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Zimmerman v. GJS Group, Inc.

United States District Court, D. Nevada

October 11, 2017

KEVIN ZIMMERMAN, Plaintiff,
v.
GJS GROUP, INC., Defendant.

          ORDER RE: STATE OF NEVADA'S MOTION TO INTERVENE AS A LIMITED PURPOSE DEFENDANT (ECF NO. 28).

          GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on the State of Nevada's (“State”) Motion to Intervene as a Limited Purpose Defendant (ECF No. 28), filed on August 8, 2017. Plaintiff filed his Response (ECF No. 31) on August 22, 2017 and the State filed its Reply (ECF No. 32) on August 29, 2017. The Court conducted a hearing in this matter on September 5, 2017.

         BACKGROUND

         Plaintiff Kevin Zimmerman filed the complaint in this action on March 23, 2017. Complaint (ECF No. 18). It was served on Defendant GJS Group, Inc. (“GJS”) on April 11, 2017. See Declaration of Service (ECF No. 26). GJS has not answered or otherwise responded to complaint. Plaintiff has not moved for the entry of GJS's default.

         Plaintiff alleges a claim for injunctive relief, attorney's fees and costs pursuant to the Americans with Disabilities Act, 42 U.S.C. § 121010 et. seq., (hereinafter “ADA” or “Act”). He alleges that GJS operates a Place of Public Accommodation (“PPA”) located at 8080 S. Las Vegas Blvd, Las Vegas, Nevada 89123. Although not identified as such, this address corresponds to a 7- Eleven convenience store at that location. Plaintiff alleges that on the date of his visit to Defendant's store, he was a resident of Nevada who travels throughout the state, including communities in and surrounding Las Vegas. Plaintiff is an individual with disabilities and his health and mobility are dependent on the use of a wheelchair. Plaintiff alleges that he is a customer of Defendant and personally visited Defendant's store on December 30, 2016, “but was denied full and equal access and full and equal enjoyment of the facilities, goods and amenities.” Complaint (ECF No. 18), ¶¶ 8-9. Plaintiff alleges that he will avail himself of the goods and services offered at the PPA in the future provided that Defendant modifies the PPA to accommodate individuals with disabilities. Id. at ¶ 10. Plaintiff also alleges that he has acted as a tester for purposes of discovering, encountering, and engaging discrimination against persons with disabilities at Defendant's PPA. He intends to visit the PPA regularly to verify compliance or noncompliance with the ADA. Id. at ¶ 11. He also intends to visit Defendant's PPA several more times per year in the near future, but is deterred from doing so while Defendant's PPA violates the ADA. Id. at ¶ 13. Plaintiff alleges that he encountered the following violations of the ADA at Defendant's store on December 30, 2016: (a) failure to provide the clear width of walking surfaces in aisles and pathways no less than 36 inches (915 mm) as required by 36 CFR Part 1191, Appendix D, Guideline 403.5.1; and (b) failure to provide signs containing the designation “van accessible” that identify van parking spaces as required by 36 CFR Part 1191, Appendix D, Guideline 502.6. Id. at ¶ 29.

         Between January 31 and May 20, 2017, Mr. Zimmerman filed 274 actions in the District of Nevada alleging similar violations of the ADA against various defendants. The complaints contain the same general allegations. Each alleges that Plaintiff visited defendants' PPAs on at least one occasion prior to filing the lawsuit during which he observed violations of the ADA which limited his access. To date, Plaintiff has settled or dismissed 184 of the cases, with a stipulation and order for dismissal currently pending in one additional case. Defaults have been entered in 9 cases, but Plaintiff has not sought a default judgment in those cases.

         Defendants have filed motions to dismiss or for judgment on the pleadings in the following cases which are currently pending before the Court: (1) Zimmerman v. Siavash, Case No. 2:17-cv-560-GMN-GWF, Motion for Judgment on the Pleadings (ECF No. 21), filed June 29, 2017; (2) Zimmerman v. Snowed Inn, LLC, Case No. 2:17-cv-563-GMN-GWF, Motion to Dismiss or in the Alternative Motion for More Definite Statement (ECF No. 18), filed September 21, 2017; (3) Zimmerman v. Snowed Inn, LLC, Case No. 2:17-cv-595-GMN-GWF, Motion to Dismiss or in the Alternative Motion for More Definite Statement (ECF No. 21), filed June 28, 2017; (4) Zimmerman v. Snowed Inn, LLC, Case No. 2:17-cv-1198-GMN-GWF, Motion to Dismiss or in the Alternative Motion for More Definite Statement (ECF No. 11), filed September 21, 2017; (5) Zimmerman v. Trader Joe's Company, Case No. 2:17-cv-1203-GMN-GWF, Motion to Dismiss or in the Alternative Motion for More Definite Statement (ECF No. 7), filed May 18, 2017; (6) Zimmerman v. Rose Group Holdings, Inc. DBA 7-Eleven Food Store 29660 C, Case No. 2:17-cv-1315-GMN-GWF, Motion to Dismiss (ECF No. 10), filed August 10, 2017; (7) Zimmerman v. WBF McDonalds Managementt, LLC d/b/a McDonalds, Case No. 2:17-cv-1358-GMN-GWF, Motion to Dismiss or in the Alternative Motion for More Definite Statement (ECF No. 10), filed July 3, 2017; and (8) Zimmerman v. WBF McDonalds Managementt, LLC d/b/a McDonalds, Case No. 2:17-cv-1359-GMN-GWF, Motion to Dismiss or in the Alternative Motion for More Definite Statement (ECF No. 8), filed July 13, 2017.[1] The same law firm represents the defendants in cases (2), (3), (4), (7) and (8) and has filed substantially the same motion in all five cases.

