The Rite of Spring in the world of ADA and FHA litigation is a lot more like Stravinsky’s ballet – which terminates in the death of the lead character – than the bunnies and ducks that we usually associate with April. But whatever your spring festival, here’s the latest in the case law.
Corona Virus and Title III of the ADA
A great deal of attention has been paid to whether the disease Covid-19 constitutes a disability under the FHA and ADA. Crochet v. California College of the Arts, et al..,2020 WL 1815741 (N.D. Cal. Apr. 9, 2020) looks at a different aspect of the pandemic – whether injunctive relief matters when a physical place of business is only operating remotely. The plaintiff sought a preliminary injunction under the FHA to stop what she considered excessive rent charges. The court refused on the simple principle that money damages was an adequate remedy. This section of the opinion is worth reading because of its discussion of the principle that ordinary equitable limits on injunctive relief do not apply to the FHA. The plaintiff also wanted an injunction requiring the defendant to offer her the same level of shuttle bus service as other students. This the court refused because with the current California shut-in order there were no shuttle busses running and they were unlikely to start running before the plaintiff graduated. This raises the interesting question of how courts should deal with Title III ADA cases filed against businesses that are now shut down or offering only delivery service. Most cases will settle, but those that move forward will require deeper thinking about standing and available relief when the future is so uncertain.
Like Crochet, Thompson-Groves v. St. John-Taylor Properties, LLC, 2020 WL 1678251 (S.D. Miss. Apr. 6, 2020) considered the effect of the current pandemic on ADA enforcement. The defendant asked that the lawsuit be stayed to put an end to litigation expenses while admitted ADA violations were fixed. The plaintiff’s lawyers, concerned that this would moot the case and eliminate their ability to get attorneys’ fees, opposed the motion. The Court essentially ignored those considerations and found that given the fact the business could not operate the stay was in the interest of justice. This would appear to be an argument worth making in every ADA lawsuit filed against businesses that cannot operate because of government orders.
Mootness and the importance of pleading in ADA cases.
Mootness is the king of ADA defenses and a defendant doesn’t have to fix what isn’t alleged in the pleadings. That’s the message in Hillesheim v. Holiday Stationstores, Inc., 953 F.3d 1059, 1061 (8th Cir. 2020). The plaintiff fixed three pleaded barriers to access and obtained a dismissal based on mootness. The plaintiff’s lawyers argued there was more to fix, but the Court meticulously examined the allegations to determine that they didn’t cover the supposed remaining barriers to access. For defense counsel this meticulous review of the ADA Standards should be a lesson. You need to understand the Standards to understand the pleadings, and you need to understand the pleadings to advise your client on mootness.
Mootness in a policies and procedures case.
In Johnson v. Holden, 2020 WL 1288404 (N.D. Cal. Mar. 18, 2020) the plaintiff could not claim there was any physical barrier to access, instead alleging that an otherwise compliant parking place was blocked by the defendant’s employees. The Defendant promptly took action and that was enough to persuade the court that the voluntary cessation doctrine did not bar a mootness defense. The lesson for defendants in ADA cases is simple – the faster you move to fix real problems the more likely you are to prevail on a mootness defense. “First Fix, Then Fight” is always the best approach.
And even more about the importance of pleading
Parks v. RS Eq. Holdings LLC, 2020 WL 1820578 (M.D. Fla. Apr. 10, 2020) is one of the rare cases in which a plaintiff lost even though there was no opposition. The Court adopted an unusually strict view of the pleading requirements of the Federal Rules of Civil Procedure finding for example that it was not sufficient to allege that an element like a mirror was “too high.” Instead the Court demanded an allegation stating the actual height of the mirror. Under this standing almost no pleading filed by a serial filer would be sufficient. It remains to be seen if any other district judge will adopt it.
ADA pleading “policy and procedure” cases.
