Supreme Court Update and Regulatory Developments
Before getting started on the blog entry for the week, there was some bizarre developments in the case of Laufer v. Acheson Hotels, which we discussed two weeks in a row here. The developments are very well described by the Seyfarth Shaw firm in their blog, here. It will be interesting to see whether the Supreme Court decides to proceed with the case anyway. If it does decide to proceed, it is unclear to me who would make the oral argument for the plaintiff since they have withdrawn from the case. Would the Supreme Court then decide the case on the briefs only? Stay tuned for further developments.
In other news, the Department of Transportation, here, issued a final rule with respect to wheelchairs on board planes (OBW-onboard wheelchairs), and the accessibility of lavatories on planes. That final rule can be found here. It is great to see these rules, and I know people using wheelchairs and even those in the vision loss community will benefit. It would be nice to see similar rules for the hearing loss community. For example, my options for watching entertainment on airplanes are far more limited than hearing people options are. Also, with the exception of the announcements about oxygen masks made at the beginning of the flight, I have no idea what the announcements actually are. I am left guessing. You would think with Wi-Fi rapidly becoming standard across the entire aircraft, that this would be a fixable issue.
Finally, the EEOC issued a guidance on visual disabilities in the workplace and the ADA, which can be found here. Eric Meyer in his Employer Handbook Blog, here, nicely summarizes the guidance very well. Two things about the guidance leapt out at me. First, I did not see anything goofy with this particular guidance the way I did with the EEOC hearing loss guidance, which we discussed here. However, I am not visually impaired or blind, so it is possible that I may have missed something. From reading the guidance, it is quite obvious that the EEOC either has substantial experience working with the blind and/or visually impaired or it consulted with people in that community, which cannot be said for the hearing loss guidance and the Deaf, deaf, and hearing loss community. Second, I noticed that the EEOC quite consistently talks about how you can only seek documentation where a disability is obvious. Seeing that formulation quite often caused me to do a deeper dive. When you do that, it turns out that what is “obvious,” is far from obvious. Accordingly, the best approach may very well be to let the obviousness of the disability dictate how much documentation is requested rather than use “obvious,” as a litmus test to decide whether documentation should be sought at all. Third, in the example DD of the guidance, the EEOC waffles a little bit about whether the ADA is a nondelegable duty. The safer approach is to assume that it is. Clearly plenty of case law says as much as does DOJ.
Case of the Week
This week’s blog entry isn’t something I have previously blogged on. For the litigators that are our readers and for any civil procedure geeks, this entry is for you. The case of the day is Jones v. L.A. Central Plaza, a published decision from the Ninth Circuit decided on July 26, 2023, here. As usual, the discussion dealing with the case of the week is divided into categories and they are: facts; how a case proceeds to the summary judgment stage; court’s reasoning that it is improper to convert a motion for summary judgment into a motion to dismiss; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
Jones sued the defendant for architectural inaccessibility. For whatever reason, the defendant allowed the case to proceed through the summary judgment stage. Plaintiff filed a motion for summary judgment, which is a bit unusual in and of itself, and defendant didn’t explicitly respond to the motion to summary judgment in terms of replying to the motion to summary judgment. Instead, they said that the case should be dismissed. The district court in deciding the plaintiff’s motion for summary judgment on its own motion, decided to convert the motion into a motion to dismiss and assess whether the plaintiff met the standards of Iqbal/Twombly. It decided that plaintiff did not and threw out the case. It also denied a hypothetical leave to amend the complaint because the deadline to amend the complaint under the court’s rule 16 pretrial scheduling order have long passed. Plaintiff appealed saying that the judge could not work backwards that way. After all, the plaintiff claimed he had, and confirmed by the court’s own admission, developed evidence that would flush out any deficiencies with Iqbal/Twombly. So, the judge should have considered that evidence as part of the motion for summary judgment process.
How a case proceeds to the Summary Judgment Stage
- In order for a plaintiff to show standing under article III, a plaintiff has to show: 1) it has suffered an injury in fact that is A) concrete and particularized and B) actual or imminent, not conjectural or hypothetical; 2) the injury is fairly traceable to the challenged action of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
- Satisfying the standing elements must be done in the manner and the degree of evidence required at the successive stages of litigation. That is, at the pleading stage, a plaintiff must allege sufficient facts that if taken as true demonstrate each element of standing. If the plaintiff does not do that, the complaint is subject to dismissal at the outset either upon motion by the defendant or on the court’s own motion. If the complaint’s factual allegations of article III standing are found to be adequate under Iqbal/Twombly or are not challenged at the outset by either the parties or the court, then the case proceeds to discovery for the parties to marshal evidence supporting their claims and defenses. During or after that process, either party can move for summary judgment, which requires a district court to enter judgment on a claim or defense if there is no genuine dispute as to any material fact.
- At the summary judgment stage, a plaintiff has to offer evidence and specific facts demonstrating each element of standing.
Court’s Reasoning That the District Court Cannot Work Backwards and Convert a Motion for Summary Judgment into a Motion to Dismiss.
- In the adversarial system of the United States, it is generally up to the parties to decide, within the parameters of the applicable procedural rules, what relief they wish to seek, what type of motion they wish to present to obtain that relief, and the arguments they wish to make in support.
- Standing issues can be raised on the court’s own motion at any time.
- After giving notice and a reasonable time to respond, a court may grant summary judgment for a movant, grant a summary judgment motion on grounds not raised by a party, or even ask the parties in the absence of a motion, to address the propriety of granting summary judgment on grounds identified by the court.
