This Memorial Day we are once again firing up the grill with hundred dollar bills to celebrate how the ADA its current form encourages litigation that makes lawyers rich without any correspondening improvement in meaningful access for the disabled. The first case presents the unappetizing picture of a single claimed lack of access generating parallel state and federal proceedings as defendants and plaintiffs maneuver for a procedural advantage. The last explores the exploitation of California law by plaintiffs who can use internet accessibility claims to bring the whole world into their favorable local courts. In between we will see some courts pushing back, though only in the most egregious cases.

A suit so nice it gets filed twice.

Besides having a defendant with a great name, Reyes v. Flourshings Plus, Inc., d/b/a the Tom Cat Bar & Grill,  2019 WL 1958284 (S.D. Cal. May 2, 2019) shows how state law damage claims can make a plaintiff work harder than may have been planned. At the defendants’ request the court dismissed pendent Unruh Act claims because, it found, state law issues predominated in those claims. This leaves the plaintiff fighting on two fronts with a more skeptical federal judge possibly making a decision on the merits that will kill the state law claim as well. It isn’t a cheap strategy for the defense, but if winning at any cost is important it may be a valuable one.

Mootness done wrong

Trujillo v. Murrah, 2019 WL 1746055 (E.D. Cal. Apr. 18, 2019) presents what can now be called a classic case of failing to moot a claim by skipping the details. Defendants remediated after being sued and then filed a motion to dismiss based on mootness. It was supported by a declaration from a CASp, but the declaration was conclusory. Instead of listing the alleged barriers to access and individually opining that each had been remediated the expert merely said based on his survey there were no conditions violating the relevant requirements. It wasn’t enough. To establish mootness at the  pleading stage requires addressing the pleaded violations specifically and individually. Lawyers like myself who love technical distinctions will also find the Court’s discussion of the difference between standing as such and the related doctrine of mootness.

You only get one chance to do it right.

Someone forgot to tell the employees of the Exxon station owned by Cedar Hill Enterprises that you can’t demand proof that a service dog is a service dog. Although the owner did its best to train the employees afterwards and to adopt new policies the court refused to find the case was moot. Smith v. Morgan, 2019 WL 1930764 (N.D. Ala. May 1, 2019) because as is often the case in policy and procedure cases it is hard for the defendant to establish early in the case that the bad conduct won’t recur.

In Smith v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2019 WL 2098928, at *1 (E.D. La. May 14, 2019) a different Smith taught the defendants the same lesson. In this case the defendant had all the right policies in place, but the employees who interacted with Ms. Smith were apparently unaware of them. The result was $20,000 in damages under Louisiana law, injunctive relief under Titles II and III of the ADA, and of course attorneys’ fees and costs of court. This may be an unavoidable problem for large organizations with many part time or temporary employees, but the expense of litigation certainly justifies the cost of training.

A team that won’t be beaten might still get beaten.

Like the now notorious Oscar Rosales‡ Peter Strojnik doesn’t seem to know when to quit. He has been suspended from the practice of law in Arizona as a result of his massive filings, but has responded, it appears, by filing suits pro se with himself as plaintiff. Strojnik v. Kapalua Land Co. Ltd, 2019 WL 2030525 (D. Haw. May 8, 2019) began with demand letters Strojnik sent to a condominium complex in Hawaii claiming they were inaccessible and suggesting settlement. The response from the owner’s attorney included a suggestion that his activity would be reported to the Arizona bar. He then filed suit against the condominiums and the lawyers, claiming the latter had violated the ADA by engaging in coercion and intimidation. The court found without difficulty that the letter did not injure Strojnik because there was no evidence it resulted in any hindrance to his pursuing his claims.

The three cases considered together in Adams v. Cowley Cinema 8, LLC,  2019 WL 2120855, at *1 (D. Kan. May 15, 2019) have facts less dramatic than those in Strojnik, but show that some courts will sanction attorneys who spin a case out beyond reason in an effort to avoid mootness. In all three cases the defendants allowed an inspection by the plaintiff’s expert, fixed everything the expert said was wrong and then asked for dismissal. The plaintiff responded by filing a generic motion for summary judgment and trying to expand the scope of the case beyond what her own expert has found. The court found this conduct (which is common in ADA serial filings) was contrary to the purpose of the ADA itself:

This goal (remediation) is entirely frustrated by the apparent approach of the plaintiff, which first identifies a specific set of deficiencies, but, when these are fixed, attempts to restart the case from scratch in search of new potential violations.