In order to turn a run of the mill drive-by lawsuit into a far more lucrative national class action the plaintiff’s lawyers need an ADA wrong that goes beyond bad parking and high mirrors in the restrooms. The usual choice is a claim that the defendant has policies and procedures that create, or fail to stop, ADA violations. That claim can embrace every public accommodation of the defendant and thus bulk up an otherwise anemic lawsuit. In Chapman v. M.M. Fowler, Inc., 2020 WL 1488353 (E.D.N.C. Mar. 23, 2020) the Court examined and rejected this kind of claim, because the plaintiff could not plausibly plead it based on her obvious ignorance of the supposed policies. In fact, she pleaded that there either was a bad policy or was not a good policy, covering all the bases but demonstrating a lack of knowledge at the same time. It is it notable that the court did not address this as a failure to state a claim, but rather as a failure to plead standing on the basis that the plaintiff could not show an injury based on policies and procedures she wasn’t sure existed.
Standing and intent to return
Clark v. O’Charley’s, LLC, 2020 WL 1876053 (S.D. Ala. Apr. 15, 2020) is an unusual case in which the plaintiff’s intent to return was limited by her own physical disability. Because she was simply too disabled to plausibly allege an intent to return the case was dismissed.
Brito v. Oak Shopping, L.L.C., 2020 WL 1443119 (D. Colo. Mar. 23, 2020) and Cohan v. Aurora Hosp., LLC, 2020 WL 1322866 (D. Colo. Mar. 20, 2020) should be read as a pair illustrating the boundaries of pleading and proof requirements for the future injury element of ADA standing.
Serial ADA litigation
The defendants in Spikes v. Essel Commercial, L.P. et al, 2020 WL 1701693, at *8 (S.D. Cal. Apr. 8, 2020) could have saved themselves some time by moving to dismiss only the plaintiff’s claims under state law. Like some, but not all, federal courts in California this one was willing to dismiss state law claims as predominating over federal claims but not an ADA claim that was adequately pleaded. The end result is worthwhile – the plaintiff has to file another lawsuit to recover damages – but it illustrates the eternal principle of defending serial lawsuits – you have to know your judge.
ADA fee requests
Johnson v. P. Motor Inn LLC, 2020 WL 1701878 (N.D. Cal. Apr. 8, 2020) is a reminder that ADA serial litigation is often dominated by arguments about fees. In this case the parties quickly settled on injunctive relief and damages, but then required the court to spend considerable time and energy settling their disagreement about fees. The end result was a reduction by about 1/2 of the fees requested by the plaintiff based on excessive hourly rates and exaggerated time keeping. The opinion contains a good summary of 9th Circuit law on fee applications that will be useful for other defendants.
In Monge v. Glen Cove Mansion Hosp., LLC, 2020 WL 1666460 (E.D.N.Y. Apr. 2, 2020) a skeptical court considered the extent to which the plaintiff’s lawyer was as concerned about her fees as about the injunctive relief sought. The court’s opinion of the serial litigation industry was expressed when it adopted the critique of an earlier decision criticizing suits that “mock the statute’s mission by engaging in serial ADA litigation to take advantage of the statute’s fees provision.” In the end, however, the Court took the same approach as was taken in Johnson v. P. Motor Inn. and cut the fee award by about 1/2 based on a reduction in billing rate and discounting unnecessary time.
Crawford v. Hinds County Bd. of Supervisors, 2020 WL 1683458 (S.D. Miss. Apr. 6, 2020) is one of two follow on decisions to the ruling I blogged about last fall.* The other is discussed below. Crawford reached the rather unusual conclusion that the plaintiff had no standing to seek injunctive relief but was entitled to damages. The plaintiff’s attorneys sought fees shortly after they avoided dismissal on summary judgment, a time when, the Court observed, they justifiably anticipated a high degree of success. At the end of the day they settled for modest damages and got no injunctive relief. That hardly constituted a high degree of success, but the Court looked at their fees from the way the case stood at the time of the fee application rather than as it stood after final judgment and awarded more than $88,000 in fees and expenses. It is an unusual outcome in an unusual case, but worth remembering.
