Either Title III needs damages or we need to change the law of standing*

Claudia Adkins was deaf and blind, and was — because of this — denied service at and turned away from the Summit View of Farragut nursing home in Knoxville, TN.   “Turned away” in this case is not a metaphor or legal/poetic license.   She was transported from the hospital to Summit View in an ambulance and they turned her away and sent her back to the hospital because she was deaf and blind. Summit View did not accept Adkins for admission to the facility because it would have been unable to communicate with her, given her condition and its inability to obtain an interpreter. To this end, Summit View’s Medical Director at that time, Dr. Bonita Gonzalez (“Dr.Gonzalez”), was present when Adkins arrived and determined that she needed to be returned to UT Medical Center because “her needs could not be met at Summit View due to her conditions” Southwell v. Summit View of Farragut, LLC, 2013 WL 6061332, at *1 (E.D. Tenn. Nov. 18, 2013).   Ms. Adkins died of cancer 10 months later in Florida. Ms. Adkins’s daughter sued in state court in Tennessee for medical malpractice and wrongful death.   Summit View removed to federal court, argued that the claims should be construed under Title III of the Americans with Disabilities Act and that that statute “did not provide any vehicle for relief.”   Southwell v. Summit View of Farragut, LLC, 494 Fed. App’x 508, 510 (6th Cir. 2012). “[D]id not provide any vehicle for relief” means that because Title III has only an injunctive remedy and no damages, 42 U.S.C. § 12188(a), discriminators can...

Motion to amend (mostly) granted; good post-Oliver result

Hey, procedure nerds!   We got a good decision in our Taco Bell case today, granting in (large) part our motion to amend the complaint. In the summer of 2011, the Ninth Circuit handed down its decision in Oliver v. Ralphs Grocery Co., 654 F.3d 903 (9th Cir. 2011), holding that a plaintiff in a case under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181, had to list all challenged barriers in the complaint.   Not long after that decision, the judge in the Taco Bell case held that it did not apply in that case because it was a class action.   Moeller v. Taco Bell Corp., 816 F.Supp.2d 831, 851-52 (N.D. Cal. 2011).   Later, after decertifying the damages portion of the class, she held that  Oliver did apply to the named plaintiffs’ damages claims, and granted Taco Bell’s motion for summary judgment as to any such claims not listed in the operative complaint.  Moeller v. Taco Bell Corp., 2013 WL 4014728 (N.D. Cal. Aug. 5, 2013). The operative complaint had been filed in August, 2003, and the parties had been litigating about all of the barriers — not just those in the initial complaint — for over ten years, so we moved to amend to list all of the barriers.   In today’s decision, the Court granted most of that request, denying only our request to pursue deterrence claims.   Couple of key points: “[L]eave to amend may be warranted where the pleading standard has changed during the course of the litigation.”   Citing Sonoma County Ass’n of Retired Employees v. Sonoma...

Judge Denies Stay in Hollister Case

On August 20, 2013, the Court issued a permanent injunction in our Hollister case, requiring Hollister to bring the 231 noncomplying porch entrances into compliance by January 1, 2017.   Hollister almost immediately appealed, and then asked Judge Daniel to stay the injunction pending appeal. On Friday, Judge Daniel denied the stay, holding, among other factors, that the public interest would be served by proceeding with the remedy: Plaintiffs argue that the “worst result of the denial of a stay is that Defendants are required to ensure even better access for individuals who use wheelchairs than what the Tenth Circuit determines that the ADA requires.” (Resp. at 7). I agree with Plaintiffs and find that the public would be best served with companies complying with ADA requirements, and making these public buildings accessible to all persons. Kudos to our friend and co-counsel Julia Campins for an excellent brief opposing the...
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