The Court awarded fees totaling about $21,000 based on work done after remediation was complete. Cases like this are rare but shouldn’t be. Every time a plaintiff tries to avoid mootness with a policy and procedures claim or a request for discovery to find new, unpleaded problems there can be little doubt the motive is entirely based on trying to hang on to the prospect of fees rather than any real concern with accessibility.

No defense fees were awarded in Nekouee v. Akshay Hotels, LLC, 2019 WL 2103121 (D. Kan. May 14, 2019) but the plaintiff’s lawyers were not paid for their work because the case was dismissed as moot and under the Supreme Court’s holding in Buckhannon that was sufficient to constitute a defense victory. The case is interesting because it provides a perfect model for a judicially efficient means of resolving serial ADA cases. In Nekouee the case was stayed so the defendant could remediate. When the remediation was complete the case became moot and had to be dismissed. Of course the plaintiff’s lawyers protested that their work caused the remediation but they would not being paid for it. The court found their protest unavailing; a defendant who remediates wins. Is this inability of plaintiff’s attorneys to get fees when they get the most successful outcome possible a problem? Yes, and there is an element of unfairness in it. However, the very few times serial filers don’t get paid hardly makes up for the fact that most serial filing attorneys are becoming very wealthy by exploiting a statute in a way Congress never intended.

Pushing the needle too far redux.

The headline says it all “Serial ADA lawsuit filer indicted in Sacramento on federal tax fraud charges.” You can find the story about Scott Johnson in the Sacramento Bee and other news sources. I checked and found that since I started this blog I have mentioned Mr. Johnson 17 times, which a single plaintiff record. This is only an indictment, not a conviction, but I imagine small businesses all over California are pleased, if not overjoyed.

Summary judgment is different.

Kristoffersen v. RVS110, LLC, 2019 WL 1877183 (S.D. Cal. Apr. 26, 2019) points out the important difference between the truth and allegations. The plaintiff sought summary judgment based on conclusory statements about her standing to sue. The Court acknowledged that such statements were sufficient to avoid a motion to dismiss, but explained they were not sufficient evidence that the plaintiff really had standing. The cost of getting to the truth is one reason serial ADA litigation cannot be easily stopped – the truth doesn’t matter if you can’t afford it.

Standing and Title II

I was first alerted to the decision in Price v. City of Ocala, 2019 WL 1811418 (M.D. Fla. Apr. 22, 2019) by Eric Netcher, one of the defense counsel in the case. The court’s discussion is too thorough for me to do it justice, but two things stand out. First, the Court unfortunately perpetuates the notion that “testers have standing” under Titles II and III of the ADA. A correct statement of the law would that “tester status does not preclude standing.” That was the holding in the leading authority from the Supreme Court, Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). The distinction hardly matters since the Court bows to the weight of authority and agrees that merely encountering an accessibility problems constitutes a present injury. More important, the Court correctly focuses on the injury required to be entitled to injunctive relief; that is, a likely future injury. Following the Eleventh Circuit’s emphasis on credible pleadings* the Court considers not just whether there might be a future encounter of the website, but whether that encounter will in fact interfere with access to the programs of the title II entity. While the Court distinguishes titles II and III, it is clear the same analysis should apply in Title III website cases. Title II prohibits discrimination in “the benefits of the services, programs, or activities of a public entity.” Title III prohibits discrimination “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” The statutory provisions are different, but clearly parallel and the standing requirements for both should be the same. An injury of the kind the statute was intended to prevent must mean the inability to take advantage of goods, services, facilities etc. The courts have gone too far off course for anyone short of the Supreme Court to save Title III from constitutional absurdity, but the City of Ocala decision suggests it is not too late for Title II.

