Opinion
Civil Action No. 18-cv-02405-RM-KMT
04-22-2019
CARLOS BRITO, Plaintiff, v. TCIP LLC, and CHINA GOURMET COLORADO SPGS d/b/a China Gourmet Restaurant, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on Plaintiff's "Motion to Strike Defendant China Gourmet Colorado Spgs' Affirmative Defenses" (Doc. No. 23) and Plaintiff's "Motion to Strike Defendant TCIP LLC's Affirmative Defenses" (Doc. No. 24). Defendants TCIP LLC and China Gourmet Colorado Spgs (hereinafter "Defendants") jointly filed a Response on December 27, 2018. (Doc. No. 29.) Plaintiff replied on January 3, 2019. (Doc. No. 32.)
BACKGROUND
On September 19, 2018, Plaintiff Carlos Brito initiated this action against Defendants TCIP LLC ("TCIP") and China Gourmet Colorado Spgs ("China Gourmet"). (Doc. No. 1.) Brito, who is paraplegic and uses a wheelchair, alleges that he encountered multiple violations of the Americans with Disabilities Act ("ADA") of 1990, 42 U.S.C. § 12182 et seq., that directly affected his ability to use and enjoy a restaurant owned by China Gourmet in a plaza owned by TCIP. (Id. at ¶¶ 6, 8, 13, 15.)
In his complaint, Brito asserts a string of ADA violations. As to TCIP, Brito asserts violations relating to plaza parking, entrance access and path of travel, access to goods and services, and public restrooms. As to China Gourmet, Brito asserts violations related to access to goods and services, in addition to the restaurant's public restrooms. (Id. at ¶¶ 25-31.) Brito seeks all relief available under the ADA, including injunctive relief and attorney's fees and costs. (Id. at ¶ 32.) Defendants separately answered Brito's complaint, denying all factual allegations and raising the same sixteen affirmative defenses. (Doc. Nos. 17, 18.) Brito then filed the present motions to strike five of Defendants' affirmative defenses. (Doc. Nos. 23, 24 at 2.)
LEGAL STANDARDS
Rule 12(f) permits the Court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). "An affirmative defense is insufficient if, as a matter of law, the defense cannot succeed under any circumstance." Unger v. U.S. West, Inc., 889 F.Supp. 419, 422 (D.Colo.1995). "A defense should not be stricken if there is any real doubt about its validity, and the benefit of any doubt should be given to the pleader." Chavaria v. Peak Vista Comm. Health Ctrs., No. 08-cv-01466-LTB-MJW, 2008 WL 4830792, at *1 (D. Colo. Nov. 5, 2008).
"The purpose of Rule 12(f) is to save the time and money that would be spent litigating issues that will not affect the outcome of the case." Kimpton Hotel & Rest. Group, LLC v. Monaco Inn, Inc., No. 07-cv-01514-WDM, 2008 WL 140488, at *1 (D.Colo. Jan. 11, 2008) (citing United States v. Shell Oil Co., 605 F.Supp. 1064, 1085 (D.Colo.1985)). Striking a portion of a pleading is a drastic remedy; the federal courts generally view motions to strike with disfavor and infrequently grant such requests. 5C Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1380 (3d ed.2011). However, whether to strike an affirmative defense rests within the discretion of the trial court. Anderson v. Van Pelt, No. 09-cv-00704-CMA, 2010 WL 5071998, at * 1 (D.Colo. Dec. 7, 2010) (citing Vanderhurst v. Colo. Mountain Coll. Dist., 16 F.Supp.2d 1297, 1303 (D.Colo. 1998)).
ANALYSIS
Plaintiff requests that this court strike affirmative defense numbers 2, 7, 13, 14, 15. (Doc. Nos. 23, 24 at 2.) In response, Defendants agree to withdraw affirmative defenses 2 and 7, which pertain to the concept of good faith. (Doc. No. 29 at 2.) The court will address each of the remaining challenged defenses in turn.