A new take on “tester” standing
Crawford v. Hinds County Bd. of Supervisors, 2020 WL 1677668 and 2020 WL 1683458 (S.D. Miss. Apr. 6, 2020) are follow ups to the decision I blogged about last fall.* After denying cross-motions for summary judgment on the plaintiff’s standing to seek injunctive relief the court concluded, after a two day trial, that the plaintiff failed to prove the required intent to return as of the date suit was filed based on his past failures to visit the county courthouse that was the subject of his complaint. The court summed it up this way:
Whatever else it may cover, the concept of tester standing cannot be so expansive as to include a prospective plaintiff’s merely “confirming” the continued presence of known or suspected ADA violations by visiting the facility with his attorneys en route to the federal courthouse to file his ADA complaint.
This statement would, to be frank, apply to every serial litigant who uses “tester” standing as a way to exploit the ADA for profit. This did not, however, constitute a victory for the County because like many other entities that receive federal funds it was covered by the Rehabilitation Act, which includes a damage remedy. After an earlier ruling that he had standing to seek damages the plaintiff settled his damage claim for $7500, leaving for the Court only the question of attorneys fees.
“Equivalent facilities” in a hotel.
The ADA requires that hotels offer those with disabilities “equivalent facilities.” Brooke v. RIHH LP, 2020 WL 1865169 (N.D. Cal. Apr. 13, 2020) helps define the limits of this requirement. In her initial complaint the plaintiff complained only that the “Presidential Suite” was not accessible. The Court concluded this failed to state a claim because the ADA did not require that a single unique type of room be accessible. In her amended complaint the plaintiff alleged that two classes of room that were larger and “nicer” were not available in accessible versions. This, the Court found, stated a claim under the equivalent facilities requirement, apparently because these were not single rooms, but a type of room. So a hotel with one presidential suite has no accessibility requirement for that room, but it appears that if there are two or more such suites at least one must be accessible.
Rule 68 offers and their perils
Making a Rule 68 offer of settlement is one way defendants can attempt to cut off the plaintiff’s future attorneys fees. But when such an offer is accepted there can be problems. Gonzalez v. Chinatown Hotel Corp., 2020 WL 1867912 (11th Cir. Apr. 14, 2020) the Rule 68 offer was not sufficiently detailed to be simply converted into a judgment and the parties could not agree, so the court made its own decision as to the final judgment. The plaintiff was unhappy with the result and appealed. The 11th Circuit agreed and remanded the case for changes to the judgment. The final judgment may not be significantly different, but the cost to the defendant in additional attorneys’ fees might suggest that compromise at the district court level was desirable.
The cost of default
In Johnson v. Patel et al, 2020 WL 1865304 (N.D. Cal. Apr. 14, 2020) the plaintiff jumped through numerous hoops before getting a default judgment. The net result was judgment against the defendants for injunctive relief, $8,000 in damages and $5,000 in attorneys’ fees. Could anything better have been achieved with a defense? It’s hard to imagine how.
Can a case about wheelchair users affect the ADA’s application to the internet?
Namisnak v. Uber Techs., Inc., 2020 WL 1283484 (N.D. Cal. Mar. 12, 2020) is one of many cases attacking Uber’s failure to provide wheelchair accessible vehicles. It includes, however, and interesting discussion of the “auxiliary aids and services” requirement of the ADA. The Court holds that because the relevant DOJ regulations limit this requirement to those who have vision and hearing impairments no claim can be stated by someone without those impairments. Straightforward enough, though it may be contested on appeal as a mis-application of Chevron deference. What is more interesting is what it says about regulatory limits that could affect website claims. One theory for why the ADA requires accessible websites is that the operator must provide auxiliary aids and services. This is not the easiest theory to apply to a website claim and becomes less plausible when the language of the regulation is considered.