Being slow but steady the tortoise, as we all know, won the race. The picture on the left tells you the strategy I ended up using. In any case the news is current as of November 14, the last day I checked for new ADA and FHA decisions. There’s plenty of interest, as usual.

A pre-emptive strike on website accessibility succeeds.

The plaintiff in Expensify, Inc. v. White, 2019 WL 5295064 (N.D. Cal. Oct. 18, 2019) sought to take matters into its own hands and local court by suing a pair of serial website filers for a declaratory judgment that its website was not in violations of the ADA. The defendants almost immediately agreed to waive their claims, presumably because they did not want to litigate without the home field advantage they command in the Western District of Pennsylvania. The plaintiff was not content and tried to keep the case alive, but the Court found the waivers mooted its claims. The key finding is that there was a dispute justifying the complaint for declaratory relief. It is only a district court decision, but Defendants who receive a demand letter without a lawsuit should consider this kind of pre-emptive strike as a good way to avoid an unfriendly jurisdiction.

Getting tough on standing in ADA cases

Chamaidan v. Tomy B. Haircare Inc., 2019 WL 4917895 (E.D.N.Y. Sept. 30, 2019) is part of a growing trend in which courts look skeptically at the claims of serial filers whose only injury is supposedly confronting a barrier to access. The Court first took at hard look at the allegation of injury, noting that the plaintiff had not alleged which particular barrier to access interfered with her access to the defendant salon nor explicitly that she had in fact visited the salon. This failure would have justified dismissal by itself, but the Court also looked at the intent to return allegations, which were vague at best. The Court found them inadequate, citing this rule from an earlier decision:

The willingness of federal courts to require reasonably specific allegations of injury and future injury is the hinge on which eliminating abusive serial lawsuits.

Beierle v. Taco Treat of Great Falls, Inc., 2019 WL 5213306, (D. Mont. Oct. 16, 2019) and Beierle v. CHS, Inc., 2019 WL 5213315, (D. Mont. Oct. 16, 2019)

Beierle is a would-be Scott Johnson who filed a bunch of cases making generic claims of ADA violations. The Court dismissed these two based on the plaintiff’s failure to state in sufficiently specific terms: “what barriers he encountered or exist in a place he plans to return 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.” When a sighted plaintiff sues over signage, and a plaintiff no confined to a wheelchair complains about accessible seating I think the claim is made in bad faith and should be sanctioned. It is more likely Beierle will either replead the one or two violations that might affect him and then try to settle.

Dalton v. Simonson Station Stores, Inc., 2019 WL 5579981, (D. Minn. Oct. 29, 2019) is one of a string of losses based on lack of standing by this plaintiff and his lawyer. The decision was at the summary judgment stage and included a finding the claims were moot. It also left open the possibility of a new lawsuit arising out of later visits to the defendant service station. Most interesting is the discussion of the plaintiff’s desperate efforts to keep the lawsuit alive despite every reasonable ADA complaint having been addressed. This and similar cases are not about disabled access, they are about fees for the lawyers. It is also worth noting that despite the Court’s concerns about the plaintiff’s litigation strategy, it declined to find the lawsuit was brought in bad faith and therefore rejected the defendants’ request for fees. Dalton v. Simonson Station Stores, Inc., 2019 WL 5566712 (D. Minn. Oct. 29, 2019). When the original lawsuit rests on a real ADA violation there is little chance of a fee recovery by the defense no matter what happens later.

Jones v. Natl. R.R. Passenger Corp., 2019 WL 5087594 (N.D. Cal. Oct. 10, 2019) appears to be a personal injury case in the guise of an ADA case. The plaintiff was injured while riding a bus because her mobility scooter was not properly secured. The Court found she lacked standing to seek injunctive relief because she had not plausibly alleged she would take the bus again or that the kind of incident in which she was hurt was likely to recur. The Court also rejected her damage claims because, it found, the Defendant met its ADA obligations by having the appropriate hardware to secure scooters and training the drivers to use it. Although it comes at the end of the decision, the fundamental problem with the plaintiff’s case appears to be that the scooter manufacturer specifically warned users not to sit in the scooter while it was in a moving vehicle. The ADA protects the disabled against discrimination, not their own bad decisions.

ADA Class Actions – competing rules and competing responses.

