noaatornadoThe defendants in Association for Disabled Americans v. Reinfeld Anderson Family LTD, PRT, 2015 WL 1810536 (S.D. Fla. 2015) came within minutes of total victory on a motion to dismiss, but failed in the end. The case is a study in ideas with superficial appeal that can actually make things worse.

In this case the defendants’ great idea must have seemed like a natural. The individual defendant was a doctor who treated the individual plaintiff at an office owned by the corporate defendant. A few weeks after the suit was filed he notified the individual plaintiff that he had a conflict of interest because of the lawsuit and that the plaintiff should find another physician. Having made sure the plaintiff would never come to the office again the corporate defendant moved to dismiss based on lack of standing. After all, if the plaintiff was never coming back then it would not benefit the plaintiff to remediate the various ADA violations.

This argument was appealing enough that the court originally granted the defendants’ motion to dismiss. What happened next shows how troubled the court must have been by this decision. The plaintiffs filed an initial motion for reconsideration that did not comply with the court’s briefing rules. The court gave them a chance to do it over. A revised motion for reconsideration was filed three minutes after the court’s deadline and still did not comply with the briefing rules. Despite this the Court reversed its earlier ruling after allowing the late and improper amended motion.  Federal judges are not easily persuaded they made a mistake, and this judge had perfectly good reasons to simply deny the motion for reconsideration on procedural grounds. The fact that she gave the motion for reconsideration so much thought shows a real concern with the original dismissal.

Why was she concerned? Her explanation was simple:

If all physicians faced with ADA-related lawsuits responded in this manner [i.e., firing the patient], disabled persons, such as Ruiz would be unable to obtain the protections the ADA intends to afford them.

Of course this is a practical argument, not a legal argument. There are many cases in which a plaintiff may fail to obtain relief because of some loophole or procedural problem. In this case, though, the plaintiffs’ lawyers gave the judge the legal argument she needed; the “capable of repetition, yet evading review” doctrine. This doctrine has been applied to Title II cases under the ADA (see, Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 620, 119 S. Ct. 2176, 2196, 144 L. Ed. 2d 540 (1999)). It allows a plaintiff to avoid a standing defense if:

(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.

(quoting Arcia v. Florida Secretary of State, 772 F.3d 1335, 1343 (11th Cir.2014)). The court found the first prong was met because the defendant terminated the patient relationship before there was a chance for litigation to proceed. It found the second prong was met because the association plaintiff’s members might see the doctor again even if the individual plaintiff did not.

So the defense lost, which happens. In this case though, the good try ended up making things worse. After the defendant doctor fired the individual plaintiff the plaintiff amended to file a new claim for retaliation. This claim survived the motion to dismiss, with the court finding that the fact the patient was fired shortly after the suit was filed was sufficient evidence of retaliatory intent to avoid dismissal.

Why was the doctor worse off than before? Well, he did not own the building and therefore was not liable for the ADA claims based on physical accessibility. Claims against him for a lack of physical access were dismissed. If the doctor had never fired the patient there would have been no claim for retaliation and he would have been out of the case permanently. By firing the patient he created the only claim against him as an individual that could survive dismissal.

The takeaway for any ADA defendant is my eternal advice: fix first, then fight. As tempting as it may be for a defendant to look for procedural means to get rid of an ADA complaint the only real solution is to fix whatever problems really exist. In this case getting rid of the plaintiff’s individual claims for accessibility could not eliminate the association’s claims, and the procedural gimmick used to destroy the individual plaintiff’s standing ended up giving the plaintiff a brand new claim against the individual doctor. It is hard not to believe that it would have ended up being quicker and cheaper to just moot the claims by fixing the access problems.

For ADA lawyers the use of the “capable of repetition, yet evading review” doctrine to avoid mootness is worthy of attention. While the Supreme Court used it in a Title II case I have not found a Title III case before this one in which it was applied. It is easy to see an argument that standing arguments based on a lack of intent to return, which often work for transient plaintiffs, could be avoided using this doctrine. A restaurant on a busy highway, for example, might often be visited by disabled individuals who cannot allege an intent to return. If, however, they can find an associational plaintiff liberal application of the “capable of repetition, yet evading review” doctrine might give the association standing.

Of course the case itself is still in it earliest stages — the opinion I describe above was handed down on April 21, 2015 and there is plenty of litigating to go. There are also a host of interesting procedural problems remaining unresolved, among them the issue of an 11th Circuit appeal that was pending when the April 21, 2015 decision was made and which may have deprived the trial court of jurisdiction to enter an order.  No matter what happens next, however, the basic message remains true. Fix first, then fight is almost always the best way to resolve an ADA lawsuit.