November 14, 2016. Plaintiff filed his opposition to
12 Defendants motion for summary judgment on December 11, 2016 almost three
13 weeks before it was due. Insomniac served supplemental discovery responses on
14 December 19, 2016. Leimkuhler Decl. 3. Plaintiff had months to confer with
15 Defendants concerning their discovery responses and objections. Instead, Plaintiff
16 chose to file his opposition early and make outlandish requests such as demanding
17 that Insomniacs Chief Executive Officer appear for deposition.
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H.

To The Extent The Court Does Not Dismiss Plaintiffs State-Law


Claims With Prejudice, It Should Dismiss For Lack Of
Supplemental Jurisdiction.
Plaintiff has not established any exceptional circumstances that would warrant

21 this Court retaining jurisdiction. The Ninth Circuit has repeatedly held that district
22 courts should decline supplemental jurisdiction over state-law disability access
23 claims once the ADA claims is dismissed. E.g. Oliver, 654 F.3d at 911; Rodriguez
24 v. Ralphs Grocery, 2009 WL 1101550 (9th Cir. 2009) (if federal claim dismissed for
25 lack of subject matter jurisdiction, district court must dismiss state law claims).
26 III. CONCLUSION.
27

For all of the foregoing reasons, Defendants respectfully request that the

28 Court grant their motion.


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1 Dated: January 9, 2017


2

SHEPPARD, MULLIN, RICHTER & HAMPTON

LLP

4
By

/s/ Gregory F. Hurley


GREGORY F. HURLEY

Attorneys for Defendants,


INSOMNIAC HOLDINGS, LLC, and
SPEEDWAY MOTORSPORTS, INC.

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