A. Thirteenth Affirmative Defense: Unclean Hands
Defendants' thirteenth affirmative defense asserts "Plaintiff may have unclean hands, barring equitable remedies, or may have an improper purpose in filing this action. Plaintiff's claims are barred by the doctrine of unclean hands by reason of Plaintiff's conduct and actions, and his pattern and practice of visiting places of public accommodation without the intent of accessing goods and services and instead with the purpose of filing lawsuits, such as the current action, and incurring damages. Thus, Plaintiff's primary motive in filing this action may be the generation of damages, attorneys' fees and expert witness payments." (Doc. Nos. 17, 18 at 8.) Plaintiff moves to strike this affirmative defense by arguing Defendants pleaded conclusory allegations rather than facts, and failed to plead the specific elements of the defense. (Doc. Nos. 23, 24 at 3.) In response, Defendants argue Plaintiff filed the present lawsuit with unclean hands because he has filed numerous ADA lawsuits in both Colorado and Florida without first complaining to the subject properties about their inaccessibility and allowing the owners to bring the properties into compliance without incurring litigation costs. (Doc. No. 29 at 2.) According to Defendants, "it is not reasonable that Mr. Brito would not lodge a complaint if he faced architectural barriers to accessibility." (Id.) In reply, Plaintiff contends Defendants avoid his argument that they inadequately pleaded the unclean hands defense, and instead rely on conclusory allegations relating to a string of ADA lawsuits filed by Plaintiff. (Doc. No. 32 at 1-2.) Plaintiff also notes Defendants cite no authority suggesting Plaintiff had an obligation to address complaints with property owners. (Id. at 2.)
"The doctrine of unclean hands prevents one who has engaged in improper conduct regarding the subject matter of the cause of action, to pursue the claim at issue." Sender v. Mann, 423 F. Supp. 2d 1155, 1167 (D. Colo. 2006) (quoting Salzman v. Bachrach, 996 P.2d 1263, 1270 (Colo. 2000). "It applies only to equitable remedies." Id. The defense of unclean hands "must be pled with the specific elements required to establish the defense." Cartel Asset Mgmt. v. Ocwen Fin. Corp., No. 01-cv-01644-REB-CBS, 2010 WL 3522409, at *3 (D.Colo. Aug. 11, 2010) (citing MPC Containment Sys., Ltd. v. Moreland, No. 05 C 6973, 2008 WL 1775501, at *5 (N.D.Ill. April 17, 2008)). These elements include a showing that the party seeking equitable relief is "(1) guilty of conduct involving fraud, deceit, unconscionability, or bad faith, (2) directly related to the matter at issue, (3) that injures the other party, and (4) affects the balance of equities between the litigants." Id. (citing In re New Valley Corp., 181 F.3d 517, 523 (3d Cir. 1999)).
In asserting their unclean hands defense, Defendants do not plead facts to show Plaintiff acted with fraud, deceit, unconscionability, or bad faith. Defendants' argument relies on Plaintiff filing various lawsuits without first complaining to the subject properties, but the law does not require Plaintiff to lodge such complaints. (Infra 5-6.) Moreover, Title III of the ADA specifically contemplates the kind of lawsuits filed by Plaintiff, and Defendants plead no facts to show Plaintiff's string of lawsuits, including this one, were filed with unclean hands. See John Ho v. Man Sin, No. SACV161975DOCKESX, 2018 WL 5906669, at *7 (C.D. Cal. Apr. 6, 2018) (rejecting the defendant's argument that she was entitled to summary judgment where the defendant's allegations of serial litigation did not demonstrate unconscionability, bad faith or inequitable conduct). Defendants do not cite any authority for the proposition that filing numerous lawsuits under Title III of the ADA evidences unclean hands, and the court notes that such a holding would contradict the ability of private individuals to file lawsuits where they encounter inaccessible public accommodations. See Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir. 2007) ("For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA."). There are no circumstances under which the defendants can prevail on a defense premised alone upon Plaintiff's filing of multiple ADA enforcement actions. Accordingly, the court recommends striking Defendants' thirteenth affirmative defense.
