Yin-YangA couple of district court decisions from late February should both comfort and warn ADA defendants. Gutierrez v. Chung, 2013 WL 655141 (E.D. Cal. 2013) reminds us that settlement alone doesn’t resolve an ADA violation. The only permanent solution is remediation. National Alliance for Accessibility, Inc. v. Millbank Hotel Partners, 2013 WL 653955 (D. Md. 2013), on the other hand, shows how to attack the boilerplate pleadings found in almost all ADA lawsuits.

Gutierrez v. Chung is one of a pair of lawsuits filed against overlapping defendants who owned or operated a shopping center. Both lawsuits were filed by the same attorney, and the allegations were very similar, although so vague that a true identity of claims could not be established from the pleadings alone. The other case, Morales v. Young Bae Chung, et al., 1:12–cv–01335–AWI–GSA (E.D.Cal. 2012), was settled and dismissed with prejudice. Shortly thereafter the defendants moved for dismissal of the Gutierrez case based on res judicata.  They argued that the claims in the two lawsuits were identical, the plaintiffs had the same lawyer, and that the dismissal of the first lawsuit with prejudice was an adjudication that bound Mr. Gutierrez.

The Court rejected this argument. It found there was no identity of claims between the suits in part because the Gutierrez lawsuit included some different defendants, and in part because allegations about common areas in the shopping center were not sufficiently clear to know whether they overlapped. The Court also rejected the idea that merely because the two defendants had the same lawyer Mr. Morales adequately represented Mr. Gutierrez’s interests.  The warning to defendant property owners is clear. As I have observed before, there is no shortage of disabled plaintiffs. Lawyers are precluded by most ethical codes from agreeing not to file future lawsuits, so while a property owner can settle with a plaintiff, it cannot settle with the lawyer in a way that will prevent future litigation. There is no form of temporary victory, whether by dismissal or settlement, that will prevent a later lawsuit. The only truly effective defense to ADA claims is remediation of real barriers to access.

Alliance for Accessibility, Inc. v. Millbank Hotel Partners shows how a court taking a common sense approach to vague pleadings can reasonably conclude that an ADA plaintiff lacks standing. Last week I observed how the court in Hunter v. Branch Banking & Trust Co., 2013 WL 607151 (N.D. Tex. 2013) treated serial litigation as casting doubt on an intent to return to the allegedly non-compliant facility. AAI v. Millbank found that the intent to return was sufficiently alleged, but that a likely future encounter with the alleged access barriers was not. The Court took judicial notice of the plaintiff’s many prior suits and their boilerplate allegations. Because the allegations included only categories of alleged violations rather than naming specific violations the Court found the plaintiff had not satisfied the Iqbal/Twombly requirement that the plaintiff allege more than a mere “possibility” of future harm. It wrote:

Payne fails to allege the specific facts surrounding her encounters with noncompliant facilities that caused her injury. . . She also fails to allege a specific future intent to use any of the allegedly noncompliant facilities. . . Without these facts, and armed only with boilerplate statements that certain violations of the ADA exist, Plaintiff’s fail to demonstrate more than a “mere possibility” of future harm.

Of course, as Gutierrez reminds us, the defendant in AAI v. Millbank may have won the battle without finding a permanent solution. In some cases though the battle is worth fighting if for no other reason than it gives the defendant some breathing room in which to correct ADA problems without the threat of paying the plaintiff’s attorney’s fees. The Court has given ADA litigators another tool to use against mass-produced litigation that may or may not have any connection to real barriers to access.