Magee v. Winn-Dixie Stores, Inc.

Filing 25

ORDER AND REASONS denying 22 Motion for Attorney Fees. Signed by Judge Sarah S. Vance on 5/2/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SCOTT MAGEE, on behalf of himself
and all others similarly situated
VERSUS

CIVIL ACTION
NO. 17-8063

WINN-DIXIE STORES, INC.

SECTION “R” (4)

ORDER AND REASONS
Before the Court is Defendant Winn-Dixie Stores, Inc.’s motion for
attorneys’ fees. 1 For the following reasons, the Court denies the motion.
I.

BACKGROUND
This case arises out of a dispute over the accessibility of Glacier Water

Refill Stations at Winn-Dixie stores.2 The water refill stations are self-service
machines that dispense filtered water into containers provided by the
customer.3 Plaintiff Scott Magee is legally blind. 4

On August 21, 2017,

plaintiff filed a class action complaint asserting violations of the Americans
with Disabilities Act (ADA). 5 The complaint alleged that plaintiff attempted

1
2
3
4
5

R. Doc. 22.
R. Doc. 1.
Id. at 1 ¶ 2.
Id. at 3 ¶ 10.
Id. at 9-12.

to use a water refill station at the Winn-Dixie store located at 211 Veterans
Memorial Boulevard in Metairie, Louisiana, in the late evening of August 17,
2017, or the early morning of August 18, 2017.6 Plaintiff alleged that he was
unable to use the water refill station during this visit because the station “did
not utilize any braille markings or other non-visual means for [plaintiff] to
interact with the machine.” 7 The complaint further alleged that plaintiff
attempted to access the water refill machine at other times with no success
because the machine “offers no non-visual interface.” 8
On January 22, 2018, the Court dismissed the complaint for lack of
standing because plaintiff failed to show that he suffered an injury-in-fact.9
The Court found that plaintiff’s allegation that he was unable to use the water
refill station because it lacked any braille markings was contradicted by
evidence that the machine had at least some braille stickers at the time of his
alleged August 2017 visit. 10 Plaintiff failed to offer sufficiently concrete
information regarding his other alleged visits to the water refill station. 11
Defendant now moves for an award of attorneys’ fees. 12

6
7
8
9
10
11
12

Id. at 7 ¶ 32.
Id. at ¶¶ 35-36.
Id. at ¶ 36.
R. Doc. 20.
Id. at 9.
Id. at 7.
R. Doc. 22.
2

II.

LEGAL STANDARD
The general rule in the United States is that, “in the absence of

legislation providing otherwise, litigants must pay their own attorneys’ fees.”
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 415 (1978). Congress
has created limited exceptions to this rule under certain statutes protecting
various federal rights. Id. To encourage private enforcement of civil rights
statutes, a prevailing plaintiff in a civil rights case should receive attorneys’
fees “in all but special circumstances.”

Id. at 416-17.

But the policy

considerations that support granting fees to a prevailing plaintiff are absent
when the defendant prevails.
A district court may grant attorneys’ fees to a prevailing defendant only
when the court finds that the action was “frivolous, unreasonable, or
groundless, or that the plaintiff continued to litigate after it clearly became
so.” Id. at 422. The Supreme Court has emphasized that district courts
should not find a plaintiff’s action unreasonable or groundless simply
because he did not prevail. Id. at 421-22. Engaging in such “hindsight logic”
would “discourage all but the most airtight claims” and undercut Congress’s
efforts to promote vigorous enforcement of civil rights statutes. Id. at 42223; see also Myers v. City of West Monroe, 211 F.3d 289, 292 n.1 (5th Cir.

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2000) (explaining that the limit on recovery of fees by a prevailing defendant
“attempts to prevent any chilling effect on the enforcement of civil rights”).

III. DISCUSSION
A. Fee Request under the Americans with Disabilities Act
Defendant moves for attorneys’ fees under the ADA’s fee-shifting
provision. 13 See 42 U.S.C. § 12205. A fee request by a prevailing defendant
under the ADA is governed by the same legal standard applicable to other
civil rights cases. See No Barriers, Inc. v. Brinker Chili’s Tex., Inc., 262 F.3d
496, 498 (5th Cir. 2001). A defendant may recover fees only if the plaintiff’s
claims were “frivolous, unreasonable, or groundless.” Id.
Defendant first argues that a fee award is warranted because plaintiff
wrongly asserted that no braille was present on the water refill station when
he attempted to use the machine on the evening of August 17, 2017. 14 In its
order dismissing the complaint, the Court found that it was more likely than
not that at least some braille stickers were present at the time of plaintiff’s
alleged August 2017 visit.15 The Court based this finding on a declaration
from a Glacier Water employee stating that he applied braille stickers to the