B. Fourteenth Affirmative Defense: Mitigation of Damages
Defendants' fourteenth affirmative defense asserts "Plaintiff's claims are barred, in whole or in part, by his failure to take reasonable steps under the circumstances to minimize or mitigate his alleged damages or losses, if any have been sustained." (Doc. Nos. 18, 19 at 8.) Plaintiff argues this affirmative defense is improper because there is no notice requirement prior to filing suit for violation of the ADA. (Doc. Nos. 23, 24 at 3.) Defendants aver Plaintiff could have mitigated damages by taking reasonable steps to complain about alleged inaccessibility to the subject properties. (Doc. No. 29 at 3.)
While a public accommodation may be required to modify its policies, practices, or procedures to mitigate any disparate impact upon persons with disabilities (28 C.F.R. § 36.302(a)), Congress did not impose a duty on a plaintiff to mitigate damages or provide notice prior to bringing suit under Title III of the ADA. 42 U.S.C. §§ 12182, et seq. Without a duty to mitigate (or give notice prior to filing a lawsuit), it cannot be a defense that a plaintiff failed to provide notice of ADA violations to a defendant. Indeed, an affirmative defense is "[a] defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true." Purzel Video GmbH v. St. Pierre, 10 F. Supp. 3d 1158, 1170 (D. Colo. 2014) (internal citations omitted) (noting an affirmative defense precludes liability even where all elements of a plaintiff's claim are proven). Here, a failure to mitigate or provide notice would not defeat Plaintiff's claim, making a failure to mitigate wholly irrelevant. Accordingly, the court recommends striking Defendants' fourteenth affirmative defense.
Across the country, disabled individuals, often working alongside organizations dedicated to the rights of the disabled, are "testers" who file suits challenging entities' noncompliance with Title III of the ADA in places of public accommodation. See, e.g., McConnell v. Canadian Pac. Hills Plaza, 2014 WL 201102, at *1 n.1 (M.D. Pa. Jan. 16, 2014) (defining "tester" as "an individual with a disability who repeatedly visits places of public accommodation with the dual motivation of verifying ADA compliance along with availing himself or herself with the goods and/or services available."); Gilkerson v. Chasewood Bank, 1 F. Supp. 3d 570, 573 (S.D. Tex. 2014); Hilson v. D'More Help, Inc., No. 15-CIV-60155, 2015 WL 1737688, at *5 (S.D. Fla. Apr. 16, 2015); Molski v. Mandarin Touch Rest., 347 F. Supp. 2d 860, 863 (C.D. Cal. 2004). In leaving out a notice requirement, Congress apparently thought that incentivizing attorneys to send out testers and to file cases was a more efficient way of achieving the ADA's goal of making public places accessible to the handicapped.
Evidence is relevant if it "has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." Fed. R. Evid. 401.
