ADA and FHA Quick Hits – Spring has sprung edition

By Richard Hunt on April 16, 2020

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The Rite of Spring in the world of ADA and FHA litigation is a lot more like Stravinsky’s ballet – which terminates in the death of the lead character – than the bunnies and ducks that we usually associate with April. But whatever your spring festival, here’s the latest in the case law.

Corona Virus and Title III of the ADA

A great deal of attention has been paid to whether the disease Covid-19 constitutes a disability under the FHA and ADA. Crochet v. California College of the Arts, et al..,2020 WL 1815741 (N.D. Cal. Apr. 9, 2020) looks at a different aspect of the pandemic – whether injunctive relief matters when a physical place of business is only operating remotely. The plaintiff sought a preliminary injunction under the FHA to stop what she considered excessive rent charges. The court refused on the simple principle that money damages was an adequate remedy. This section of the opinion is worth reading because of its discussion of the principle that ordinary equitable limits on injunctive relief do not apply to the FHA. The plaintiff also wanted an injunction requiring the defendant to offer her the same level of shuttle bus service as other students. This the court refused because with the current California shut-in order there were no shuttle busses running and they were unlikely to start running before the plaintiff graduated. This raises the interesting question of how courts should deal with Title III ADA cases filed against businesses that are now shut down or offering only delivery service. Most cases will settle, but those that move forward will require deeper thinking about standing and available relief when the future is so uncertain.

Like Crochet, Thompson-Groves v. St. John-Taylor Properties, LLC, 2020 WL 1678251 (S.D. Miss. Apr. 6, 2020) considered the effect of the current pandemic on ADA enforcement. The defendant asked that the lawsuit be stayed to put an end to litigation expenses while admitted ADA violations were fixed. The plaintiff’s lawyers, concerned that this would moot the case and eliminate their ability to get attorneys’ fees, opposed the motion. The Court essentially ignored those considerations and found that given the fact the business could not operate the stay was in the interest of justice. This would appear to be an argument worth making in every ADA lawsuit filed against businesses that cannot operate because of government orders.

Serial ADA litigation

The defendants in Spikes v. Essel Commercial, L.P. et al, 2020 WL 1701693, at *8 (S.D. Cal. Apr. 8, 2020) could have saved themselves some time by moving to dismiss only the plaintiff’s claims under state law. Like some, but not all, federal courts in California this one was willing to dismiss state law claims as predominating over federal claims but not an ADA claim that was adequately pleaded. The end result is worthwhile – the plaintiff has to file another lawsuit to recover damages – but it illustrates the eternal principle of defending serial lawsuits – you have to know your judge.

ADA fee requests

Johnson v. P. Motor Inn LLC, 2020 WL 1701878 (N.D. Cal. Apr. 8, 2020) is a reminder that ADA serial litigation is often dominated by arguments about fees. In this case the parties quickly settled on injunctive relief and damages, but then required the court to spend considerable time and energy settling their disagreement about fees. The end result was a reduction by about 1/2 of the fees requested by the plaintiff based on excessive hourly rates and exaggerated time keeping. The opinion contains a good summary of 9th Circuit law on fee applications that will be useful for other defendants.

In Monge v. Glen Cove Mansion Hosp., LLC, 2020 WL 1666460 (E.D.N.Y. Apr. 2, 2020) a skeptical court considered the extent to which the plaintiff’s lawyer was as concerned about her fees as about the injunctive relief sought. The court’s opinion of the serial litigation industry was expressed when it adopted the critique of an earlier decision criticizing suits that “mock the statute’s mission by engaging in serial ADA litigation to take advantage of the statute’s fees provision.” In the end, however, the Court took the same approach as was taken in Johnson v. P. Motor Inn. and cut the fee award by about 1/2 based on a reduction in billing rate and discounting unnecessary time.

Crawford v. Hinds County Bd. of Supervisors, 2020 WL 1683458 (S.D. Miss. Apr. 6, 2020) is one of two follow on decisions to the ruling I blogged about last fall.* The other is discussed below. Crawford reached the rather unusual conclusion that the plaintiff had no standing to seek injunctive relief but was entitled to damages. The plaintiff’s attorneys sought fees shortly after they avoided dismissal on summary judgment, a time when, the Court observed, they justifiably anticipated a high degree of success. At the end of the day they settled for modest damages and got no injunctive relief. That hardly constituted a high degree of success, but the Court looked at their fees from the way the case stood at the time of the fee application rather than as it stood after final judgment and awarded more than $88,000 in fees and expenses. It is an unusual outcome in an unusual case, but worth remembering.

A new take on “tester” standing

Crawford v. Hinds County Bd. of Supervisors, 2020 WL 1677668 and 2020 WL 1683458 (S.D. Miss. Apr. 6, 2020) are follow ups to the decision I blogged about last fall.* After denying cross-motions for summary judgment on the plaintiff’s standing to seek injunctive relief the court concluded, after a two day trial, that the plaintiff failed to prove the required intent to return as of the date suit was filed based on his past failures to visit the county courthouse that was the subject of his complaint. The court summed it up this way:

Whatever else it may cover, the concept of tester standing cannot be so expansive as to include a prospective plaintiff’s merely “confirming” the continued presence of known or suspected ADA violations by visiting the facility with his attorneys en route to the federal courthouse to file his ADA complaint.

This statement would, to be frank, apply to every serial litigant who uses “tester” standing as a way to exploit the ADA for profit. This did not, however, constitute a victory for the County because like many other entities that receive federal funds it was covered by the Rehabilitation Act, which includes a damage remedy. After an earlier ruling that he had standing to seek damages the plaintiff settled his damage claim for $7500, leaving for the Court only the question of attorneys fees.

* See, Blogathon – ADA and FHA cases with a little help from my friends.