Williams v. Potomac Fam. Dining Group Operating Co., LLC,  2019 WL 5309628 (D. Md. Oct. 21, 2019) is a purported class action that includes a good discussion of the competing views of how to handle cases in which the plaintiff has suffered only one injury at one location but wants to act on behalf of others who may have suffered a similar injury at other locations. The plaintiff had visited a single Applebee’s restaurant and encountered architectural barriers that, he claimed, interfered with his access to the restaurant. A fan of Applebee’s specials he alleged an intent to return the Court found plausible. It therefore denied a motion to dismiss claims with respect to that restaurant. The Court then turned to the class action allegations and the competing views of how to handle such allegations in this circumstance.

The two approaches recognized by the Court look, respectively, at the standing of the plaintiff with respect to other locations as a standing problem, and at the standing of the plaintiff with respect to other locations as a class certification problem. The former approach leads to dismissal without addressing class certification because it finds a plaintiff without standing to sue other locations cannot include them as part of a class. The latter approach, which this Court adopted, considers standing only as one element of the several required for certification of a class.

Having adopted the “class certification” approach to dealing with multiple locations the Court next considered when it would take up those issues, before or after discovery. After examining various authorities the Court concluded that an early resolution was appropriate if it could be done based on the pleadings. Turning to the pleadings, the Court found that the plaintiff had failed to plead a class whose members had claims united by common questions of law and fact – the “commonality” requirement. The problem was the plaintiff’s effort to cover a large number of possible architectural barriers when he had encountered only a few related to parking. Because his class would include individuals who suffered a completely different injury the claims of its members lacked commonality. The Court dismissed the class allegations with leave to amend, and it is possible a narrower class might have plausibly common claims. It is worth noting, however, that the problem discussed in the Beierle cases cited above may be problem in establishing numerosity. The plaintiff’s proposed class was “all persons with qualified mobility disabilities,” but his complaints concerning parking would, in many cases, affect only those actually confined to a wheelchair. There are also possible remaining commonality issues, including standing for injunctive relief. For those of us who practice in the area these specific issues are less important than the Court’s thorough discussion of the competing principles that apply to every class action.

Murphy v. Aaron’s, Inc., 2019 WL 5394050 (D. Colo. Oct. 22, 2019) reached a different result, rejecting early dismissal based on the claim that the class would include members from out of state who did not have the right to bring claims in the Colorado court. Here the conflicting lines of cases held, on one hand, that jurisdiction over the claims of each class member was important and on the other that only the jurisdiction of the named plaintiff mattered. The Court adopted the latter view, at least delaying further consideration of jurisdiction issues until class certification.

You’ve got to try harder than that on ADA standing

Barberi v. Tax Conneck USA Inc., 2019 WL 5079541, (S.D. Fla. Oct. 10, 2019) is a reminder that at the motion to dismiss stage something more than a mere denial is required to get a favorable ruling. Barberi is a serial filer with more than 500 suits to his name, so his standing allegations under the ADA are subject to doubt, but at the motion to dismiss stage of a lawsuit their truth is assumed. The defendant did not more than say they did not “believe” Barberi visited the premises or would return, but that isn’t enough when the pleadings are in order.

The defendants attacked the plaintiff’s standing without success in Johnson v. Sweet Spark, Inc., 2019 WL 5422949, (E.D. Cal. Oct. 23, 2019). It is likely true, as defendants claimed, that Johnson had no intention of using the goods and services of the defendant, but the 9th Circuit rule is simple:“motivation is irrelevant to the question of standing under Title III of the ADA.” This is part of the 9th Circuit’s larger belief that the actual injury requirement for standing under Article III of the Constitution embraces the injury of feeling some kind of regret at confronting an ADA violation. I would suggest that a plaintiff seeking ADA violations, which is what Johnson does for a living, feels only glee at discovering them and therefore has suffered no injury of any kind.

Peter Strojnik Sr., on the other hand, showed how a lazy plaintiff can lose. Strojnik v. 1315 Orange LLC, 2019 WL 5535766 (S.D. Cal. Oct. 25, 2019) Strojnik Sr. has shifted away from filing thousands of suits on behalf of hired plaintiffs to filing pro se suits based on his own alleged disability. Like many courts, the Southern District of California checks pro se complaints to make sure they state a claim over which the court has jurisdiction before allowing the defendant to be served. The Court’s check convinced it that Strojnik Sr. had not alleged a claim over which the court had jurisdiction and dismissed the case. It’s worth noting that despite the problems leading to the dismissal of this case merely being outraged at his conduct is not a valid defense.

