On January 23, 2023, a Ninth Circuit panel issued a 2-1 decision (link to https://cdn.ca9.uscourts.gov/datastore/opinions/2023/01/23/21-55183.pdf) reversing a lower court’s dismissal of a serial ADA litigant’s complaint against a lobster shop in a shopping complex. The shopping complex had assigned the owner of the lobster shop a space in the parking lot, and the shop owner had placed a “Lobster Shop Parking Sign” near that space. Plaintiff Chris Langer filed a lawsuit based on the lack of accessible parking for the lobster shop.

Private ADA plaintiffs are limited to seeking injunctive relief and costs under Title III of the ADA, so a plaintiff must show a sufficient likely of future injury to establish standing. During the bench trial, the district court judge examined Mr. Langer on his intent to return to the lobster shop, and the facts about his inability to park in the complex. The district court found Mr. Langer’s testimony to be not credible based in part on his status as a serial litigant. The lower court took judicial notice of the fact that Mr. Langer had filed close to 2,000 ADA lawsuits in the past three decades. 

Reversing the decision, the panel majority held that “a district court may not reject an ADA litigant’s stated intent to return to a location simply because the litigant is a serial litigant who brings numerous ADA cases.”

In the dissenting opinion, Judge Collins held that the district court’s determination that Mr. Langer was not a credible witness was not factually erroneous and should have been upheld. The dissent also found that the district court’s credibility determination should have been fatal to the plaintiff’s Title III standing to bring the lawsuit.

The published decision is a blow to restaurant owners and retailers dealing with serial ADA plaintiffs, because it prevents the district court from taking the litigiousness of the plaintiff into consideration.