Gilkerson v. Chasewood Bank

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Citation: 1 F.Supp.3d 570
• Docket Number: Civil Action No. H–13–0132.
• Parties: Victoria GILKERSON, individually and on behalf of all others similarly situated, and Blind Ambitions Groups, on behalf of its members and all others similarly situated, Plaintiffs, v. The CHASEWOOD BANK, Defendant.
• Decision Date: 27 February 2014

1 F.Supp.3d 570

Victoria GILKERSON, individually and on behalf of all others similarly situated, and Blind Ambitions Groups, on behalf of its members and all others similarly situated, Plaintiffs,
v.
The CHASEWOOD BANK, Defendant.

Civil Action No. H–13–0132.

United States District Court,
S.D. Texas,
Houston Division.

Signed Feb. 27, 2014.

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Emil Lippe, Jr., Lippe & Associates, Dallas, TX, R. Bruce Carlson, Carlson Lynch Ltd., Pittsburgh, PA, for Plaintiffs.

William Allen Gage, Jr, Buck Keenan et al., Houston, TX, for Defendant.

OPINION AND ORDER
MELINDA HARMON, District Judge.

The above referenced putative class action under Federal Rules of Civil Procedure 23(a) and 23(b)(3) alleges that Defendant The Chasewood Bank (“Chasewood”) failed to make its automated teller machine (“ATM”), located at 8500 Cypresswood Drive, Spring, Texas 77379, accessible to blind and visually impaired individuals by adding required voice guidance and universal tactile key pads, inter alia, in violation of Title III of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq., its implementing regulations (28 C.F.R. §§ 36.101 et seq.), the Texas Human Resource Code (the “THRC”), Tex. Hum. Res.Code Ann. § 121.001 et seq., the Texas Architectural Barrier Act (the “TABA”), Tex. Gov't Code Ch. 469,¹ and its Texas Accessibility Standards (“TAS”). Pending before the Court are the following motions: (1) Chasewood's motion to dismiss Plaintiff Victoria Gilkerson's (“Gilkerson's”) original Class Action Complaint ² pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (instrument # 7); (2) Chasewood's second motion to dismiss (# 9) Gilkerson's First Amended Class Action Complaint ³; and (3) Chasewood's second amended motion to dismiss (# 17) Plaintiff's First Amended Class Action Complaint.

Title III of the ADA provides, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods and services, facilities, privileges, advantages, or accommodations of any place of public accommodation ⁴ by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Discrimination in violation of the Act includes “a failure to take such steps as may

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be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 42 U.S.C. § 12182(b)(2)(A)(iii). The House Report on the ADA stated, “The purpose of the ADA is to provide a clear and comprehensive national mandate to end discrimination against individuals with disabilities and to bring persons with disabilities into the economic and social mainstream of American life; to provide enforceable standards addressing discrimination against individuals with disabilities; and to ensure that the Federal government plays a central role in enforcing these standards on behalf of individuals with disabilities.” H. Rep. No. 101–485, pt. 2, at 22–23 (1990), 1990 U.S.C.C.A.N. 303, 304. In a very broad grant of standing, 42 U.S.C. § 12188(a)(1) provides injunctive relief

to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 12183 of this title. Nothing in this section shall require a person with disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provision.

The THRC § 121.003(a) provides, “Persons with disabilities have the same right as the able-bodied to the full use and enjoyment of any public facilities in the state.” A failure to “provide auxiliary aids and services necessary to allow the full use and enjoyment of the public facility” violates § 121.003(d)(3). Section 121.002(5) defines “public facilities” as including “any other place of public accommodation, amusement, convenience, or resort to which the general public or any classification of persons from the general public is regularly, normally, or customarily invited.” Failure to comply with the TABA and the 2012 TAS requirements is a violation of the THRC § 121.003(d)(91). Standing requirements under the THRC are the same as those under federal law. Hunter v. First National Bank Texas, No. 04:12–CV–00355, 2012 WL 7801699, at *7 (E.D.Pa. Dec. 11, 2012), citing Tex. Workers' Cop. Comm'n v. Garcia, 893 S.W.2d 504, 517–18 (Tex.1995), and DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304–05 (Tex.2008) (for injury “plaintiff must be personally aggrieved; his alleged injury must be concrete and particularized, actual or imminent, not hypothetical”). Unlike the ADA, under which private plaintiffs may only obtain injunctive relief, monetary damages are recoverable under the THRC § 121.104(b) (a “person with a disability deprived of his or her civil liberties may maintain a cause of action for damages in a court of competent jurisdiction, and there is a conclusive presumption of damages in the amount of at least $100 to the person with a disability.”). Greer v. Mockingbird Station Partners, L.P., No. Civ. A. 302CV2342K, 2004 WL 2544967, at *1 (N.D.Tex. Nov. 9, 2004). Gilkerson, alone, seek damages under the THRC § 121.004(b).

