I’m a day late with the St. Patrick’s Day Edition of Quick Hits but that’s no reason not to raise a toast to the saint who, as my great-grandfather William Mullin said, drove all the snakes out of Ireland except the politicians.
Counter widths and the ADA
Just who “operates” a transportation system?
Experts on ADA compliance
FHA modification and accommodation
Mootness done right
Whitaker v. BOP Fighat7th LLC et al, 2019 WL 1081207 (C.D. Cal. Mar. 6, 2019) demonstrates mootness done correctly. There was one problem – no accessible transaction counter – and the defendant fixed it, thus mooting the ADA claim, which was dismissed. The Court stated in passing that the counter was required to be at least 36 inches in length, a misreading of the relevant standard.*
Mootness and “an endless cycle of allegations and remediation”
Mootness and existential doubt.
“Plaintiff worries that uncertainties, such as the future fading of paint that signifies an accessible parking spot make any current certification short lived. . . .” With these words the court in Johnson v. Barrita, 2019 WL 931769, at *2 (N.D. Cal. Feb. 26, 2019) gave notorious serial filer Scott Johnson two months to come up with an explanation of why a completely accessible building as certified by a state certified inspector might not in fact moot the case. Nothing in the ADA requires a guarantee of perpetual accessibility just because the plaintiff is worried; if it did even the most perfect building could be the subject of a lawsuit today based on the fear it might be imperfect someday.
In Rutherford v. Ara Lebanese Grill, 2019 WL 1057919 (S.D. Cal. Mar. 6, 2019) dismissed a claim under California’s Unruh Act that was based on the same facts as the plaintiff’s claim under the ADA. The Court found that the Unruh Act’s damage remedy and requirement of intent made state law issues predominate over the common issue concerning accessibility. More important, the Court recognized that the federal venue had been selected to avoid the pleading requirements for such lawsuits in state court and that the plaintiff was a serial filer following a “sue, settle and move on” strategy. This is good news for the defense because t forces the defendant to file a separate suit in order to obtain damages; however, it doesn’t eliminate the underlying ADA claim. Fixing the real problems is the only way to reduce future risk and comply with the law. Is this a valuable precedent for other defendants? Maybe. A single district judge’s opinion has no binding effect on any other district judge; in fact, the judge himself can change his mind in a later case. For ADA defense knowing your judge is crucial.
Injury and standing.
Intent to return and standing.
The defendant in Powell v. Win Glob. Group, Inc., 2019 WL 917052 (C.D. Cal. Feb. 25, 2019) had far less luck in its efforts to obtain dismissal based on standing. The plaintiff alleged the right things and the claim of intent to return was not implausible on its face. The defendant also tried to prove mootness with unauthenticated photographs, evidence the court properly rejected. In ADA cases a bad defense is just a waste of money, and defendants should decide at the earliest stage whether they have any choice other than to settle.
ADA website litigation
Mitchell v Buckeye State Credit Union, 2019 WL 1040962 (N.D.Ohio Mar. 5, 2019) is another credit union victory based on standing. Like similar cases it finds that someone who does not qualify for membership cannot suffer an injury from an inaccessible website. The case contains a very useful discussion of tester standing, observing that while being a tester does not preclude standing, neither does it confer standing in the absence of an injury. “Tester standing” is a myth created by carelessly written opinions and judges for whom logic and law are only distant relatives.
Default as a strategy
Surrender as a strategy.
The defendant in Johnson v. L. J. Quinn’s Rest. & Supply, Inc., 2019 WL 1116257 (N.D. Cal. Mar. 11, 2019) did not default, but did give up, making a Rule 68 offer of judgment the plaintiff could not refuse. Then things went south for the plaintiff’s lawyers, who failed to file their application for fees within the 14 days required by Rule 54. The application was denied because of the late filing. A firm like Mr. Johnson’s that is trying to keep several hundred cases going at one time is bound to slip up from time to time and it doesn’t appear this court is sympathetic.
Attorneys’ fees for a plaintiff
Love v. Martinez, 2019 WL 1090761 (C.D. Cal. Mar. 13, 2019) has a lesson for defendants in serial ADA cases. Making an early decision on how to respond can save thousands of dollars. In this case the plaintiff prevailed on an unopposed motion for summary judgment. The Court cut the plaintiff’s claimed attorneys fees by a substantial amount, but they still amounted to almost $10,000, about double the typical award in a default case. In serial ADA litigation about easy to fix violations there are really only two meaningful options; surrender immediately or fight to the death and hope to win. Half a defense is likely to increase costs without any benefit.