JackwebbbbigseptembermanThis is a follow up to last week’s blog, “Consolidate and Eliminate.” A magistrate judge in the Western District of Texas seems to be just that in a series of cases (more than 300) filed by Jon Deutsch in Austin, Texas. Deutsch v. Annis Enterprises, Inc., 2016 WL 5317431 (W.D. Tex. Sept. 21, 2016). I won’t provide a detailed analysis of the opinion, which should be read by every lawyer representing defendants in serial litigant cases,* but two points stand out. First, the Court conducted an evidentiary hearing, thus moving past the pleading stage, at which standing depends only on the plaintiff’s willingness to lie. Putting the plaintiff to his proof of standing early in the case is the single most important reason to consolidate and eliminate because it allows the critical fact issue to be resolved early, before the costs of litigation become absurd.

A second point concerns how consolidation permits the Court to consider the meaning of mass filings in a standing context. Decisions on standing made at the Rule 12 stage are mixed with respect to the relevance of other filings. Some courts refuse to consider extrinsic facts like the number of cases filed by the plaintiff at the pleading stage, while others will look at other filings in order to evaluate the credibility of the plaintiff’s pleadings. Concerns with evidence beyond the pleadings disappear in an evidentiary hearing, and of course the fact that a plaintiff files many lawsuits in a short period of time is strong evidence that there is no intent to return and no deterrence.

The sheer number of filings was also considered in  Advocates for Individuals with Disabilities LLC and David Ritzenthaler v. WSA Properties LLC, 2016 WL 5436810 (D. AZ Sept. 29, 2016), a case filed by notorious serial litigators Peter Strojnik and Fabian Zazueta. As in the Deutsch cases the Court considered the mass of filings (among other things) as evidence that there was no intent to return. Based on a finding of no intent, the Court easily concluded that there was no standing.

We have seen a large increase in ADA filings in 2016** but most of that increase is attributable to new web access lawsuits and to lawsuits by Strojnik, Deutsch and a small number of other lawyers. In other words, this year appears to be anomaly. If there is real trend at work here it is a trend among judges who view serial ADA filings with increasing skepticism. That’s a trend to watch.

*Lawsuits by serial litigants make up the vast majority of all ADA lawsuits filed.

**If you are interested in statistics, my fellow bloggers at Seyfarth Shaw have counted the cases in their most recent and July 26, 2016 blogs. Seyfarth Shaw blog