United States District Court, D. Nevada
ORDER RE: STATE OF NEVADA'S MOTION TO INTERVENE
AS A LIMITED PURPOSE DEFENDANT (ECF NO. 28).
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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. 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.
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.
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.
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
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.
Intervention of Right.
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