ADA case involving unleashed service dog will proceed to trial

Do service animals need to be kept on a leash? It all depends on whether their owners are capable of holding a leash. That was Judge Rice’s conclusion in a summary judgment order issued late last week.

Cheryl Olson came to the AARP Foundation in Spokane for help finding a job. She arrived with her service dog, Boomer, whom she relied on for mobility assistance. The Foundation welcomed Ms. Olson and Boomer with open arms.

For months, everything went fine. Ms. Olson made regular visits to the Foundation’s office with Boomer by her side. She met with her job coach, received training, and submitted job applications. Boomer waited, lying patiently on the floor.

(This is not Boomer. But the visual is spot-on.)

But Boomer lying on the floor proved to be controversial. Some of the Foundation’s staff complained that Boomer posed a tripping hazard in the Foundation’s cramped quarters. The Foundation responded by asking Ms. Olson to keep Boomer on a leash at all times.

In theory, the Foundation was on solid footing in requesting that Boomer be kept on a leash. Title III of the Americans With Disabilities Act requires that service animals be kept “under the control” of their handler. The applicable regulation expressly references the use of a leash:

A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).

28 C.F.R. 36.302(c)(4).

The problem was that Ms. Olson suffered from degenerative disc disease and rheumatoid arthritis that made it difficult for her to hold Boomer on a leash. She explained that problem to the Foundation, but the Foundation held firm. It refused to allow Ms. Olson to visit its offices unless Boomer was leashed at all times.

Ms. Olson brought claims for failure to accommodate under Title III of the ADA, Section 404 of the Rehabilitation Act, and the Washington Law Against Discrimination (WLAD). Both parties moved for summary judgment.

In an order issued last week, Judge Rice unleashed the case for trial. He ruled that Ms. Olson’s claims were viable to the extent she required an accommodation for her “inability to hold the leash of her service dog.” Judge Rice ruled that a factfinder would need to decide whether Ms. Olson had properly requested such an accommodation — and, if so, whether the Foundation could have reasonably accommodated her.

Ms. Olson’s attorney, Paul Stewart, said his client was pleased with the decision. “The Court’s ruling showcased its thoughtful consideration of the issues,” Stewart said. “Ms. Olson had hoped the Court might rule that the leash policy violated the ADA and WLAD as a matter of law, but it stopped short of doing so.  Nonetheless, her liability case remains strong.  We look forward to taking the case to trial.”

The case is Olson v. AARP, Inc., et al., Case No. 17-CV-0426-TOR. Olson is represented by Paul Stewart and Alex Wilson of Paine Hamblen, both of whom are serving as appointed pro bono counsel through the Eastern District of Washington’s Pro Bono Program. To join the panel of attorneys who are invited to accept pro bono appointments, contact Kammi Mencke Smith, President of the EDWA Federal Bar Association, at

$17 million class action settlement approved in Nationstar Mortgage case

Judge Rice has granted final approval of a $17 million settlement in a long-running class action against Nationstar Mortgage. The settlement benefits Washington homeowners who defaulted on their loans with Nationstar and who were locked out of their homes prior to a foreclosure sale.

What was the case about? The case arose from Nationstar’s occasional practice of locking homeowners out of their homes before their properties were formally foreclosed upon. The court ruled that this practice amounted to common law trespass and violated the Washington Consumer Protection Act. The certified class consisted of all Washington homeowners who were subject to this practice from 2008 to 2016.

What are the settlement terms? The settlement calls for Nationstar to pay $17 million into a settlement fund. Roughly $13 million will be distributed to class members in the form of cash payments. The remaining $4 million will be paid to class counsel to cover attorneys’ fees and costs.

Are the settlement terms fair? The million-dollar question! Judge Rice held a fairness hearing and performed a detailed fairness inquiry under Federal Rule of Civil Procedure 23(e). He concluded that the payments to class members were fair and reasonable. He also concluded that the $4 million payment to class counsel was reasonable under the Ninth Circuit’s 25% benchmark approach.

Was there anything unusual about this case? Yes. A significant number of the class members (262) filed for bankruptcy during the class period. Under bankruptcy law, those class members’ claims were assets of their bankruptcy estates. That posed a tricky administrative issue: should those class members’ payments be made to the class members themselves, or to the trustees of their bankruptcy estates?

Judge Rice appointed a special master to tackle this issue. The special master divided the bankruptcy cases into different categories based upon the type of case (Chapter 7, Chapter 11, or Chapter 13), and the amount of unused exemptions that were available to each class member. Notice of the proposed settlement was then provided to the United States Trustees for each of the districts in which the bankruptcies were filed, as well as the bankruptcy trustees responsible for administering the individual cases.

