9th Revives ADA Suit Against Retailers

     PASADENA, Calif. (CN) – Two retailers and their landlord may yet face ADA claims that a federal judge improperly dismissed after the plaintiff settled with a third retailer, the 9th Circuit ruled Tuesday.
     Sandi Rush – who is wheelchair-bound – brought a lawsuit under the Americans with Disabilities Act after she encountered barriers in the restrooms and fitting rooms of stores in a shopping mall on Towne Center Drive in Foothill Ranch, Calif. The federal complaint named Sports Chalet, Petsmart and Babies “R” Us as defendants, as well as their landlord, Foothill Ranch LLC.
     Rush settled her claims with Babies “R” Us in October 2012. Six days later and on his own motion, U.S. District Judge Otis Wright II dismissed the complaint after determining that the other defendants had been improperly joined in Rush’s action because she did not claim her injuries stemmed from “the same transaction, occurrence or series of transactions and occurrences.”
     As to Foothill Ranch, a three-judge panel for the 9th Circuit found Tuesday that it and Babies “R” Us were properly joined because landlords are also liable for any encountered barriers and obstructions under the ADA. So when Rush settled with that retailer she carried forward viable claims against Foothill Ranch, the panel found.
     For Sports Chalet and Petsmart, the panel held that Wright may have been correct in finding that they were misjoined since they are legally distinct from each other. Rather than dismissing the suit against them outright, the judge should have severed Rush’s complaint against them instead, according to the ruling.
     “Many of our fellow circuits have held that district courts who dismiss rather than sever must conduct a prejudice analysis,” Judge J. Frederick Motz wrote for the panel. “We adopt that rule as well. Here, because the district court below conducted no such analysis, we vacate and remand. The judge should reevaluate whether allowing two severed complaints to remain against Sport Chalet and Petsmart, each with Foothill Ranch as a named co-defendant, is necessary to avoid prejudice to Rush.”

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