PHILADELPHIA – A federal judge has rejected the attempt of five individuals to intervene in a proposed settlement between a group of plaintiffs and the City of Philadelphia, over claims the City failed to maintain its sidewalks to provide proper access to disabled citizens in violation of the Americans with Disabilities Act of 1990.
Liberty Resources Inc., Disabled in Action of Pennsylvania Inc., Philadelphia Adapt, Tony Brooks, Liam Dougherty, Fran Fulton and Louis Olivo first filed a complaint on Aug. 26, 2019 in the U.S. District Court for the Eastern District of Pennsylvania against the City.
According to the complaint, the plaintiffs alleged the City “shirked its duty” to people with disabilities residing in the city because it has failed to maintain its sidewalks.
The plaintiffs alleged the City’s sidewalks are “dilapidated, disintegrating and teeming with obstructions, making every day travel difficult and dangerous for the thousands of people with disabilities that call Philadelphia home.”
The plaintiffs claimed they sent a demand letter to the defendant on July 22, 2019 to resolve the issue, but that the City did not respond.
In response, the City motioned to dismiss the lawsuit for failure to state a claim on April 24, 2020.
“The plain text of the Title II regulations and the applicable case law make clear that physical pedestrian structures, like sidewalks, curb ramps, and crosswalks, are facilities, as opposed to services, programs, and activities under the ADA,” according to counsel for the city.
The City further alleged the plaintiffs failed to properly claim denial of access to any service, program or activity.
“Plaintiffs’ complaint alleges generally that plaintiffs were denied access to ‘Philadelphia’s pedestrian rights of way.’ This ‘pedestrian rights of way’ is described in the complaint as ‘curb ramps, crosswalks, pedestrian crossings, and other walkways.’ Without any legal support, the complaint then states that ‘pedestrian rights of way themselves constitute a vital program, service or activity under Title II of the ADA,” per the city.
“Plaintiffs have not attempted to limit their claims to facilities that were newly constructed or altered after Jan. 26, 1992, but rather have grouped all components of the right of way, no matter how old, into an alleged ‘program.’ As detailed above, these physical structures are facilities, and do not constitute a ‘program’ in and of themselves. Without denial of access to a service, program or activity, plaintiffs’ ‘program access’ claim must be dismissed.”
On Jan. 19, 2022 and just weeks from the scheduled trial date, the parties filed a joint motion to stay the trial and all pending case deadlines, in advance of settlement. After nine additional months of negotiations, a motion for approval of a proposed settlement was filed on Oct. 14.
“The relief provided for the settlement class is robust, taking into account the costs, risks and delay of trial and appeal and the terms of the proposed award of attorneys’ fees. The relief in the agreement is substantial and will be quickly implemented. Principally, the City has agreed to remediate or install 10,000 curb ramps over the course of the 15-year settlement period, with tri-annual 2,000-ramp milestones. This will ensure that settlement class members begin experiencing the benefits of this commitment very soon,” the motion stated.
“The agreement also includes commitments by the City to install accessible curb ramps, to remediate existing but non-compliant curb ramps and to maintain curb ramps as required under the ADA, which will ensure that curb ramp improvements continue to provide access to the pedestrian rights of way for years to come. The City will also implement a new request system to allow Philadelphia residents to submit requests for installation, remediation or maintenance of specific curb ramps each year. Further, the City will publicly report information regarding the location, initiation, and completion of curb ramp work undertaken each year, making settlement implementation transparent and available for public oversight.”
$1.1 million will also be a part of the settlement, to cover the plaintiffs’ attorneys’ fees and costs.
However, on Jan. 9, five individuals, Mark Fultz, Thomas Hamill, Gregory Lasky, Dean Ragone and Louis Veney, filed a formal objection to the proposed settlement. According to the group, the potential settlement did not properly conform to federal law, nor did it provide proper notice to all of those affected.
“The class action settlement negates the right of any disabled person in Philadelphia from filing suit under the ADA or Pennsylvania law to better their own personal circumstances by having accessible streets. The objectors also deeply believes that enabling counsel to conduct these class action schemes across the country will have a negative impact on the ADA and disabled rights moving forward. A $1.1 million fee to allow Philadelphia to violate the law an additional 12 years is unconscionable,” per the objections.
