PHOENIX – On Dec. 10, David Ritzenthaler and his Advocates for Individuals with Disabilities Foundation (AIDF) issued a press release stating it was suing Arizona Attorney General Mark Brnovich for failing to enforce the Arizonans with Disabilities Act with regard to over 9,000 Americans with Disabilities Act complaints filed with his office.
According to the complaint, Ritzenthaler is “an individual with a disability suffering from a mobility impairment.”
AIDF is a corporate entity, which, according to the Arizona Corporation Commission, is not in good standing due to an undeliverable statutory agent address.
However, it appears throughout 2016 attorneys Peter Strojnik and Fabian Zazueta have filed over 1,000 lawsuits against local businesses on behalf of Ritzenthaler and Advocates for Individuals with Disabilities LLC (AID) alleging violations of the ADA.
Zazueta was only admitted to the Arizona State Bar a scant year ago and was sanctioned by a federal judge in October for his conduct in an AID lawsuit.
An order issued by U.S. District Judge David G. Campbell on Sept. 29, 2016 in one such complaint filed against WSA Properties LLC, Campbell noted since March 2016, 162 of their cases have been filed in or removed to U.S. District Court from Maricopa County Superior Court.
In August, Campbell issued an order requiring plaintiffs to show cause why the case should not be dismissed for lack of standing.
After receiving an extension of time, plaintiffs responded.
Although Campbell explained why plaintiffs lacked standing to pursue their claims in federal court, because the analysis for determining standing for state court differs from federal analysis, rather than dismiss the complaint, Campbell remanded it to state court.
Campbell’s order and explanation has been cited by federal judges in other cases filed by plaintiffs.
Referring to the 162 cases transferred or filed in federal court, Campbell stated, “These cases appear to assert identical allegations – that the defendant business (the nature of which is not identified in the complaint) has violated the ADA by having inadequate signage or parking places for disabled persons.
In reviewing plaintiffs’ response to his order to show cause, Campbell noted, “Plaintiff [AID] makes no allegations in the complaint regarding its status, nature, or interest in this case. Plaintiff David Ritzenthaler alleges that he is legally disabled, that he has a state-issued handicapped license plate, and that, on or about March 15, 2016, he ‘became aware’ that there were insufficient handicapped parking spaces and signage at defendant’s place of business. Plaintiff does not allege that he personally visitied defendant’s business, but alleges that he will avoid visiting the business in the future unless it comes into compliance with the ADA.”
Campbell stated plaintiffs lacked standing because the general allegations failed to show that they have “concrete and particularized” injuries that affect them “in a personal and individual way.”
While Campbell ordered plaintiffs to file a memorandum showing standing by Aug. 29, they filed a notice of settlement instead on Aug. 26 and asked the court to vacate the order.
Campbell declined, noting the case had not been dismissed and plaintiffs have many other cases before his court that present the same standing concerns, and directed plaintiffs to respond as ordered on Aug. 29.
Plaintiffs filed a motion for an extension of time instead, which the court granted.
They filed their response on Sept. 12 addressing AID’s associational standing, nothing about Ritzenthaler’s standing and stated they intended to file an amended complaint or supplemental pleading.
However, no supplemental pleading or motion to amend was ever filed.
Despite AID’s assertion it has unidentified members who are disabled or have disabled children Campbell determined AID provided no actual examples of such persons being deterred from using defendant’s public accommodation because it lacks a sign that is 60 inches above the ground, offering only conclusory assersions.
Although private enforcement lawsuits are the primary method of gaining compliance with the ADA, Campbell stated it does not relieve a plaintiff of his burden to show an injury-in-fact.
Campbell concluded Ritzenthaler does not have standing to bring the complaint.
The photograph of defendant’s property suggested the building houses an endocrinology medical practice.
However, Campbell pointed out the complaint does not allege Ritzenthaler uses or needs an endocrinologist.
He said the case squarely presents the question of whether Ritzenthaler personally visited the property to have standing to assert ADA violations. And, while Campbell raised the question in his order to show cause, he said, “Plaintiffs chose not to address it.”
Although plaintiffs declined to address the issue in this case, Campbell said they have argued in other cases, and appear to assert in the complaint, that mere knowledge of a barrier is enough to satisfy the injury-in-fact requirement, even if plaintiff has never personally encountered the barrier.
