Captain America Shield POWThe last couple of weeks brought a variety of decisions, most falling in to one of the familiar patterns for ADA and FHA litigation, but one or two presenting novel defenses and interesting judicial reactions.

A very interesting question of standing.

Johnson v. Castro et al,  2:16-CV-00658-MCE-DB, 2018 WL 2329249, at *3 (E.D. Cal. May 23, 2018) makes a very interesting point about standing, one related to some of the standing questions raised by other recent cases dealing with the plaintiff’s ability to take advantage of the goods and services of a public accommodation.** In Johnson the plaintiff suffered from cerebral palsy and made various claims concerning entrances and access to the restrooms. In response to the plaintiff’s motion for summary judgment the defendants provided evidence that the restroom issues had been remediated and challenging the existence of a problem with the doors. They added that the plaintiff’s disability was so severe he could not eat or drink without assistance from the restaurant owner, who cut up his food and fed him at the table. The owners argued that the plaintiff was incapable of taking advantage of the restaurant without help they were not obligated to provide and therefore could not prove any accessibility had caused him harm. The Court found this at least raised an issue of fact:

“Consequently, Defendants raise a question of fact as to whether Plaintiff legitimately could have eaten at the Restaurant without assistance going well beyond any accessibility requirements mandated by either the ADA. . .”

This is an unusual case with respect to why the plaintiff was unable to patronize the business, but it fits with cases in the last several months holding that a plaintiff unable to take advantage of the goods and services of a business for reasons other than architectural barriers has no standing because the architectural barriers could not have caused his injury. As a Ninth Circuit case it may not survive an appeal, but it is good to see another district court take the injury component of standing seriously.

Amend until you get it right.

In Seiger v. Philipp, 2018 WL 2357518,  (11th Cir. May 24, 2018) the Eleventh Circuit reversed a district court dismissal that was granted after the district court refused to let the plaintiff file a second amended complaint. The reversal was based on the straightforward application of the principles concerning leave to amend, but it isn’t hard to understand why the district court became frustrated with the plaintiff, whose pleadings were adjusted as necessary to keep the case alive even when they contradicted each other. Nonetheless, at the pleading stage a strong suspicion that the plaintiff is lying does not justify dismissal. The question I must ask, considering that the complaint concerned a single restaurant, is whether the attorneys’ fees spent so far might have been avoided by fixing the alleged problems and moving for dismissal based on mootness. As we often observe, the name of the game in ADA defense is maximizing  the money spent on permanent solutions and minimizing the money spent on lawyers.

Pleadings – not much detail is required.

In Trostenetsky v. Keys Condo. Owners Assn., 17-CV-04167-RS, 2018 WL 2234599, at *2 (N.D. Cal. May 16, 2018) the court rejected a motion to dismiss claiming that pleadings “on information and belief” were not sufficient to state a claim. The court noted that a claim that was “plausible on its face” did not necessarily require a great deal of detail at the pleading stage. Read with the Seiger v. Phillip case described above the lesson is simple – motions to dismiss based on defects in pleading are difficult to win, especially in the Ninth Circuit.

Homeowners association liability for misconduct by its members.

Trostenetsky v. Keys Condo. Owners Assn., 17-CV-04167-RS, 2018 WL 2234599, at *3 (N.D. Cal. May 16, 2018) explains when the acts of the neighbors in a homeowners association become the acts of the association itself. The defendant argued that the case was like a much earlier case,  Sporn v. Ocean Colony Condominium Ass’n, 173 F. Supp. 2d 244, 251 (D.N.J. 2001). In that case the court rejected a claim that shunning by the neighbors constituted retaliation for the exercise of the plaintiff’s FHA rights because the FHA “does not require neighbors to be friendly to FHA plaintiffs.” The Trostenetsky court found the case before it to be different because the plaintiff alleged that the association itself was spreading misinformation in an effort to isolate her from the community. The decision itself doesn’t decide if this was true, but it is easy to see how members of the board of an owners association in a small community could, simply by visiting with their neighbors about a case, create a hostile atmosphere. The message for board members of a homeowners association or condominium association is clear. If you are on the board your expression of personal opinions can end up being regarded as official acts of the board itself, and a loose remark can cost your community tens or hundreds of thousands of dollars. Loose lips sink ships as the World War II posters said.

Mootness done right

The defendants in Wagner v. Sobik, 617CV1783ORL40KRS, 2018 WL 2215506, at *3 (M.D. Fla. May 15, 2018) got the early dismissal they sought by mooting all the plaintiff’s claims under the ADA. The Court’s description of what they did is an outline for any defendant using a mootness strategy:

After learning of the alleged ADA violations, Defendants undertook to bring the Subject Property into conformance with the ADA. . . After completing the necessary repairs, Defendants retained David Goldfarb, “ADA Compliance Specialist,” to inspect the Subject Property for continuing violations.  Mr. Goldfarb completed his inspection on December 19, 2017, and submitted a report attesting that the Subject Property was ADA compliant. Mr. Goldfarb’s report specifically found that each of the ADA violations alleged in the Complaint had been corrected, and supported his findings with photographic exhibits.

This is the kind of careful work required for a mootness defense.

Mootness done wrong

Aaron Dalton, v. Simonson Station Stores, Inc., and Bemidji Mgt. Co. L.L.C., 017CV04427SRNLIB, 2018 WL 2338807 (D. Minn. May 23, 2018) is primarily a mootness case, though it contains an interesting discussion of the recent 8th Circuit decision Davis v. Anthony, Inc., 886 F.3d 674 (8th Cir. 2018).* Defendants apparently tried to remediate the architectural barriers alleged in the complaint, but it does appear from the opinion that they retained an expert. In any case, the plaintiff responded to their motion to dismiss with an amended complaint alleging that the remedial work was defective and the property still did not comply with the ADA. After eliminating some new claims in the amended complaint the court found there was no evidence that one of four originally pleaded problems had been remediated and that allegations other work was not done properly were sufficient to keep the case alive. A comparison of this case with Wagner v. Sobik shows the care required to obtain a dismissal for mootness in the early phases of a case.