Ultimately, the vast majority of the payments wound up going to the class members themselves. The bankruptcy trustees only claimed the payments in 13 of the cases.

This issue is admittedly a bit dry. But it does matter to the bankruptcy bar. The U.S. Trustee for the Eastern District of Washington, Gary Dyer, will be presenting on the interplay between class action awards and bankruptcy filings at the Eastern District of Washington’s Annual Bankruptcy Seminar and Retreat at Sun Mountain Lodge on June 28-29.

The case is Jordan v. Nationstar Mortgage, LLC, Case No. 14-CV-0175-TOR.

Excessive force case against Spokane County deputies headed to trial

Summary judgment is a no-go when the parties and percipient witnesses present differing versions of events. That’s why this excessive force case is headed to trial.

Shaun Rockstrom went into a WinCo grocery store with a bag of candy that he had purchased at a different store. When he started eating the candy, WinCo employees suspected that he was shoplifting. Security asked him to leave. As Rockstrom was exiting the store, he was approached by a trio of Spokane County sheriff’s deputies.

What happened next depends on who you ask.

According to Rockstrom, the deputies stopped him and asked for his identification. Shortly thereafter, the deputies turned off the dash cameras on their patrol cars, tackled him to the ground, and started punching him.

According to the deputies, Rockstrom was “very fidgety” when they asked for his identification. The deputies interpreted Rockstrom’s behavior as a sign that he was “under emotional distress, on drugs, or [was] attempting to hide something such as a weapon, or [was] planning an escape.” Rockstrom threw his wallet on the ground and “tried to walk away with his fists up in front of him.” The deputies then tackled Rockstrom to the ground. Rockstrom “actively resisted arrest.” One of the deputies punched Rockstrom as a “distraction technique” while another deputy applied handcuffs and leg restraints.

According to an eyewitness, the deputies stopped Rockstrom and asked for identification. Rockstrom produced two cards from his wallet and threw them on the ground in front of the deputies. Rockstrom then asked if he was under arrest. The deputies did not respond. Rockstrom attempted to walk away. The deputies then tackled Rockstrom to the ground and proceeded to punch him in the head and face. The witness did not see Rockstrom raise his fists or take other aggressive action toward the deputies.

Not surprisingly, Judge Peterson ruled that there were genuine issues of material fact for trial. In so ruling, Judge Peterson rejected the deputies’ argument that Rockstrom needed expert testimony from a police practices expert, which Rockstrom did not have, to survive summary judgment.

Judge Peterson also allowed a failure to train claim against Spokane County to proceed to trial. When viewed most favorably to Rockstrom, she concluded, the evidence might theoretically persuade a jury that the County “trains its deputies to use punches in the head against people for attempting to walk away from police.”

The case is Rockstrom v. Spokane County, et al., Case No. 18-CV-0197-RMP. Rockstrom is represented by Richard Wall of Richard D. Wall, P.S. The Spokane County defendants are represented by Heather Yakely of Kutak Rock.

EDWA Court issues nationwide injunction blocking “gag rule” for abortion providers

Judge Bastian has issued a nationwide preliminary injunction in a high-profile case challenging the Trump Administration’s “gag rule” for abortion providers that receive federal funding.

We’ll leave this breaking news to the professionals. The New York Times, the Washington Post, and NPR all have coverage. Tom Clouse also wrote an excellent piece in the Spokesman-Review.

The case is State of Washington v. Alex Azar, Case No. 19-CV-3040-SAB.

Save the Date: Federal Civil Trial Practice Seminar on May 17

The 13th Annual Federal Civil Trial Practice Seminar is scheduled for May 17, 2019, at the federal courthouse in Richland. As always, the agenda is packed with engaging topics. Judge Shea, Judge Mendoza and their staff attorneys will kick off the day with the ever-popular Cases and Rules Update. Other presentations include:

  • Trios Bankruptcy: History in Our Backyard
  • Navigating Peremptory Challenges in Federal and State Courts
  • Ethical Concerns: Social Media and Marketing
  • Ask the Judges Panel (featuring Circuit Judge Eric Miller, Senior Circuit Judge Richard Tallman, Senior District Judge Frem Nielsen, and moderator Erika Hartliep)
  • Mediation: From Start to Finish

Registration is open through May 10. Click here for the agenda and registration form.

