Bascle v. Shadrall Riverside Market, LLC

Filing 16

ORDER AND REASONS granting 14 Motion to Dismiss Counterclaim. Signed by Chief Judge Sarah S. Vance on 4/30/2012. (lag, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JONAH BASCLE

CIVIL ACTION

VERSUS

NO: 11-2848

SHADRALL RIVERSIDE MARKET,
LLC

SECTION: R(3)

ORDER AND REASONS
Plaintiff Jonah Bascle moves to dismiss defendant Shadrall
Riverside Market’s counterclaim pursuant to Federal Rule of Civil
Procedure 12(b)(6).1

Because defendant has not alleged a

separate cause of action, the Court GRANTS plaintiff’s motion.

I.

BACKGROUND
This action for declaratory and injunctive relief arises out

of plaintiff Jonah Bascle’s access to defendant Shadrall
Riverside Market, LLC’s (“SRM”) facility on Tchoupitoulas Street
in New Orleans, Louisiana.

Bascle asserts that he suffers from

muscular dystrophy, which requires him to use a wheelchair for
mobility.2

He alleges that he experiences architectural barriers

that hinder his access to SRM’s place of business, in violation
of the Americans with Disabilities Act, 42 U.S.C. § 12101, et
1

R. Doc. 14.

2

R. Doc. 1. at ¶¶4-5.

seq. (“ADA”).

In particular, he alleges that SRM’s parking lot

does not contain “van accessible” spaces, that the “disabled
parking spaces” are not the proper width and do not have
appropriate access aisles, and that there is no compliant route
from the parking lot to the facility.

Bascle further alleges

that such modifications are necessary to provide him with an
equal opportunity to benefit from the goods and services provided
by SRM.

Bascle seeks a declaration that SRM’s property violates

the ADA and an injunction requiring defendant to make the
facility ADA-compliant.

Bascle also seeks attorney’s fees and

costs.
Shadrall Riverside Market denies Bascle’s allegations and
asserts a number of affirmative defenses.3

SRM also asserts a

counterclaim against Bascle and claims the Court has jurisdiction
over the counterclaim under 28 U.S.C. § 1367.4

SRM contends that

the property meets and exceeds access obligations under the ADA
and that Bascle’s suit is “frivolous, unreasonable, and without
foundation.”

SRM further contends that Bascle’s demand

constitutes vexatious litigation, brought in bad faith “for the
sole purpose of harassing” SRM.5

3

R. Doc. 8.

4

Id. at ¶4.

5

SRM alleges that Bascle is

Id. at ¶11.
2

liable for its attorney’s fees and costs if it is the prevailing
party, pursuant to 42 U.S.C. § 12205.
Bascle now moves to dismiss SRM’s counterclaim pursuant to
Federal Rule of Civil Procedure 12(b)(6).6

Bascle contends 1)

that SRM’s claim does not constitute an independent cause of
action, and 2) even if it does, SRM’s claim is not ripe.

SRM

opposes the motion.7

II.

STANDARD
The Court applies the same test to a motion to dismiss a

counterclaim that it does to a motion to dismiss a complaint.

To

survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
plead enough facts “to state a claim to relief that is plausible
on its face.”

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1960

(2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

A claim is facially plausible when the plaintiff pleads

facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
1949.

Id. at

A court must accept all well-pleaded facts as true and

must draw all reasonable inferences in favor of the plaintiff.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

6

R. Doc. 14.

7

R. Doc. 15.
3

But the Court

is not bound to accept as true legal conclusions couched as
factual allegations.

Iqbal, 129 S.Ct. at 1949.

A legally sufficient complaint must establish more than a
“sheer possibility” that plaintiff's claim is true.

Id.

It need

not contain detailed factual allegations, but it must go beyond
labels, legal conclusions, or formulaic recitations of the
elements of a cause of action.

Id.

In other words, the face of

the complaint must contain enough factual matter to raise a
reasonable expectation that discovery will reveal evidence of
each element of the plaintiff's claim.

Lormand, 565 F.3d at 257.

If there are insufficient factual allegations to raise a right to
relief above the speculative level, or if it is apparent from the
face of the complaint that there is an insuperable bar to relief,
the claim must be dismissed.