“Plaintiffs failed to give notice to the Department of Justice, as required by the Class Action Fairness Act of 2005 and Federal Rule of Civil Procedure 23(e)(2). Plaintiffs failed to give notice to Pennsylvania, nor the 49 other states, as required by the Class Action Fairness Act of 2005. At no time have plaintiff counsel explained why Philadelphia is receiving 15 years, longer than the Department of Justice regulation of three years. Despite purporting to be a nationwide class action, class counsel failed to give proper notice to disabled individuals throughout the nation. For example, no notice was given to disabled individuals who may not reside in but regularly visit the Philadelphia area. Plaintiffs’ class action fails the commodity test. Plaintiffs fail to alert the Court of the case law.”
Both the plaintiffs and the City each separately replied to the objections on Jan. 23, seeking they be thrown out and filed for final approval of the proposed settlement.
“Having read the papers submitted and carefully considered the arguments and relevant legal authority, and good cause appearing, the Court denies the Objectors’ motion to intervene and dismiss. Federal Rule of Civil Procedure 24(c) sets forth procedural requirements, which proposed intervenors must meet in order to intervene as or right or by permission. These procedural steps are mandatory, and failure to comply with them is an independent basis for denial of a motion to intervene. This Court finds that the objectors have not met these procedural requirements because they have neither identified the type of intervention sought, nor provided a pleading setting forth the claim or defense for which intervention is sought. Because this Court denies the objectors’ motion to intervene, their motion to dismiss is also denied as moot,” the plaintiffs’ proposed order stated.
The City concurred in its own separate response to the objectors.
“The City provided the notice prescribed by CAFA to the U.S. Department of Justice and the Pennsylvania Attorney General on Oct. 18, 2022. Furthermore, in an effort to prevent any potential issues in reaching final approval of this settlement, the City took the further steps of sending notices to the appropriate officials for all U.S. States and Territories on Jan. 19, 2023 and in jointly moving for the Court to grant final approval no sooner than 90 days after Jan. 19, 2023 to permit receipt of any objections or requests from such authorities. Accordingly, CAFA will undisputedly be satisfied, and provides no basis for an objection to the settlement agreement. Moreover, even if the City had not taken such steps, failure to comply with the CAFA notice requirements is not a basis for wholesale dismissal of a claim or intervention in a class action,” the City added.
UPDATE
In a March 21 memorandum ruling, U.S. District Court for the Eastern District of Pennsylvania Judge Harvey Bartle III denied the quintet’s attempt to intervene in or dismiss the case. A final decision on the terms of the settlement has yet to be made.
“Critically, a motion for either form of intervention must ‘state the grounds for intervention.’ (Federal Rule of Civil Procedure 24(c)). It is apparent that the motion is procedurally deficient because it does not state whether the movants seek to intervene of right or on a permissive basis. This shortcoming alone requires denial as Rule 24(c) explicitly states that a motion to intervene must include this information,” Bartle said.
“The motion is also tardy regardless of the type of intervention movants seek. Movants are absent class members, so the ‘gravamen’ of the court’s analysis ‘must be on the timeliness of the motion to intervene.’ Since this suit was filed in August 2019, the parties have exchanged substantial discovery, engaged expert witnesses, and conducted significant motion practice. They spent months engaging in trial preparation and, subsequently, negotiating a settlement agreement. Intervention is far too late where, as here, significant ‘proceedings of substance on the merits have occurred.’ Moreover, movants do not justify their tardiness in seeking to intervene.”
Bartle added, “If the parties had taken this action to trial as they were prepared to do, there would not have been any settlement notice, and movants surely would not have been permitted to intervene. In addition, this argument ignores the significant press coverage that this action has garnered. Either way, it is apparent that permitting movants to intervene at this late hour would prejudice the parties by disrupting their significant effort to bring this case to a resolution.”
The plaintiffs are represented by David Ferleger of David Ferleger Law Office in Jenkintown, plus Erin Gallagher, Rebecca C. Serbin, Meredith J. Weaver and Stuart Seaborn of Disability Rights Advocates in New York City and Berkeley, Calif.
The defendant is represented by Diana P. Cortes, Benjamin H. Field and Sean J. McGrath of the City of Philadelphia’s Law Department, plus Kymberly K. Evanson and Paul J. Lawrence of Pacifica Law Group in Seattle.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-03846
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com