Christmas is over with lumps of coal and sugar plums distributed in ways that often seem unrelated to who has been naughty or nice. Regular readers will see just how little has changed in the course of 2019 despite some important defense victories in the Sixth and Eight Circuits. With most ADA litigation centered in New York, California and Florida the serial litigation business will almost certainly continue to thrive in 2020.
Personal jurisdiction over website owners
Camacho v. Vanderbilt U., 2019 WL 6528974 (S.D.N.Y. Dec. 4, 2019) is another case looking at the relationship between what a website does for the residents of a state and personal jurisdiction over claims related to that website. The Court applies the 2nd Circuit’s spectrum analysis to the website in a detailed way that is beyond the scope of a Quick Hits blog, concluding in the end that the presence of tools aimed at helping college prospects decide whether to apply were sufficient to find the required minimum contacts with the state of New York. The Court also finds that the plaintiff has standing despite having filed 50 similar lawsuits against other universities. While this might suggest the allegation about intending to utilize the website in the future is unlikely to withstand close scrutiny, college websites are used by a particular class of individual who is likely to do a lot of online shopping for a place to go to school, making the allegations at least plausible.
Sullivan v. Ringling College of Art and Design, Inc., 2019 WL 6529823 (S.D.N.Y. Dec. 4, 2019) reaches the opposite result. Defendants wishing to attack personal jurisdiction will want to read the case carefully for the distinctions it makes, but what I see is that the Second Circuit’s spectrum test leaves quite a bit up to the individual judge, and it is at least possible the same case would have been decided differently in another court.
Experts and the ADA
De La Rosa v. 650 Sixth Ave Trevi LLC, 2019 WL 6245408, at *4 (S.D.N.Y. Nov. 22, 2019) is one of the rare ADA physical access cases that seems ready to go to trial. In this opinion the court denies an effort to exclude the plaintiff’s expert on the ground that it doesn’t take any expertise to make measurements and that the expert’s report is in any even out of date. For some aspects of ADA compliance the court concludes that opinion testimony is helpful. The court also rejects efforts to exclude evidence of prior conditions and conditions in an adjacent space, finding both were relevant to the issue of what might be readily achievable. Most ADA physical design cases seem cut and dried once the measurements are made, but this opinion demonstrates that there may be lurking fact issues.
Mooting website accessibility claims
Mercer v. Jericho Hotels, LLC, 2019 WL 6117317 (S.D.N.Y. Nov. 18, 2019) has a take on mooting website accessibility claim that considers Diaz v. Kroger, Inc.,* but isn’t willing to rely solely on the defendant’s affidavit. The Court granted the plaintiff limited discovery in order to have more information on whether the defendant might in fact resume its alleged violation of the ADA unless restrained. I don’t know what the plaintiff will find, but if the defendant hopes to escape on mootness it should have a robust website accessibility policy that was put in place before suit was filed. Waiting until you are sued to start working on website accessibility is a good way to have a lawsuit that can’t be mooted.
Mooting physical accessibility claims.
Kelley v. Smith’s Food & Drug Centers, Inc., 2019 WL 6358469 (10th Cir. Nov. 27, 2019) should be an important decision; after all, circuit level cases are rare in the world of ADA litigation. It does confirm that when it comes to mootness a defendant is required only to moot ADA accessibility violations that are pleaded, not violations that might be found after suit is filed. The Court makes an important distinction between standing to sue and claims that must be defended, holding that while a plaintiff may have standing to seek relief with respect to unknown barriers to access they can ultimately prevail only by showing that the barriers they have pleaded continue to exist. This requires that the plaintiff timely conduct discovery and move to amend if they want to expand the case beyond the original pleading. The opinion is also worth reading for the court’s comments on just how the attorneys behaved. A pure heart, it is worth remembering, is not an element of the plaintiff’s claim in an ADA case.
Phelps v. PS Los Angeles – Pico Blvd., Inc. 2019 WL 6251443 (C.D. Cal. Nov. 22, 2019) shows what it takes to moot a physical access claim; that is, remediate any pleaded barriers to access and provide an appropriate affidavit showing specifically that the remediation has occurred. It is notable that the court rejects a claim that violations based on a lack of striping are not moot because the paint could wear off in the future. “Permanent” for mootness purposes is apparently about the lifetime of a parking lot paint job.
Munoz v. Shorter, 2019 WL 6310265 (C.D. Cal. Nov. 25, 2019) is an equally straightforward mootness case in which the defendant fixed the problems identified by the plaintiff, leaving as the only viable claim one under the Unruh Act. The court declined to retain jurisdiction of state law claims and dismissed the case, though without prejudice to a state court filing of the state law claims. In a sense this is how ADA litigation should work – problems are identified and fixed. The problem, of course, is that the legal fee overhead is greater than the likely remediation cost, a sure indication that the solution is not a good one from a policy perspective.
