Originally published by Richard Hunt.
“Beware the Ides of March” was what the prophet warned Caesar according to Shakespeare. It didn’t go well for him, but the latest batch of ADA and FHA decisions are something of a mixed bag. Before getting to that news though I want to make sure everyone who wants one has a copy of my white paper on HUD’s new guidance on service and assistance animals. If you are interested just email me. You will be added as a subscriber to this blog and I’ll email a copy of the paper. But now on to the news.
Standing and intent to return – the Strojnik factor
It is elementary that an ADA plaintiff must establish some likelihood of a future injury in order to have standing. Strojnik v. 1530 Main LP, 2020 WL 981031 (N.D. Tex. Feb. 28, 2020) is one of a small number of Texas cases addressing this issue. Judge Brown’s analysis is worth reading because it looks at the 5th Circuit authorities and explains why the “deterrent effect” doctrine is not sufficient to give a plaintiff standing in the absence of any intent to return. The “deterrent effect” doctrine is, in fact, a mis-named and mis-used substitute for intent to return. A plaintiff who never intended to go back cannot have been deterred from going back by some condition at the defendants’ place of business. Sloppy language and slopping thinking in the Nnth Circuit are the origin and support of the ADA litigation industry.
Strojnik suffered a similar fate in Strojnik v. IA Lodging Napa First LLC, 2020 WL 906722, at *3 (N.D. Cal. Feb. 25, 2020) although the Court found his pleadings to be more comprehensively inadequate. The opinion ends on the heartening note that the Court will have more to say about Strojnik’s litigation tactics in an upcoming order on the defendant’s motion to declare Strojnik a vexatious litigant.
Strojnik v. 1530 Main LP also adopts a helpful pleading standard for a showing of present injury. Instead of pleading specific ADA violations Strojnik simply attached photographs of allegedly non-compliant features of the hotel to his Complaint. Without an explanation of how each pictured condition affected his disability the Court found the Complaint was inadequate.
Schutza v. Union City Investments LLC, 2020 WL 905605 (S.D. Cal. Feb. 25, 2020) is a must-read opinion for anyone faced with generic ADA pleadings. The complaint, like most of those from serial filers, alleged the existence of access barriers without saying just what was wrong. That was not enough for the Court:
But were the dining tables too high? Were they too low? Where were the paths of travel? How were they inaccessible? Plaintiff leaves everyone guessing. As Plaintiff’s allegations are only “naked assertions devoid of further factual enhancement, and the Court need not accept “legal conclusions” as true, the Court finds Plaintiff’s allegations for this element of an ADA claim insufficient.
The Court grants leave to amend, and the nature of the problems is such that they can be cured by amendment if the problems really exist, but forcing the plaintiff to do the work of identifying ADA barriers to access with some specificity will at least test the legitimacy of the claims.
ADA Title II and sovereign immunity
As a starting note, readers interested in this issue should read William Goren’s recent blog on the 11th Circuit’s decision concerning the State of Florida. Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 874042 (E.D. La. Feb. 21, 2020) looks at the issue in the context of a state funded stadium. The discussion is worth reading, but the plaintiff’s decision to concede sovereign immunity for damage claims makes the holding somewhat unimportant. For more about this case see the discussion below on the merits of the ADA claims in the same lawsuit.
The cost of default
In California small businesses continue to find that the cost of default in a typical serial plaintiff lawsuit is cheaper than any amount of defense. In Acosta v. Martinez et al, 2020 WL 1026890 (E.D. Cal. Mar. 3, 2020) the defendant was ordered fix ADA violations and pay $4000 in statutory damages plus $1,823 dollars in attorneys’ fees. The usual warning applies of course – if the cost of repair is excessive a defense based on the readily achievable standard doesn’t make sense.
The defendant didn’t do quite so well in Arroyo v. Melendez, 2020 WL 869211 (C.D. Cal. Feb. 21, 2020), but no statutory damages were awarded because the court declined to exercise jurisdiction over Unruh Act claims, so total monetary award was only $3245.75.
The defendant lost even more in Johnson v. Johnson, 2020 WL 901517 (N.D. Cal. Feb. 25, 2020), with an award of $4492 in fees and costs. A default strategy needs to take into account the individual court to guess at what the cost will be.
The same strategy can be even cheaper outside of California. In Hillesheim v. SNA LLC, 2020 WL 1077570 (D. Neb. Mar. 6, 2020) the plaintiff recovered only $2718.40 in attorneys’ fees and costs. If the injunctive relief was inevitable the result was a bargain.
