November 21, 2011 

VIA E-FILING AND LAWYERS SERVICE TO BOTH

Honorable Jerome B. Simandle, U.S.D.J. 

Mitchell H. Cohen U.S. Courthouse 

1 John F. Gerry Plaza, Room 2040 

Camden, NJ 08102-2040 

Honorable Karen M. Williams, U.S.M.J. 

Mitchell H. Cohen U.S. Courthouse 

1 John F. Gerry Plaza, Room 2040 

Camden, NJ 08102-2040 

RE: LOOSE, KARL VS. NORTH WILDWOOD CITY, ET AL. 

Our File No. : 71689A ELH 

Docket No. : 1:10-CV-06587-JBS-KMW 

Dear Judges Simandle and Williams: 

 We represent the defendant, the City of North Wildwood. We 

respectfully submit this letter in lieu of a more formal brief in response to 

plaintiffs’ motion to dismiss without prejudice the claims of plaintiff Karl 

Loose (Docket No. 22) and plaintiffs’ motion for leave to file an Amended 

Complaint (Docket No. 23). As both motions seek leave to amend the 

Complaint and our responses share a common factual basis, we request 

that the Court accept this correspondence and the enclosed Affidavit 

with Exhibits in response to both. 

 While we certainly do not oppose plaintiffs’ abandonment with 

prejudice of their claims under the Law Against Discrimination based on 

their attorney’s implicit acknowledgment that they failed to engage in the 

interactive process required by the LAD (Docket No 23-2, pp. 1, 3), we do 

JOEL N. WERBEL> 

JOHN METHFESSEL, JR.> 

EDWARD L. THORNTON*> 

FREDRIC PAUL GALLIN*+^ 

STEPHEN R. KATZMAN# 

WILLIAM S.BLOOM>* 

ERIC L. HARRISON*+ 

MATTHEW A. WERBEL> 

Of Counsel 

JOHN METHFESSEL, SR.> 

DONALD L. CROWLEY*+ 

Counsel 

LORI BROWN STERNBACK*+ 

MARC DEMBLING*+ 

PAUL J. ENDLER JR.> 

GERALD KAPLAN+ 

JARED P. KINGSLEY*+ 

STEVEN A. KLUXEN^ 

JOHN R. KNODEL*+ 

CHARLES T. MCCOOK, JR. *> 

MARTIN R. MCGOWAN, JR.> 

Associates 

JACQUELINE C. CUOZZO+ 

EDWARD D DEMBLING> 

LEONARD V. DON DIEGO+ 

MICHAEL R. EATROFF> 

TIMOTHY J. FONSECA+ 

JENNIFER M. HERRMANN^= 

MAURICE JEFFERSON> 

JASON JUDOVIN+ 

MARISSA KEDDIS+ 

FRANK J. KEENAN+^ 

LESLIE A. KOCH+ 

ALLISON M. KOENKE> 

VIVIAN LEKKAS+ 

DANIELLE M. LOZITO+ 

RICHARD A. NELKE~ 

RAINA M. PITTS^ 

MICHAEL POREDA+ 

CAROLINE PYRZ^ 

MATTHEW L. RACHMIEL> 

WILLIAM J. RADA+ 

AMANDA J. SAWYER^ 

GINA M. STANZIALE> 

ADAM S. WEISS< 

* Certified by the Supreme Court of 

 New Jersey as a Civil Trial Attorney 

+ Member of NY & NJ Bar 

^ Member of PA & NJ Bar 

> Member of NJ Bar only 

# Member of NJ & LA. Bar 

<Member of NJ & DC Bar 

~Member of NY, NJ & DC Bar 

=Member of FL Bar 

Please reply to New Jersey

 

METHFESSEL & WERBEL 

 A Professional Corporation 

3 Ethel Road  Suite 300  P.O. Box 3012  Edison, NJ 08818  (732) 248-4200  FAX (732) 248-2355 

450 Seventh Avenue  Suite 1400  New York, New York 10123  (212) 947-1999  FAX (212) 947-3332 

www.njinslaw.com

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object to the dismissal of Mr. Loose’s claims without prejudice, as well as 

an amendment of the Complaint to add “new dates of violations of the 

ADA by Defendant on newly constructed curb cuts on Surf Avenue,” as 

this is a transparent effort to circumvent the threshold requirement of 

constitutional standing which, we intend to demonstrate by way of a 

dispositive motion following the close of discovery, none of the plaintiffs 

had at the time this litigation was filed. 

 Finally, we object to amendment of the Complaint to add a demand 

for one dollar in damages, as damages are not available under Title II of 

the Americans with Disabilities Act in the absence of intentional 

discrimination, which the Complaint does not allege. Further, there 

exists no authority to support an award of nominal or symbolic damages 

in a case under the ADA in the absence of intentional discrimination. 

