A third of the reported ADA and FHA decisions in the last three weeks involved a single plaintiff, Scott Johnson. Mr. Johnson’s name is often found in this blog because he has been a fertile source of decisions on a wide range of ADA issues. As discussed below, outrage is one common response to his lawsuits.

Outside the courts my ADA news feed delivers two kinds of articles for the most part. One kind complains about serial filers and their impact on local businesses. The other complains about the lack of accessibility in public accommodations and governmental entities. Neither seems to ask the big question that I have asked for years: Can’t we find some better way to increase accessibility than wasteful private litigation? The present system is a failure, as evidenced by the fact that decades after passage of the ADA private lawsuits continue to increase in number. Nonetheless, the two sides of the serial litigation issue seem stuck on a fruitless debate about the morality of serial filing instead of trying to address the possibility of a genuinely effective system of enforcement. And with that sermon behind us, here are your tax day cases.

The readily achievable standard.

Cases decided on an unopposed summary judgment motion don’t usually merit much notice, but there is a footnote in Johnson v. AutoZone, Inc., 2019 WL 1245143, at *4 (N.D. Cal. Mar. 18, 2019) worth remembering. The Court points out that there is no kind of barrier removal that is per se readily achievable. In more substantial cases this can make a difference in the plaintiff’s ability to obtain a summary judgement. It also contradicts other decisions like Johnson v Sammy’s Restaurant cite below that find certain kinds of remediation are per se readily achievable.

Johnson v. Mattioli, 2019 WL 1437099 (E.D. Cal. Mar. 29, 2019) is another agreed summary judgment case. This and the preceding case raise a simple question. Why, if the defendant did not intend to defend, did the case make it as far as summary judgment? For most ADA cases  the outcome is inevitable the day the Complaint is filed. Either there are barriers to access that must be fixed or there are not. If there are barriers to access then fixing them should not require a court order. More important, the expense of mounting any defense other than mootness is money wasted. The entire strategy for the defense should be to reach a final resolution as cheaply and quickly as possible so as to maximize the ratio of remediation cost to legal expenditures.

Mootness by decree.

One of the most difficult problems faced by defendants who are sued more than once over the same violation is proving that claims arising out of policies or procedures are moot. Unlike physical changes, changes in policy may not be sufficiently permanent to satisfy the “heavy burden” of proving a claim is moot. Moore v. Greyhound Bus Lines, Inc., 2019 WL 1283939 (S.D. Cal. Mar. 20, 2019) points to one solution for this problem. The plaintiff’s claims were essentially policy and training claims similar to claims settled by a Consent Decree in an action by the Department of Justice. The court found that the obligations of the Consent Decree were sufficient to moot the plaintiff’s claims. Where repeat litigation is likely – as in website cases – settlement by Consent Decree may be a valuable defense, subject of course to the difficulties we discussed after the decision in Haynes v Hooters.*

Default as a strategy.

Johnson v. RK Investment Properties, Inc., 2019 WL 1575206 (N.D. Cal. Mar. 18, 2019) is a case in which default as a strategy seems to have worked very well. The plaintiff’s claims were limited to those in his original pleading, as required in a default judgment context, and besides the inevitable injunction the magistrate judge awarded only the minimum $4000 statutory damages under the Unruh Act along with $4,457.50 in attorneys’ fees and costs. The case could hardly have been defended for less.

Outrage is not a defense.

Johnson v. Sammy’s Rest., Inc., 2019 WL 1517572 (E.D. Cal. Apr. 8, 2019) is another reminder that mere outrage at the abuse of the ADA by serial plaintiffs is not a defense when real architectural barriers remain.  Scott Johnson and his lawyers are among the most prolific serial filers in the United States, but the Ninth Circuit has eliminated any meaningful standing requirement in ADA cases, so the only real defense is compliance with the law. In this case the defendants apparently complained a good deal about how Johnson misuses the ADA, but didn’t go so far as to remediate the architectural barriers at issue, meaning the fees spent on defense were simply wasted.

Don’t make a promise you can’t keep.

A consent decree worked wonders in Moore v. Greyhound Bus Lines, but caused nothing but problems in
Yancey v. LH Hosp. LLC, 2019 WL 1274731 (S.D.N.Y. Mar. 20, 2019). The original lawsuit was settled by a consent decree calling for installation of a ramp. Later, after the defendant facility had been sold, it was discovered that the cost of the agreed upon ramp was far more than anyone had assumed and so the work was never done. The plaintiff sued to enforce the decree, which the court did with little hesitation. Its response to the arguments concerning unexpected expense was simple – once the defendants made the deal they had only themselves to blame if they didn’t take all the contingencies into account. Settlements can be perilous and blanket agreements to remediate are particularly so.††

Credit Union website cases

These are now so numerous they justify their own category in these blogs. Mitchell v. BMI Fed. Credit Union, 2019 WL 1242663 (S.D. Ohio Mar. 18, 2019) is a puzzling case because was decided based on insufficient allegations of an intent to return – always a prerequisite in ADA cases because injunctive relief is the only relief available. The plaintiff’s lawyers are experienced in website litigation** so the failure was not accidental. My guess is that the intent to return allegations were omitted to avoid filing a knowingly false pleading – claims that will withstand a motion to dismiss may not withstand the closer scrutiny of discovery. In the meantime the discussion merits close analysis by defense counsel hoping to find ground for an early dismissal.

Organizational and associational standing.

