Ninth Circuit lectures the district courts on ADA access, again

The Courts in the Ninth Circuit, especially in California, have been flooded with American for Disabilities Act (ADA) access cases. The numbers have gone down recently but they still take up significant judicial resources. District courts have found several ways to deal with this problem, but the Ninth Circuit has had to remind them to adhere to the limits of the law. Two recent cases involving correct procedure and attorneys fees have made this clear.

Quick refresher on access cases under the ADA

Under the ADA, disabled persons who are not provided the same access in public places as all other customers can sue in federal court to require correction by the business or facility owner, and often get attorneys fees and costs. Prevailing defendants also can get fees and costs in appropriate cases. The ADA applies to access to retail space, hotels, restaurants, etc. ADA "testers" - another term for "serial plaintiffs" - clearly are allowed to litigate under the ADA. A few disabled litigants who are serial plaintiffs have brought thousands of ADA lawsuits, claiming violation of the ADA and California's Unruh Act. The ADA provides only for injunctive relief and attorneys fees, and the Unruh Act adds damages of $4,000 minimum per violation. Many suits have been brought against small businesses which often settle quickly to avoid the risk of paying large attorneys fees to plaintiff's counsel as well as to their own lawyers.

The Ninth has allowed the district courts to take action that discourages inappropriate ADA cases but also has reined in some practices

The Ninth has allowed district courts to take actions that discourage serial plaintiffs, affirming significant reductions in attorneys fees and the award of fees to defendants. It also has allowed district courts to decline concurrent jurisdiction with Unruh Act claims, so damages cannot be awarded in federal court - apparently with the goal of diverting these cases to state court.

Some district courts, however, tried to discourage these cases by using the fact that litigants are serial plaintiffs as a basis for evaluating their credibility about the intent to return to defendant's business - a standing requirement under the ADA. Earlier this year, the Ninth rejected this way of dealing with ADA cases. In a very strongly worded opinion, the court held that litigants' credibility about an intent to return to a business cannot be evaluated by using the fact that they are serial plaintiffs. A district court's credibility analysis, which used the fact that an individual was a serial plaintiff, was "riddled with impermissible reasoning" and relied "upon flawed reasoning that we cannot, and should not, accept." Langer v Kiser 57 F. 4th 1085 (Jan 23, 2023). Even serial plaintiffs can have a legitimate desire to patronize a particular business that has barriers for the disabled.

In two recent cases, the Ninth Circuit again lectured district courts about their methods of dealing with ADA lawsuits

Both cases were decided on July 26, 2023. In one, the district court took a shortcut to deny plaintiff's standing and dismissed the case, though without prejudice. Jones v L.A. Contral Plaza LLC (9th Cir, No. 22-55489). In the other, the district court awarded attorneys fees and costs to the defendant - in a situation where the award seemed quite appropriate - but established law did not allow this. Fernandez v. 23676-23726 Malibu Road, LLC (9th Cir, No. 22-55626). Both were reversed by the Ninth.

Jones - a reprimand of the district court

Judges, like most of us, like to clear out cases that are time-consuming and aren't going anywhere. In Jones, the district court found a way to do this - but found a hostile Ninth Circuit panel.

Here, the plaintiff moved for summary judgment. The defendant filed an opposition but did not cross move for summary judgment. The plaintiff argued that he had sufficiently established standing. However, the court did not rule on the summary judgment motion. Instead, on its own (sua sponte), the district court decided to review the allegations in the complaint to see if the complaint satisfied the required pleading standards. This occurred after the plaintiff fully briefed his summary judgment motion and even when the district court had "opined that Jones had provided facts that could demonstrate standing" in the motion for summary judgment. Nevertheless, the district court ignored these facts, "parsed the language" in the complaint, and "provided no notice whatsoever" that it planned to deal with the case in this way. The district court dismissed the case, without prejudice, and entered judgment for the defendant. The Ninth reversed and remanded.

