“‘What is truth?’ said jesting Pilate, and would not stay for an answer.” These words from Francis Bacon’s famous essay on truth often seem to apply in the earliest part of an ADA lawsuit. Truth is important, but takes a back seat to procedure. In Gastelum v. Canyon Hospitality. LLC, CV-17-02792-PHX-GMS, 2018 WL 2388047 (D. Ariz. May 25, 2018) the Court found a way to get to the truth early in the case, before the cost of litigation made it irrelevant.
The plaintiff is a serial filer associated with Phoenix attorney Peter Strojnik, who has a long history of mass ADA filings. According to the Court, Mr. Strojnik and Mr. Gastelum are engaged in a joint enterprise to sue local hotels “without reference to whether Mr. Gastelum actually had any intent to make future visits to those facilities for reasons not related to his pursuit of ADA claims against them.” That enterprise sued more than 125 different Phoenix area hotels in a matter of months.
In the Canyon Hospitality case the Court consolidated a number of cases filed by Gastelum and Strojnik for the purpose of determining standing. This step, along with the conduct of depositions, two evidentiary hearings, and the Court’s consideration of other cases filed by Gastelum made it possible for the Court to determine standing not based only on the allegations in individual complaints, but on the facts, which were radically different.
In ADA cases a critical element of standing is either an intent to return in the future or being deterred from returning by ADA violations. This is critical because the ADA provides only for injunctive relief, and without an intent to return there is no likelihood of future injury to justify an injunction. When a plaintiff like Gastelum alleges in his Complaint that he intends to return or is deterred that allegation, is taken by many courts to be is sufficient to get past an early Motion to Dismiss. In Canyon Hospitality the Court was willing to look beyond the individual pleadings to ask whether the allegations were credible when repeated more than a hundred times:
While the need to look at the specificity with which the Plaintiff has pleaded the likelihood of future visits might be less stringent had he only sued one hotel in the Phoenix area . . . the inquiry must be more exacting where he has expressed only a rote intent to “book rooms” in 133 other lodgings in the same geographic area.
What might be plausible said once becomes implausible when repeated 133 times. This points out the fundamental ethical and moral problem with the serial litigation industry – it is based on a lie; that is, that the plaintiff actually intends to return or is deterred from returning to dozens of businesses he or she never visited before and has no reason to visit again. Courts that refuse to look at all of a plaintiff’s litigation activity when deciding whether an individual complaint meets the pleading standards in the Federal Rules of Civil Procedure facilitate this lie by making it so expensive to prove the truth that it is cheaper to just give up.*
The Court also found Mr. Gastelum’s pleadings were defective because they failed to tie his disability to the supposed ADA violations and his testimony confirmed that in many cases he had not suffered any injury at all. He complained, for example, about the lack of accessible hotel shuttles but admitted that the never used a hotel shuttle (presumably because his lawyer drove him from one hotel to the next). He also alleged that a smoking area was not accessible while admitting he does not smoke. It is in this discussion that the Court makes its most important finding, for it requires not just that a particular condition relate to Mr. Gastelum’s condition, but that the condition had a real effect on his ability to use and enjoy the premises. The Court writes:
Mr. Gastelum alleges, for example, that the Defendant is noncompliant with the ADA because “[s]ome parts of the accessible routes have a cross slope greater than 1:48.” (Doc. 1, p. 11). As the Supreme Court held in Spokeo, however, Mr. Gastelum cannot “allege a bare procedural violation, divorced from any concrete harm” and maintain standing to bring the lawsuit. 136 S.Ct. at 1549. Mr. Gastelum has not alleged that a cross slope that varies from the statutory requirements concretely impacts his ability to enjoy the public accommodation.
This reading of the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) amounts to a rejection of decisions in the Ninth Circuit and elsewhere that mere knowledge of a deviation from the ADA construction standards causes an injury.** Those decisions were intended to promote litigation as a means to advance public policy, but they have done so at the expense of respect for the Constitution and its requirement of a real case or controversy before the courts become involved.
It is noteworthy that despite the Court’s efforts to determine the truth and its ultimate dismissal of many cases some of the cases before it settled while it was working on the matter. That fact reflects the economic reality that winning an ADA case almost always costs more than settling it. The few instances in which a serial plaintiff or its lawyers have been defeated usually involve defendants willing to spend more to fight than it would have cost to settle.
Cases like Gastelum and others, especially in Florida,† have begun to create a range of cost-effective defense strategies for businesses who are victims of serial filers. Our trademark – Fix First, then Fight – remains the foundation of any defense strategy, but in many courts a defendant will have additional ways to obtain relief and avoid wasting money on lawyers that could be spent on making their business more accessible.