Mootness discussed

Johnson v. Gallup & Whalen Santa Maria et al, 17-CV-01191-SI, 2018 WL 2183254, at *4 (N.D. Cal. May 11, 2018) has a useful discussion of the difference between corrections of ADA problems that will moot a claim (those that are structural and unlikely to recur) and those that will not (policy and maintenance failures). It also has a great example of the “dog in a manger” effect that the ADA sometimes has. In this case the outdoor seating for the restaurant defendant was not ADA compliant. Rather than make the seating accessible the restaurant removed it entirely. This created perfect equality, for now no one gets to sit outside, disabled or not. This probably isn’t what the drafters of the ADA intended, but it is often the result.

A lesson in the cost of negotiation.

Leahy v. Garces Restaurant Group LLC, CV 17-00968, 2018 WL 2267607, at *1 (E.D. Pa. May 17, 2018) illustrates the dangers of negotiating an ADA claim as if it were an ordinary business dispute. The plaintiff sent a demand before filing suit and her representatives, a local disability rights group, spent a few months working with the business owner on ADA compliance before becoming frustrated and filing suit. After the suit was filed the parties worked out a consent decree for ADA compliance, leaving attorneys’ fees to the Court. Although the Court reduced the claimed fees by about 20% it still awarded more than $40,000, which was four times the amount of fees incurred by the defendant.

The details don’t appear in the opinion, but the Court characterized the case as “far from complex” and the mentioned items of remediation do not appear particularly controversial or expensive. My guess is the defendant treated the long lasting negotiation as one in which it could seek to save a few dollars here or some inconvenience there while ending up with a reasonably accessible restaurant. They did not anticipate their opponent might have more absolutist views or file suit over matters that the defendant thought relatively unimportant. This is not an uncommon confusion in ADA litigation and negotiation. Defendants must understand in such negotiations that the only defense is complete compliance, and that the plaintiff’s attorneys’ fees will not necessarily be proportional to the cost of remediation. Because there is rarely any doubt about what the ADA standards require the name of the game is getting to full compliance as quickly as possible to either eliminate legal fees through mootness or minimize them by making the plaintiff’s work demonstrably unnecessary. A leisurely negotiation does neither.

Only the lawyers win.

In Brown v. McKinley Mall, LLC, 15-CV-1044-FPG-LGF, 2018 WL 2289823, at *1 (W.D.N.Y. May 17, 2018) the Court denied cross motions for summary judgment, leaving one to wonder whether anyone but the lawyers will be able to claim a victory. Defendant’s motion for summary judgment challenged standing and the adequacy of the complaint, but the Court had little trouble finding that at best the Defendant raised fact issues about standing. Plaintiff’s motion failed to include summary judgment evidence that would establish which ADA standard (new construction, alterations or barrier removal) would apply. Although the alleged barriers to access were numerous and therefore presumably somewhat expensive to remediate it is worth remembering that in the long run the only effective defense to ADA claims is remediation, and the goal of the defense should always be to First Fix, the Fight in order to minimize money spent on lawyers that has no long term risk reduction benefit.

Default as a strategy

Three recent cases involving default judgments show the full range of possibilities, from a default that may result in no judgment at all to default that cost as much as defending the lawsuit. Taken together they show that while default can be a good strategy in ADA “drive-by” or serial filer cases the decision needs to be carefully thought out and requires a close familiarity with ADA pleading requirements and the attitudes of local judges.

All I can really say about Ridola v. Chao, 16-CV-02246-BLF, 2018 WL 2287668 (N.D. Cal. May 18, 2018) is that the defendants chose the worst possible way to execute a strategy of defaulting on purpose to minimize attorneys fees. The defendants appeared and went through the Court’s ADR process and an additional inspection of their property before defaulting. Stringing the process out like this guaranteed that the plaintiff would have high quality pleadings to support injunctive relief and that the plaintiff’s lawyers would be able to justify $20,000 in legal fees. Read it as an example of what never to do as a defendant.

Johnson v. Lee, 217CV02305WBSCKD, 2018 WL 2328887, at *1 (E.D. Cal. May 23, 2018) shows how the decision to default can be a good strategy. The defendants defaulted and the plaintiff obtained the minimum damages available under California’s Unruh Act, an injunction that did not more than order remediation of what was pleaded to be wrong, and attorneys’ fees of only $3620. A better result could have been obtained only by fixing the architectural barriers and filing a motion to dismiss based on mootness; however, the defense attorneys’ fees would almost certainly have been more than the damages and fees awarded on default.

Defaulting also turned out to be a good strategy in Kennedy v. Bindi, Inc., 617CV1579ORL40DCI, 2018 WL 2211420, at *6 (M.D. Fla. Apr. 26, 2018), report and recommendation adopted sub nom. Kennedy v. Bindi, INC., 617CV1579ORL40DCI, 2018 WL 2197754 (M.D. Fla. May 14, 2018). The district court refused to grant a default judgment against a defaulting defendant because the complaint was vague on issues of standing, failed to identify specific barriers that were encountered and failed to identify whether the new construction or barrier removal standard applied. The plaintiff has a chance to fix things by filing an amended complaint, but for the time being the defendant prevailed by doing nothing at all.
* See our blog “ADA standing and pleading – common sense from the 8th Circuit” for a complete discussion of this case and its importance.