This case is one of many controversial putative class actions proliferating around the country brought often without notice by disabled individuals, ⁵ who, frequently

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along with an organization dedicated to the rights of the disabled, are “serial plaintiffs” or “testers” ⁶ acting as private attorneys general ⁷ challenging various entities' noncompliance in their places of public accommodation with Title III of the ADA, leading to a wide and varied spectrum of judicial decisions addressing complex issues of, and policies regarding, standing. Because the statute does not authorize an award of damages to a prevailing plaintiff, but only equitable relief and an award of attorneys' fees,⁸ concerns about abusive litigation by plaintiffs' lawyers must be balanced against widespread noncompliance with the ADA and inadequate enforcement of the civil rights of individuals with disabilities. See, e.g.,Leslie Lee, Giving Disabled Testers Access to Federal Courts: Why Standing Doctrine Is Not the Right Solution to Abusive ADA Litigation Note, 19 Va. J. Soc. Pol'y & L. 319 (Winter 2011); Kelly Johnson, Testers Standing Up For Title III of the ADA, 29 Case W. Res. L.Rev. 683 (Spring 2009); Wayne C. Arnold and Lisa Herzog, How Many Lawsuits Does It Take to Declare an ADA Plaintiff Vexatious?

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Apparently More Than Judge Rafeedie Thought,” 48–JUL Orange County Law. 50 (July 2006)⁹; Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L.Rev. 1 (Oct.2006); and Carrie Becker, Private Enforcement of the Americans With Disabilities Act Via Serial Litigation: Abusive or Commendable?, 17 Hastings Women's L.J. 93 (2006).

On behalf of a class of similarly situated individuals, Gilkerson and Blind Ambitions seek a declaration that Chasewood's ATMs violate federal and state law and an injunction requiring Chasewood to update or replace its ATMs so that they are fully accessible to and independently usable by blind people.

The First Amended Class Action Complaint asserts that this Court has federal question jurisdiction over Plaintiffs' claims under Title III of the ADA pursuant to 28 U.S.C. § 1331 and Title 42 U.S.C. § 12188 (providing for only injunctive relief and no compensatory damages), and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367.

Procedural History

Gilkerson originally filed this action on January 17, 2013. On March 6, 2013, Chasewood filed its first motion to dismiss (# 7), contending that Gilkerson lacked standing under Rule 12(b)(1) to assert all her federal and state law claims and that her complaint (# 1) failed to state a claim under Rule 12(b)(6). To cure the deficiencies of her initial pleading, Gilkerson, instead of responding to the motion, filed her First Amended Class Action Complaint (# 8) on March 27, 2013. This complaint added Plaintiff Blind Ambitions Groups (“BAG”). Chasewood then filed a second motion to dismiss (# 9) under Rules 12(b)(1) and 12(b)(6), directed to the new complaint, incorporating # 7, and asserting that both Gilkerson and BAG lack standing to assert the federal and state law claims for relief and therefore the Court lacks subject matter jurisdiction under rule 12(b)(1), and that the amended complaint

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fails to state a claim for relief under Rule 12(b)(6).

On June 14, 2013 Chasewood filed its second amended motion to dismiss (# 17) under Rules 12(b)(1) and 12(b)(6). In it Chasewood asserts that since June 14, 2012, Gilkerson has filed twenty-four virtually identical class action lawsuits against various financial institutions under Title III of the ADA and under the THRC (Ex. 1, listing Gilkerson's 24 suits and their status) and asks the Court to take judicial notice of them. BAG has joined in thirty-three essentially identical suits involving Gilkerson or a few other plaintiffs, including six in the Southern District of Texas. # 17 at p. 1.

Allegations of the First Amended Class Action Complaint (# 8)

Gilkerson, who is legally blind and has been totally blind since birth, is therefore a member of a protected class under the ADA, 42 U.S.C. § 12102(2), the TCHRA, and the TABA. She states that she is an active member of BAG, a Delaware-based, 501(c)(3) non-profit corporation,...