Decided a few weeks after Price v City of Ocala, Price v. Town of Longboat Key,  2019 WL 2173834 (M.D. Fla. May 20, 2019) reaches the same result based on slightly different reasoning. In Town of Longboat Key the plaintiff’s initial injury was eliminated by the Town’s offer to provide material he could not access through the internet via thumb drive. The plaintiff did not complain that the short delay in getting the material caused some harm so the court found no injury-in-fact. The internet’s implied promise of instant access to information does not mean that instant access for the disabled is required to avoid discrimination. This goes back to the fundamental purpose of the ADA, which is to provide meaningful access when a disability makes perfect equality impractical.

Standing and Title III

Same plaintiff, same judge, same result in Price v. Escalante – Black Diamond Golf Club LLC, 2019 WL 1905865 (M.D. Fla. Apr. 29, 2019). As in City of Ocala the court found that standing had not been sufficiently pleaded. The opinion includes an interesting distinction vis-a-vis the 11th Circuit’s nexus requirement. As in earlier cases, the court found the nexus requirement was met only when the deficiencies in the website interfered with access to the place of public accommodation. More important, the court took a hard look at the specific inaccessibility complained to conclude that the particular item complained of did not have any likelihood of interfering with access to the golf course or its programs, thus defeating both standing and the statement of a plausible claim. Most ADA website complaints do not allege any specific problem with the website, and applied to such complaints this analysis would required dismissal in every case.

Kennedy v. Sai Ram Hotels LLC, 2019 WL 2085011 (M.D. Fla. May 13, 2019) was decided on the same principles as Price v. Escalante with the opposite result. In Kennedy the plaintiff pleaded plausibly both an actual injury based on a visit to the hotel and an actual injury based on a visit to its website. Deciding a motion to dismiss the website related claims the court found that the required future injury would be based on a visit to the website rather than the hotel. This does not seem consistent with Price v. Escalante, but Kennedy was aided in making prima facie case by the fact that while DOJ has not issued general website regulations it has issued specific regulations for hotel websites, making the website itself the locus of a violation.

Davis v. Morris-Walker, LTD, 922 F.3d 868 (8th Cir. 2019) is another thoughtful Eight Circuit decision refusing to extend a plaintiff’s standing to architectural barriers he or she never encountered.† Limiting its earlier decision in Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000) the Court found that the plaintiff could not keep his lawsuit alive after the original claims had been mooted by remediation. The plaintiff’s strategy was to complain that more accessible parking was needed because of an auxiliary lot that was not mentioned in the original pleading. The Court found that because it was not part of the same facility there was not standing without a direct injury. All we need now is a final rejection of the preposterous notion that a plaintiff has standing to sue concerning architectural barriers he or she never encountered at all.

Rutherford v. Evans Hotels, LLC, 2019 WL 1900889,  (S.D. Cal. Apr. 29, 2019) is one of those cases in which “the truth don’t lie.” After discovery it was clear the plaintiff did not satisfy any of the basic requirements for standing and the court ordered him to show cause why his case should not be dismissed. Defendants willing to spend money on discovery concerning standing will often, I suspect, be able to prove the standing allegations in the Complaint are nothing but lies intended to keep the case in court long enough to coerce a settlement.

Circuit level cases usually justify a separate blog, but Carroll v. N.W. Fed. Credit Union, 2019 WL 2089378, (4th Cir. May 13, 2019) is really just a follow up to the 4th Circuit’s decision in Griffin v. Department of Labor Federal Credit Union, 912 F.3d 649 (4th Cir. 2019) confirming that an individual who cannot join a credit union has no standing to complain about its website. In this case Carroll tried harder by finding a way he might have been able to join, but he did so only after the suit was filed, and standing must exist at the time the complaint is filed.

Burdens of proof and affirmative defenses.

Rutherford v. Evans Hotels, LLC, 2019 WL 1900889 (S.D. Cal. Apr. 29, 2019) begins with a useful discussion of which typical ADA defenses are and are not affirmative defenses. While the distinction is technical, it ultimately determines the burden of proof and can be important at trial or summary judgment. The real mystery is why the defendant filed more than 30 affirmative defenses, many of which could never apply, and why the plaintiff wasted time challenging them. The real heart of the case, however, is the discussion of standing noted in the previous section.