ADA litigation and the peculiar case of Peter Strojnik
Strojnik v. Hotel Circle GL Holdings, LLC, 2019 WL 6212084, at *3 (E.D. Cal. Nov. 21, 2019) is one of a number of cases in which the standing of Peter Strojnik to assert ADA claims has been challenged. The cases are all very similar, but the outcomes vary depending, it appears, on either the attitude of the judge or the quality of the briefing. In ADA accessibility litigation the most important principle for the defense is “know your judge” because who handles the case may make the difference between early dismissal and protracted litigation. In this case Strojnik lost, but he has won others.
Strojnik v. Block 22 LLC, 2019 WL 6315523 (D. Idaho Nov. 25, 2019) is interesting because it illustrates Mr. Strojnik’s ability to keep a case alive and a broadening of his range of litigation. The decision concerns discovery disputes and has a typical you win some you lose some result with the defendant being required to produce some things but not others. You can’t blame the defendant for fighting what may well be a meritless lawsuit from a notorious serial filer, but the case proves again that such fights can be costly.
Strojnik was also able to keep his claims alive in Strojnik v. Azul Hosopitality Group, 2019 WL 6467494, (E.D. Cal. Dec. 2, 2019), reconsideration denied, 2019 WL 6918264 (E.D. Cal. Dec. 19, 2019). Here the defendant’s motion to dismiss was based on so many factual issues the court decided to treat it as a motion for summary judgment. The ruling is hard to disagree with but points out an ongoing problem with serial ADA litigation. Anything that drives up the cost of defense is a victory for the plaintiff whose only goal is a settlement for cash and an agreement to remediate that will never be enforced. As long as the settlement cost is less than the cost of defense the merits of the claim are immaterial.
ADA pleading – more than boilerplate is required
Strickland v. Amer, 2019 WL 6134463, at *3 (M.D. Fla. Oct. 30, 2019), report and recommendation adopted, 2019 WL 6133741 (M.D. Fla. Nov. 19, 2019) is a routine default judgment case in which the Court rejected what were probably boilerplate pleadings as sufficient to support a default judgment. The pleadings indicated the building was a pre-ADA building that would be subject to the “readily achievable” standard for remediation. This, the Court found, required not just a general allegation that the required barrier removable was readily achievable, but specific facts showing it was so. Equally important, the Court found that a prayer for a general “fix it all” injunction was insufficient because that kind of injunction would not be enforceable. These problems can be fixed by amendment, but the business model of ADA serial filers requires that they not invest time or money in making specific allegations of any kind – to do so would require so much work they couldn’t make a profit on the quick, cheap settlements they seek.
No federal jurisdiction of Unruh Act claims
Rutherford v. La Jolla Riviera Apt. H. LLC, 2019 WL 6125255 (S.D. Cal. Nov. 19, 2019) is the latest in a long line of cases holding that claims filed in California state courts under the Unruh Act cannot be removed to federal court based on federal question jurisdiction. It is worth reading for the comprehensive discussion of the law, but the last few paragraphs, discussing the behavior of the attorneys, have a priceless lesson about the consequences of petty behavior.
FHA “remediation defendants” and tester standing
In Bowman v. Merrimac Real Est. Holdings, LLC, 2019 WL 6341647 (W.D. Okla. Nov. 27, 2019) the Court accepts the concept of a “remediation defendant” in an FHA case. Because the FHA design/build standards apply only to the original developer of a property effective relief may require an order that the original developer remediate while the current owner lets him. This sounds good in theory but is problematic in practice because, as I know from personal experience in several of these cases, the current owner is bound to suffer financial losses related to the remediation work if it is not bound to pay the direct costs. Those issues are typically resolved by agreement, sparing the courts from having to figure out how the FHA allows the court to impose costs on an innocent party.
Of perhaps greater interest is the Court’s discussion of Bowman’s standing to sue. As the song says, “You don’t need a weatherman to see which way the wind blows.” Bowman’s preliminary victory doesn’t appear likely to lead to any favorable result in the long term, an important factor considering that he and his counsel have a long history of filing FHA lawsuits seeking relief to which Bowman may not be entitled.
ADA Standing – has the worm turned?
The result in Johnson v. DTBA, LLC, 2019 WL 6311408 (N.D. Cal. Nov. 25, 2019) makes so much sense it should not be surprising. The Court looked at the distance from Johnson’s residence to a local bar (a two hour drive) and the lack of any allegation of a concrete plan to return to determine Johnson had not pleaded a sufficiently imminent future injury to have standing under Title III of the ADA. The Court used the four part test for standing often used in the 11th Circuit, but usually ignored or rejected in the 9th. Why is the result surprising? Although any fool can see that Johnson as a serial filer is scarcely likely to return to any business he visits, under Ninth Circuit precedent the obvious truth and the requirements of Iqbal and Twombly are frequently ignored in favor of letting serial plaintiffs continue to enrich themselves and their lawyers. We need more cases like this one.
