Dante’s hell was a complicated place, as this map by Botticelli suggests. Although Rodney Atkins’ advice “if you’re going through hell, keep on going” appears sound, winding through all the complexities of the ADA and FHA can seem like descending through all nine levels of hell. Nonetheless, I’m happy to act on a temporary basis as Virgil and see how far we can get. No promise about whether we’ll find a Beatrice to take you to Paradise.
Self-service kiosks under fire
Mootness – non-existence is pretty good proof no meaningful relief is possible.
In Whitaker v. Chan, 2022 WL 1814142 (N.D. Cal. June 2, 2022) the court had little trouble finding the original complaint was moot when there was no operating business in the facility being sued. Along the way it reminded us that damages, including nominal damages, cannot be recovered under the ADA and that Unruh Act claims don’t belong in federal court.
Mootness – pulling the trigger a little too soon.
In Dalfio v. J.G. Mgmt Properties IV, LLC et al, 2022 WL 2079716, at *5 (S.D. Cal. June 9, 2022) the defendants came within 2 alleged ADA violations of getting the case dismissed at the Rule 12 stage. The problem was that while the Court was skeptical about the remaining violations, “the merits of the action are intertwined with the jurisdictional issue of mootness and jurisdictional findings would be inappropriate.” In another case from the same plaintiff the defendant lost a motion for summary judgment because the plaintiff’s expert found remaining ADA violations. Dalfio v. Barlas, 2022 WL 1693827, at *1 (S.D. Cal. May 26, 2022). Mootness is tricky because ADA requirements are numerous and complicated. As a defense strategy it must be carefully managed. (9)
Factual attacks on standing – you need to find the trigger
In Johnson v. Rosvin, Inc., 2022 WL 1987857 (N.D. Cal. June 6, 2022) the defendant leveled what is called a factual attack on standing at the Motion to Dismiss phase. This requires evidence, which the defendant provided in the form of a defective declaration that had some obvious misstatements of fact. You don’t need to like Scott Johnson or his lawyers to know that having filed hundreds, maybe thousands, of lawsuits they know how to say what needs to be said. I wrote long ago that outrage is neither a defense nor a substitute for a carefully planned strategy.²
An HOA on the warpath.
In Parada v. Sandhill Shores Prop. Owners Assn., Inc., 2022 WL 1693977, (S.D. Tex. May 25, 2022) the defendant attacked the plaintiff’s claims in every way imaginable but failed, predictably, in every case. It’s worth looking briefly at the facts. The plaintiff suffers from Alzheimer’s disease which is a handicap or disability under either the FHA or ADA. The defendant claimed it wasn’t, which was foolish and may have made other defenses less believable. The FHA injury claimed by the plaintiff was the inability to use her house without constant fear and distress because a proposed beach access path would constantly bring strangers near her house, something that can be unusually upsetting for those with profound memory loss. Evidence might eventually establish that her distress was not so severe she could not equally use and enjoy her dwelling, but once you assume the pleadings are true the truth becomes an issue for another day. The defendant treated the plaintiff’s ADA claim as if it were the same as her FHA claim; that is, the only question was the use and enjoyment of her home, which is not an ADA public accommodation. The problem, as the court correctly pointed out, is that there was a public accommodation at issue, the beach.(10) Just because an action interferes with the use of a home doesn’t mean it can’t also interfere with the use of a public accommodation. The last gasp was an effort to stop the federal lawsuit because there was a parallel state court action based entirely on state law principles. Because the outcome of neither was determinative of the other abstention was denied.
There was one interesting note at the end of the decision. the HOA claimed it was compelled to place the beach path by the plaintiff’s home by the Texas Open Beaches Act and the City of Galveston Beach Access Plan. It is worth remembering that municipalities and many state agencies are also subject to the accommodation requirements in the Fair Housing Act. Just because it violates the law doesn’t mean it is impossible to do.
Surrender as a strategy, with a twist.
