Lcu-chase-construction-worker“First Fix, Then Fight” has been this blog’s slogan and trademark from the beginning. This isn’t based on a philosophical opposition to litigation, which is sometimes unavoidable, but on a hard headed assessment of the economics of ADA litigation and the difficulty in winning in the early stages of a case. Last week’s decision in  Burrell v. Akinola, 2016 WL 3523781 (N.D. Tex. June 27, 2016) demonstrates why first fix, then fight has to be the foundation for ADA defense.

In Akinola the plaintiff sued the defendant for various violations of the ADA. The allegations of violations were not very specific, and the allegations related to the plaintiff’s standing were also somewhat general. Of course a dismissal based on pleading standards or standing is very hard to obtain, and perhaps with this in mind the defendant chose to attack whether there was any allegation of discrimination at all; that is, had Burrell alleged a violation of the statute.

The Court found the complaint about Burrell’s discrimination allegations “meritless.” The motion to dismiss was, it seems, based on a misunderstanding of how the various kinds of ADA discrimination (barrier removal, design/build, and renovation) interacted with each other and with the time at which a building was constructed. Allegations of renovation discrimination that were applicable to the plaintiff’s state law claims were found sufficient, if sparse.

Because the specific barrier removal allegations were rather general the Court, somewhat gratuitously, included a discussion of whether they were adequate. It concluded that they were, because they fell just on the right side of the line between general but sufficient and meaningless boilerplate. The cases cited by the Court will make interesting reading for lawyers who want to attack the sufficiency of a pleading, but it is worth remembering that while there are many district court level decisions considering the sufficiency of pleading, all are fact specific, and finding a consistent rule applicable in every jurisdiction is impossible.

So the defendant lost this preliminary motion and is now going to have to settle or defend the case on its merits. Was there ever the possibility of a real, permanent victory? If the defendant’s motion had been granted it would almost certainly have been with leave to amend. Given a roadmap of what allegations had to be improved the plaintiff would simply have amended and the lawsuit would have gone on. Only in a tiny percentage of cases does an initial Rule 12 dismissal survive amendment. However, if lighting struck and the amended complaint was dismissed the dismissal would have no effect on the risk of a future lawsuit. There are a number of disabled individuals in North Texas who regularly file ADA lawsuits, and duplicate suits by different plaintiffs are not unknown. In fact, the same plaintiff could simply re-file and improve his or her allegations because an early dismissal does not reach the merits of the case. For many reasons, including the importance of reputation, a plaintiff is unlikely to simply back off from a temporary loss. The only permanent victory in ADA litigation comes from having a building with no architectural barriers.

“First Fix, Then Fight.”  The defendant in this and any almost any other ADA case is well advised to determine at the very beginning whether there are in fact any architectural barriers and then to act as quickly as possible to correct them. Unlike money spent on lawyers, money spent on barrier removal will always improve the odds of a defense victory and the prospect of a favorable settlement. You can’t do without a lawyer (see contact information on the right of this page), but every ADA defense has to recognize that real, permanent victory requires identifying architectural barriers and correcting them as the very first step in the lawsuit.