Rutherford v. JJ’s Mkt. and Liquor, 2020 WL 883220 (C.D. Cal. Feb. 24, 2020) reached a similar result, with an award totaling $2591.00 in fees and costs. The Court had previously refused to exercise jurisdiction over Unruh Act claims, so there were no damages.
You can absolutely moot an ADA claim by shutting down the public accommodation and selling the property on which it operated according to Johnson v. Baird Lands, Inc., 2020 WL 978629 (N.D. Cal. Feb. 28, 2020). That does not, however, eliminate a damage claim under California’s Unruh Act. Johnson recovered $4000 in statutory damages, but nothing more.
All the way moot
I have categorized Harty v. Nyack Motor Hotel Inc., 2020 WL 1140783 (S.D.N.Y. Mar. 9, 2020) as a mootness case because that is the most obvious basis for the court’s holding. The defendant simply took down their allegedly inaccessible website, an act sufficiently dramatic to moot any claim about it. The rest of the opinion catalogues the pro se plaintiff’s other failures, which were many. It is worth reading because some of the failures are common in complaints from more sophisticated plaintiffs.
Pleadings, franchises, and claims based on admitted ignorance.
In Chapman v. CKE Restaurants Holdings, Inc. 2020 WL 1230130 (E.D.N.C. Mar. 12, 2020) the plaintiff managed all the usual standing hurdles only to be tripped up by the fact that ignorance is not a reasonable basis for a lawsuit. The plaintiff sued the purported owner of a large number of franchised restaurants. The court agreed that she had alleged both injury and intent to return, but found that she had not connected the defendant to her injuries because she did not plead the necessary ownership and control. Equally important, her class allegations rested on the existence of a policy that failed to make the restaurants accessible or, in the alternative, the lack of an effective ADA policy. The court was unwilling to accept mutually inconsistent alternatives as a sufficient basis for a lawsuit since the plaintiff was clearly only speculating. The case was dismissed without prejudice and the plaintiff can in theory plead a claim that can withstand a motion to dismiss; whether she will be able in fact to do so remains to be seen.
Underline those hyperlinks if you want your arbitration clause to stick
Theodore v. Uber Techs., Inc., 2020 WL 1027917 (D. Mass. Mar. 3, 2020) is one of several cases concerning Uber’s arbitration agreement with its customers, and deals with the broader issue of “clickwrap” agreements.* It is most interesting because it contains a detailed analysis of much of the relevant law and draws a very specific distinction between hyperlinks that are underlined and those that are merely in a different color. Comparing a 2nd Circuit case in which a clickwrap agreement was found to give sufficient notice with a 1st Circuit case in which it was not the Court concludes that because the relevant hyperlinks were not underlined they were insufficiently conspicuous. I think the lesson is clear – app and website operators need to say to hell with sleek design and make sure it isn’t possible for a user to fail to notice a clickwrap agreement. Aesthetics are nice but it is unlikely a good looking interface drives enough profits to make up for the legal expense of litigating a case instead of arbitrating it.
Group homes, zoning and the Fair Housing Act
Valencia v. City of Springfield, Illinois, 2020 WL 1035229 (C.D. Ill. Mar. 3, 2020) is the latest in a series of decisions in the long-running dispute between two group homes, the Department of Justice and the City of Springfield. This decision is critical because based on its holding many municipal zoning ordinances are intentionally discriminatory on their face. The City’s zoning ordinance distinguished between group homes in which unrelated individuals resided together and “family” residences in which up to five unrelated individuals could live together. Group homes were subject to minimum spacing requirements while “family” homes were not. Thus, a group home with five unrelated residents would be treated differently than a “family” home with the same number of unrelated residents. The Court had no trouble finding the ordinance was discriminatory on its face.
That finding could have an impact on many municipal zoning ordinances because in the last twenty to thirty years municipalities have adopted zoning plans intended to permit group homes for the disabled in residential districts while continuing to regulate such homes. A typical ordinance will do what the City of Springfield ordinance did – define a permitted group home as one providing some service to unrelated individuals, define a “family” as a number of related individuals plus some number of unrelated individuals, and then impose limits on the group home whether or not it has fewer unrelated individuals than a “family.” The Court’s finding that such limits are intentionally discriminatory is a warning to municipalities to review their zoning practices for provisions that were originally intended to comply with the FHA but, because their consequences are discriminatory, in fact violate the FHA.