Outrage is not a defense.

In Strojnik v. Ensemble Hotel Partners, LLC, 2019 WL 5595169 (N.D. Cal. Oct. 30, 2019) Strojnik Sr. appears to have filed suit against a party that claimed it had previously settled a related case. The defendant counterclaimed for breach of contract but the counter-claim was dismissed because the Court could not find evidence that the counterclaim was either compulsory or permissive. The key observation is this: “The parties cite virtually no legal authority in support of their respective arguments.” It appears the defendant was so outraged it thought that outrage would carry the day. It didn’t, and it almost never will. Serial plaintiffs are annoying at least and act in bad faith at worst, but anger is not a defense to an ADA claim.

Policy related injunctions under the ADA

Most ADA complaints tack on an allegation that the defendant’s policies and procedures are defective as a way of avoiding mootness, which is hard to achieve with policies but easy to achieve with physical barriers. There are limits to the relief available, however, as illustrated in Murphy v. Aaron’s, Inc., 2019 WL 5394050 (D. Colo. Oct. 22, 2019). The Court dismissed claims for injunctive relief that would have compelled the defendant to proactively seek out and remediate existing architectural barriers. After examining existing regulation the Court concluded:

Taken together, it follows that the ADA allows Defendant to make repairs when problems are brought to its attention, rather than requiring it to implement a proactive policy and seek out repairs in the manner that Plaintiff demands.

It’s worth noting that having a policy to seek out and remediate ADA violations is a good way to avoid litigation, but businesses who want to wait until they are sued to fix things have the option.

Morally disabled?

HUD has decided to take a more active role dealing with fake service  and assistance animals according to a press release issued on Nov. 8. The headline says it all:

“SECRETARY CARSON ASKS THE FEDERAL TRADE COMMISSION TO INVESTIGATE WEBSITES SELLING ASSISTANCE ANIMAL DOCUMENTATION”

You can read the rest by clicking the link in the headline. It is interesting that the emphasis is on how those with disabilities are conned into believing they need the various items these websites sell when most of the customers are probably individuals who don’t have a disability and are using the vests and certificates to engage in their own kind of fraud.*

Mental impairment v. disability

I don’t usually write about employment cases, but EEOC v. West Meade Place LLC et al, 2019-WL 5394314 (M.D. Tenn. October 22, 2019) is important for both Title III cases and FHA cases because it explains why a mental impairment is not necessarily a disability. The employee claimed to be disabled by an anxiety disorder that made it impossible to work when it “flared.” The court found that evidence from her physician about having an anxiety disorder was probably insufficient because she did not “explain how she reached that diagnosis by use of her medical expertise.” More important, the court rejected the notion that the employee was disabled because there was no real evidence she was substantially limited in any major life activity. She had missed only one day of work in several years and her own description of her symptoms indicated that when she had an anxiety flareup she just needed quiet for 15 minutes or so before returning to work. Landlords who get bogus emotional support animal requests will recognize that these requests fail to either show a reliable diagnosis of anxiety or similar mental impairments and never contain information suggesting the impairment substantially limits a major life activity. The only problem with these cases is that many HUD investigators either don’t know the law or don’t know how to apply it, so it is often impossible to get a legally correct result without a lawsuit.

A bitter second bite at the apple.

In Shaw v. Gera, 2019 WL 4933636 (N.D. Cal. Oct. 7, 2019) the plaintiff and his lawyers sued a group of defendants with whom they had settled an identical suit a few years earlier. He refused to stand down after being notified that the settlement agreement precluded the later suit and the end was result was an order to pay more than $11,000 in attorneys’ fees to the defendants. The case shares a common feature with others in which the plaintiffs have been sanctioned; that is, a failure by the plaintiff’s attorneys to respond in a timely way to motions or court orders. This is one of many problems with industrial scale litigation (the plaintiff has filed more than 200 lawsuits and his firm several thousand). Since the only goal is to generate legal fees, and the business model requires a high volume of low profit cases, there isn’t much time left over to deal with substantive issues of any kind.

