By Chris Palamountain

Last year, we wrote about North Carolina federal courts’ dismissals of ADA Title III claims filed by serial litigant Denise Payne, an individual with cerebral palsy and the co-founder of the National Alliance for Accessibility, Inc.  Those dismissals were based on findings that Payne lacked standing to sue.  You can read our prior blog on Ms. Payne’s North Carolina cases here.

Undeterred by repeated decisions against her, Ms. Payne continued to litigate suits against North Carolina businesses based upon her limited visits, bare statements of “some day” intentions to return to those facilities in the future, and a claimed intent to “establish[] a local chapter” of National Alliance for Accessibility, Inc.”  See, e.g., Denise Payne v. AAC Investments, Inc., Case No. 5:12-CV-264-F (E.D.N.C.) (order dated March 4, 2013).  This Court, like so many others before, found that these allegations were insufficient to satisfy Payne’s burden to establish standing.

However, the Court in AAC Investments added a new twist to Payne’s litigation strategy in North Carolina by allowing the defendant to file a motion for attorneys’ fees and costs against Payne.  Noting that Payne and the National Alliance “were aware when they filed this action of the long line of cases holding that these exact same plaintiffs lack standing to bring an ADA lawsuit against a premises located in North Carolina,” the Court found that the action was “frivolous, unreasonable, and without foundation.”  Id. at 5-6.  Having determined that the defendant was entitled to some award of fees, the Court directed the defendant to file supporting proof “sufficient for this court to determine a reasonable award.”  Id. at 6.

Although it remains to be seen how large of a fee award the Court will deem reasonable in this particular case, the decision certainly sends a message to ADA Title III plaintiffs with questionable standing that there may be better venues for their future lawsuits.