Advoc. Ctr. v. Louisiana Tech U., 2019 WL 1303212, at *7 (W.D. La. Mar. 6, 2019), report and recommendation adopted, 2019 WL 1301983 (W.D. La. Mar. 21, 2019) has a useful discussion of the 5th Circuit’s requirements for standing by organizations that purport to act for those with disabilities. There is nothing unusual about the discussion, but it is a good reminder that just having a nice name and a willingness to file suit is not sufficient to give any group standing to sue.

Death eliminates standing in ADA cases.

Mims v. Rodeway Inn and Suites, 2019 WL 1283867 (W.D. Wis. Mar. 20, 2019) points out something so obvious that the pending appeal is a surprise. When only injunctive relief is available the death of the plaintiff eliminates standing, for the Court cannot order any relief that will benefit a plaintiff who is no longer here.

Biting the hand that feeds you.

In Access Living of Metro. Chicago, Inc. v. City of Chicago, 2019 WL 1429647, (N.D. Ill. Mar. 29, 2019) an organization dedicated to access by the disabled sued one of its governmental donors for not doing enough to insure that projects funded by the City were accessible. The City moved to dismiss based on a lack of standing and failure to state a claim, but the Court was not buying either. What is most interesting about the case is the grotesque inefficiency of having a government funded organization suing the government. It is impossible to tell from the Complaint what efforts were made before suit was filed to resolve the problems claimed, but when the left and right hands are fighting with each other the outcome can’t be anything but waste.

Sales and service counters.

Johnson v. Starbucks Corp., 2019 WL 1427435 (N.D. Cal. Mar. 29, 2019) applies DOJ’s recent guidance on interpretation of the counter length requirement to deny a plaintiff motion for summary judgment.† With any luck at all these claims, which were never particularly compelling, should slowly disappear.

Schutza v. Alessio Leasing, Inc. 2019 WL 1546950 (S.D. Cal. Apr. 8, 2019) is another sales or service counter case, but in this one the defendants acted too soon, trying to obtain a dismissal at the pleading stage. The line between adequate specificity and generalizations is not always clear, but when a plaintiff identifies a specific architectural barrier like a service counter additional detail is probably not required. The court did dismiss the plaintiff’s Unruh Act claims based on the predominance of state law issues. Eliminating the plaintiff’s state law damage claim is a victory – unless he re-files.

Getting in hot water over hot water.

I will admit that Abel v. Oceanic Arcata, LP, 2019 WL 1559562 (N.D. Cal. Apr. 10, 2019) addressed an accessibility requirement I have never seen in a lawsuit and that I could not find used in a lawsuit after researching the issue. Section 607.6 of the 2010 Accessibility Standards requires that water from a shower spray unit be limited to 120° F. presumably because some disabled individuals cannot easily move out of the spray and might be burned, which is precisely what seems to have happened in this case. There is an equivalent requirement in California state law and, it appears, in the Model Plumbing Code and Uniform Plumbing Code. While it might seem that a mere ADA violation is less significant than the likely personal injury claim, the possible award of attorneys’ fees may make the claim valuable in states like Texas that do not provide for such fees in ordinary tort cases. It may also be outside insurance coverage, thus representing an unexpected expense for the defendant. Hotels and other public accommodations with showers may want to check the temperature.

Inspections in ADA cases.

Carlos Brito, Pl., v. Colorado Springs Hotel Owner, LLC, and Marriott Intl., Inc., Defendants.,2019 WL 1533068 (D. Colo. Apr. 9, 2019) is a short opinion about staying consideration of a motion for summary judgment that raises more questions than it answers. First, although the plaintiff is a paraplegic the defendants apparently moved for summary judgment in part based on his failure to prove disability. That seems like a long shot at best, and frivolous at worst. On the substantive question of whether there were in fact ADA violations it seems odd that the plaintiff believed a third-party inspection was required to defeat the defense motion for summary judgment based on a lack of proof of ADA violations. While expert testimony is sometimes required, in many cases the plaintiff can testify to the violation and the “readily achievable” nature of remediation is obvious. Equally odd is the plaintiff’s failure to obtain the required expert inspection during discovery: If you know you need it, why wait? The answer to this last mystery probably lies in the nature of serial litigation. Mr. Brito has filed dozens of cases in the last few months and hundreds in the last few years. With volume like that taking care of details becomes a problem and paying experts an expense that a serial filer will want to avoid.

FHA relevance and discoverability in serial filer cases.

In Reed v. Brewery Master Tenant, LLC, 2019 WL 1548903  (W.D. Tenn. Apr. 9, 2019) the Magistrate Judge was confronted with a dispute over the scope of a physical examination of apartments that supposedly failed to meet the design/build requirements of the FHA. Based largely on an earlier decision from the Northern District of Texas‡ the Magistrate Judge allowed an inspection that went beyond the areas actually seen by the plaintiff. The decision is appealable to the District Judge, so this may not be the final word on the subject; however, a crucial note shows where the defendants may have gone wrong. Part of the defendant’s objection concerned the limits on the plaintiff’s standing, but this had not been raised before the discovery dispute arose. We know from experience with serial plaintiffs like Mr. Reed that standing can only be attacked effectively based on facts rather than pleaded allegations, and that attacking standing first through staged discovery is likely the only effective way to do so.

* See our discussion of this subject in Haynes v Hooters – hard lessons about ADA website litigation

** This is an ironic understatement – they have filed hundreds of drive-by style lawsuits all over the United States.

† We commented on a similar case in our St. Patrick’s Day Edition.

‡ Jason Morgan v. Parc Plaza Development, LP, Order of United States Magistrate Judge, No. 3:19-cv-00492-G, (N.D. Tex. Feb. 8, 2018) – not reported.

†† See our discussion in Beware the ADA settlement that buys a big bag of nothing and the other blogs to which it refers.