Pictures of bombed out buildings and civilian casualty counts are a reminder that aggravating and expensive as ADA and FHA lawsuits can be, taking these disputes to court is a luxury most people in the world do not enjoy. For those of us who can engage in a civilized discussion of legal issues, here are the latest cases and other news. You’ll see where I think the courts and administration have gone wrong, but I’d rather be here than most of places in the news these days.
serial litigation
ADA and FHA Quick Hits – Wild Turkey edition.
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. More
Quick Hits – Vernal Equinox edition
Madeira was traditionally aged in barrels that crossed the equator twice, the heat and time fortifying and sweetening the wine. Like a cask of Madeira the sun will cross the equatorial plane of the earth in a few days, but you won’t have to wait for the next crossing in the fall for a quick hits blog. Here’s the news.
What if someday never comes?
The classic Creedence Clearwater Revival song asks what will have if someday never comes. The Eighth Circuit had the same question in Smith v. Golden China of Red Wing, Inc., 987 F.3d 1205, 1209 (8th Cir. 2021). Following its earlier decisions involving the same lawyers and plaintiff the Eighth Circuit had little trouble concluding that the plaintiff, who visited the defendant only as a “tester” driven by his attorney and whose return would be as directed by his attorney did not have sufficiently concrete plans to return for there to be a likely future injury that would support standing for injunctive relief. Since the ADA only provides for injunctive relief that was fatal to this claim as it had been to others in the past. The Eighth Circuit has seen dozens, rather than tens of thousands, of ADA lawsuits because the Court takes Article III standing seriously. If the Ninth Circuit ever does the same my blogs will start getting much shorter. More
Quick Hits – Serial filer edition
This is a bad pun. Sorry.
All but two of today’s cases are from serial filers, and 7 of 17 are from a single serial filer, Scott Johnson. The fact that serial filers dominate the world of ADA litigation is hardly news; in fact, it would news if an ordinary disabled individual who suffered a real ADA injury filed suit. It is also news that federal judges in the mid-west are showing an increased reluctance to keep cases alive based on dubious standing claims. As Bradley Cooper sings in the latest version of A Star if Born, “Maybe it’s time to let the old ways die.” More
ADA Standing “when the truth don’t lie.”
“‘What is truth?’ said jesting Pilate, and would not stay for an answer.” These words from Francis Bacon’s famous essay on truth often seem to apply in the earliest part of an ADA lawsuit. Truth is important, but takes a back seat to procedure. In Gastelum v. Canyon Hospitality. LLC, CV-17-02792-PHX-GMS, 2018 WL 2388047 (D. Ariz. May 25, 2018) the Court found a way to get to the truth early in the case, before the cost of litigation made it irrelevant.
The plaintiff is a serial filer associated with Phoenix attorney Peter Strojnik, who has a long history of mass ADA filings. According to the Court, Mr. Strojnik and Mr. Gastelum are engaged in a joint enterprise to sue local hotels “without reference to whether Mr. Gastelum actually had any intent to make future visits to those facilities for reasons not related to his pursuit of ADA claims against them.” That enterprise sued more than 125 different Phoenix area hotels in a matter of months. More
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