I note default judgment cases, usually from California, just to see what the market price of a default might be. In Cuesta v. DTC Lodging LLC, 2022 WL 2077940 (D. Colo. June 8, 2022) and Meggs v. Colorado Hosp. Group, LLC, 2022 WL 1810597 (D. Colo. June 2, 2022) the defendants took a more affirmative approach to surrender. They admitted all the material allegations in the plaintiff’s complaint and moved for entry of judgment against themselves. The goal was explicit – cut off the expenditure of money on attorneys’ fees. The plaintiff opposed the motion because, I suspect, it did the one thing no plaintiff’s firm can live with – it limited the profit they would make from the litigation. It is worth remembering that almost all Title III ADA lawsuits are about money for lawyers, not access for the disabled. In any case the courts thought the defendant’s approach was reasonable and granted the motion for judgment. I have been a proponent of this kind of strategy for a long time, but this is the first time I have seen it successfully implemented.¹
Default as a strategy
In Gastelum v. C. Valley Hosp. LLC, 2022 WL 2072839 (E.D. Cal. June 9, 2022) the plaintiff, a serial filer who now seems to file pro se because his attorney, Peter Strojnik, is not practicing law, failed to obtain a default judgment because he couldn’t get the defendants’ properly served. The lesson for defendants, found in the details of the decision, is that adequate service is not subject to rigid rules. Another court might have found service was adequate and granted a default judgment. Default as a strategy should be a choice, not an accident.
The market for default judgments is slipping. In Johnson v. Iguanas Burritozilla, Corp., 2022 WL 1750472 (N.D. Cal. May 31, 2022) the court awarded a total of $1085 in attorneys’ fees. All you need to know about the industrial nature of this litigation is that the total attorneys’ time was 2.2 hours and that 14 different legal assistants billed time to the matter. It’s not a law firm, it’s an assembly line.
Johnson and his lawyers did better in Johnson v. Pennylane Frozen Yogurt, LLC, 2022 WL 1750382, (N.D. Cal. May 31, 2022) with an award of $1,912.50. To file this cookie cutter lawsuit required 4 lawyers and 13 legal assistants. It’s a volume business.
If Disney World isn’t your cup of tea
go to Florida for cheap ADA standing. Following the Eleventh Circuit’s lead in Laufer v. Arpan, LLC, 29 F.4th 1268 (11th Cir. 2022), the court in Lugo v. Island Harbor Beach Club, LLC, 2022 WL 1773973, at *2 (M.D. Fla. June 1, 2022) denied a motion to dismiss against a serial website tester. The district court had little choice, but the 11th Circuit got it wrong³ and will have to opportunity to deal with the hundreds or thousands of lawsuits that are sure to result.
Disney Land, on the other hand, may be less welcoming. The Court’s analysis of standing in Gastelum v. Pinnacle Hotel Circle LP, 2022 WL 1608704, at *5 (S.D. Cal. May 20, 2022) is very much in line with the 2nd Circuit’s recent decision in Calcano v. Swarovski N.A. Ltd. (8) The court wanted specific facts justifying an injury and intent to return rather than the usual vague claims about willingness to return at some time in the future. Gastelum is given an opportunity to amend but run into the age old problem of serial litigants: the more you say the easier it is to spot the lies.
It’s hard to make a quick buck with a class action.
Serial litigation is all about making a quick buck. The goal is a lawsuit expensive enough to make the defendant want to settle and an offer of settlement cheaper than the cost of defense. One way to bump up the potential defense costs and risks is a class action, and many ADA serial lawsuits include a class action claim. In Brooks v. Morphe LLC, 2022 WL 2052680, at *1 (E.D. Cal. June 7, 2022) the defendant didn’t bother to answer the lawsuit, but because it was presented as a class action the court declined to enter judgment without certifying the class. Efforts to certify a class were apparently slipshod – not surprising when the goal is to keep costs as low as possible in order to maximize profits. The result was an order requiring a do-over. I don’t understand why the defendant did not appear to fight the lawsuit because unlike many physical access cases, website cases are very risky in terms of the potential remediation costs. I do understand why the plaintiff’s lawyers didn’t do a good job (according to the Court). Nothing in the ADA serial filer business model calls for it.
Remembering the “nexus” requirement in the 9th Circuit.