13
14
15

R. Doc. 22-1 at 4-5.
Id. at 6-7.
R. Doc. 20 at 8.
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water machine on February 1, 2017, and a second declaration from an
individual who took pictures of the machine on August 22, 2017. 16 But
plaintiff is blind, and there was no finding that plaintiff knew the braille
stickers were present when he filed the lawsuit. Thus, the Court finds that
defendant has not shown that plaintiff’s complaint was frivolous or
groundless when he initiated this suit.
Defendant further contends that plaintiff and his counsel continued to
litigate this matter after it became clear that plaintiff’s claims were
groundless.17 Specifically, defendant states that plaintiff and his counsel
continued to assert that the water refill station lacked braille even after
defendant’s counsel informed them that braille was present on the
machine. 18 But defendant does not indicate when it informed plaintiff that
braille stickers were present on the machine. The sole communication
mentioned in defendant’s motion is a letter from defense counsel to
plaintiff’s counsel dated September 8, 2017. 19
The September 2017 letter states, in relevant part: “Please advise your
client that the braille stickers regarding the instrumentation required to use

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19

Id.; see also R. Doc. 6-2; R. Doc. 6-3.
R. Doc. 22-1 at 6.
Id. at 7.
Id. at 4; R. Doc. 6-5 at 4.
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the Glacier Water machine located at the Winn-Dixie at 211 Veterans
Memorial Boulevard, Metairie, Louisiana have been re-applied to the
machine.” 20 This letter does not indicate that braille stickers were already
present on the machine at the time of plaintiff’s alleged August 2017 visit.
On the contrary, the letter implies that the water refill station previously
lacked satisfactory braille stickers. See EEOC v. Kimbrough Inv. Co., 703
F.2d 98, 103 (5th Cir. 1983) (concluding that civil rights suit was not
vexatious in part because defendant’s settlement offer suggested a need for
steps to redress discrimination). This letter therefore did not put plaintiff on
notice that braille stickers were present on the machine in August 2017.
To the extent defendant argues that the September 2017 letter advised
plaintiff that his complaint was moot, this does not demonstrate that
continuation of the suit was unreasonable. The Court did not dismiss the
complaint based on mootness, and plaintiff presented a non-frivolous
argument that defendant’s voluntary corrective action was insufficient to
moot his claims.21 See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000) (explaining that a defendant asserting
that its voluntary conduct renders a case moot bears a “heavy burden of

20
21

R. Doc. 6-5 at 4.
R. Doc. 16 at 7-9.
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persuading the court that the challenged conduct cannot reasonably be
expected to start up again”).
In its motion to dismiss, defendant offered evidence for the first time
that the water refill station was outfitted with at least some braille stickers at
the time of plaintiff’s alleged August 2017 visit. 22 There is no indication in
the record that defendant communicated this information to plaintiff before
filing its motion.

The Court granted the motion, and dismissed the

complaint. 23 Plaintiff did not have the opportunity to press his claim any
further, and defendant has therefore not shown that he unreasonably
continued to litigate after receiving notice that his claim was groundless. Cf.
No Barriers, Inc., 262 F.3d at 498-50 (affirming fee award to prevailing ADA
defendant when plaintiff failed to timely amend his complaint despite
defendant’s “repeated protestations and a strong suggestion from the district
court” that he had sued the wrong party); see also Smith v. Touro Infirmary,
No. 14-2689, 2016 WL 3511717, at *5 (E.D. La. 2016).
Although the Court has reservations regarding the conduct of plaintiff
and his counsel in this matter, defendant has not met the high bar to show
that plaintiff’s suit was frivolous, unreasonable, or groundless, or that he

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R. Doc. 6-1; R. Doc. 6-2; R. Doc. 6-3.
R. Doc. 20.
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continued to litigate after it clearly became so. The Court thus denies
defendant’s request for attorneys’ fees under the ADA.
B. Other Bases for Attorneys’ Fees
Defendant also asks the Court to award attorneys’ fees under 28 U.S.C.
§ 1927 and the Court’s inherent power. 24 Section 1927 permits the Court to
require an attorney “who so multiplies the proceedings in any case
unreasonably and vexatiously . . . to satisfy personally the excess costs,
expenses, and attorneys’ fees reasonably incurred because of such conduct.”
28 U.S.C. § 1927. For the reasons explained above, defendant has not shown
that plaintiff’s counsel unreasonably and vexatiously multiplied the
proceedings in this action.
The Court may also impose attorneys’ fees as part of its inherent power
to sanction bad faith and vexatious conduct. See Chambers v. NASCO, Inc.,
501 U.S. 32, 45-46 (1991). But the Court should ordinarily rely on its
inherent power only when “neither the statute nor the Rules are up to the
task.” Id. at 50. The ADA’s fee-shifting provision directly addresses the
award of attorneys’ fees in frivolous suits, and the Court declines to impose
sanctions under its inherent power.

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R. Doc. 22.
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IV.

CONCLUSION
For the foregoing reasons, the Court DENIES defendant’s motion for

attorneys’ fees.

2nd
New Orleans, Louisiana, this _____ day of May, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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