Originally published by Richard Hunt.
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.
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.
A new take on “tester” standing
Crawford v. Hinds County Bd. of Supervisors, 2020 WL 1677668 (S.D. Miss. Apr. 6, 2020) is a follow up 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. Unfortunately, the necessary finding of fact only comes when so much money has been spent on legal fees that the victory is pyrrhic.
** See, Blogathon – ADA and FHA cases with a little help from my friends.
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