It turns out that the story about Benjamin Franklin wanting the wild turkey to be the U.S. National Bird is a myth, I’m not willing to get into the politics of the annual pardoning of turkeys by the President, and I don’t have Wild Turkey in my liquor cabinet so here instead are the latest ADA and FHA decisions.
Another critical case on injury and standing, this time in the context of limitations.
In Karantsalis v. City of Miami Springs, Fla.,2021 WL 5279406 (11th Cir. Nov. 12, 2021) the Eleventh Circuit made a critical distinction between having a disability and being injured because of that disability that has implications beyond the immediate limitations issue. The question was when the plaintiff’s ADA claim against the City accrued. If it accrued when he first learned that he had multiple sclerosis in 2008 then his claims were barred by limitations. If it accrued when his symptoms progressed to the point that he could no longer use City facilities in 2019 then his lawsuit was timely. The Court found that despite having a disability the plaintiff had not been injured until his disability interfered with use of City services:
Karantsalis argues on the other hand that the district court incorrectly determined that his claims accrued in 2008. Instead, he contends that his claims did not accrue until he had suffered both (1) a disability, and (2) an injury (his inability to readily access and use the City’s services by reason of his disability). Under the ADA, Karantsalis was not injured (and therefore did not have standing) until after he was denied the benefits of the City’s public services.
As a statute of limitations case this decision is important for any municipality faced with ADA litigation over services like sidewalks that are in place for decades. It is equally important as part of the trend of recognizing that standing to sue requires a real, rather than a hypothetical injury.
The difference between a request and a request for reconsideration for limitations
In Gatling v. Jubilee Housing, Inc., 2021 WL 5331707 (D.D.C. Nov. 16, 2021) the Court took up the subtle distinction between a new request for an accommodation under the Rehabilitation Act and a request that an old request be reconsidered. The former restarts the clock for the statute of limitations but the latter does not. Concluding that the question couldn’t be decided based on the allegations in the complaint the matter was reserved for trial. Similar principles will probably apply in the DC Circuit to FHA and ADA claims.
Disability discrimination requires discrimination according to the Ninth Circuit
In a sense Szwanek v. Jack in the Box, Inc., 2021 WL 5104372 (9th Cir. Nov. 3, 2021) is just a reminder that while cars are common, not everybody owns one. The blind plaintiffs complained that they could not eat at Jack in the Box when the dining room was closed because the restaurant won’t serve walk-up patrons at the drive-through window. To this the Court replied:
The refusal to serve food to pedestrians at drive-through windows does not impact blind people differently or in a greater manner than the significant population of non-disabled people who lack access to motor vehicles. If these non-disabled individuals wish to purchase food at Jack in the Box restaurants when the dining rooms are closed, they face precisely the same burden as blind people—they must arrive at the drive-through window in a vehicle driven by someone else.
More broadly, the case is a reminder that the ADA is an anti-discrimination statute; not a broad requirement that life be made easier for those with disabilities. Neutral rules that don’t have a disparate impact on those with disabilities are not discriminatory.
ADA defense strategy – hold your fire.
Acevedo v. C & S Plaza L.L.C., 2021 WL 4938124 (9th Cir. Oct. 22, 2021) is a reminder that when an ADA case is worth defending there are important strategic decisions to make about how and when to spend money on defense.³ The defendant prevailed in the trial court on a Rule 12(b)(1) motion to dismiss based on mootness only to see that victory slip away on appeal. The Ninth Circuit held that the motion was improperly granted because there were factual disputes that required a trial to be resolved.
By way of contrast, the dismissal for mootness in Shawn Bedwell v. TBLB Enterprises LLC, 2021 WL 5364774 (C.D. Cal. Oct. 29, 2021) looks solid, and the expert’s report is a model for how to establish mootness. The key is expert’s meticulous support for his conclusions, including for example time stamped video to show that the doors close as slowly as required by the ADA standards. Defendants who wish to raise an effective mootness defense must pay attention to detail because it is all too easy given the detailed nature of the standards to fail to prove a barrier to access has been remedied.
Gil v. Lavi Apartments, LLC, 2021 WL 5359715 (S.D. Fla. Nov. 17, 2021) concerned a similar problem. In this ADA case the plaintiff alleged – as many serial filers do – that there were both specific barriers to access identified in the complaint and other unnamed barriers to access. Based on the plaintiff’s obligation to specifically identify barriers in the complaint the defendants sought dismissal of the portion of the complaint referring to unnamed barriers. The trial court denied the motion, recognizing that it was pointless to dismiss a part of a claim that was not sustainable anyway. Getting rid of an entire lawsuit is a worthwhile endeavor; getting rid of one paragraph of the Complaint is probably not.