In Hernandez v. Caesars License Co., LLC, 2019 WL 6522740 (D.N.J. Dec. 4, 2019) the Court dismissed claims by a self-proclaimed tester based on his alleged inability to find information about accessible rooms on two hotel websites. The reason was simple: the plaintiff never alleged any intent to visit the hotels. The injury from which the ADA protects individuals seeking a hotel room is not being able to find one, and an individual with no intent to use a hotel suffers not injury from being unable to find an accessible room.
Shared bicycles and the like.
Services that provide shared bicycles and scooters continue to generate ADA litigation, as indicated by on a
Schulz v. Bay Area Motivate, LLC, 2019 WL 6493979 (N.D. Cal. Dec. 3, 2019)† In this case the plaintiff claimed that a bike share program operated under a city license violated the ADA because there were no bikes he, as a quadriplegic, could use. The court rejected an attack on standing, but found that:
Schulz v. Bay Area Motivate, LLC, 2019 WL 6493979 (N.D. Cal. Dec. 3, 2019)† In this case the plaintiff claimed that a bike share program operated under a city license violated the ADA because there were no bikes he, as a quadriplegic, could use. The court rejected an attack on standing, but found that:
- bicycles are not “conveyances” covered by the ADA requirements for municipal transportation systems,
- the nature of this plaintiff’s disability is such that he could not use the program even if it had different equipment because his use would require that pickup locations be staffed and have storage for his wheelchair; thus, the city was not required to accommodate his special needs,
- the private defendant was not required to provide rental equipment other than that it usually provided under the general rule that public accommodations do not have to modify their inventory.
This disposed of all plaintiff’s claims and resulted in dismissal for failure to state a claim under state or federal law.
The chicken and the egg – accommodation requests must be dealt with in a timely way.
In Madden v. Canus Corp., 2019 WL 6498062 (E.D. Pa. Dec. 3, 2019) the defendant argued a plaintiff’s accommodation claims under the FHA were not ripe because it could not grant or deny the accommodation until it approved the plaintiff’s rental application and that if the application were approved it would grant the request. It is well established that delay in granting an accommodation can be a constructive denial and the court found the defendant’s original delay in processing the request was just that. The Defendant’s change of heart couldn’t save the day because the plaintiff sought damages as well as injunctive relief and the damage claim for the original denial survived. Apartment owners and managers should take note: Accommodation requests must be granted (or denied) within a reasonable time after they are made; other parts of the sale or rental process can’t be used as an excuse to put off the decision.
Condominium parking for the disabled – get it right the first time.
My experience helping disabled individuals deal with condominium associations suggests what Lau v. Honolulu Park Place, 2019 WL 6499063 (D. Haw. Dec. 3, 2019) proves; that is, parking is a flashpoint for disputes among neighbors. Here the plaintiffs could not get their specially equipped van up to the parking spaces for their condominium unit and therefore wanted a ground floor spot that would ordinarily be reserved for guests. After a good deal of back and forth the association denied the requested accommodation on the ground it would require a vote of the entire membership. After suit was filed the association reconsidered and granted the request, making injunctive relief moot. It could not escape, however, the plaintiffs’ claim for emotional distress damages under the FHA. In the Ninth Circuit no objective evidence of such damages is required; the testimony of the plaintiff is enough. Owners associations will want to make sure they get it right the first time when dealing with disabled residents because the FHA damage remedy may make getting it right later too late.
Being wrong is not sanctionable.
This summer Scott Smith’s claims against RW’s Bierstube were dismissed for lack of standing.** In Smith v. RW’s Bierstube, Inc., 2019 WL 6464142 (D. Minn. Dec. 2, 2019) the Court nonetheless denied a claim for defense attorneys’ fees, joining a host of other courts in holding that such fees are awardable only for frivolous claims. The Eighth Circuit has recently ruled on ADA standing in ways that supported the dismissal of Smith’s claims‡, but Steger v Franco continues to haunt Eight Circuit jurisprudence, creating just enough uncertainty to make claims like Smith’s non-frivolous even if they are implausible.
* See my blog “Accessibility moots a website accessibility claim”
† See the discussion of Evans v. Bird Rides, Inc. in my earlier blog “Day that Will Live in Infamy.“
A hodgepodge, I just learned, is a not just a word for a confusing mixture, but also the name of a vegetable stew. The FHA and ADA decisions of the last few weeks may not be tasty, but they are varied. I’ve put the FHA case first because it involved an unforced error and illustrates why landlords of all sizes need to be aware of what the FHA permits and denies.
Two weeks ago I wrote about Diaz v. Lobels,* a case I think exemplifies some of the confusion concerning just what an accessible website should be. Today I want to take a harder look at the Court’s exclusion of testimony from the plaintiff’s expert to ask the question: Just what should an ADA expert testify about? The issue has come up in only three reported cases, each of which has its own take on the matter.
Yes, I’m briefly tooting my own horn because James Herrera of the Monterey Herald interviewed and quoted me in his article “