FACTUAL BACKGROUND

 Prior to the filing of this lawsuit against City of North Wildwood, 

plaintiff’s counsel filed suit against North Wildwood on behalf of his 

client Edward Law, a resident of Florida, in the matter of Law and Stoney 

v. North Wildwood City and Aberdeen Township, Civil Action No. 09-4178 

(JHR). In the Complaint, Mr. Law alleged that North Wildwood violated 

his rights by failing to provide proper parking, curb cuts and beach 

access. (Law Complaint attached as Exhibit A) 

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 In December 2010 Mr. Law’s claims against the City of North 

Wildwood were settled on terms memorialized in a Release that Mr. Law 

signed on January 18, 2011. The Release provided for payment to 

plaintiff’s counsel the sum of $7,500.00 in exchange for a release of all 

claims and a commitment by the plaintiff to engage in an interactive 

dialogue to seek an accommodation for any desired access to a program 

or service of the City of North Wildwood. (Release attached as Exhibit B) 

 Contemporaneous with the settlement of Mr. Law’s claim, Mr. 

Brady filed this lawsuit on behalf of four clients: Mr. Loose, Mr. Hamill 

Mr. Lasky and “Advocates for Disabled Americans.” Citing the soon-tobe-settled Law claims as notice of noncompliance with the ADA, the 

Complaint filed in this case contains allegations similar to those asserted 

on behalf of Mr. Law. (Original Complaint, Exhibit C) 

 Mr. Loose has filed more than 100 ADA lawsuits in State and 

Federal Courts in New Jersey and Florida. In his answers to 

interrogatories inquiring into his efforts to communicate his access needs 

to the defendant, he alleges that defendant’s attorney refused an offer by 

his attorney to “show Defendant’s counsel its ADA violations.” 

(Interrogatories propounded on Loose and answers, Exhibit D) 

 Plaintiffs Lasky and Hamill responded similarly in their 

interrogatory answers. (Lasky and Hamill interrogatory answers, Exhibit 

E) 

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 Upon receipt of plaintiffs’ initial discovery responses in July 2011, 

by letter of July 21, 2011 we identified deficiencies and requested 

supplemental responses. Among other things, the defendant demanded 

information and documentation regarding plaintiff “Advocates for 

Disabled Americans” (AFDA), which the Complaint cited as an advocacy 

organization with representational standing and which plaintiffs’ 

counsel, shortly after the Complaint was filed, identified as an 

organization which would be conducting its annual meeting in North 

Wildwood in July 2011. Mr. Brady’s letter invited the defendant and 

their attorney “to attend and discuss your thoughts in regard to the 

lawsuit.” (July 21, 2011 correspondence, Exhibit F; Brady January 31, 

2011 correspondence, Exhibit G) 

 On August 4, 2011 Mr. Brady supplemented plaintiffs’ disclosures 

with photographs taken at the “AFDA’s meeting at the Flip Flopz 

Restaurant on Saturday, July 16, 2011.” (Exhibit H) 

 In response to defendant’s repeated efforts to explore the legitimacy 

of the AFDA and following a conference with Judge Williams on October 

17, 2011, the organization opted to abandon its claims. The parties 

submitted a stipulation of dismissal with prejudice, which Judge 

Simandle entered on October 24, 2011. (Exhibit I) 

 In Mr. Loose’s answers to interrogatories he claimed that he visited 

the City of North Wildwood on December 11, 2010 and that he planned 

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to return again in September and October 2011. He provided no further 

detail regarding his alleged plans to return. (Exhibit D, answers to 4 

and 5) Similarly, in their interrogatory answers both Lasky and Hamill 

indicated an intent to attend the AFDA meeting in July 2011 and to visit 

in the future as “testers”. (Exhibit E, answers 4 and 5) 

 Plaintiffs now seek to amend their Complaint to add allegations of 

subsequent visits to North Wildwood. In particular, the proposed 

Amended Complaint alleges that newly constructed ramps and curb cuts 

impaired their access to municipal services. (Docket No. 23-7, pp. 3-5) 

 In Mr. Loose’s Certification in support of the motion to dismiss his 

claims without prejudice, he alleges that in July 2011 he “became 

severely ill due to a lung condition” and that he is “getting better 

but...still not in the best of health.” Mr. Loose contends that he is 

“unable, due to my health, to be in lengthy depositions and litigation.” 

(Loose Certification, paras. 3-5). Mr. Loose does not provide an affidavit 

from a medical care provider or a description of the limitations on his 

ability to attend a deposition. 

 Plaintiffs’ counsel, Mr. Brady, has a history of serial litigation 

against various municipalities sued by his clients. In addition to this 

litigation being filed contemporaneous with the settlement of the Law v. 

North Wildwood matter, in Stoney and Vandeusen v. Maple Shade, BURL-2884-07, following the dismissal without prejudice of plaintiff Stoney’s 

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claims and entry of judgment following a jury trial with plaintiff 

Vandeusen, Mr. Brady wrote defense counsel seeking to re-assert Ms. 