The Ninth Circuit panel acknowledged that the district court could raise standing on its own at any time. Yet it was quite concerned that no notice was given to the parties that this would be done. It also was very unhappy that a motion for summary judgment was "reversed converted" to a motion to dismiss. "What possible justification could there be ... for raising a purely technical pleading deficiency that the defendant never saw fit to raise." (Italics in the original.) The district court, said the panel, acted with "impropriety".

The panel's concerns seem quite appropriate, especially when no notice was given to the parties, and the district court had found that the facts in the plaintiff's motion demonstrated a basis for standing. So what was going on? It's hard to tell. The district court clearly did not want to rule on the motion for summary judgment. Perhaps the court felt that it could not rule for the defendant and wanted a way to get the case off its docket. That did not work. The case was reversed and remanded.

By the way, where does this leave the defendant? On appeal, the defendant had to argue that the district court's procedure was appropriate - not an easy case to make as you can see by the argument on YouTube. https://www.youtube.com/watch?v=77dnwP4Fves. So the defendant had to bear the cost of appeal and defend a decision and procedure that it did not ask for. However, based on the oral argument at the Ninth, it appears that at least some of the panel felt that the facts favored the defendant, so maybe now they'll be back to summary judgment - where they were over a year ago.

Fernandez - if defendant ever should get paid fees and costs, it would be here, but it was not allowed

In this case, the plaintiff alleged facts that apparently never happened in order to support an ADA access claim. So the district court awarded fees and costs to be paid to the defendant. The Ninth reversed and vacated - fees and costs could not be awarded to the defendant because the statute did not support them in these circumstances. Still, the Ninth, understanding the situation, gave direction on how to achieve the same result.

Here, a disabled plaintiff alleged that he visited the defendant's store in November, 2020, and found that its aisles were too narrow to comply with the ADA. When factually correct, this is a legitimate basis for suit under the ADA. However, in November 2020, the country was locked down for COVID and the defendant's store was open "only by appointment." Per defendant's declaration, no client in a wheelchair had an appointment in the store in November 2020. Plaintiff "did not submit any evidence" that he had visited the store or had any actual knowledge of any ADA violation. He did not contest the defendant's declaration. Summary judgment was granted to the defendant. Additionally, the defendant was awarded fees and costs because the court found that plaintiff's claims were frivolous. The Ninth Circuit reversed.

While Fernandez seems to be the very kind of case where it is appropriate to require the plaintiff to pay fees and costs to the defendant, what went wrong? The district court dismissed plaintiff's ADA claim for lack of standing. Plaintiff's case was so far off the mark that he had no standing to bring it. Surely the defendant should be able to get fees and costs in this kind of case. But under the rules, if the plaintiff has no standing then the court has no jurisdiction to hear the case. What the Ninth effectively said is that when the plaintiff's case is so far from the required facts that it cannot be brought, then the defendant cannot get fees and costs. Catch 22.

The Ninth did recognize that some statutes specifically provide jurisdiction for the trial court to award attorneys fees. The ADA is not one of these statutes.

However, the Ninth did point out that Rule 11 "provides an avenue for defendants to seek fees against plaintiffs who bring frivolous lawsuits." In this way, the limits of the law would be met and there also is a way for the defendant to get the result sought.

On remand, the defendant should be able to move for attorneys fees and costs as sanctions under Rule 11. The most recent notes of the Advisory Committee on Rules to Rule 11 say that it "leaves for resolution on a case-by-case basis ... the question of when a motion for violation of Rule 11 should be filed and when, if filed, it should be decided." One suspects that in this case a motion under Rule 11 would be timely.

For the future, the lesson is clear. Defendants who prevail in ADA access cases on the basis of no standing and who would like to recover fees and costs should move for Rule 11 sanctions.

A bit of perspective

The Ninth is quite aware of the problem that the district courts have with serial plaintiff cases taking up substantial amounts of judicial resources. The district courts have a limited number of ways that they can cope with the problem. When these courts act within the boundaries of the law, the Ninth has supported them. When they take shortcuts or actions outside those boundaries, the Ninth will not allow it.