Negligence and the ADA

Cuadra v. George Brown Sports Club-Palm, Inc., 2019 WL 1865915 (E.D. Cal. Apr. 25, 2019) looks at the relationship between claims of negligence and the ADA from a different angle than most such cases. The usual case asks whether evidence of an ADA building standards violation is evidence of negligence.** Cuadra asks instead whether evidence of negligence is evidence of an ADA violation. The plaintiff was injured when the seat in an accessible shower collapsed. He argued that the defective seat was an ADA violation. The court found the allegations insufficient because the plaintiff was unable to tie the apparent problem (inadequate wall anchors) to a specific ADA requirement. If all the dimensions are right does a poorly built accessible shower violate the ADA? It might be more interesting to ask whether it matters; after all, the lack of an ADA damage remedy makes it an inferior vehicle for pursuit of a personal injury claim.

How bad is too bad? How good is good enough?

In Green v. C. Midlands Regl. Transit Auth., 2019 WL 1765867 (D.S.C. Apr. 22, 2019) the Court considered just how many failures to provide a required municipal service were permitted before the ADA was violated. The plaintiff had numerous problems with malfunctioning bus lifts and claimed the number and frequency were sufficient to overcome the regulatory safe harbor for occasional malfunctions.† The Court declined to decide the question as a matter of law, leaving a decision on how many failures was too many for trial.

Rosario v. St. Tammany Par. Hosp. Serv. Dist. No. 1, 2019 WL 1766983 (E.D. La. Apr. 22, 2019) reached the opposite conclusion, granting the hospital defendant summary judgment on claims arising out of poorly functioning video relay devices relied on by a deaf patient. The facts were no less complex than those in Green, but it seems the Court was convinced the communication problems were caused at least as much by the plaintiffs’ limited command of English vocabulary as by the machinery problems.

California dreaming

California’s Unruh Act has made California the center of abusive serial litigation by creating a damage remedy that makes ADA cases filed in California far more valuable to plaintiffs than those filed elsewhere. In response the Act was amended to make physical barrier cases more difficult for plaintiffs and some federal courts have begun staying cases to permit remediation. Faced with those difficulties and the fruitful confusion caused by a lack of regulatory standards for websites plaintiffs like Scott Ferrell of the Pacific Trial Group have begun filing suit in California state court. These cases are brought only under the Unruh Act in order to avoid federal question jurisdiction and include an explicit limit on claimed damages to avoid diversity jurisdiction. Martinez v. Matrix Health Products, Inc., 2019 WL 2242074 (C.D. Cal. May 24, 2019) shows how the process works. A state court action removed to federal court was remanded for lack of federal question jurisdiction. The court did not address whether the damage limit was sufficient to avoid diversity jurisdiction, so that plaintiff strategy appears to be untested. This is not a surprising result, but it provides a second reason Congress must act on website accessibility. The first reason, of course, is that DOJ, driven by ideology instead of reason, refuses to give businesses the regulations they want and need in order to know what the ADA requires. The second is that California state courts are now determining what website accessibility means for the entire nation. The ADA was written to permit local experiments in accessibility requirements because at the time accessibility was, except in transportation, a purely local matter because physical access is always local. The internet is a different matter because websites are inherently interstate in their reach. For internet accessibility we need a single federal law that preempts state law so website operators can rely on a single standard of website accessibility. The irony is that by refusing to regulate the current administration has put businesses all over the country at the mercy of a state legislature in the bluest of blue states, proving once again that ideology is the pathway to absurdity.

* Other circuits often accept mere conclusory statements about future injury, no matter how improbable.

** See my earlier blog “Personal Injury and the ADA” and the several other of my blogs that a search for “negligence” will pull up. Bill Goren has also covered this subject in detail. See, “Negligence/Negligence Per Se.”

† See my earlier blog “Common Sense from the 8th Circuit” the lower court’s decision in Morris-Walker is discussed at “Quick Hits – He’s making a list.

‡ See my earlier blog “Pushing the Needle Too Far