There are, broadly speaking, three times in a lawsuit when the defendant can win: at the beginning on a motion to dismiss, in the middle on a motion for summary judgment, and at the end when the case goes to trial. If there is a mootness defense it is easier to prevail at trial than at summary judgment and easier to prevail at summary judgment than on a motion to dismiss. One way to minimize litigation expense is to hold your fire until you have the best chance of success, which may mean skipping a motion to dismiss and waiting until at least the summary judgment phase. It’s hard not to hold your fire, but often waiting is the best way to maximize the effectiveness of the time spent on defense.(4)
ADA burdens of proof – who goes first?
In Perez as next friend of F.V. v. Lake County Rowing Assn., 2021 WL 4545090, at *4 (11th Cir. Oct. 5, 2021) the Court considered just who in a reasonable accommodation case had to show that a reasonable accommodation was available. It concluded the plaintiff had this burden: “The private entity’s obligation to provide a reasonable accommodation does not come into effect until the plaintiff first meets his burden of identifying an accommodation and demonstrating that it is reasonable.” Accommodation claims under Title III of the ADA are relatively rare because interactions between disabled individuals and businesses are usually too brief for any discussion of accommodation to come into play. This case could be important though if applied in FHA accommodation cases, which make up the bulk of disability discrimination claims under the FHA.
A rare decision after trial and lessons for ADA defendants.
Villegas v. Snow, 2021 WL 5299239, at *3 (C.D. Cal. Nov. 15, 2021) is a decision after trial in an otherwise ordinary ADA case involving parking and accessible routes for a convenience store. These cases are almost never tried because it is so much cheaper to settle so there are valuable lessons in the decision for ADA defendants tempted to take a case to trial.
The first lesson is that the requirements of the ADA in terms of physical access are absolute. As the court writes: “neither substantial compliance nor ‘obedience to the spirit of the ADA’ are viable defenses to ADA liability.” In this case the individual defendants were themselves disabled and testified they had no problem getting in and out of the store in their wheelchair and walker respectively. That did not matter, of course, because the accessibility is required by the ADA is measured by the plaintiff’s ability to access the premises or, as a combination safe harbor and minimum, the ADA’s own standards.(5)
The second lesson is that it takes an expert to make a business ADA compliant. The defendants’ do it yourself solutions didn’t make matters better and in some respects made it worse, particularly because by altering the premises they took themselves out of the “readily achievable” standard for old construction in put themselves into the absolute standards for new construction. They also proved that remediation was readily achievable by trying to do it.
ADA cases can be mooted by fixing whatever problems exist, but the fix has to be done right or it accomplishes nothing. With several hundred pages of technical standards undertaking remediation without an expert is likely to lead to money wasted.
Tester standing – hotel website cases
Courts continue to confront so-called testers who visit the websites of hotels they don’t intend to visit. The most recent case finding that such testers do not have standing is Shumway v. Neil Hospitality, Inc., 2021 WL 5181754 (W.D. Tenn. Nov. 8, 2021), a decision notable for its thorough examination of the difference between tester standing as found in Havens Realty v Coleman and the kind of tester standing relied on in ADA cases. The court correctly points out that in Havens the issue was not a lack of information, but rather false information given for a discriminatory purpose. The ADA is a “no fault” statute with respect to most of its regulatory requirements, and that makes a difference in whether those who merely observe an ADA violation have suffered the concrete injury required for standing. The failure to realize that a no fault statute must be treated differently than a statute condemning intentional discrimination has created the entire ADA litigation industry.¹
Websites as public accommodations in the Second Circuit
In Martinez v. Mylife.com, Inc. 2021 WL 5052745 (E.D.N.Y. Nov. 1, 2021) District Judge Cogan declines to follow other District Courts in the Second Circuit that have held the ADA covers stand-alone websites. He says this is in line with the majority of Circuit Courts and not inconsistent with tangentially relevant Second Circuit opinions. Conventional wisdom has long been that District Courts in the Second Circuit will hold that stand-alone websites are covered by the ADA. Judge Cogan proves that is wrong and that ADA website cases have to be evaluated based on the particular judge to which they are assigned no matter where they are filed.
FHA Accommodation claims
Pro se plaintiffs present both courts and landlords with difficult problems, as the decision in Negiendo v. University Partners LLC et al, 2021 WL 5038780 (D. Kan. Oct. 27, 2021) illustrates. Parsing through the plaintiff’s various complaints the court found that some accommodation and other discrimination claims had been adequately pled. The decision is noteworthy for the court’s careful consideration of the difference between a mere impairment and a handicap. If there is a lesson here for landlords it is that problem tenants have to be handled with care because the line between discrimination and appropriate treatment of unreasonable complaints isn’t always obvious.
