Sometimes even surrender doesn’t work as a way to cut off the expense of litigation. A good Rule 68 offer of judgment will moot the claims and require dismissal under the holding in Deposit Guaranty National Bank v Roper, but making such an offer in an ADA lawsuit can be very difficult. A recent case from the Middle District of Florida, Duldulao v. La Creperia Café, illustrates the problem. The plaintiff’s complaint was, according to the court, “an obvious cut and paste job” that failed to give fair notice of the claim. The defendant’s offer of judgment was, of necessity, equally vague. The court concluded that because it could not meaningfully compare the offer of judgment to whatever relief might finally be granted the offer of judgment process was “unavailable.” It refused to dismiss based on the Rule 68 offer. More
In her song “Raised on Robbery” Jonie Mitchell describes a man “sitting in the bar of the Empire Hotel, drinking for diversion and thinking for himself” while he watches a hockey game that he’s bet on. I thought about that song when I ate lunch with a wheel chair bound at a local restaurant. We had no trouble being seated; there were plenty of accessible tables. What we couldn’t do was see the three large flat screen TVs behind the bar because the bar area only had raised tables and raised booths.
Does the inability to sit in the bar or see a TV amount to discrimination against those with disabilities? It depends on how you look at the business of the restaurant. If the restaurant is only selling food and drink then a person with a mobility disability gets the same thing everyone else does – food and drink. But if the restaurant is the experience of drinking and watching a hockey game the disabled person is out of luck. More
A couple of recent unpublished decisions provide good examples of how ADA lawsuits can result in what looks to me like unnecessary expense, and how the Courts have created a standing battleground that does no one any good.
In Kreisler v Second Avenue Diner Corp. a wheelchair bound man sued a local diner that he More
On July 17 of this year the District Court for the Southern District of California awarded attorney’s fees of $550,000 against Chipotle Mexican Grill in a lawsuit that had been pending since 2005. A month later, on August 28, the same Court refused to certify a class in a lawsuit brought by the same plaintiff alleging the same violations of the ADA. What happened in the two lawsuits is a perfect illustration of my own slogan for ADA defense, “Fix First Then Fight.” The story of these lawsuits also demonstrates the dangers associated with attacking the plaintiff instead of attacking the problem. More
There really isn’t a legal definition of abusive litigation. For many property owners every ADA lawsuit is abusive. On the other hand there isn’t a single plaintiff who thinks his or her lawsuit is abusive. My own definition has to do with what the lawsuit is intended to accomplish. If the goal is to help the disabled by eliminating barriers to access it is legitimate. If the goal is generating legal fees then no matter what the merits the lawsuit is abusive. More