In the space of three days in early December four different courts took very different approaches to standing allegations by serial ADA litigants. A comparison shows there is no certainty in how the law will be applied in ADA cases at the District Court level because neither the Constitution nor the pronouncements of the Supreme Court appear to matter when it comes to standing decisions.

We’ll start in the Western District of Texas.  Joseph Castillo is not among the worlds most prolific serial filers of ADA claims. On the date of this blog he has filed “only” sixteen ADA lawsuits in the last 12 months, all in the Western District of Texas. His lawyers use a form complaint so all sixteen lawsuits have identical allegations concerning his standing to sue. He claims to be a tester and advocate for the disabled, he lives within 30 miles of the defendant property (usually a convenience store on a major street), he wanted to but was unable to take advantage of its goods and services because of some problem with the parking and he plans to go back soon. In Castillo v. Sanchez et al, 2022 WL 1749131 (Dec. 6, 2022) Magistrate Judge Chestney found these allegations were sufficient, and in particular that they met the plausibility standard required by Iqbal and Twombly.

The analysis of the law is interesting because the Magistrate Judge seems to apply two different standards in analyzing the standing allegations. She first discusses the plausibility standard in Iqbal and Twombly:

Under that [the Rule 12(b)(6)] standard, the party seeking the federal forum bears the burden to prove that the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face. . . Determining plausibility is a “context specific task” requiring application of “judicial experience and common sense” to ascertain whether the facts pleaded permit the court to make “a reasonable inference that the defendant is liable for the misconduct alleged.”

She follows this nod to Iqbal and Twombly with a reference the legal standard in effect before those cases were decided, citing Fifth Circuit opinions from 1990 and 2004 for the propositions that:

On review of the motion, this Court must accept “all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.”


“A claim should not be dismissed unless the court determines that it is beyond doubt that the plaintiff cannot prove a plausible set of facts that support the claim and would justify relief”

“Beyond doubt that the plaintiff cannot prove” is hardly the same as “plausible.” Neither of these statements is good law after Iqbal and Twombly because every allegation is subject to the plausibility standard they impose. In any case, the Magistrate Judge makes it clear she has no problem with the plausibility of Castillo’s allegations for she explicitly states that she finds his allegations to be plausible.

But are these kinds of allegation really plausible based on “judicial experience and common sense?” Viewed in isolation they could certainly be true. Castillo might plausibly want to stop at some random convenience store and, if it is on a major street, might plausibly stop there in the future. But sixteen times? Looking at the record this doesn’t seem plausible, but perhaps that doesn’t matter. In Gastelum v. Pinnacle Hotel Circle L.P., 2022 WL 17419366 (S.D. Cal. Dec. 5, 2022) another District Court explicitly rejected the notion that allegations became implausible merely because they were repeated in dozens or hundreds of cases, citing early Ninth Circuit authority to the effect that serial litigation was an intended means of enforcing the ADA.

This brings us to a third case, Johnson v Kuma Kuma LLC, 2022 WL 17418977 (N.D. Cal., Dec. 5, 2022). Decided on the same day as Pinnacle Hotel and a day before Castillo, Kuma Kuma LLC was filed by Scott Johnson, an extremely prolific serial filer, with at least a thousand lawsuits to him name. In Kuma Kuma LLC the defendant defaulted, a reasonable defense strategy to reduce the overall cost of litigation in some cases. Rather than relying on Johnson’s standing allegations the Court required, sua sponte, that Johnson and his counsel submit declarations to substantiate his standing allegations. Then, finding the declarations inadequate, the court scheduled an evidentiary hearing on the subject. The justification for this action in an undefended case could only be a serious concern that Johnson’s allegations were not plausible in light of his litigation history. For this Court, at least, Johnson’s well established past was sufficient to cast doubt on allegations that, in isolation, might have appeared plausible.

In Garcia v. Alcocer,  2022 WL 17538751 (9th Cir. Dec. 8, 2022)[unpublished] we see an example of what happens when the rubber hits the road, or more accurately, when the truth don’t lie,  in terms of standing allegations. In Garcia v Alcocer the District Court not only dismissed the claims of a serial plaintiff, it also awarded fees to the defendant because the lawsuit was “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” Garcia’s standing allegations were very similar to those made by Castillo but there was a difference; by the time of the Alcocer decision Garcia had lost two almost identical lawsuits on standing grounds and the District Court made its decision after an evidentiary hearing. Garcia’s allegations were not merely hard to believe, they were false.

This is not an unusual outcome; in fact, few serial ADA litigants can withstand the scrutiny that comes when standing allegations must be proven. The problem, of course, is that the road to victory for the defendant costs far more than a quick settlement, and most defendants would rather just pay up and get it over with. Decisions like Castillo v. Sanchez and Gastelum v Pinnacle Hotel encourage serial litigation because they eliminate any possibility of a reasonably inexpensive dismissal, forcing the defendant to choose between a cheap settlement and an expensive victory.

