After the Great Polar Vortex of 2018 receded to the north we found a number of new cases under the melting snow. Here is the state of ADA litigation in early 2018.
We discussed some of the most recent website accessibility cases in our earlier blog, “What is an ADA accessible website.” In some ways Buchholz v. Aventura Beach Associates, Ltd., 2018 WL 318476 (S.D. Fla. Jan. 5, 2018) is another such case, but the Court’s explicit application of 11th Circuit law is illuminating. The plaintiff alleged that a hotel website was not accessible, but did not allege he ever tried to stay or intended to stay at the hotel. Following earlier 11th Circuit authority the Court began with the premise that a website was not by itself a public accommodation, but that it was required to be accessible if it was a service of a public accommodation. This is based on the “gateway” theory that the website is, like a physical front door, the gateway to the physical public accommodation. The Court then took the next logical step – if the plaintiff didn’t care about going to the physical premises then he had not suffered an ADA injury from the inaccessible website. This goes back to the front door idea. If a plaintiff never intends to go into a store then the inaccessibility of the front door has not injured him. As the case law slowly evolves this decision is an important step on the way to defining just what kind of injury must be associated with an inaccessible website.
Presmarita v. Metro-N. Commuter R.R. Co., 2017 WL 6542515 (S.D.N.Y. Dec. 21, 2017) is a case under Part B of Title II to the ADA, which governs public transportation. It illustrates how important regulatory requirements can be in ADA cases. Unlike airlines, commuter railroads are not required by regulation to provide wheelchair service to their patrons. The plaintiff, who was injured because a wheelchair was not available, lost when the court found that the absence of a regulatory requirement meant there was no ADA violation. It would be a stretch, but a similar argument might be made concerning Title III and web accessibility. The federal government has required website accessibility by regulation in some contexts (airlines and government agencies), so perhaps the absence of regulatory requirements for public accommodations and municipalities means by implication website access is not required.
Administrative exhaustion defense – no, it doesn’t exist.
In Brito v. DHCS Associates, LLC, 2017 WL 6405808 (D. Colo. Dec. 15, 2017) the defendants tried a tactic that has not worked for years, a defense of administrative exhaustion. The defense is based on the idea that because the remedies under the ADA come from the Civil Rights Act of 1964 those remedies are limited by its provision requiring 30 days notice before suit is filed. The Court found a split of authority on the issue, but the fact is the only authorities for a notice requirement are decisions from two Colorado district courts. Every appeals court that has considered the issue has rejected the notion that notice is required as have most districts courts, including others in Colorado. Until Congress passes HR 241, which puts an explicit notice requirement in the ADA, businesses should not assume they will get any advance warning of ADA violations. Those who want to avoid a lawsuit will be proactive and get a survey done immediately so they can start fixing the problems that lead to lawsuits.
ADA construction standards and negligence.
Kahn v. Cleveland Clinic Florida Health System Nonprofit Corp., 2017 WL 6415271, at *4 (S.D. Fla. Dec. 14, 2017) is another in the small group of cases touching on whether an ADA violation is evidence of negligence. We’ve blogged about this before* and the answer is, maybe. It depends very much on the particular state and its laws. What is interesting here is that the court seems to have assumed that if a restroom did not meet ADA clearance standards it was at least some evidence of negligence. So, while the result will vary by state and court, businesses should at least consider the possibility that unremediated ADA violations can also give rise to a claim for negligence.
Standing – sometimes the plaintiffs lose.
Kennedy v. New Smyrna ACD LLC, 2017 WL 6560000 (M.D. Fla. Dec. 22, 2017) is a very typical standing case with an unusual outcome. The plaintiff is a serial filer who claims to be a tester. She sued a shopping center more than 200 miles from her home. The defendant claimed that an intent to return was implausible given the distance and her litigation history. Without the intent to return injunctive relief would not redress any future injury, and without the redress of injury there is no Article III standing. The Court agreed, applying 11th Circuit law on determinations of standing. What’s interesting is the Court’s holding that if the only reason the plaintiff intends to return is being a tester then the plaintiff has not sufficiently alleged an intent to return. In many cases the only plausible intent to return is based on tester standing, and if that isn’t enough, then these cases should be dismissed.
Saar v. Tanger Factory Outlet Centers, Inc., 2018 WL 387962 (W.D. Mich. Jan. 12, 2018) is another standing case in which the plaintiff lost. The court found that “boilerplate” allegations of an intent to return to the defendant shopping center were not enough to meet the plausibility requirement created by Twombly.
