Adams v. Cowley Cinema 8, LLC

Filing 33

MEMORANDUM AND ORDER granting 29 Motion for Attorney Fees. Signed by District Judge J. Thomas Marten on 5/15/2019. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GUADALUPE ADAMS,
Plaintiff,
vs.

No. 18-1034-JTM

COWLEY CINEMA 8, LLC,
Defendant.

GUADALUPE ADAMS,
Plaintiff,
vs.

No. 18-1046-JTM

SPANGLES, INC.,
Defendant.

GUADALUPE ADAMS,
Plaintiff,
vs.

No. 18-1047-JTM

REGAL HOTELS, LLC,
Defendant.

MEMORANDUM AND ORDER

The defendants in these three ADA actions have moved for attorney fees against
plaintiff Guadalupe Adams pursuant to Section 1972 and the inherent power of the court.
The three cases all involve the same counsel for plaintiff, Pete Monismith, and for the
respective defendants Cowley County Cinema 8, Regal Hotels, and Spangles Inc., David

Calvert. As with many of the other actions filed on behalf of Adams in the District of
Kansas, each of these cases allege various ADA violations at a given small or medium
size commercial enterprise. Each case was filed in early 2018, Adams identifying
particular violations of ADA disability access provisions.
Although it discusses particular aspects of each case below, the court resolves the
present motions by a single Order, to be entered in each case, for three reasons. First,
unlike most cases filed by Adams prior to her death in late 2018, case, the three
defendants here did not settle or fail to defend the claims, but instead moved
energetically to remediate the identified access barriers. Each of the three cases
accordingly presents a nearly identical sequence of events by which defendants notified
plaintiff of the repairs which would render the allegations in the complaints moot, and
the responsive escalation by plaintiff by meritless pleading. Second, the arguments
presented by the parties are in many instances identical. Finally, a uniform approach
allows the court to take note of a pattern of behavior which the court concludes is both
vexatious and contrary to the remedial spirit of the ADA.
Sanctions under § 1927 may be awarded where an attorney “acts recklessly or with
indifference to the law.” Steinert v. Winn Grp., 440 F.3d 1214, 1222. (10th Cir. 2006). Such
recklessness is demonstrated when counsel shows “a serious and standard disregard for
the orderly process of justice.” AeroTech, Inc. v. Estes, 110 F.3d 1523, 1528 (10th Cir. 1997).
The court must take care not to inhibit representation undertaken with “legitimate zeal.”
Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987) (en banc).
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Cowley Cinema 8
Both parties filed motions for summary judgment: Adams on August 28 and the
Cinema on September 17. (Dkt. 12, 15). Adams has argued the Cinema failed to timely
respond to its discovery requests in July and August, and points to an ambiguity as to
actual status of repairs, based on the Cinema’s August 22, 2018 report which stated both
that all ADA deficiencies “have been corrected” but also stated that they “are in the
process of being corrected.” The Cinema’s motion argued that Adams’ claims were moot,
given the repairs addressing all deficiencies identified in the July 16 Rule 34 report
provided by the plaintiff.
The court finds no support in the record for the claim by the plaintiff that she was
“deterred from proving her case” because of a lack of evidence that the repairs were
actually completed. (Dkt. 31, at 8). The assertion is untrue, and in any event, plaintiff
could have obtained relief by filing a motion to compel. Instead, she filed a plainly
insufficient motion for summary judgment, apparently as a means of thwarting the
defendant’s attempt at remediation. Reviewing the pleadings, the court finds that
Adams’ challenges to the evidence establishing the repairs are plainly insufficient, and
the asserted “discovery disputes“ would not have prevented summary judgment.
Plaintiff complains that the repairs were documented by an owner of the theater,
who is not an ADA expert, and complains that the Cinema had failed to respond to
discovery requests. But the plaintiff fails to show an expert was needed. The affiant
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presented evidence as a fact witness, documenting that all of the ADA deficiencies
identified by Adams’ expert had been resolved. Adams has offered no evidence to rebut
the fact that the repairs have occurred.
The alleged discovery dispute, based on the Cinema’ August 22 response to
plaintiff’s interrogatories, was not a substantial basis for delaying resolution of the action.
But even assuming the existence of a good faith discovery dispute, it does not explain
plaintiff’s conduct. Rather than filing a Motion to Compel the missing evidence, plaintiff
filed a Motion for Summary Judgment, far in advance of the dispositive motion deadline.
The plaintiff’s Motion for Summary Judgment is entirely generic and manifestly
insufficient as a matter of law. The key allegation of fact — that the Rule 34 violations
“currently and continually exist at the properly” is not supported by any evidentiary
record citation, in clear disregard of the D.Kan. Rule 56.1. Taken in context, these
precipitous actions suggest that plaintiff, faced with a defendant who would rapidly have
corrected all the previously identified ADA deficiencies, vexatiously attempted to
multiply the litigation to defendant’s detriment. Certainly, after defendant filed its own
summary judgment motion on September 17, 2019, this conclusion is strongly supported
by the facts of the case.
This multiplication also manifested itself in the discovery “dispute,” which also
reflects a sudden attempt to expand the scope of the litigation far beyond the previously
identified ADA deficiencies. The plaintiff’s interrogatories either addressed facts

