Davis v. Morris-Walker, Ltd. et al

Filing 93

ORDER granting in part 67 Motion for Bond; denying 72 Motion for Attorney Fees; denying 85 Motion for Sanctions (Written Opinion). Signed by Senior Judge David S. Doty on 1/19/2018. (DLO)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 17-1270(DSD/FLN)
Melanie Davis,
Plaintiff,
v.

ORDER

Morris-Walker, LTD., and
Orchard Park, LLC,
Defendants.
Padraigin Browne, Esq. and Browne Law LLC, 8530 Eagle Point
Blvd., Suite #100, Lake Elmo, MN 55042, counsel for plaintiff.
Edward Peter Sheu, Esq. and Best & Flanagan, LLP, 60 South 6th
Street, Suite 2700, Minneapolis, MN 55402, counsel for
defendants.

This matter is before the court upon the motions to require
cost bond and for attorney’s fees and nontaxable expenses by
defendants Morris-Walker Ltd. and Orchard Park, LLC and the motion
for sanctions or attorney’s fees by plaintiff Melanie Davis. Based
on a review of the file, record, and proceedings herein, and for
the following reasons, the motion for cost bond is granted in part,
the motion for attorney’s fees and nontaxable expenses is denied,
and the motion for sanctions or attorney’s fees is denied.

BACKGROUND
The background of this matter is fully set forth in the
court’s previous order [ECF No. 63] and will not be repeated here.
The

instant

motions

follow

the

court’s

dismissal

of

Davis’s

complaint and denial of her motion for summary judgment. Davis has
appealed those determinations to the Eighth Circuit Court of
Appeals.

DISCUSSION
I.

Motion for Cost Bond
“In a civil case, the district court may require an appellant

to file a bond or provide other security in any form and amount
necessary to ensure payment of costs on appeal.”
7; see also D. Minn. L.R. 67.3(e).

Fed. R. App. P.

“Appeal bonds are a type of

guarantee for an appellee that an unsuccessful appellant can pay
the costs the appellee incurs as a result of the appeal.”

In re

Target Corp. Customer Data Sec. Breach Litig., 847 F.3d 608, 614–15
(8th Cir. 2017).

The Eighth Circuit limits “costs on appeal to

costs that a successful appellate litigant can recover pursuant to
a specific rule or statute.”
citation omitted).

Id. at 615 (quotation marks and

Although the court finds the imposition of a

cost bond appropriate in this case, defendants have failed to
substantiate their request for a $5,000 cost bond. As Davis notes,
the costs defendants will likely incur on appeal are far below
$5,000 in light of the limited nature of the case.
the court will impose a $200 cost bond on Davis.

2

As a result,

II.

Motion for Attorney’s Fees and Nontaxable Expenses
Defendants move for attorney’s fees and nontaxable expenses

under various rules and statutes, all of which generally require a
showing that the plaintiff’s claim was frivolous, unreasonable, or
groundless
conduct.

or

that

counsel

engaged

in

vexatious

or

dilatory

See 42 U.S.C. § 12205; 28 U.S.C. § 1927; Minn. Stat.

§ 363A.33, subdiv. 7; Fed. R. Civ. P. 11.

Although the court

questions Davis’s maintenance of the suit after defendants made
changes to its parking lot to ensure ADA compliance, the court is
not convinced that her claim thereafter became wholly frivolous,
unreasonable, or groundless. Nor is the court fully persuaded that
Davis’s counsel engaged in vexatious conduct, although that too is
a close call.1
III. Motion for Sanctions or Attorney’s Fees
Davis argues that she should be awarded sanctions or fees
because defendants’ post-judgment motions are meritless. The court
disagrees.

The court grants defendants’ motion for cost bond and

denies, but only narrowly, defendants’ motion fees and nontaxable
expenses.

As a result, Davis’s motion is denied.

1

Counsel for Davis is cautioned that similar tactics in
future cases will be highly disfavored.
3

CONCLUSION
Accordingly, based on above, IT IS HEREBY ORDERED that:
1.

The motion for cost bond [ECF No. 67] is granted in part;

2.

Plaintiff shall deposit a cost bond with the clerk of

court in the amount of $200 within thirty days of the date of this
order;
3.

The motion for attorney’s fees and nontaxable expenses

[ECF No. 72] is denied; and
4.

The motion for sanctions or attorney’s fees [ECF No. 85]

is denied.

Dated: January 19, 2018
s/David S. Doty
David S. Doty, Judge
United States District Court

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