What does it mean when a plaintiff has standing to sue on a claim but cannot give fair notice in his complaint because he isn’t even sure it exists? It means, of course, that you are in the topsy turvey world of ADA standing in the 9th Circuit.
Let’s start with the basics. In Chapman v. Pier 1 Imports, 631 F.3d 939 (9th Cir. en banc 2011) the Court reaffirmed its earlier holding in Doran v. 7-Eleven. Doran held that if a plaintiff had knowledge of at least one architectural barrier and is deterred from visiting a place of public accommodation as a result then he may, in a single suit, challenge all barriers in that public accommodation that are related to his or her specific disability and that he is likely to encounter on future visits. He is not, however, required to have any knowledge of such barriers or even any reason to think such barriers exist beyond his suspicion that where there is one barrier there may be more.
In Oliver v Ralph’s Grocery, 654 F.3d 903 (9th Cir. 2011) the broad standing allowed by Doran ran headlong into the notice pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. The holding is straightforward: The “fair notice” requirement in Federal Rule of Civil Procedure 8 requires that the plaintiff identify in his complaint “the barriers that constitute the grounds for a claim of discrimination.” Subsequent identification of barriers in an expert report, even if timely, will not suffice. One reason, according to the Court, is that expert reports are filed later in litigation, “after the defendant has already taken steps to investigate and defend against the claims in the complaint.” The Court even suggests that after an expert report is prepared it is too late to amend, making it impossible for a plaintiff to satisfy Rule 8 based on what he learns during the lawsuit.
It is reasonably obvious that a plaintiff who does not even know an architectural barrier exists will not be able to identify that barrier in his complaint. This leads inevitably to a simple question: If a plaintiff does not know enough about an architectural barrier to give fair notice of that barrier in his complaint how can he possibly have suffered the concrete, particularized and actual or imminent injury as a result of that architectural barrier required by Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130 (1992)? Equally important, how can he possibly satisfy the requirement that standing be demonstrated on the face of the pleading when he cannot describe the injury with sufficient detail to satisfy Rule 8?
There are convincing practical reasons to allow a plaintiff who has been injured by a single architectural barrier to include in his lawsuit all the barriers in the same facility, and it is clear from Doran, Chapman and similar cases that these practical concerns have lead the Ninth Circuit and some other courts to broaden ADA standing beyond anything that can be justified by Supreme Court precedent or the statute itself. Oliver’s sensible application of Rule 8 highlights the problem by noting that vague suspicions without any detail or definition cannot satisfy the fair notice requirement of Rule 8. Until the Ninth Circuit moves away from Doran and Chapman it will remain in the peculiar position of saying that plaintiffs have standing to sue for violations of the ADA that they cannot identify and cannot in good faith allege exist.