Mootness in website cases
Whitaker v. Montes et al, 2021 WL 5113218, at *6 (N.D. Cal. Nov. 3, 2021) is a sensible decision concerning mootness for website claims. Plaintiffs usually argue such claims can never be mooted because it is too easy to change a website. This Court reached the opposite conclusion with the common sense observation that “Although websites can easily be changed, it still took time, effort, and money for the Hotel to make that change, and now that the website information is up, there is little incentive for the Hotel to take it down.” Mootness is the monster defense serial plaintiffs want to avoid at all costs because it exposes the truth that they care more about getting attorneys’ fees than ADA compliance. More decisions like this one will encourage businesses to do what the law requires because having an accessible website can create a positive benefit in helping avoid litigation. Holdings that deny the possibility of mootness in a website case have the opposite effect; they tell businesses, in effect, that it is pointless to have an accessible website because compliance with the law is still not a useful defense.
Mootness in physical access cases.
Being angry is not a legal defense in ADA cases.
I’ve made my own suspicions about the bona fides of most serial plaintiffs clear, but a lawsuit under the ADA is not an abuse when there are real statutory violations. Garcia v. Beck, 2021 WL 5298839, (N.D. Cal. Nov. 15, 2021) repeats this lesson in plain terms. After denying a motion to dismiss based on mootness that was probably underdeveloped the court also denied a motion to declare Garcia a vexatious litigant based on the fact he files lots of lawsuits. Standing is a defense that may expand to include plaintiffs like Garcia when and if the Ninth Circuit decides to acknowledge the Supreme Court’s decision in Transunion v. Ramirez (6) but when a person who has a real disability encounters real barriers to access related to their disability it isn’t really possible to say that they filed a claim in bad faith.
By way of contrast, Strojnik v. Liberty Hosp. Group LLC, 2021 WL 5324896, (D. Ariz. Nov. 16, 2021) discusses an individual who has been declared a vexatious litigant. This isn’t the place to recount Mr. Strojnik’s career as a litigant, but the courts who found him a vexatious litigant did so because he did not prove there had ever been real barriers to access or failed to prove his own disability. However, despite this Strojnik is often given at least one chance to show that his lawsuit has merit – see the discussion below.
Landlords, tenants and ADA obligations
Sepulveda v. Zhou, 2021 WL 5123610 (N.D. Cal. Nov. 4, 2021) is a reminder that “landlords and tenants each have an independent obligation to comply with the ADA’s prohibitions against discrimination.” No matter who is responsible for accessibility under the terms of a lease, both the landlord as owner and the tenant as operator are obligated to make a public accommodation accessible to the extent they have the control necessary to implement the law’s requirements. “It’s the tenant’s problem” or “it’s the landlord’s fault” is something I hear from clients and prospective clients all the time. The law is that any person with control sufficient to remove a barrier to access probably has liability under the ADA for removal of that barrier.
State and municipal programs
The cost of default – your market report.
$6,311.50 (consisting of $4,000 in statutory damages, $1,466.50 in attorneys’ fees, and $845 in costs) was the price of default in Johnson v. Shit-fong Lo, 2021 WL 5236552 (N.D. Cal. Oct. 21, 2021), report and recommendation adopted, 20-CV-06096-PJH, 2021 WL 5235209 (N.D. Cal. Nov. 10, 2021).
$4,000 in statutory damages and $3,742 in fees in Johnson v. Hong, 2021 WL 5370950, at *1 (N.D. Cal. Nov. 18, 2021). Note that Johnson’s request for damages based on multiple visits was denied because he did not notify the owner of the accessibility problems before returning.
$3,655.00 in Laufer v Krishna LLC, 2021 WL 5304191 (M.D. Ga. Nov. 15, 2021), including $540 in costs.
Strojnik hangs on by a thread.
Pushing the needle too far – sanctions against a serial plaintiff.
In Whitaker v. 370 N. Canon Drive, LP, 2021 WL 4892168 (9th Cir. Oct. 20, 2021) the Ninth Circuit affirmed an award of attorneys’s fees to the defense based on the frivolous nature of the plaintiff’s claims. As I observed above, serial plaintiffs hate to see a claim mooted by actual ADA compliance because – again in my opinion – their real concern is not compliance but fees. Here an effort to avoid a mootness defense went too far and the plaintiff will have to pay a price for the desperate effort to keep a case alive when the only apparent goal was recovery of fees.
