A couple of recent cases caught my eye because they serve as reminders of the persistence of certain strategic considerations in ADA defense. The first, Taylor v. Wing It Two, Inc., 2013 WL 3778315 (S.D. Fla. 2013) demonstrates the perils of a settlement that isn’t followed by complete remediation. The defendant had settled a previous ADA lawsuit but had not, it appears, actually remediated every ADA violation. The Court rejected the argument that this settlement bound the new and different plaintiff in part because the new plaintiff sued for violations that were not part of the earlier settlement. A settlement without full remediation is a flimsy shield against later lawsuits.
The second case, O’Campo v. Ghoman, 2013 WL 3934422 (E.D. Cal. 2013) is a reminder that some courts are simply tired of poorly framed lawsuits brought by firms specializing in disabilities lawsuits. The Court had before an unopposed motion for summary judgment. Even unopposed motions may fail in the summary judgment context, but in this case the Court not only denied the motion for summary judgment, it sua sponte dismissed the entire lawsuit for lack of standing. The standing allegations that the Court found inadequate are not uncommon, and have been found sufficient by other courts. This Court, however, found in the leading 9th Circuit cases a requirement for very specific pleadings. It noted that in one case the plaintiff alleged that he preferred to shop in the defendant’s store, and that in another the plaintiff alleged that he had visited the store 10 to 20 times and that is was close to his favorite restaurant in the city where it was located. Mr. O’Campo alleged only that he was deterred and continued to be deterred from visiting the defendants store in what the Court found to be a conclusory fashion. There are very good arguments in favor of the Court’s approach, but this decision is also part of a trend among courts that face large numbers of ADA cases of giving standing allegations closer scrutiny that they have in the past.
The yin to the yang of O’Campo, is Dodson v. Strategic Restaurants Acquisition Co., 289 F.R.D. 595 (E.D. Cal. 2013), a case in which the Court struck a number of affirmative defenses that were pled in a conclusory fashion. The Court found that one sentence conclusions failed to provide the fair notice required by Rule 8 of the Federal Rules of Civil Procedure. This holding is a good reminder that while defendants may complain that ADA plaintiffs are not held to the pleading standards of Iqbal and Twombly, they must remember those same standards apply to boilerplate affirmative defenses that cannot be backed by specific facts.
For ADA defendants there are two lessons here. First, of course, is the old news that nothing will stop an ADA lawsuit when there are ADA violations that remain unremediated. The second is that those who want to hold their opponent to a high pleading standard must hold themselves to the same standard.