By: Alisa N. Carr, Esq.
Title III of the Americans with Disabilities Act (“ADA”) only provides for injunctive relief and attorneys’ fees; a private plaintiff cannot recover damages. Therefore, in certain circumstances, a claim under the ADA can become moot and a complaint dismissed if a public accommodation remedies the access barrier during the pendency of the litigation.
The doctrine of mootness is grounded in the constitutional requirement that federal courts may only decide ongoing cases or controversies. A federal court lacks jurisdiction to decide a case if the case is moot. A case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.[i] An intervening circumstance may deprive a plaintiff of a personal stake in the outcome of a lawsuit; for instance, when a defendant voluntarily stops the challenged conduct; a voluntary cessation.
Federal courts have held that a voluntary removal of an alleged barrier to access may render an ADA Title III claim moot if the defendant can demonstrate that (1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.[ii] In light of this standard, the mootness doctrine is particularly applicable to structural modifications which are unlikely to be altered in the future. Courts have noted that in such cases, after expending significant sums to achieve compliance, the suggestion that a property owner might revert to non-compliance is illogical because doing so would actually cost more than maintaining compliance.[iii]
Several recent, unpublished cases have addressed the issue of mootness and dismissed litigation when access barriers alleged in a complaint were permanently remediated while the litigation was pending. In Kelly v. Smith’s Food & Drug Centers, Inc.,[iv] a disabled customer filed ADA Title III claims asserting that the soap dispensers in the store’s restrooms were too high to reach and, the signs in the parking lot identifying accessible parking were not ADA compliant. During the litigation, defendant produced evidence that it had permanently remediated the items. Plaintiff, without amending the complaint, then asserted that there were 8-12 additional ADA violations on the same property. In affirming the District Court’s dismissal of the complaint without leave to amend, the Circuit Court held “In general, only disclosures of barriers in a properly pleaded complaint can provide the fair notice required by Rule 8; a disclosure made during discovery, including in an expert report, would rarely be an adequate substitute.” Id. Because the barriers, as plead in the complaint, were remediated prior to a judgment, the case was moot. Moreover, the plaintiff was not entitled to an award of attorneys’ fees and costs; a defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, did not render the plaintiff a prevailing party entitled to attorneys’ fees and costs.
Similarly, the Court of Appeals for the Eleventh Circuit in Kennedy v. Omegagas & Oil, LLC,[v] entered judgment for the property owner when he removed barriers during litigation. Concluding the defendant has effectively remediated each of the many ADA violations noted in the plaintiff’s expert report, with the exception of one violation that was not readily achievable, the Circuit Court affirmed the District Court’s dismissal under the mootness doctrine.[vi] In addition, the court discussed “readily achievable,” holding that an estimated cost of $80,000 to move a bathroom wall three (3) inches to achieve ADA compliance in a building constructed before the enactment of the ADA (in concert with the lack of proof of the defendant’s ability to fund this project) rendered the remediation not readily achievable. Id. at 894.
Voluntary cessation is a viable defense to certain ADA claims, however, a periodic review of a public accommodation’s physical and digital properties is recommended to avoid costly litigation.
If you have questions about ADA title litigation or other Litigation concerns, contact Alisa N. Carr. Alisa is a Partner in Leech Tishman’s Litigation, Real Estate and Energy Practice Groups. Alisa is based in the Pittsburgh office and can be reached at 412.261.1600 or firstname.lastname@example.org.
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[i] Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. ( TOC ), Inc., 528 U.S. 167 (2000).
[ii] Clear Channel Outdoor, Inc. v. City of N.Y., 594 F.3d 94, 110 (2d Cir. 2010); Campbell v. Greisberger, 80 F.3d 703, 706 (2d Cir. 1996)); EEOC v. CollegeAmerica Denver, Inc., 869 F.3d 1171, 1173-74 (10th Cir. 2017).
[iii] Indep. Living Res. v. Or. Arena Corp., 982 F. Supp. 698, 774 (D. Or. 1997), supplemented by 1 F. Supp. 2d 1159 (D. Or. 1998); Kohler v. In-N-Out Burgers, 2013 WL 5315443, at *7 (C.D. Cal. Sept. 12, 2013); Kohler v. Bed Bath & Beyond of Cal., 2012 WL 3018320, at *4 (C.D. Cal. June 27, 2012). Indep. Living Res. v. Or. Arena Corp., 982 F. Supp. 698, 774 (D. Or. 1997), supplemented by 1 F. Supp. 2d 1159 (D. Or. 1998).
[iv] Kelly v. Smith’s Food & Drug Centers, Inc., 2019 WL 6358469 (10th Cir. November 27, 2019).
[v] Kennedy v. Omegagas & Oil, LLC, 748 Fed. Appx. 886 (11th Cir. August 31, 2018).
[vi] See also Davis v. Anthony, Inc., 886 F.3d 674, 676 (8th Cir. 2018) (During the litigation, defendants made permanent structural alterations to a grocery store making recurrence of the alleged violations highly unlikely. Defendants are therefore entitled to judgment as a matter of law dismissing these claims regarding already-remediated conditions as moot); Nat’l Alliance for Accessability, Inc. v. Walgreen Co., 2011 WL 5975809, at *3 (M.D. Fla, Nov. 28, 2011) (“[f]ederal courts have dismissed ADA claims as moot when the alleged violations have been remedied after the initial filing of a suit seeking injunctive relief”); Thomas v. Branch Banking and Trust Co., 32 F.Supp.3d 1266, 1271 (N.D. Ga. 2014) (finding that defendant’s likelihood of returning to discriminatory practice was highly unlikely based on the modification of installed equipment and machinery); Moras v. Albertson’s LLC, 2016 WL 5661985, at *3 (D. Idaho Sept. 29, 2016) (Albertsons remediation efforts were permanent structural improvements, which make reversion to non-compliance impractical. Moras has not offered any evidence that Albertsons’ efforts are insufficient to bring these locations into ADA compliance. Thus, these actions taken by Albertsons render this claim moot by reason of voluntary remediation.); Khan v. KIR Tampa 003, LLC, 2015 WL 8207813, at *6–7 (M.D. Fla. Dec. 7, 2015); Norkunas v. Tar Heel Capital Wendy’s LLC, 2011 WL 2940722, at *3 (W.D.N.C. July 19, 2009); Norkunas v. Seahorse NB, LLC, 2011 WL 1988799, at *6 (M.D.Fla. May 23, 2011) (denying injunctive relief and attorneys’ fees when the defendant voluntarily fixed all identified ADA violations prior to trial), aff’d, 2011 WL 5041705 (11th Cir. Oct. 25, 2011); Sharp v. Rosa Mexicano, D.C., LLC, 496 F.Supp.2d 93, 99 (D.D.C.2007); Kallen v. J.R. Eight, Inc., 775 F.Supp.2d 1374, 1379 (S.D.Fla.2011) ( “It is untenable for Plaintiff to suggest that once the renovations are completed they could be undone.”); Grove v. De La Cruz, 407 F.Supp.2d 1126, 1130–31 (C.D.Cal.2005) (holding that the installation of grab rails by a restaurant rendered moot plaintiff’s ADA complaint requesting installation of such rails).)