Supplemental jurisdiction of Unruh Act claims
In a number of recent cases, including Vera v. RP & A, LLC, 2021 WL 5112823 (C.D. Cal. Nov. 2, 2021), Vera v. Lunardon, 2021 WL 5112825 (C.D. Cal. Nov. 3, 2021), Valencia v. Lew, 2021 WL 5113424 (C.D. Cal. Nov. 2, 2021), Dunn v. Mollica Prop. Investments, LLC, 2021 WL 5113427 (C.D. Cal. Nov. 2, 2021) among others the court took a nuanced approach to supplemental jurisdiction of Unruh Act claims. Instead of making a decision one way or the other the court ordered the plaintiff to say whether she was a high frequency litigant of the kind the state statute was intended to discourage. If she is the Court will presumably refuse supplemental jurisdiction.
In the Whitaker v. Nguyen, 2021 WL 5140178 (N.D. Cal. Nov. 4, 2021), on the other hand, the court denied almost without discussion a motion to have it decline supplemental jurisdiction of Unruh Act claims, noting it was not alone in exercising jurisdiction over such claims. The trend seems to be against exercising supplemental jurisdiction, but the matter still depends on the specific judge assigned to a case. Know your judge is the first rule of ADA litigation because the paucity of appellate decisions means that in most cases the judge will have considerable freedom to decide what the law is or should be.
ADA standards as negligence standards
Goggans v. Target Corporation, 2021 WL 5298900, at *4 (11th Cir. Nov. 15, 2021) is of passing interest because it appears the parties treated the ADA Standards for Accessible Design as a standard for the negligent construction of a door threshold without any explicit consideration of whether the ADA Standards are intended to be safety standards. Different states take different approaches to this question, so the assumption is not one either plaintiffs or defendants should rely on. (7)
Finklestein – what can I say.
You only have to read the opinion in Dino Antolini, Pl., v. Amy McCloskey, et al., 2021 WL 5411176,(S.D.N.Y. Nov. 19, 2021) to understand why the career of Stuart H. Finklestein needs to be a series on Netflix, HBO, or some other streaming service. Here’s just a sample:
As a preliminary, overarching observation, the Court finds that, in seeking sanctions against Mizrahi and in resisting Defendants’ motion for sanctions, Plaintiff and Finkelstein act as if Finkelstein had never been indicted for filing hundreds of fraudulent ADA lawsuits, as if Plaintiff’s medical records did not indicate that he has a condition involving impaired memory, and as if there were no sworn testimony in the record attesting to Plaintiff having stated that he never attempted to visit Madame X. But Finkelstein was, the medical records do, and there is such testimony. (See, e.g., Finkelstein Indictment ¶¶ 1, 2; 5/4/21 Tr. at 222-67; Hamilton Aff. ¶¶ 4, 13.) Given these circumstances, the Court finds Defendants within their rights to use discovery to probe the bona fides of Plaintiff’s relationships with (1) Finkelstein, (2) the prosecution of this lawsuit, and (3) Madame X.
¹ I won’t say more here because this has been a theme in my blogs since I first wrote on the subject back in “Standing on Air” in 2012 and more recently in “Transunion v Ramirez – has the Supreme Court put an end to cheap standing”
² The ADA also continues to play a role in voting rights cases, as illustrated by Fla. State Conf. of NAACP v. Lee Natl. Republican Senatorial Comm., 2021 WL 4818913, (N.D. Fla. Oct. 8, 2021) challenging ballot box placement laws that allegedly make access by the disabled more difficult.
³ I touched on this just a few weeks ago in “Quick Hits – this week we are getting technical”
(4) This is not to criticize the defense attorneys in Acevedo who correctly assessed their chances of success on a motion to dismiss in the trial court. An immediate victory isn’t something you turn down if it available. Only when you are not sure of success on a motion to dismiss does it make sense to wait.
(5) The Standards for Accessible Design are a safe harbor in the sense that if they are followed the actual ability of any plaintiff to access the facility is irrelevant; someone who personally cannot manage the slope of a ramp cannot sue as long as the maximum slope meets ADA requirements. It is also a minimum standard; that is, a ramp that exceeds the maximum is a violation regardless of whether the plaintiff could personally manage it. Whether the plaintiff has suffered an injury is another matter, but in most courts any person with a disability is presumed to have been injured by the existence of an ADA violation relevant to their disability.
(7) See “Personal injury and the ADA” for a basic discussion. This is an area of law that develops in fits and starts, so no blog can be considered the last word on the subject.