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previously apparent at the time of the Rule 34 inspection, or were addressed to issues
beyond the specific deficiencies previously identified in the Rule 34 report.
The plaintiff argues that no sanctions should be awarded because the Cinema was
not entitled to summary judgment based on mootness, stressing the heavy burden
attending that defense, and citing the rejection of the defense in an ADA case, Mize v. Kai,
Inc., 2017 WL 5195203 (D. Colo. Nov. 9, 2017).
However, the court in Mize denied defendant’s mootness argument when
presented as a motion to dismiss, prior to any discovery. The court concluded that the
“Defendant fails, at this juncture,” to meet its burden, with the result that “[a]t this stage,
the court concludes that the more prudent course is to allow discovery to proceed on
these issues such that the Parties can better support their positions at summary
judgment.” Id. at *4.
Once discovery has documented the existence of physical modifications to
physical barriers, courts have not hesitated to dismiss similar ADA actions as moot. Thus,
“courts have generally found that the alleged discrimination cannot reasonably be
expected to recur because structural modifications are unlikely to be altered in the
future.” National Alliance for Accessibility v. Walgreen Co., 2011 WL 5975809, *3 (M.D. Fla.
Nov. 28, 2011) (internal quotations omitted). The burden of demonstrating that a harm is
not likely to occur in the future is “formidable,” Tandy v. City of Wichita, 380 F.3d 1277
(10th Cir. 2005) (citing Friends of the Earth v. Laidlaw Env. Serv., 528 US. 167, 191 (2000)),
but it is not insuperable. Thus, in Tandy the court upheld dismissal of an action where
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there was “[n]othing in the record [which] suggests that Wichita Transit intends to
resume its discontinued policies if this case is dismissed as moot.” Id.
Courts in the Tenth Circuit have reached the same conclusion:
Plaintiff has not offered any evidence that Defendant intends to reaffix its
soap dispenser at a higher, non-compliant location, or remove the signs in
the parking lot at the close of these proceedings. Nor has Plaintiff offered
any reasons why Defendant might be motivated to invest in said changes
and risk further litigation on the matter.
Kelley v. Café Rio, Inc., 2017 WL 5499781, *3 (D. Utah. Nov. 15, 2017). Similarly, in
Burningham v. Costco Wholesale, 2017 WL 6512290, *3 (D. Utah Dec. 17, 2017), the court
granted summary judgment based on affidavit evidence showing that the retailer
remedied specific deficiencies alleged by plaintiff.
Based on this, the court is convinced that there is no reasonable expectation
that the alleged violation will recur. The Court sees no reason why Costco
would expend the time and resources to remove a mirror that has been
permanently affixed to the wall of the men’s restroom. Indeed, Costco
installed the mirror, and removing it would simply expose Costco to the
very type of liability that it seeks to avoid. Notably, Burningham offers no
reason as to why Costco would willingly violate the ADA after bringing
itself into compliance.
(Emphasis in original).
Having reviewed the pleadings, the court is firmly convinced that the defendant
Cinema was entitled to summary judgment on the issue of mootness, and the plaintiff
had no factual or legal justification for seeking summary judgment.

