Print Comments Share LinkWhen confronted with a lawsuit under the Americans with Disabilities Act (“ADA”), a defendant ought to investigate the plaintiff’s history in filing other, similar suits. Such is the lesson to be learned from a recent Maryland federal court case dismissing a lawsuit brought under the ADA after the court took into account the “extensive” litigation histories of the two plaintiffs which the court determined undermined their claim. Judy v. Arcade L.P., No. 10-607, slip op. (D.Md. Feb. 1, 2011).

When confronted with a lawsuit under the Americans with Disabilities Act (“ADA”), a defendant ought to investigate the plaintiff’s history in filing other, similar suits. Such is the lesson to be learned from a recent Maryland federal court case dismissing a lawsuit brought under the ADA after the court took into account the “extensive” litigation histories of the two plaintiffs which the court determined undermined their claim. Judy v. Arcade L.P., No. 10-607, slip op. (D.Md. Feb. 1, 2011).

Jeffrey Joel Judy, a Florida resident who claims a mobility impairment, sued Arcade, as the operator of Lexington Market, claiming that he had difficulty accessing the goods and services of the Baltimore venue due to its “architectural barriers.”

After Arcade moved to dismiss Judy’s complaint for lack of jurisdiction, Judy amended the complaint to add a second plaintiff, Maryland resident Gilroy J. Daniels, who also claims a mobility impairment.

Arcade again moved to dismiss the amended complaint for lack of jurisdiction, asserting that Judy and Daniels lacked the requisite standing to bring their claims. The court first noted that to establish standing, a plaintiff must allege (1) a concrete, particularized injury; (2) that the injury is traceable to the challenged action of the defendant, and (3) that the injury is likely to be redressed by a favorable decision.

The court ruled that Judy and Gilroy failed the first prong of the standing test because their complaint did not establish a sufficient likelihood that they would return to Lexington Market so as to demonstrate a “real or immediate threat” of future harm. In so finding, the court looked first at four standard factors courts use to determine the likelihood that an ADA plaintiff will return to a defendant’s facility and whether it is sufficient to confer standing: (1) the proximity of the defendant’s business to plaintiff’s residence; (2) the plaintiff’s past patronage of defendant’s business; (3) the definitiveness of plaintiff’s plans to return; and (4) the plaintiff’s frequency of travel near defendant. The court found that these factors generally weighed against finding standing for Judy, a Florida resident, and that the allegations were too vague to support the likelihood of Daniels’ return, even though he was a Maryland resident.

Finally, the court looked to a fifth factor, the number of similar lawsuits filed by the plaintiffs. Judy had filed forty-nine similar ADA lawsuits in four states over the past five years. In each case, Judy had asserted that he intended to return to the defendants’ businesses. Daniels had joined as a plaintiff in two of Judy’s Maryland lawsuits. The court found that, while the plaintiffs’ litigation histories were not “outcome determinative,” they “undermine[d]” Judy and Daniel’s “already vague statements regarding their intentions to return to Lexington Market.”

In short, a defendant is well-served to investigate a plaintiff’s history of ADA suits. While not the end of the matter, the plaintiff’s litigiousness under the ADA may well tip the balance and help persuade the court that the plaintiff lacks standing such that the case should be dismissed.