A pair of recent district court decisions provide some hope for defendants that federal courts are taking seriously the plaintiff’s obligation to plead an intelligible claim for relief. Unfortunately, the standard is still fairly low, and will only slightly limit cookie cutter lawsuits based on generic allegations. Nonetheless, ADA defendants will want to study the cases when confronted by a plaintiff whose settlement demands are so unreasonable that a substantive defense makes economic sense.
In Flaum v. Gloucester Lanes, Inc., 2014 WL 1365217 (E.D. Va. 2014) the plaintiff, an active serial litigant*, sued the owner of a chain of Waffle House restaurants, claiming that he had visited four restaurants and encountered barriers to access and that there was a common plan justifying claims with respect to 41 restaurants he never visited. The pleading was far from specific, omitting (a) the dates of his visits to the four restaurants, (b) whether or how often he visited in the past, (c) any specific plans to return and (d) any specifics of the violations, either by listing ADA standards violated or providing photographs. Following its own earlier decisions, the Court found that the pleading was nonetheless sufficiently specific with respect to the 4 Waffle House locations Flaum personally visited. This is not a surprising decision given the many prior decisions that impose almost no requirements on a plaintiff. The positive aspect of this case is the Court’s requirement that Flaum provide additional information with respect to the stores he did not visit. Because Flaum had not personally visited the stores, the Court required specific allegations concerning the alleged violations rather than a generic claim that the stores shared a common design. This holding and others like it should allow defendants to at least trim back broad allegations of system wide discrimination.
There is a caveat of course. Flaum’s pleading problem stemmed in part from his decision not to file a class action, which might have permitted a more sweeping lawsuit with fewer specifics. The good news here is that most serial plaintiffs do not include class action allegations because the presence of such allegations can make settlement more difficult, and the lawsuits are filed primarily to drive a quick settlement at something near or less than the cost of defense.
There is better news from a pleading perspective in Gaylor v. Inland American McKinney Town Crossing LP, LLC, 2014 WL 1912388 (E.D. Tex. 2014). Gaylor is another serial ADA litigant who has filed dozens of lawsuits in the last few years. In a recommendation on the defendant’s Motion to Dismiss the magistrate judge found that even though Gaylor had alleged various generic kinds of barriers and included photos, he had not specified “which defects he claims caused him difficulty.” In addition, his pleadings concerning ownership were so vague the Court could not infer that the defendant was in fact liable. This is a higher standard for pleading than most other courts seem to apply, and is a heartening step in the direction of the requirement I have always advocated that the plaintiff plead more than merely having encountered a barrier to show a concrete injury. Also encouraging is the Court’s reference to the Iqbal and Twombly pleading standards, which many ADA decisions seem to disregard entirely.
There is an especially valuable lesson for defense counsel in the way the defendant addressed the defects in the plaintiff’s complaint. For the last 20 years the vast majority of attacks on the pleadings of an ADA defendant have addressed redressibility, and in particular the plaintiff’s intent to return to the facility. These attacks, which seem logical for serial plaintiffs who are looking for litigation, almost always fail, and the case law in some circuits makes it trivially easy for plaintiffs to plead standing in ways that cannot be attacked, even factually. In Inland McKinney the defendant chose to attack the other common weakness in the pleadings of serial plaintiffs; that is, reliance on generic allegations of ADA defects that the plaintiff literally knows about only because they were visible from the window of a car or van.
The caveat for Inland American is that we only have a magistrate judge’s decision, and the plaintiff’s objection to that decision has not been ruled on it; instead, the District Court has ordered the parties to mediation. It may be that the case will end up being settled simply because, as in most of these cases, the cost of victory exceeds the cost of settlement. Nonetheless, even as a magistrate judge decision this could provide a valuable precedent for defendants confronted with an excessive settlement demand and a generic complaint.
The takeaway is straightforward. Attacks on standing that rely on the redressibility requirement continue to be almost certain losers in every court unless the plaintiff has simply failed to competently plead his or her case. However, attacks based on Iqbal and Twombly pleading standards aimed at generic allegations of ADA violations may succeed if the plaintiff is unwilling to go to the trouble and expense of inspecting the property in order to make specific allegations. In most cases it will still be cheaper to settle than to fight, but when confronted with an unreasonable plaintiff there is at least some hope of an early dismissal.
* I use the term serial litigant to describe a plaintiff who files multiple lawsuits in a short period of time. Flaum, for example, filed four lawsuits in a single day in May of 2014, five lawsuits in November and December of 2013, and three lawsuits in June of 2012. This kind of pattern of filings suggests to me a plaintiff who is looking for ADA violations rather than filing suit with respect to violations he or she happens to encounter in daily life.