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Can We Fix It? Eighth Circuit Answers: Yes, We Can!

ADA Title III claims have become a trap for many unsuspecting businesses. The claims often lead to protracted litigation driven by attorney fees rather than the underlying issue.

A recent decision from the U.S. Court of Appeals for the Eighth Circuit offers a potential “fix” for employers. In Davis v. Anthony, Inc. Case No. 16-4051 (8th Cir. March 29, 2018), the court affirmed the dismissal of a disabled patron’s Title III lawsuit based on the restaurant’s quick remedial action.

The complaint specifically alleged the restaurant did not have the requisite number of accessible parking spaces, the parking spaces lacked access aisles and two spaces lacked the requisite signage.

The defendant remedied the alleged violations and filed a motion to dismiss based on mootness and standing. Title III of the ADA only allows individual plaintiffs to seek injunctive relief (e.g., an injunction ordering the defendant to fix the accessibility violations) and reasonable attorneys’ fees. Thus, the defendant argued that there was not a case for the court to decide, because the issues raised in the Complaint no longer existed.

The U.S. District Court for the District of Nebraska granted the motion, dismissed the case, and denied the plaintiff’s request for attorneys’ fees.

On appeal, the plaintiff argued the lawsuit was not moot because the defendant’s evidence had not addressed whether the slope of the parking spaces complied with the ADA. The plaintiff claimed that the defendant waived its right to argue the claims were moot, because it did not provide evidence of remediation when it filed the motion to dismiss. The plaintiff also argued the court prematurely dismissed the lawsuit, and should have allowed her to conduct discovery to determine what other ADA violations existed and about the issues raised in the lawsuit.

The Eighth Circuit rejected each of these arguments. First, the plaintiff did not reference the slope of the parking space in the complaint, so it was not part of the lawsuit. Second, courts have wide discretion to accept evidence regarding jurisdictional issues, like mootness. Third, the plaintiff was not entitled to discovery regarding potential ADA violations inside the restaurant, because she had not gone into the restaurant and was not injured by any alleged barriers inside (e.g., she lacked standing). The plaintiff also failed to establish she was entitled to additional discovery regarding the issues raised in the complaint.

Concerns about abusive practices in Title III litigation has garnered the attention of several states, including Arizona, California, Florida and Minnesota. Federal law does not require Title III plaintiffs to give businesses notice or an opportunity to remedy the alleged violations before filing suit. And, some businesses are forced to choose between settling for an amount that may be more than what the plaintiff could recover under the law and potentially paying thousands of dollars in attorney’s fees to defend the case.

This decision is a good reminder that there may be a third option – fix the issues specifically raised in the complaint and seek to dismiss the case as moot.

Jackson Lewis P.C. © 2018

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About this Author

Catherine A. Cano, Jackson Lewis, Federal Disability Lawyer, Retaliation Matters Attorney
Associate

Catherine A. Cano is an Associate in the Omaha, Nebraska, office of Jackson Lewis P.C. She represents management in all areas of labor and employment law. 

Ms. Cano helps clients navigate state, federal, and local leave and disability laws. Ms. Cano has experience in litigation and arbitration in several areas, including employment discrimination, retaliation and whistleblower claims, and non-competes and unfair competition. Ms. Cano’s practice also includes assisting clients involved in union organization campaigns, collective bargaining,...

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