Ninth Circuit takes Erie doctrine to new heights in claim preclusion ruling

Do you love nuanced civil procedure rulings? We have just the case for you. It’s actually a Ninth Circuit case, but it originated here in the Eastern District of Washington. That’s why we’re featuring it.

Party A and Party B went to arbitration. The arbitrator issued an award in favor of Party A. Party A filed suit in federal court in Florida to have the award confirmed. The federal court, sitting in diversity, confirmed the award.

Party B then sued Party A in federal court in Washington. Party B’s complaint suggested that Party B was attempting to re-litigate the same claims that were decided in the arbitration. Party A moved to dismiss the case on claim preclusion grounds.

Sounds like a straightforward claim preclusion scenario, right? Well, not exactly. There’s a choice of law question lurking in the shadows. What claim preclusion law applies? Florida law? Washington law? Federal common law? They are all slightly different.

In a decision issued today, the Ninth Circuit held that Florida law applies. Why, you ask? Short answer: it’s an Erie doctrine thing. Stop reading and go turn your attention to more important questions.

If you’re dying for the long answer, here it is. Under the Erie doctrine, the preclusive effect of a judgment entered by a federal court sitting in diversity jurisdiction is governed by the law of the state in which the federal court is located. The same rule applies to a federal court judgment confirming an arbitration award.

The Ninth Circuit affirmed Judge Rice’s dismissal of Party B’s case on claim preclusion grounds. The case is NTCH-WA, Inc. v. ZTE Corp., Ninth Circuit Case No. 17-35833. The Ninth Circuit’s opinion can be found here. Law360 has more about the case here.

No cause of action under Section 1983 to enforce Federal Nursing Home Reform Amendments

42 U.S.C. § 1983 covers a lot of bases when it comes to bringing claims in federal court. But it does have its limits. A recent ruling by Judge Peterson reminds us that claims brought under Section 1983 must be based on a violation of a federal right. Not all federal statutes confer such a right.

John Shanklin suffered a debilitating stroke in 2014. Unable to provide the full-time care that he required, Mr. Shanklin’s wife arranged for him to be cared for at Coulee Medical Center (CMC). Despite being identified as a fall risk by CMC, Mr. Shanklin fell several times while in CMC’s care. He passed away shortly after his last fall.

Mr. Shanklin’s estate filed suit under Section 1983, alleging that CMC’s care violated the Federal Nursing Home Reform Amendments (FNHRA), 42 U.S.C. § 1396r. CMC moved to dismiss the complaint for failure to state a claim. CMC’s argument was that the alleged FNHRA violations, even if proven to have occurred, are not actionable under Section 1983.

To state a claim under Section 1983, a plaintiff “must assert [a] violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (emphasis in original). Applying that principle, Judge Peterson concluded that the complaint failed to state a claim. Her reasoning was twofold.

First, Judge Peterson ruled that Congress did not intend to create a federal right when it enacted FNHRA. Analyzing the text of the specific provisions that CMC was alleged to have violated, she found no evidence that the statute was designed to confer protected rights on individual patients:

The [FNHRA] provisions that [the estate] is attempting to enforce . . . are all phrased in terms of what the nursing facilities must do, rather than the protections that the patients must receive. Because the nursing facilities are the subjects of the provisions in question, the provisions are not “phrased in terms of the persons benefited” and do not afford individual rights to nursing facility patients.

Second, Judge Peterson concluded that the provisions in question were “too vague or amorphous” to be enforced through Section 1983. If the case were to proceed to trial, she observed, the jury would be asked highly subjective questions such as whether CMC’s services “enhanced the quality of life” for its patients. Had Congress intended for FNHRA violations to be actionable under Section 1983, Judge Peterson reasoned, it surely would have provided a more definite standard for establishing liability.

This is a question of first impression in the Ninth Circuit. Other circuits have taken the opposite view, holding that FNHRA violations are actionable under Section 1983. See Concourse Rehab. & Nursing Ctr. Inc. v. Whalen, 249 F.3d 136, 144 (2d Cir. 2001); Grammer v. John J. Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520, 527 (3d Cir. 2009). Those cases, however, involved different subsections of the statute than the subsections that were implicated in this case. It will be interesting to see how the Ninth Circuit decides the question if the case is appealed.

The case is Shanklin v. Coulee Medical Center, Case No. 17-CV-0377-RMP. Shanklin was represented by Jerry Moberg of Jerry Moberg & Associates. Coulee Medical Center was represented by Jim King of Evans, Craven & Lackie.