Moot and not so moot

Some of the claims in Alonso v. Alonso, 2019 WL 5268554, (S.D. Fla. Oct. 17, 2019) were dismissed as moot because the defendant doctor moved out of the office that had alleged ADA accessibility violations. Others, based on policies and procedures, were allowed to continue because they had not been ended with sufficient certainty. The case has a good discussion of the limits of the voluntary cessation doctrine well illustrated by the contrasting results in claims arising from physical access and claims arising out of bad policies.

Connecting the dots in FHA complaints

The plaintiff in Antonelli v. Gloucester County Hous. Auth., 2019 WL 5485449, (D.N.J. Oct. 25, 2019) was disabled and was apparently treated badly by the defendant. Her FHA disability discrimination claims were dismissed because she could not connect the bad treatment to her disability. There are a few subtleties about the burden of proof on discrimination, but there is no theory that doesn’t require some causal connection for a claim to be sustained.

No judgement for a form complaint.

Default as a strategy

The defendants who defaulted in Spikes v. Shockley, 2019 WL 5578234 (S.D. Cal. Oct. 28, 2019) ended up with a judgment requiring that they fix their parking, which had to be done in any event, plus pay $4,000 in statutory damages under state law and $4,446 in legal fees plus costs. The fees are perhaps a bit above market, but it is hard to see how any defense could have obtained a better result.

In Buchholz v. Sai Saffron 180 LLC, 2019 WL 5617927 (S.D. Fla. Oct. 31, 2019) default led to a similar result, with a total monetary award of around $7,000, including $2500 in expert witness fees. This, however, was a website case and so the remediation order could involve very large expense. My guess is that the defendant’s website will soon no longer exist, because if it were making money it would have defended the case.

Waste in ADA litigation

In Medina Rodriguez v. Canovanas Plaza Rial Econo Rial, LLC, 2019 WL 5448538 (D.P.R. Oct. 23, 2019) the Court addressed at length cross-motions for summary judgment before finally ruling in favor of the plaintiff on two specific ADA violations while reserving judgment on others and on the existence of a disability. There is no easy way to summarize all the rulings along the way concerning the difference between expert and percipient witnesses, problems with late designation of witnesses, and the applicable standards for accessibility except to wonder whether, given this complexity, the parties might have spent more on lawyers than it would take to fix all the alleged problems. All litigation is messy in this way, but this kind of messiness in ADA litigation over a single facility is probably a sign of waste for which both parties may be to blame.

In Johnson v. Shobeiri, 2019 WL 5458106, (N.D. Cal. Oct. 24, 2019) the plaintiff’s counsel was awarded around $8,000 in fees after settling a claim involving one non-compliant parking lot and one transaction counter that was too high. The defense fees were around $5,000. It would be surprising if the remediation costs were as much as $2,000, meaning the legal fee expenditure was perhaps six times the cost of remediation. Champions of serial litigation might consider this level of waste when they argue that this is a good way to enforce the ADA.

ADA metrology

Metrology (me·trol·o·gy) is the science of measuring things, and Schutza v. So Cal Truck Accessories & Equip., 2019 WL 5454107,  (S.D. Cal. Oct. 24, 2019) serves as a reminder that there is a right way and a wrong way to measure slopes for ADA compliance. Slopes are to be measured by comparing the ends of the sloped area; that is, change in height over distance. Most ADA experts, especially those working for plaintiffs, measure slopes by checking the slope in one or two spots rather than overall. Because concrete is rarely poured with scientific precision this makes it possible by careful placement of a level to find slopes that exceed those in the design of the ramp. This is an important point for defense counsel to remember when confronted with claims that a slope was less than a percent off from the ADA requirement.

When the ADA is not a good IDEA

When it comes to public education the Individuals with Disabilities Education Act  (IDEA) overlaps both Title II of the ADA and Section 504 of the Rehabilitation Act. That doesn’t mean ADA and Section 504 can be used as a simple alternative when pursuit of an IDEA claim might be inconvenient. In this case the magistrate judge recommended dismissal of claims under the ADA and Section 504 because the claims all could have been made under IDEA, and IDEA includes an exhaustion of remedies requirement the plaintiffs had not met. IDEA and its procedures are complicated because theyare calibrated to deal with the complicated problem of providing education to disabled children while leaving them in ordinary classrooms as far as possible. It seems so much easier to sue under the ADA and Section 504, but as this case illustrates, they cannot be used to avoid the requirements of the IDEA.

* Thanks to William Goren, www.williamgoren.com for sending this to me.