- When presented with matters outside the pleadings in connection with the motion to dismiss for failure to state a claim or for judgment on the pleadings, the district court may choose to exclude extrinsic matters and address the motion under applicable motion to dismiss standards. It could also convert the motion into one for summary judgment.
- In this case, the district court effectively did the reverse whereby it converted a motion for summary judgment into a motion to dismiss. The Federal Rules of Civil Procedure offer no support for such a conversion and is improper in most cases, if not virtually all.
- Converting a motion to dismiss to a motion for summary judgment can make sense because it allows for a prompt and efficient means of achieving a definitive resolution of a case dispositive issue based on an evidentiary record adequate for that specific purpose.
- A reverse conversion employed by the district court in this case goes against the principles of sound case management in many ways. For example, such a reverse conversion unjustifiably ignores the fuller evidentiary record assembled by the parties after they have already incurred the expense of discovery. Also, one of the chief objectives of Iqbal/Twombly is to avoid unlocking the doors of discovery for plaintiffs armed with nothing more than conclusions.
- The practical effect of a reverse conversion on the outcome of a summary judgment motion makes little sense. For example, suppose that the summary judgment record shows that the plaintiff has raised sufficient evidence of standing to allow or even to compel a trier of fact to decide in its favor with respect to standing. In that situation, dismissing the case based upon Iqbal/Twombly pleading deficiencies in the complaint changes the outcome in a way that is difficult to justify. In such a scenario, the litigation process reveals that the pleading deficiency is curable because the actual facts developed by the party shows that the plaintiff has enough proof to proceed, and that the evidence provided a roadmap for curing any overlooked Iqbal/Twombly deficiency in the complaint’s factual allegations.
- There is no possible justification for raising a purely technical pleading deficiency that the defendant never saw fit to raise. Had the defendant challenged the adequacy of the complaint’s factual allegations through a timely motion to dismiss per Iqbal/Twombly, those deficiencies presumably could have been cured before the allotted time to amend the pleadings had expired.
- A district court ignoring the parties factual presentation on summary judgment and instead insisting on raising on its own motion and un-objected to but potentially curable deficiency only after the time to amend has expired, hardly seems to promote a just determination of the action.
- A reverse conversion sets up a system whereby the ultimate outcome is not changed or the outcome is changed in a way that is exceedingly difficult to justify. Either way, it makes little sense not to simply decide the issues as the parties present them.
- The district court provided no notice to the parties that it was contemplating such a reverse conversion. A reverse conversion is problematic enough and especially so without notifying the parties of what is going to happen. The lack of notice also raises due process and fairness concerns.
- Where a court does decide to convert a motion to dismiss into a motion for summary judgment, by rule the court must afford all parties a reasonable opportunity to present all the material pertinent to the motion. The same should have happened with respect to the reverse conversion.
- While it is true that a district court has the power and obligation to reach jurisdictional issues such as standing on its own motion, that does not mean that it has the discretion later in the litigation, to retroactively examine the adequacy of the complaint’s factual allegations of standing under Iqbal/Twombly.
- When a court issues a post pleading date order to establish article III standing, the applicable standards are presumptively those governing summary judgment motion rather than those governing motions to dismiss.
- When the parties have briefed and argued a summary judgment motion, judicial efficiency is best served by dealing directly with those arguments rather than avoiding them.
- In the ordinary case, no justification exists for allowing a district court to travel back in time and train the lens of its inquiry on the bare allegations of the complaint while disregarding the factual record upon which a summary judgment movement has elected to rely.
- The record confirms the impropriety of the district court’s manner of proceeding. In fact, the district court itself said that Jones had provided facts that could demonstrate standing with his motion for summary judgment, but nevertheless inexplicably chose to ignore those facts and instead to evaluate the situation on Iqbal/Twombly grounds without even giving any notice that it planned to dispose of the case in such a novel and unjustifiable manner.
- While a motion to dismiss can occasionally be converted into a motion for summary judgment, this case illustrates that it doesn’t work the other way around for the reasons very well explained by the court.
- Iqbal/Twombly is not an easy standard for a plaintiff to meet. The best way to explain the ability to meet such a standard would be to allege enough facts so that a reasonable person would be on notice as to exactly what happened. The notice pleading standard that many of us learned in law school simply doesn’t exist, especially for disability discrimination cases. That said, it isn’t entirely all fact-based either. You want to put in enough facts so that is absolutely clear that all the elements of standing or of the particular claim alleged have been satisfied. Illinois courts have taken this approach for years.
- The language of the opinion is pretty stern and it is also a published decision. Accordingly, I don’t anticipate many trial judges in the future trying a reverse conversion like this one did.
- It is unusual for a plaintiff to file a motion for summary judgment, at least with the expectation that they would have a realistic chance of winning. It is far more typical for a defendant to file a motion for summary judgment and then for a plaintiff to either contest it or file a cross motion for summary judgment.
- Since Iqbal/Twombly is not an easy standard to meet, the defendant will most of the time file a motion to dismiss after the complaint has been filed. There are times when a defendant does not do that. In that situation or in the event a motion to dismiss is denied, the defendant just about always will file a motion for summary judgment at the pertinent time.
- How a judge deals with a summary judgment motion varies considerably from judge to judge. Some judges use it as a screen out for all but the very good cases. Other judges look for genuine issues of material fact and let a jury decide. Since very few cases go to jury, the motion for summary judgment pretty much dictates the whole case moving forward. That is, if the motion is granted to the defense, the case is dismissed. If the motion is not granted to the defense, the case invariably settles.