Adams v. Regal Hotels
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Adams identified a variety of ADA violations at the Springfield Inn in Wichita,
Kansas operated by the defendant in her February 12, 2018 Complaint. (Dkt. 1). As in
Cowley Cinema 8, Adams offered to settle the matter if Regal fixed the deficiencies and
paid $10,000 in fees and expenses. Plaintiff’s expert conducted a Rule 34 inspection and
prepared a July 11 Report of the alleged deficiencies.
Adams filed a Motion for Summary Judgment on August 28. (Dkt. 14). The motion
and supporting brief are virtually carbon copies of the motion in Cowley Cinema 8, with
again, no evidence at all to support plaintiff’s claim that the violations were ongoing and
had not been remedied. (Dkt. 14, at 4). As in Cowley Cinema 8, the motion was filed
substantially in advance of the dispositive motion deadline.
On September 13, Regal responded to plaintiff’s discovery requests, stating that
“all barriers” in the Report had been removed, except for one item, which it contended
was not an ADA violation under the relevant regulation. Regal stated that in light of the
renovations, the action should be dismissed.
Regal submitted its own motion for summary judgment on September 24,
providing evidence documenting the repairs. (Dkt. 19). Only after Regal’s motion did
Adams belatedly file a Motion to Compel (Dkt. 23), which, as in Cowley Cinema 8, sought
discovery for matters beyond the previously identified Rule 34 deficiencies.
Plaintiff’s arguments in opposition to an award of fees are identical to those
presented in Cowley Cinema 8, and the court finds these unpersuasive for the reasons
previously stated. Plaintiff’s expert identified 4 specific ADA deficiencies, and proposed
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specific solutions. (Dkt. 14-2, at 4-6). The factual existence of the repairs was documented
by Regal’s expert, Jason Madhu, and plaintiff provided no evidence which would put the
existence of the repairs in doubt. (Dkt. 22, at 3). The discovery requested by plaintiff was
not relevant to the problems previously identified by plaintiff’s own expert, was
previously available to the plaintiff, or both.

Adams v. Spangles
Adams’s February 12 Complaint identified eleven ADA violations at a fast food
restaurant operated by the defendant in her February 12, 2018 Complaint. (Dkt. 1, ¶ 15).
As in Cowley Cinema 8 and Regal Hotels, Adams promptly offered to settle the matter if
Spangles fixed the deficiencies and paid $10,000 in fees and expenses. Plaintiff’s expert
conducted a Rule 34 inspection and prepared a report of the alleged deficiencies.
On August 6, Calvert wrote to Monismith that “[a]ll problems [in the Rule 34
Report] have been resolved,” and asking him to dismiss the case. The plaintiff asked for
additional discovery and proposed another inspection. Citing the prior unrestricted
inspection, the defendant refused additional inspection but provided additional
discovery on August 17, including an affidavit and photographs of the repairs.
When Regal stated that the matter was moot, plaintiff asked for additional
discovery, which defendant opposed as irrelevant. Rather attempting further
correspondence or filing a timely Motion to Compel, Adams filed a Motion for Summary
Judgment on August 27. (Dkt. 14). The motion and supporting brief are, again, virtually
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carbon copies of the motion in Cowley Cinema 8 and Regal Hotels – including the utter lack
of evidence to support the allegation that the ADA deficiencies identified in the Rule 34
Report “currently and continually exist.” (Dkt. 14, ¶ 7). As in the other cases, the motion
was filed substantially in advance of the dispositive motion deadline.
Regal submitted its own motion for summary judgment on September 8,
providing evidence documenting the repairs. Only after Regal’s motion did Adams
belatedly file a Motion to Compel (Dkt. 27), which, as in Cowley Cinema 8, sought
discovery for matters beyond the previously identified Rule 34 deficiencies.
Plaintiff’s arguments in opposition to an award of fees are identical to those
presented in the preceding cases, and the court rejects these arguments for the reasons
previously stated. Plaintiff’s expert again identified 4 areas of the restaurant with specific
ADA deficiencies, and proposed specific solutions. (Dkt. 14-2, at 3). The factual existence
of the repairs was documented by Spangles ADA Compliance Officer David Dooman,
and plaintiff provided no evidence which would put the existence of the repairs in doubt.
(Dkt. 25, at 2-3). The discovery requested by plaintiff was not relevant to the problems
previously identified by plaintiff’s own expert, was previously available to the plaintiff,
or both.
Here, the defendants permitted full and free Rule 34 inspections of their
properties. Adams’ expert duly inspected the properties, and reported how the
properties violated the ADA in specific ways. Faced with defendants actively renovating
their properties to fix those problems identified by her expert, plaintiff responded by
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precipitously filing meritless summary judgment motions which failed to comply with
the rules of the court. In addition, plaintiff raised discovery issues far beyond the
previously-identified deficiencies, addressing matters which would not affect the
outcome of defendant’s mootness defense.

Conclusions of Law
The court is mindful of the heavy burden for establishing a right to fees under
Section 1927, and the need to protect the ability of counsel to zealously represent their
client. Sanctions are not imposed merely for failing to defeat summary judgment. But
they are appropriate when a party tries to multiply the costs of litigation without any
reasonable basis, and indeed attempts to circumvent the underlying remedial goal of the
ADA. The Act seeks to encourage precisely the conduct employed by the defendants in
the present actions—the early identification and remediation of specific barriers to access.
This goal is entirely frustrated by the apparent approach of the plaintiff, which
first identifies a specific set of deficiencies, but, when these are fixed, attempts to restart
the case from scratch in search of new potential violations. This moving target approach
has the result of actively discouraging defendants from good faith attempts at remediation,
and supports the award of fees, measured from the time when the defendants
documented the repairs in their summary judgment motions. In reaching this conclusion,
the court takes particular note of the plaintiff’s carbon-copy summary judgment motions–