The Ninth Circuit has held that a website is covered by the ADA only if it is associated with a physical place of business. Langer v. Oval Motor Sports, Inc., 2022 WL 1914063 (N.D. Cal. June 3, 2022) is a reminder that this “nexus” requirement means that a website violates the ADA only if the lack of website accessibility inhibits the user’s ability to take advantage of the goods and services of that physical business. The Court granted a motion to dismiss because the plaintiff only alleged he had trouble accessing the website, not that he had trouble accessing the business itself. The same result was reached in Gomez v. Ackerman Fam. Vineyards LLC, 2022 WL 1693707, at *3 (N.D. Cal. May 26, 2022). This will be a useful defense against plaintiffs who find it easy to sue based on an inaccessible website but might find it hard to drive all the way to the physical business.
Pigs get fat. . .
I’ve never really understood why the saying “pigs get fat, hogs get slaughtered” makes any sense. Not being a farm boy I had to Google the difference between pigs and hogs, the later being (I’m told) bigger than the former. Assuming bigger means greedier I guess this bit of folk wisdom applies to the plaintiffs’ lawyers in Caplan v. All Am. Auto Collision, Inc., 2022 WL 1939553 (11th Cir. June 6, 2022). It was a standard ADA serial filer case. Mediation failed because the plaintiffs’ lawyers demanded too much in attorneys’ fees. They then moved for summary judgment and won, but the district court cut their fees by 75% based on excessive billing and other conduct that appeared designed to drive up the fees. The Eleventh Circuit agreed, affirming an award of just $7500. On its face that is a very low amount for fees through summary judgment in a federal lawsuit, and I think it can only be understood as reflecting both the District Court and Court of Appeals knowing the case would have settled at mediation but for the excessive attorneys’ fee demands. I have to believe that a more reasonable fee application might have been granted without this kind of reduction. By demanding far too much the plaintiffs’ attorneys showed their true colors.
Real ADA problems make for complicated lawsuits.
Lack of pre-suit notice as an ADA defense.
It isn’t clear why the plaintiff in Munoz v. S. Fla. Fair and Palm Beach County Expositions, Inc., 2022 WL 1744013 (S.D. Fla. May 31, 2022) thought it was worthwhile to try to strike an affirmative defense based on lack of pre-suit notice, but the result is a good discussion of the role pre-suit notice might play in an ADA case. The bottom line: pre-suit notice is not required by the ADA but a failure to give notice may be evidence that the plaintiff “acted in bad faith, [was] unduly litigious, or [ ] caused unnecessary trouble and expense.” None of these are easy to prove, but all of them might be present in a typical ADA serial filer case.
Doesn’t the point of the law matter?
I’ve been corresponding with William Goren, who just blogged about an interesting standing decision from the Seventh Circuit.(4) The Rehabilitation Act(5) decision in Ellison v. U.S. Postal Serv., 2022 WL 1617435, at *4 (S.D. Ind. May 19, 2022) gets right at the heart of our discussion about tester standing and whether the goals of the statute matter in determining if the tester suffered an injury. The plaintiff, who was wheelchair bound, could not access her local post office because it had stairs. Various solutions were tried but, she said, were not sufficient. She could, however, get the same goods and services from three other post offices within ten miles of her home. The Court dismissed her claims under the Rehabilitation Act because the law was intended to guarantee access to government programs, not government facilities. In this case the post offices were a little more inconvenient, but that didn’t add up to a denial of meaningful access. The case is being appealed, but Indiana is in the Seventh Circuit and the case Bill blogged about suggests the plaintiff will fare no better in the court of appeals.
Indemnity in FHA design/build cases.
The decision in U.S. v. J. Randolph Parry Architects, P.C., 2022 WL 1645796, at *4 (E.D. Pa. May 24, 2022) is notable mostly for what it never discusses; that is, whether the FHA as a matter of policy precludes any claim shifting liability to a third party. I’ve blogged about this issue before (6) but the Court never addresses it. Instead the Court simply refuses exercise supplemental jurisdiction over state law contribution and indemnity claims because they would clutter up the discrimination case with related but not relevant issues. Of particular concern was the defendant architect’s desire to add 39 additional third-party defendants, essentially treating the case like a typical construction defect case in which everyone who ever walked onto the job suit is brought into the lawsuit in order to get at their insurance. The Court’s approach is sensible because simply allocating injunctive relief among the parties based on their individual faults can accomplish the same thing as overlapping contribution claims. The lawsuit involves fifteen facilities in four states; meaning there’s probably real money at issue. I wouldn’t be surprised to see the parallel state court cases being filed in the near future.