         The State represents that it has found several instances where Plaintiff alleges that he encountered violations of the ADA at four or five businesses on the same date. Motion (ECF No. 28), pg. 4, n. 4. According to the example provided by the State, the businesses were located in roughly the same vicinity on Eastern Avenue in Henderson, Nevada. Id. The State also represents that Plaintiff filed all 274 lawsuits without providing prior notification of the alleged ADA violations to the defendants, and affording them the opportunity to investigate and rectify the alleged violations without litigation. See Transcript of Motion Hearing (ECF No. 34), pg. 4:16-23. The State argues that Plaintiff and his backers have pursued this strategy in order to extract monetary settlements from the defendants who otherwise will incur significantly greater legal expense to defend the actions. The State cites a newspaper article stating that “dozens of Nevada business owners have pursued settlement at a cost ranging from $3, 900 to $7, 500 per case . . . .” Motion (ECF No. 28), pg. 5.

         Plaintiff's counsel confirmed that the defendants were not given notice of and an opportunity to correct the alleged ADA violations before they were sued. Transcript of Motion Hearing (ECF No. 34), pg. 16:1-22. Plaintiff's counsel stated that none of the cases have settled for more than $3, 900. He estimated that the average settlement is around $2, 000. Id. at pg. 24:7-9. The settlement payments are for the attorney's fees and costs of litigation. Plaintiff's counsel also stated that after complaints are served, the defendants are given “as much time as they need to do inspections, respond to us, take pictures if they respectfully disagree.” Id. at pg. 17:7-9. Some cases have been dismissed when the financial burden on a business was too great, and Plaintiff has reduced the amount of some settlement demands for the same reason. Id. at pg. 17:10-13. Plaintiff's counsel further represented: “What we get in these cases is a settlement agreement where the violations are memorialized, where the party then responds to us, giving us proof of compliance where they have made - they've repaired the violations.” Id. at pg. 17:16-20.

         The Court previously conducted a hearing with Mr. Zimmerman and Plaintiff's counsel on March 3, 2017. Plaintiff's counsel provided the Court with a copy of the written agreement between Mr. Zimmerman and Litigation Management and Financial Services, LLC which funds and controls the litigation filed on Plaintiff's behalf. According to this agreement, Mr. Zimmerman receives $50.00 for each ADA claim that results in a filed complaint initiating a civil action. Mr. Zimmerman informed the Court that he does not receive any additional payments for his participation in these actions. Transcript of March 3, 2017 Motion Hearing (ECF No. 27), pg. 9. It does not appear that Mr. Zimmerman exercises decision-making authority in these cases. Settlement decisions are presumably made by Litigation Management and Financial Services, LLC in conjunction with Plaintiff's counsel.

         The State asserts that it is entitled to intervene in these actions as a matter of right, or, in the alternative, that permissive intervention should be granted. It argues that Plaintiff's “complaints are potentially malicious or, at best, premature and poorly drafted; failing to state a cause of action or adequately establish the plaintiff's standing to bring these suits.” Motion (ECF No. 28), pg. 2. The State claims that it has a strong interest in protecting the public from malicious or premature lawsuits that threaten Nevada business owners and adversely impact Nevada's general economy. Id. The State also argues that the Nevada Equal Rights Commission (“NERC”) was entitled to notice from Plaintiff of the alleged ADA violations before he filed his actions so that the Commission could “have the first opportunity to address noncompliant PPAs within their borders . . . .” Id. at pgs 2-3. If its motion to intervene is granted, the State intends to move for consolidation and dismissal of Plaintiff's remaining ADA actions. Id. at pg. 3.

         DISCUSSION

         A. Intervention of Right.

         Rule 24(a) of the Federal Rules of Civil Procedure provides that on timely motion, the court must permit anyone to intervene who (1) is given an unconditional right to intervene by a federal statute, or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. Motions for intervention as a matter of right are governed by a four-part test: (1) the application for intervention must be timely; (2) the applicant must have a “significantly protectable” interest relating to the property or transaction that is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect that interest; and (4) the applicant's interest must ...


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