Shyvers v. WH Virginia Station Shopping Ctr., LLC, 2018 WL 307146 (N.D. Ga. Jan. 5, 2018) is yet another standing case, this one involving a supposed tester and serial filer who live more than 1000 miles away from the defendant shopping center. Looking a the plaintiff’s rather meagre allegations related to an intent to return the Court found that standing had not been plausibly alleged, but gave the plaintiff a chance to re-plead and do a better job. The chance to re-plead is, in many of these cases, the opportunity to lie in a way that is specific enough to result in sanctions, but it keeps the case alive and drives up the legal fees on both sides.
These three cases are part of a mild trend toward greater skepticism about standing allegations by serial filers, especially by federal courts in Georgia and Florida, but for the present they remain the exception in most district courts. Defendants contemplating a motion to dismiss under Rule 12(b) need to know their judge and understand his or her individual views on standing before deciding to spend money on a motion that may prove futile.
See what sticks is not an effective strategy for plaintiffs or defendants.
Mote v. City of Chelsea, 2018 WL 262855 (E.D. Mich. Jan. 2, 2018) is a long opinion that contains a good discussion of the application of the 11th Amendment to ADA claims against state agencies and an equally useful discussion of why sidewalks are covered by the ADA as both “facilities” and “services.” What is most interesting, however, is the failure of a large part of the plaintiffs’ claims because the plaintiffs’ lawyers just didn’t take the time to present them coherently. This is a lesson for both plaintiffs and defendants in complex cases. Given the technical nature of ADA design requirements it takes a lot of work to sufficiently prove (or disprove) a large number of claimed violations.
Bryant v. Yosemite Falls Cafe, Inc., 2018 WL 372704 (E.D. Cal. Jan. 11, 2018) is a kind of fun-house mirror reflection of Mote. The plaintiff’s list of ADA violations was manageable (only 7 violations in a single restaurant) and the defendant seems to have fixed them, but the defendant didn’t take the time to provide admissible evidence that all the violations had been fixed. It is always tempting to save money by ignoring the details, but for reasons the Court explains in this case, it just won’t work where the statute violated has specific technical requirements that must be met.
Kennedy v. Omegagas & Oil LLC, 2018 WL 310051 (S.D. Fla. Jan. 3, 2018) is a mootness case, but one in which the defendant did prove mootness for all but one violation. It will be helpful to defendants in small cases because it illustrates how a diligent defendant can win without experts. The owner of the defendant service station waited until he was provided with the report of the plaintiff’s expert. He then used that report as a guide for fixing the various violations, most of them items that any handy individual could manage. His testimony at trial that he did what plaintiff’s expert required was sufficient to establish that most of the ADA violations were moot. The one exception was the size of the restroom, which was just too small. Here the plaintiff presented evidence that because the restroom could be expanded only by moving plumbing and electric connections the cost was so high accessibility was not readily achievable. The plaintiff provided evidence that the work was cheaper, but the court did not buy it. After a bench trial the claims were all dismissed.
This result was possible only because the case went to trial, which allowed the court to make fact findings about what was readily achievable. Trials are rare in this kind of case because the expense of remediation is so much smaller than the cost of defense, but at least one strategy for dealing with a plaintiff whose settlement demands are unreasonable might be to skip the expensive and usually futile efforts to dismiss the lawsuit under Rule 12(b) or obtain a summary judgment and simply get ready for trial.
Ramirez v. Lococo’s Cucina Rustica, 2018 WL 368559 (N.D. Cal. Jan. 10, 2018) is one more mootness case with the defendant winning for the not very complicated reason that it fixed all the issues. It is interesting because of the Court’s rejection of the plaintiff’s lawyer’s opinions about how to fix restrooms that were apparently too small. It is always tempting for lawyers who know a lot about the technical requirements of the ADA to insert themselves into the litigation; the problem is you can’t be a lawyer and an expert in the same case. Mootness done right will require at least one expert.
Outrage is not a defense.
Neal v. Second Sole of Youngstown, Inc., 2018 WL 340142 (N.D. Ohio Jan. 9, 2018) is a great example of why moral outrage doesn’t provide a real defense to ADA claims from serial filers. The defendants, sick and tired of lawsuits they viewed as meritless by a single serial plaintiff, filed a counterclaim alleging that the plaintiff and attorney were engaged in a conspiracy that violated the RICO anti-racketeering statute. Not surprisingly, the Court dismissed this counterclaim, finding that even filing a frivolous lawsuit would not constitute one of the predicate acts required for a RICO claim. If a lawsuit is meritless the remedy is win the lawsuit and then seek sanctions or file an action for abuse of process. No matter how mad the plaintiff makes the defendant or how “obvious” it is that the plaintiff is abusing the ADA, relief for the defendants depends on proving there are no ADA violations. First Fix, Then Fight is the best strategy for ADA litigation, unless you choose . . .
Surrender as a strategy.
* Personal injury and the ADA – is every violation per se negligence?
** Surrender as a strategy in ADA litigation.