Sanctions against a pro se – possible but not easy.
In Simmons v. Village of Minier, 2022 WL 1607901 (C.D. Ill. May 20, 2022) the Court sanctioned a pro se serial filer, but only after giving him the benefit of the doubt on most of his abusive claims. The standard, quoted from another case, was “when a layman persists in a hopeless cause long after it should have been clear to him, as a reasonable (though not law-trained) person, that his cause was indeed hopeless, sanctions should be imposed….” Lawyers advising clients on the likelihood of attorneys fees after prevailing in a civil rights case should keep this standard in mind.
+++++++++++++++++++++++++++++++++++
¹ See Strategies for Surrender
² See Quick Hits – Vernal Equinox edition, Standing for serial plaintiffs – it’s a legal issue, not a moral problem and Quick Hits – Polar Vortex edition
³ See Stigmatic injury and how the 11th Circuit got in wrong in Laufer v Arpan
(4) See, Is ADA Title II, III Tester Standing a Thing Anymore?
(5) It is, more or less, the ADA for the federal government.
(6) See, Contribution, Indemnity and Disability – Does the FHA make sense? and Time for a do-over – the 9th Circuit gets indemnity and contribution right among others.
(7) See, FHA and ADA Odds and Ends for my latest note on the subject, and track back through the footnotes to the other blogs on this subject. This and other kiosk cases are not typical serial litigant cases involving a tester with dubious standing. DOJ has been active in kiosk cases and as this class certification shows they aren’t going to settle for a few thousand dollars and a meaningless promise to fix the problem.
(8) See the next blog below this one.
(9) See, Mootness and the ADA – Fighting may not be the best way to win. and my many other blogs with the word “mootness.”
(10) It isn’t clear from the opinion whether the HOA owned the beach or merely owned the land giving access to a publicly owned beach. If the HOA does not own the beach the question of whether the HOA is a public accommodation becomes a little more complex. I suspect that the path to the beach itself is a public accommodation, subjecting the HOA to the ADA with respect to that path.
“Short sharp shock” is too good a phrase not to re-use, as proved by the fact that after its first use by Mary I of England to describe her hope that burning a few protestants would bring others back into the fold and its popularization by Gilbert and Sullivan it turned up in a song by Pink Floyd and as the title of Michelle Shocked’s first album. My use probably won’t get added to the Wikipedia page on the phrase (7) but it suits a discussion of braille gift card litigation and the effect of TransUnion v. Ramirez in ADA litigation.
The Rolling Stones famously asked that they be rolled like a pair of tumbling dice, and looking at recent Title III ADA headlines reminded me of just what a crapshoot ADA litigation can be. The good news for businesses is that the district attorneys of San Francisco and Los Angeles have filed suit against the Potter Handy firm and its partners alleging that the firm filed false lawsuits under the ADA.¹ Hard on the heels of the action by the local authorities a federal judge in San Francisco, Vince Chhabria, entered a series of show cause orders requiring the Potter Handy firm and its clients to file sworn declarations providing factual support for their allegations concerning having visited and intending to visit ADA defendants in the future.² I don’t know how Potter Handy and its clients will respond to these orders, or what Judge Chhabria will do with those responses, but within days of these actions a federal judge in San Jose entered an all too typical order allowing a case to proceed despite being more or less identical to those being handled by Judge Chhabria. Sevens or snake eyes, in ADA Title III matters defendants and plaintiffs are at the mercy of the random assignment of judges done with each federal lawsuit filed. 
Can the 11th Circuit hold back the tide as King Cnut famously failed to do?² In Laufer v. Arpan LLC, 2022 WL 906511 (11th Cir. Mar. 29, 2022) the 11th Circuit disagreed with the Fifth, Tenth and Second Circuits concerning the injury sufficient to satisfy the standing requirements in Article III of the Constitution. If the case goes to the Supreme Court the 11th Circuit is likely to get its feet wet on Article III standing, but of more interest is the Court’s failure to consider whether the plaintiff had even suffered a statutory injury; that is, did she suffer the kind of injury Title III of the ADA was intended to prevent? If there was no statutory injury then the question of constitutional injury never arises.