One lesson from these cases is that decisions on Rule 12(b)(6) motions in ADA serial cases depends very strongly on the judge. I obtained the dismissal of a case with standing allegations identical to those in Castillo v. Sanchez in a case in the Northern District of Texas, but an essentially identical motion to dismiss was denied in a different Castillo case in the Western District. The same variation in outcomes can be found in the Ninth Circuit and  Second Circuit at the District Court level. The philosophy of the individual judge or, perhaps, the quality of the briefing, determines the outcome of a Rule 12(b)(6) motion.

This isn’t a necessary situation except to the extent any judge relies on good briefing. The analysis of standing for ADA testers can be straight-forward:

First, Havens Realty Corp. teaches that a tester has statutory standing to sue for a violation of a statute if the tester suffers “injury in precisely the form the statute was intended to guard against.” What injury was Title III of the ADA intended to guard against? 42 U.S.C. §12182(a) prohibits discrimination in the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” To have standing to sue under Title III of the ADA the plaintiff must have been denied the full and equal enjoyment of the goods, services, etc. of the defendant public accommodation. The most liberal reading of this requirement would be that a tester, regardless of motive, has a right to access to a public accommodation so they can enjoy the “facility” by standing inside it or perhaps by parking their car in the parking lot.

Standing to sue under the statute is not, however, enough. The clear message of Transunion and Spokeo is that statutory standing is not the same thing as Article III standing, which requires a concrete and particularized injury. Here the ADA’s definition of “discrimination” becomes important. For most tester cases the ADA violation at issue is found in 42 U.S.C. §12182(b)(2)(A)(iv), which defines discrimination as the failure to remove architectural barriers. A building owner or operator does not fail to remove architectural barriers on a person by person basis. A tester who cannot find an accessible parking space, or who confronts a ramp that is too steep, is confronting exactly the same unremoved architectural barrier that every other person with a disability will confront. If another person suffers their same disability then that other person will suffer exactly the same injury. The tester’s injury is not particularized, it is generic. If the tester wanted to buy cigarettes and could not the injury would be particularized – they would be seeking a different kind of goods or services than some other disabled person might be seeking. But if the only injury is to the statutory right to access then the injury is not particular to them because every other disabled person suffers the same injury.

Moreover, the existence of an architectural barrier does not cause a concrete injury unless its existence has some consequence. In Transunion class members whose false credit information was never disseminated had not suffered a concrete injury because the mere existence of the statutory violation caused them no harm. A disabled plaintiff who cannot find an accessible parking place because a sign is missing has suffered a concrete injury; a disabled plaintiff who finds that accessible space anyway has not. Similarly, a disabled plaintiff unable to make it up a ramp that is too steep has suffered a concrete injury because they could not in fact have access to the facility. A disabled plaintiff who easily negotiates the ramp has not suffered such an injury.

In short, to plausibly allege a particularized injury the plaintiff must first allege some motive for visiting the facility in question that is unique to him or her. Only if they have such a motive is their injury particular to them. For a tester who has filed sixteen cases in a short period of time an allegation of intent to enjoy the goods and services of the facility that merely quotes the statute is not plausible. A plausible allegation of a particularized injury requires some explanation of why the tester wanted to stop at this particular facility to enjoy something more than seeing whether the accessible parking had correct signage or the ramps were too steep.

In addition, to plausibly allege a concrete injury the plaintiff must allege not merely that an architectural barrier existed, but that the barrier at least interfered with their access to the property. Here again plausibility requires specificity when the same allegation is repeated sixteen times in different lawsuits concerning different properties. Using a generic description of difficulty accessing the property is no different than alleging an injury in the exact language of the statute; it is not plausible because it is not specific.

It has to be noted that the requirement that an injury be concrete and particularized is not a particularly hard standard to meet. “I visited the defendant’s store because I was thirsty and wanted a soft drink” isn’t a difficult allegation to make; neither is “the ramp was so steep I couldn’t make it up to the door.” The problem for serial plaintiffs is that specific allegations like this can be proven to be false, and the name of the game for serial plaintiffs is to avoid any allegation so specific they might be found to have made it in bad faith. The risk of being found to have lied, as was the plaintiff was in Garcia v. Alcocer, drives tester plaintiffs to use vague generic allegations that cannot be proven false. It also makes industrial litigation more efficient because it means the tester doesn’t have to take the time to get out of their car and the lawyer doesn’t have to spend even five minutes customizing the complaint.

This brings us back to the central holding in Transunion; that is, that no matter what the intent of Congress might have been, the Constitution requires a real injury for standing. It is very unlikely that Congress intended the current form of industrial ADA litigation as a means to effect the public policy of equal access for the disabled; after all, this litigation only benefits lawyers, and does almost nothing to improve access for the disabled.² However, even if Congress did have such a wasteful and inefficient system in mind, the Constitution limits the federal courts to cases and controversies. A careful analysis of the Supreme Court’s decisions makes it clear that testers who file generic ADA lawsuits have not suffered the required concrete and particularized injury required by Article III of the Constitution.


¹ See my blog, Transunion v Ramirez – has the Supreme Court put an end to cheap standing in ADA litigation?

² As I have observed before, if litigation was an effective means to improve access we would not, more than 20 years after passage of the ADA, see the number of lawsuits rise every year.