C. Fifteenth Affirmative Defense: Failure to Exhaust Administrative Remedies
Defendants assert as their fifteenth affirmative defense: "Plaintiff's claims are barred, in whole or in part, by his failure to exhaust administrative remedies prior to filing the instant action." (Doc. Nos. 17, 18 at 8.) In arguing this defense should be stricken, Plaintiff notes that Title III of the ADA does not require administrative exhaustion and, more specifically, that while Congress included a state administrative exhaustion requirement in Title I of the ADA, it excluded such a requirement in Title III. (Doc. Nos 23, 24 at 3-4.) In response, Defendants point to cases with opposite holdings on the question of whether Title III requires administrative exhaustion prior to filing suit. (Doc. No. 29 at 4.) Defendants heavily rely on Howard v. Cherry Hills Cutters, in which Judge Kane read the statutory language of 42 U.S.C. § 12188 to require plaintiffs to notify state authorities of challenged practices before filing suit. 935 F. Supp. 1148, 1149 (D. Colo. 1996). Judge Kane reaffirmed this decision in Lillard v. Sunflower Farmers Mkt., Inc., No. 12-cv-1497-JLK, 2012 WL 5936543, at *1 (D. Colo. Nov. 27, 2012). In recognizing that contrasting authority exists, however, Defendants do not give sufficient credence to the line of cases following Howard that explicitly disagree with the statutory construction applied in that case. In fact, Colorado Cross Disability Coal. v. Hermanson Family Ltd. P'ship I, decided the same year as Howard, disagreed with the analysis in Howard and explained that while Title III of the ADA adopts paragraph (a) of 42 U.S.C.A. § 2000a-3 , it does not adopt the remainder of this code section, including the administrative remedy prescribed in paragraph (c). No. CIV.A. 96-WY-2490-AJ, 1997 WL 33471624, at *4 (D. Colo. Mar. 3, 1997) (explaining that Howard "mis-cites the applicable statutory language"). There, the court noted Title III of the ADA "clearly" adopts only portions of §2000a-3(a), and does not adopt the remainder of 42 U.S.C. § 2000a-3. Id. Since then, this district has affirmed and reaffirmed its belief that Title III of the ADA does not require administrative exhaustion prior to filing suit. See Mize v. Kai, Inc., 2017 WL 5195203, at *6 (D. Colo. Nov. 9, 2017) ("The court concludes that the plain language of § 12188(a)(1) is clear and unambiguous—it incorporates only § 2000a-3(a), not the entirety of § 2000a-3."); Brito v. JP Antlers LLC, No. 17-CV-01956-CMA-NYW, 2018 WL 317464, at *3 (D. Colo. Jan. 8, 2018) ("Several other courts in this District have reached this same conclusion, likewise reasoning that, because § 12188(a)(1) does not, by its express terms, incorporate the administrative procedures set forth in § 2000a-3(c), those remedies are not required under Title III."); Brito v. DHCS Assocs., LLC, No. 17-CV-01651-STV, 2017 WL 6405808, at *3 (D. Colo. Dec. 15, 2017) ("This Court agrees with the line of cases concluding that Section 12188(a)(1) does not require administrative exhaustion. The Court finds that the plain language of the statute mandates this conclusion. Section 12188(a)(1) incorporates only Section 2000a-3(a), not the entirety of Section 2000a-3.").
The statutory language of Title III as it pertains to available remedies and procedures prescribes, in relevant part:
The remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter [titled Public Accommodations and Services Operated by Private Entities] . . . .42 U.S.C. § 12188.
42 USC § 2000a-3 provides:
(a) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 2000a-2 of this title, a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by the person aggrieved and, upon timely application, the court may, in its discretion, permit the Attorney General to intervene in such civil action if he certifies that the case is of general public importance. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the civil action without the payment of fees, costs, or security.--------
(b) In any action commenced pursuant to this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, and the United States shall be liable for costs the same as a private person.
(c) In the case of an alleged act or practice prohibited by this subchapter which occurs in a State, or political subdivision of a State, which has a State or local law prohibiting such act or practice and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no civil action may be brought under subsection (a) before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority by registered mail or in person, provided that the court may stay proceedings in such civil action pending the termination of State or local enforcement proceedings. . . .
This court agrees with the weight of authority in this district that Title III of the ADA does not incorporate Section 2000a-3(c)'s administrative procedures. Because a failure to exhaust any kind of administrative remedy would not defeat the plaintiff's claims in this case (see Purzel, 10 F. Supp. 3d at 1170), the court recommends that Defendants' fifteenth affirmative defense be stricken. Based on the foregoing, this court respectfully
RECOMMENDS that Plaintiff's "Motion to Strike Defendant China Gourmet Colorado Spgs' Affirmative Defenses" (Doc. No. 23) and Plaintiff's "Motion to Strike Defendant TCIP LLC's Affirmative Defenses" (Doc. No. 24) be GRANTED and that Defendants' thirteenth, fourteenth and fifteenth affirmative defenses be stricken.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 22nd day of April, 2019.
BY THE COURT:
/s/_________
Kathleen M. Tafoya
United States Magistrate Judge