O'Campo v. Chico Crossroads, LP et al

Filing 100

ORDER signed by Judge Kimberly J. Mueller on 2/22/2013 DENYING 84 Motion for Attorney Fees. (Marciel, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DIMAS O’CAMPO,

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Plaintiff,

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No. 2:10-cv-01100-KJM-CMK

v.
CHICO CROSSROADS, LP; BUFFETS, INC.
dba HOMETOWN BUFFET #0706; THE
OFFICE CLUB, INC., dba OFFICE DEPOT
#917; BARNES & NOBLE BOOKSELLERS,
INC., dba BARNES & NOBLE # 2815; COST
PLUS, INC., dba COST PLUS WORLD
MARKET # 202; BED BATH & BEYOND OF
CALIFORNIA, LLC dba BED BATH &
BEYOND #587; PETCO ANIMAL
SUPPLIES, INC., dba PETCO#362,

ORDER

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Defendants.
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Upon dismissal of plaintiff Dimas O’Campo’s claims under the Americans with

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Disabilities Act (ADA), 42 U.S.C. §§ 12101 et. seq., defendant Bed, Bath & Beyond of

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California, LLC filed a motion for attorneys’ fees on June 13, 2012. (ECF 84.) Plaintiff filed an

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opposition on June 29, 2012. (ECF 91.) For the reasons explained below, the court denies

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defendant’s motion.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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On May 5, 2010, plaintiff filed suit against defendant, alleging that defendant

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violated the ADA by rendering its store’s bathrooms inaccessible to persons with disabilities in

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five ways, all of which presented problems exclusively to persons requiring wheelchairs. (See

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ECF 1 at 10.) The complaint did not allege that plaintiff required the use of a wheelchair. (See

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id. at 5.) On March 9, 2012, the court issued an order denying both parties’ cross motions for

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summary judgment, noting plaintiff had standing only for those barriers by which he was

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personally affected and permitting the plaintiff to seek leave to amend. (ECF 79 at 3, 5.) The

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court denied plaintiff’s motion for leave to amend on May 30, 2012, because plaintiff did not

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address the standards for amending the court’s scheduling order under Federal Rule of Civil

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Procedure 16 or for amending the complaint under Federal Rule of Civil Procedure 15; the court

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consequently dismissed the case for lack of standing. (ECF 82.) Defendant has moved for

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attorneys’ fees on the theory that plaintiff’s complaint alleging ADA violations was frivolous.

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(ECF 84.)

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II.

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LEGAL STANDARD
Under the ADA, attorneys’ fees may be awarded to the prevailing party.

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42 U.S.C. § 12205. The Ninth Circuit has held that attorneys’ fees may be awarded to a

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prevailing defendant in an ADA case only where “[t]he plaintiff’s action was frivolous,

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unreasonable or without foundation.” Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1154

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(9th Cir. 1997) (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)).

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However, before considering whether attorneys’ fees are merited, the court must

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consider whether an award of fees is within the court’s power. Ordinarily, a court that has

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dismissed a case for lack of subject matter jurisdiction has no jurisdiction to award attorneys’

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fees. Smith v. Brady, 972 F.2d 1095, 1097 (9th Cir. 1992); Latch v. United States, 842 F.2d 1031,

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1033 (9th Cir. 1988). The court does not have jurisdiction to hear a case where the plaintiff has

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no standing. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541-42 (1986).
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III.

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ANALYSIS
Plaintiff argues that the court has no jurisdiction to grant attorneys’ fees in this

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case because the court dismissed plaintiff’s complaint on standing grounds. (ECF 91 at 2.)

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Defendant argues the action was dismissed on the merits, not for lack of standing. (ECF 92 at 1.)

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Specifically, defendant argues that the court found plaintiff’s claims lacked merit because he did

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not require a wheelchair and was therefore not inhibited by the barriers he encountered. (Id.)

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Defendant additionally argues that jurisdiction is not required to award attorneys’ fees, citing

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EEOC v. Pierce Packing Co., 669 F.2d 605, 609 (9th Cir. 1982). (ECF 84 at 13-14.)

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Here, the court did not reach the merits of plaintiff’s claims. As explained above,

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the action was dismissed for lack of standing after plaintiff was denied leave to amend. (ECF 79,

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82.) Defendant is incorrect that a court without jurisdiction has the power to award attorney’s

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fees. See Smith, 972 F.2d at 1097. In EEOC, the court did dismiss for lack of jurisdiction but

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awarded attorneys’ fees, but it was not because the court retained the power to award fees absent

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jurisdiction. Rather, the particular statute relied on in that case permitted recovery of fees, see

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42 U.S.C. § 2000e-5(k), and created independent jurisdiction for the award of attorneys’ fees.

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EEOC, 669 F.2d at 609. See also Cal. Ass'n of Physically Handicapped, Inc. v. FCC, 721 F.2d

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667, 671 (9th Cir. 1983).

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In contrast, the ADA does not contain an independent grant of jurisdiction for

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attorneys’ fees. In Skaff v. Meridien North American Beverly Hills, LLC, an ADA defendant

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sought attorneys’ fees after the parties’ settlement, but the district court denied the request

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because it determined that the plaintiff had no standing, as he had not alleged a cognizable injury

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in his complaint. 506 F.3d 832, 836-37 (9th Cir. 2007). The Ninth Circuit vacated the district

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court’s ruling, holding that the plaintiff had standing, but noted that it would have been

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appropriate for the district court to deny the defendant’s request for attorneys’ fees if the plaintiff

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had not shown standing. Id. at 837 n.2. See also Molski v. Levon Invs., LLC, 231 F. App’x 685,

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685 (9th Cir. 2007) (affirming the district court’s reasoning that lack of jurisdiction prevented

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the award of attorney’s fees after plaintiff’s ADA case was dismissed for lack of standing).

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Finally, in Miles v. State of California, which defendant argues supports the

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granting of attorneys’ fees here, the court allowed fees when an ADA case against a state had

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been dismissed in light of Eleventh Amendment immunity, as opposed to lack of standing. 320

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F.3d 986, 988-89 (9th Cir. 2003). The court noted that immunity could be waived by the state,

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and that consequently it functioned more similarly to an affirmative defense than a jurisdictional

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bar. Id. Because the court held jurisdiction over the action, the court was able to award

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attorneys’ fees, unlike the present case. Id. at 989.

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In sum, because the court’s prior determination that plaintiff lacks standing means

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jurisdiction is lacking, the court has no power to award attorneys’ fees under 42 U.S.C. § 12205.

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For the foregoing reasons, defendant’s motion is DENIED.
DATED: February 22, 2013.

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UNITED STATES DISTRICT JUDGE

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