Today’s case, Deutsch v. Abijaoude, from the Western District of Texas (Austin) is a tour de force for discussing the possible standards for standing under title III of the ADA. As is usual, the blog entry is divided into categories: Facts; just what is necessary to show standing?; attorney’s fees and costs; and takeaways. The reader is free to read any or all of the sections. That said, this is a real easy to read blog entry and the reader will probably want to read all of it.
The facts are really straightforward. The defendant is the owner of a bakery and got hit with a lawsuit by a serial plaintiff acting on behalf of a lawyer that sues hundreds of people a year for violations of title III of the ADA. The difference here is that instead of settling with the lawyer, this defendant elected to fight. In particular, he argued that the plaintiff did not have standing. Not only that, the defendant moved for attorneys fees and costs.
Just what is necessary to show standing?
- One approach that many courts take when deciding whether a person has standing under title III of the ADA it to try to figure out whether the plaintiff is likely to return to the defendant’s business. Figuring that out means looking at four different factors: A) the proximity of the defendant’s business to the plaintiff’s residence; B) the plaintiff’s past patronage of the defendant’s business; C) the definiteness of the plaintiff’s plan to return; and D) the plaintiff’s frequency of travel near the defendant.
- With respect to ¶ 1 post-suit efforts to burnish standing doesn’t help, because a court has to judge standing based on the facts at the time the suit is filed.
- Another approach that courts take is trying to determine whether a title III plaintiff has suffered a cognizable injury if he is deterred from visiting a noncompliant place of public accommodation because he has encountered barriers related to his disability there. This theory is based upon the language in the ADA that states a plaintiff does not have to engage in a futile gesture if such person has actual notice a person or organization does not intend to comply with the ADA. This approach involves assessing whether: the discriminatory barriers remain in place; the plaintiff remains a person with a disability; and the plaintiff is able and ready to visit the facility once it is made compliant. Under this approach, the plaintiff also has to show knowledge of the barriers and that they would like to visit the building in the imminent future but for those barriers.
- Either approach requires an intent to return. However, an intent to return does not mean just showing up at the site, rather a person has to show that they actually intend to patronize that business. In this case, the attorney testified that he gave the plaintiff a list of businesses to go and check out to see whether or not they were ADA compliant and when he did so, a log would be checked off by the plaintiff. Further, this particular plaintiff sued 385 businesses in 306 days, including the intervening Saturdays, Sundays, and holidays when the courthouse was closed. No business pre-suit notices or any efforts to allow the businesses to cure the deficient parking issues before suing were made. Finally, the attorney demanded payment of thousands of dollars in attorney’s fees before he would dismiss the suit even when the problems were quickly remedied.
- Notice and an opportunity to cure before suit is filed is relevant to assessing whether a plaintiff intends to return to actually patronize that business.
Attorney’s Fees and Costs:
- The defendant moved for attorney’s fees and costs. With respect to attorney’s fees, the court denied that request because the court never reached a decision on the merits since the case was dismissed on standing grounds.
- With respect to costs, the award of costs under the Federal Rules of Civil Procedure and applicable federal statutes allows the District Court to award just costs and does not require a finding of a party being the prevailing party in order to do so. Accordingly, the District Court awarded the defendant his costs.
- In this blog entry, I discussed an approach for fending off the serial plaintiff. I still stand behind that blog entry. This particular blog entry is a preliminary step that can be used while you are putting the preventive law pieces discussed in my fending off the serial plaintiff blog entry together.
- What this case shows is that the requirements for standing under title III are a bit all over the place, perhaps even within the same jurisdiction, and so you want to check out what your rules are for your jurisdiction.
- This case presents the argument that while testers may have standing under title III, they still have to show they truly intend to patronize the establishment in the future. Also, the context which the tester is operating in matters as well.
- While notice and opportunity to cure before suit is not currently required, though it may be soon as discussed in this blog entry, it is relevant to assessing whether a plaintiff is intends to return to actually patronize that business.
- While attorney’s fees are not going to fly where a case get dismissed on standing grounds, it may be possible to get costs. One wonders if that might not include the costs of having the building assessed for ADA compliance. If so, that itself could easily run $5-$10,000 or so.
- With respect to a plaintiff’s attorney demanding thousands of dollars in attorney’s fees before dismissing a suit even when the problems are quickly remedied, a plaintiff may run themselves into a situation where the claims are mooted, as discussed in this blog entry, and to subjecting himself or herself to attorney’s fees on the part of the defendant, as discussed in this blog entry.
- This case is an important tool for defendants when dealing with a serial plaintiff, especially when combined the steps discussed in my blog entry on fending off the serial plaintiff.