Stadium line of sight litigation
Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 874046 (E.D. La. Feb. 21, 2020) and the companion opinion Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 874039 (E.D. La. Feb. 21, 2020) are too long to summarize, but there are a couple of key holdings. First, the Court rejects the idea that limitations on an ADA claim based on a failure to make altered areas accessible runs from the first date the plaintiff visits the altered premises. The Court finds that limitations runs from the last visit, not the first. Second, the Court rejects a claim that the plaintiff’s standing is limited to the particular seats he occupies, finding that he faces at least a threat of discrimination from all discriminatory conditions. Beyond this the opinion demonstrates that line of sight litigation is complicated because stadiums are complicated and what can be done is therefore subject to reasonable disagreement. The same is true of comparing lines of sight for wheelchair bound spectators and standing spectators and even deciding which of many entities involved in owning and operating the stadium may be liable. Unless settled these cases seem doomed to go to trial.
And more on alterations
In Lewis v. Phan, 2020 WL 885751 (W.D. Wash. Feb. 24, 2020) the Court ultimately denied a summary judgment on the central claim of discrimination, but the discussion of alteration claims is a reminder that clear thinking is required for businesses planning on a renovation of some kind. The court points out that when a building is “altered” there are two obligations; to make the altered area accessible to the “maximum extent feasible” and, if the altered area is a primary function area, to create an accessible route to it from the building exterior, subject to the limit that the cost not be “disproportionate.” If the altered area includes the route from the building exterior to the interior then it is part of the “maximum extent feasible” standard. If not, it is subject to the “disproportionate” cost standard. The parties in this lawsuit failed to tell the Court which standard applied, with the result that they were sent away to think further about it.
City sidewalks as services
Hamer v. City of Trinidad, 2020 WL 869818 (D. Colo. Feb. 21, 2020) is a lawsuit that has been around awhile, with a trip to the 10th Circuit and the Supreme Court along the way.** In this latest decision the principal substantive ruling is that sidewalks constitute a “service” of the City that are therefore required to be accessible under the ADA. The Court also takes up limitations again in light of the Tenth Circuit’s holding, but only to conclude that fact issues preclude summary judgment.
Am. Council of Blind of Metro. Chicago v. City of Chicago, 2020 WL 1139243 (N.D. Ill. Mar. 9, 2020) is one of those cases that reaches what seems to be a momentous result without the least discussion. In contrast to Hamer v. City of Trinidad, which included extensive discussions in the District Court and Court of Appeals concerning how and why to apply the ADA’s statute of limitations to city services in the form of sidewalks, American Council of the Blind disposes of the issue with a single sentence: “As noted above, however, plaintiffs are not seeking damages for those (or any other) events, but instead seek to remedy dangerous conditions they claim are ongoing.” This decision seems likely to provide the tail end of a string cite about continuing violations, but nothing more.
Is an auto repair shop a public accommodation?
Pomponio v. Brand Motors, LLC, 2020 WL 922450 (N.D. Cal. Feb. 26, 2020) is one of those rare cases in which the defendant claims it is not a public accommodation. The Court granted a motion to dismiss based on the lack of fact allegations to support the claim it was a public accommodation, but granted leave to amend. It is frankly hard to imagine an auto repair shop that is not a public accommodation, at least with respect to the area in which customers are dealt with, but it is imaginable that an appointment only shop that never allowed customers on the premises could avoid ADA coverage.
ADA Website lawsuits – long arm jurisdiction
Mercer v. Rampart Hotel Ventures, LLC, 2020 WL 882007 (S.D.N.Y. Feb. 24, 2020) is the District Court’s confirmation of the magistrate’s recommendation I discussed in ADA and FHA Quick Hits – Hearts & Flowers Edition. That discussion covers the same material.
* See my earlier Quick Hits blog, Quick Hits or just search “Uber” above to find all my blogs on ride-sharing issues. For arbitration, see “Browsewrap could tame the ADA website litigation monster.” and other blogs with the word “arbitration.”
** See my earlier blogs, Another ADA case heads to the Supreme Court – City of Trinidad v Hamer, and Eternal liability under ADA Title – It’s what you don’t do that matters, as well as the mention in Quick Hits – He’s making a list and checking it twice, which will provide a link to William Goren’s discussion of the topic.