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filed precipitously and without support—in an obvious attempt to escalate costs and to
frustrate remediation and resolution of the action.
The court finds no merit in plaintiff’s recent post hoc attempts to argue against
specific aspects of the defendants’ summary judgment. More importantly, however, such
arguments can never excuse the vexatious conduct reflected in plaintiff’s preemptive,
precipitous summary judgment motions, which affirmatively but falsely claimed that the
deficiencies were “currently and continually in existence.” The court accordingly
concludes that defendants are entitled to compensation pursuant to 28 U.S.C. § 1927, as
well as the inherent power of the court to sanction vexatious conduct.

Amount of Fees
Regal Hotel requests $18,533.50 in fees, Spangles $16,017.25, and Cowley Cinema
$14,906.1 In addition to the legal work incurred prior to Adams’ demise, the defendants’
fee request includes the work expended in support of their motions for fees. The
defendants divide the shared total time preparing the background for the fee applications
(13.6 hours, $4760) in three, for an award to each defendant of $1,586. In addition,
defendants Cowley (6.4 hours) and Regal Hotels (6.6 hours) seek recovery for drafting
the fee application in each case, as well as seeking a specified fee for the expert opinion

The latter figure includes time spent in fashioning Cinema 8’s Reply in support of the fee application. (No.
18-1034, Dkt. 32, at 15). Counsel in Spangles (No. 18-1046) represents he spent some nine hours preparing
the Reply in that action, but makes no claim for as to this time. (Dkt. 43, at 8).
1

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of Mr. Mike Stout as to the reasonableness of the fee. Finally, Cowley Cinema 8 seeks an
additional 5.8 hours for the preparation of the Reply brief.
The court in its discretion finds that fees should be granted for the period after the
defendants filed their summary judgment motions. Again, the court emphasizes that fees
are not awarded here simply because plaintiff was or would have been on the losing end
of summary judgment practice. Rather, fees are appropriate given the attempt to multiply
the action without legitimate purpose. Here, the court in its discretion concludes that
defendants should be compensated for their expenses incurred after they documented
their repairs in connection with their dispositive motions.
The court determines that defendants are entitled to the time reasonably expended
after the summary judgment in each case was filed. The court finds that the $350 hourly
rate submitted by defendant’s counsel is reasonable in light of the evidence, as is the
slightly higher rate charged for the expert opinion offered by Mr. Stout. In awarding fees,
the court takes into account the nature of the case and labor required, the fee customarily
charged in the area, the amount involved and the results obtained, the experience,
reputation and ability of Mr. Calvert, and the fixed nature of the fee arrangement.
In Cowley Cinema 8, the court awards fees of $7,556, reflecting (a) 5.5 hours of work
subsequent to the summary judgment memorandum; (b) $1,586 (one third of the total
time billed in all three cases for researching sanctions); (c) 6.4 hours documenting the fee

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application specific to Cowley Cinema 8 (Dkt. 30-10 at 4), (d) the cost of the Stout affidavit,
and (e) 2.9 hours for the Reply brief.2
In Spangles, the court awards fees of $3,915.90, reflecting (a) 7.9 hours of work
subsequent to the summary judgment memorandum; (b) $1586 (one third of the total time
billed in all three cases for researching sanctions); and (c) applying the 10% reduction for
“billing judgment” otherwise provided for by defendant. (Dkt. 39-15, at 7).
In Regal Hotels, the court awards fees of $9,678.50, reflecting (a) 13.7 hours of work
subsequent to the summary judgment memorandum; (b) $ 1586 (one third of the total
time billed in all three cases for researching sanctions); (c) 6.6 hours documenting the fee
application specific to Regal Hotels (Dkt. 40-11 at 4); and (d) the cost of the Stout affidavit.
The court finds that the times incurred as provided here are in each instance
reasonable in light of the circumstances of the case.

Defendant requested compensation based on 5.8 hours expended for the Reply brief. The court finds that
such an amount of time is not reasonable, given both the brevity of the reply, its substantial similarity to
the replies of other defendants, and the repetition of arguments previously made with respect to the
relevance of discovery request.
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IT IS ACCORDINGLY ORDERED this day of May 2019, that the defendants’
Motions for Fees (Adams v. Cowley Cinema 8, No. 18-1034, Dkt. 29; Adams v. Spangles, No.
18-1046, Dkt. 38; Adams v. Regal Hotels, No. 18-1047, Dkt. 39) are hereby granted as
provided herein.

s/ J. Thomas Marten
J. Thomas Marten, Judge

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