Campbell disagreed and wrote, “Under this theory, a disabled person in Arizona could learn of an architectural barrier at a facility in Tennessee which the person has never visited and never plans to visit, and yet would suffer an injury-in-fact by the mere knowledge. Such an injury, if it could be called an injury at all, would not be concrete, particularized, actual or imminent. And even if the person firmly resolved that he would never visit the Tennessee facility because of the barrier, any future injury from the barrier would be purely hypothetical.”
Campbell called out other defects in plaintiffs’ complaint, such as simply listing ADA violations at the defendant’s property, cannot satisfy the requirement of an injury-in-fact and must identify how any of the alleged violations threatens to deprive him of full and equal access die to his disability if he were to return.
He said the complaint doesn’t even identify the specific barriers that allegedly exist at defendant’s premises, alleging instead only a lst of possibilities.
Campbell pointed out the importance of standing in such cases and said the plaintiffs’ filings of over 160 cases in federal court and more than 1,000 in state court “all appear to be based on the plaintiff’s awareness of a barrier – an awareness apparently acquired when persons associated with plaintiffs’ counsel find non-compliant locations. The court cannot conclude that this kind of mass-filing based on an agent’s search for non-compliant properties constitutes the individual, particularized injury necessary for Article III standing.”
Campbell again noted the vast number of cases pending in federal and state court and said, “Mr. Strojnik has brought similar complaints in other districts, and they too have lacked standing. Indeed, Mr. Strojnik brought more than 90 cases in the Central District of California.
“The complaints in this court appear to be boilerplate.”
Campbell stated the complaints make little effort to establish any real injury and plaintiffs’ counsel apparently follow their boilerplate complaints with a demand that defendants each pay $7,500 to settle.
He wrote, “These practices suggest an abuse of the judicial system.”
Campbell went on to say, despite having four full weeks to prepare a response plaintiffs did not even discuss Ritzenthaler’s standing and alleged no injury to AID.
He wrote, “These are matters plaintiffs’ counsel should have considered carefully before filing these cases, and certainly before making settlement demands … But this is not the only indication that plaintiffs’ counsel are taking their judicial responsibilities lightly,” and noted three other cases pending in his court where they have failed to file timely reports despite a court order.
Statute provides: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction [over a case removed from state court], the case shall be remanded.
Campbell stated, “This applies to cases that lack standing.”
Meanwhile Brnovich’s office filed a motion to dismiss and motion for judgment on the pleadings, while requesting, as an intervenor, that the cases be consolidated.
The AG’s office also concluded plaintiffs fail to meet Arizona’s rigorous standing requirement, stating, “The Consolidated Cases vividly demonstrate why the standing requirement exists. Without a standing requirement, any party could sue anyone, anywhere, over any alleged violation of the law. Instead of being a forum of last resort for true adversaries with ripe disputes, the courts would become a tool used to pry settlements out of defendants who have injured no one.”
Strojnik, admitted to the bar in 1980, was censured in 1990, reprimanded in May 2011, and had his law license suspended for 30 days in 2011 for violating the rules of professional conduct.
Earlier this year, ABC15 investigated the actions of AID and Strojnik in a piece called “Cash for Compliance?” calling out a variety of missteps made by Strojnik, including suing the same business twice because he was unaware he had already filed a lawsuit against that business and suing his own clients.
According to ABC15, there are two open investigations into Strojnik’s activities with the Arizona State Bar.
Strojnik apparently has a son, Peter Kristofer Strojnik, a lawyer licensed in California and Arizona, who, according to his LinkedIn profile, is involved with a “National ADA Litigation Program.”
The summary states: “I run a law business that is focused on aggressively representing my clients to ensure they obtain equity and justice. In that pursuit, I am able to accomplish my life’s goal of ensuring that my wife and beautiful children are well taken care of.”
Admitted to the Arizona State Bar under probationary terms in 2008, the younger Strojnik, just had his law license suspended for 30 days, effective Dec. 16, 2016, for threatening the opposing party with public shaming as a means to compel a settlement.
In addition to suspension, he was ordered to serve a two-year probation period upon reinstatement, pay $1,210.25 to the State Bar of Arizona for costs and expenses incurred during proceedings, undergo intensive outpatient chemical dependency treatment, and must comply with Member Assistant Program terms as set forth in probation terms prepared by the State Bar compliance monitor.