Twombly, 550 U.S. at 555; Jones v.

Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325,
328 n.9 (5th Cir. 2007).

III. DISCUSSION
The ADA provides that the Court “may allow the prevailing
party . . . a reasonable attorney’s fee, including litigation
expenses, and costs . . . .”

42 U.S.C. § 12205.

4

The Fifth

Circuit has explained the required showing under this provision
as follows:
Each circuit that has addressed the issue has concluded
that the considerations that govern fee-shifting under §
706(k) of title VII or under 42 U.S.C. § 1988 apply to
the ADA’s fee-shifting provision, because the almost
identical language in each indicates Congress’s intent to
enforce them similarly.
Under this standard, a
prevailing defendant may not receive fees ‘unless a court
finds that [the plaintiff’s] claim was frivolous,
unreasonable, or groundless, or that the plaintiff
continued to litigate after it clearly became so.’
No Barriers, Inc. v. Brinker Chili’s Tex., Inc., 262 F.3d 496,
498 (5th Cir. 2001)(quoting Christiansburg Garment Co. v. EEOC,
434 U.S. 412, 422 (1978))(other internal citations omitted).

See

also Temple v. Am. Airlines, Inc., 48 Fed. Appx. 480, 2002 WL
31049426, at *2 (5th Cir. Aug. 26, 2002)(“We have applied the
same standards to the ADA’s fee-shifting provision for
‘prevailing parties’ that we apply to the almost-identical feeshifting provisions of title VII and 42 U.S.C. § 1988.”)(citing
No Barriers, 262 F.3d at 498).
Although the Court has the discretion to award costs and
fees to the prevailing party under § 12205, this section, by
itself, does not create an independent cause of action.

Indeed,

the Fifth Circuit has explicitly recognized that the nearlyidentical civil rights fee-shifting statute does not create a
stand-alone cause of action.

Villegas v. Galloway, No. 10-20821,

2012 WL 45417, at *3 (5th Cir. Jan. 9, 2012)(“On its face, § 1988
does not provide for a separate cause of action, only for
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recovery of attorney’s fees and expert fees to parties prevailing
on certain other causes of action.”).

See also Singer v. Nevada

ex rel. Dept. of Transp., No. 3:09-CV-0696-LHR-RAM, 2011 WL
1627117, at *1 n.2 (D. Nev. Apr. 27, 2011)(“A request for
attorney’s fees is a remedy available to a prevailing party in a
civil rights complaint[;] it is not a separate cause of
action.”); Greene v. Phipps, No. 7:09-cv-00100, 2009 WL 3055232,
at *1 n.1 (W.D. Va. Sept. 24, 2009) (“Section 1988 allows a
prevailing party in a § 1983 action to recover attorney’s fees;
it is not a separate cause of action.”); Gollomp v. Spitzer, No.
1:06-CV-802, 2007 WL 433361, at *7 n.6 (N.D.N.Y. Feb. 5,
2007)(“The Court notes that, to the extent that Plaintiff’s tenth
cause of action seeks attorney’s fees under § 1988, there is no
separate cause of action under § 1988[.] [R]ather[,] § 1988
provides a form of relief, which is available only to a party who
prevails on a federal civil rights claim.”)(internal citations
omitted).

Further, there is no free-standing claim for frivolous

litigation.

See Boyte v. Lionhead Holdings, No. 3:10-CV-1467-D,

2011 WL 197589, at *3 (N.D. Tex. Jan. 19, 2011)(“[Defendant] does
not point to, and the court has not found, any authority that
recognizes an affirmative cause of action for frivolous
litigation.”).

Finally, SRM’s argument that its claim for

attorney’s fees might be barred by res judicata if it is not
raised as a counterclaim is misplaced.

6

SRM can seek attorney’s

fees by motion at the appropriate time in this proceeding.

See

Fed. R. Civ. P. 54(d).

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiff’s

motion and DISMISSES defendant’s counterclaim.

Because the Court

finds that defendant has not alleged a separate cause of action,
it need not consider whether the claim is ripe.

New Orleans, Louisiana, this 30th day of April, 2012.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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