Stoney’s claims and to assert a new claim on behalf of Mr. Lasky, 

demanding additional equitable relief and payment of damages of 

$2,500.00 per each client. (Orders, Brady letter of November 18, 2010, 

Exhibit J) 

 Similarly, following the dismissal of Mr. Lasky’s lawsuit against the 

Borough of Hightstown for failure to engage in the interactive process 

required by the New Jersey Law Against Discrimination, Mr. Brady began 

sending letters to myself and the municipal solicitor announcing 

intended visits by Mr. Lasky and another client, Mr. Pavlak – both 

residents of Florida – in an obvious effort to lay the groundwork for 

additional litigation. (Order of Summary Judgment; correspondence and 

e-mails from Mr. Brady, Exhibit K) 

LEGAL ARGUMENT

 Defendant acknowledges that under Federal Rules of Civil 

Procedure 15(a)(2) and 41(a), applications to dismiss a Complaint 

without prejudice and applications for leave to amend a Complaint are 

committed to the Court’s sound discretion. In these circumstances, we 

ask that the Court exercise its discretion by refusing dismissal without 

prejudice of Mr. Loose’s Complaint because (i) Mr. Loose has presented 

no medical substantiation or explanation of precisely why he cannot sit 

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for a deposition — which we would be happy to take over the course of 

numerous days and/or with numerous breaks to accommodate him; (ii) 

the defendant has a good faith basis to challenge Mr. Loose’s 

constitutional standing as of the time the Complaint was filed and 

should not be deprived of an opportunity to do so simply to allow him to 

reinstate the claims in the future based on the manufacturing of 

standing through a meeting of the since-dismissed “Advocates for 

Disabled Americans” or through other means; and (iii) the past conduct 

of plaintiffs and their attorney strongly suggests that Mr. Loose or 

another client of Mr. Brady will file suit again or, alternately, demand 

payment of money to forego the filing of the lawsuit. Having settled in 

good faith with Mr. Brady’s client Mr. Law only to be sued again by three 

other clients citing the Law litigation as a basis for their claims of notice, 

the City of North Wildwood should not be subjected to the risk of 

relitigation of Mr. Loose’s claims asserted in this case. 

 While we hasten to note that the plaintiffs all deserve their day in 

Court and that the defendant will need to demonstrate to the Court an 

absence of standing in order to have their claims dismissed, we 

respectfully suggest that the circumstances surrounding this lawsuit and 

other lawsuits filed by these plaintiffs and their attorney militate against 

permission to dismiss the Complaint without prejudice when the risk of 

repeat litigation and expense to the defendant appears very high. This is 

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especially so in the absence of any demonstration why Mr. Loose cannot 

sit for a deposition, which the defendant would intend to follow with a 

dispositive Motion for Summary Judgment based on the absence of 

Article III standing. We therefore request that the Motion to Dismiss Mr. 

Loose’s Complaint without prejudice be denied and that he be compelled 

to sit for a deposition or otherwise accept dismissal with prejudice. 

 With respect to the motion for leave to file an Amended Complaint, 

as noted above, the defendant does not object to voluntary abandonment 

— with prejudice — of plaintiffs’ claims under the New Jersey Law 

Against Discrimination. Nor do we object to what appears to be the 

plaintiff’s voluntary abandonment of their demand for damages beyond 

$1.00 in nominal or symbolic damages. However, we do object to the 

inclusion of a demand for $1.00 in damages since damages are available 

under the Americans with Disabilities Act only in the event of intentional 

discrimination, which the proposed Amended Complaint does not allege. 

Ferguson v. City of Phoenix, 157 F.3d 668 (9th Cir. 1998). Additionally, 

there exists no authority supporting an award of nominal or symbolic 

damages in a Title II case in which the plaintiff does not demonstrate 

intentional discrimination. 

 With respect to the request to amend the Complaint to add 

subsequent alleged ADA violations, the defendant respectfully objects 

because this is a clear effort to manufacture constitutional standing 

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which did not exist at the time the Complaint was filed. Simply put, the 

plaintiffs should not be permitted to sue first and manufacture 

constitutional standing by visiting the defendant municipality later. 

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830, 109 S.Ct. 

2218, 2222, 104 L.Ed.2d 893 (1989)(“The existence of federal jurisdiction 

ordinarily depends on the facts as they exist when the complaint is 

filed.”) 

In closing, North Wildwood recognizes that both of the pending 

motions are committed to the sound discretion of the Court. We submit 

that the circumstances surrounding these claims, as well as other claims 

brought by these and other clients of plaintiff’s counsel, militate against 

the granting of a motion for leave to dismiss without prejudice the claims 

of one plaintiff or the granting of leave to file an amended pleading 

asserting subsequent ADA violations by the others. 

 Respectfully submitted, 

METHFESSEL & WERBEL, ESQS. 

Eric L. Harrison

harrison@methwerb.com

Ext. 138

ELH:jzm./ 

Encl. (Exhibits A-K) 

cc: VIA E-FILING 

Anthony J. Brady, Jr., Esq. 

1 Rose Avenue 

Maple Shade, NJ 08052 

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