Doud et al v. Yellow Cab of Reno, Inc.

Filing 146

ORDER denying Yellow Cab's 121 Motion to Stay: The 94 attorneys' fees and costs shall be paid within 14 days. The Douds' 113 Motion for Order to Show Cause held in abeyance during this time (see order for further details). Signed by Magistrate Judge William G. Cobb on 9/23/2015. (Copies have been distributed pursuant to the NEF - KR)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

MELODIE DOUD and JAMES DOUD,

7

Plaintiffs,

8
9

v.

3:13-cv-00664-WGC
ORDER
Re: ECF Nos. 113 and 121

YELLOW CAB OF RENO, INC.,

10

Defendant.

11
Before the court are two interrelated motions filed by the parties: (1) Plaintiffs’, James

12
13

and Melodie Doud (the Douds), Motion for an Order to Show Cause Why Defendant Yellow

14

Cab of Reno, Inc. Should not be Held in Contempt for Failure to Pay Interim Fees and Costs.

15

(ECF No. 113)1; and (2) Defendant Yellow Cab of Reno, Inc.’s (Yellow Cab) request for a stay

16

of proceedings to collect the interim award of fees (ECF No. 121).
Yellow Cab has opposed the Douds’ motion for an order to show cause (ECF No. 121),

17
18

and the Douds have filed a reply (ECF No. 122) and errata (ECF No. 127).
The Douds have likewise opposed Yellow Cab’s request for a stay of proceedings to

19
20

collect the interim award of fees (ECF No. 123), and Yellow Cab has filed a reply (ECF No.

21

132).

22

The court has thoroughly reviewed all of the briefing, and for the reasons set forth below,

23

Yellow Cab’s request for a stay of the court’s order awarding interim attorneys’ fees and costs

24

(ECF No. 121) is denied. The $152,273 in attorneys’ fees and $4,122 in costs awarded to the

25

Douds (ECF No. 94) shall be paid within fourteen days of the date of this order. The court will

26

hold the Douds’ motion for an order to show cause re contempt in abeyance during this time. If

27

after fourteen days from the date of this order, Yellow Cab has not paid the sum due, the court

28
1

Refers to court’s Electronic Case Filing number.

1

will address the Douds’ motion at that time. Yellow Cab is cautioned that if it does not pay the

2

sum owing to the Douds within that time frame, the court is inclined to issue a finding that

3

Yellow Cab is in contempt of the court’s orders.
I. BACKGROUND

4
5

The Douds obtained a preliminary injunction on their denial of service claims brought

6

under Title III of the Americans with Disabilities Act (ADA). (ECF no. 30.) The Douds’ motion

7

for partial summary judgment with respect to these claims was subsequently granted. (ECF No.

8

69.) The Douds filed a motion and supplemental motion requesting an interim award of

9

attorneys’ fees and costs, which the court granted on March 3, 2015 (ECF No. 70), and awarded

10

the Douds $152,273 in attorneys’ fees and $4,122 in costs on May 18, 2015 (ECF No. 94).

11

Yellow Cab has yet to pay the Douds the fees and costs awarded. As a result, the Douds now

12

seek an order to show cause why Yellow Cab should not be held in contempt for failing to obey

13

the court’s order awarding the fees and costs. (ECF No. 113.)

14

In its opposition, Yellow Cab argues that payment of an interim order for attorney’s fees

15

is not required until final judgment, citing Federal Rule of Civil Procedure 62, because an

16

interim award of attorney’s fees is not a final judgment and is not appealable. (ECF No. 121 at 3-

17

4.) It further contends that there is no statutory language permitting the immediate enforcement

18

of an interim award of attorney’s fees, and enforcement of the award after conclusion of the

19

litigation is appropriate. (Id. at 4.) Yellow Cab asserts that this protects against the unnecessary

20

payment of fees in the event an appeal is successful. (Id.) It also argues that there is no guarantee

21

the Douds could repay the awarded fees and costs upon a successful appeal. (Id.)

22

Yellow Cab asks the court to stay any attempt by the Douds to collect the interim fees

23

and costs awarded until the conclusion of this litigation and until Yellow Cab has an opportunity

24

to challenge the order granting the Douds partial summary judgment as to the Title III denial of

25

service claims. (ECF No. 121 at 6.)

26

In their reply brief in support of their motion for an order to show cause as to why Yellow

27

Cab should not be held in contempt for failing to pay the interim award of fees and costs, the

28

Douds argue that the court has authority to enforce the interim award of fees and costs now as

-2-

1

the court has the power to award fees while litigation is pending. (ECF No. 122 at 1-4.) They

2

further assert that Yellow Cab’s contention that the Douds might not be able to pay the award

3

back if Yellow Cab is successful on appeal is not adequate justification to delay payment of

4

interim fees, and in any event, is not supported by any evidence. (Id. at 4-5.) The Douds reiterate

5

that the failure to comply with a court order is punishable by contempt. (Id. at 5.) They seek a

6

civil contempt finding that compels compliance with the court’s order as well as an order that the

7

Douds be compensated for the time spent in trying to get the fees and costs award paid. (Id. at 5-

8

6.) The Douds request that the fees and costs be immediately paid or that Yellow Cab be fined a

9

daily penalty, or $156 per day, commencing on June 1, 2015, which is fourteen days following

10

the court’s order awarding fees. (Id. at 13, ECF No. 127 at 1.) This is one-tenth of one percent of

11

the fee award. (Id.)

12

In response to Yellow Cab’s request for a stay, the Douds acknowledge that the court has

13

authority to hold an order in abeyance pending review, but assert that a stay is not a matter of

14

right. (ECF No. 123.) The Douds argue that Yellow Cab has failed to establish a likelihood of

15

success on the appeal of Title III denial of service claim. Nor has Yellow Cab established

16

irreparable injury in the absence of a stay, as it did not argue that it did not have financial

17

resources to pay the award or that payment of the award would deplete its resources. The Douds

18

assert that the fact a possibility of prevailing on an appeal is not sufficient justification to delay

19

payment of the fee award. Next, the Douds contend that Yellow Cab failed to establish that

20

issuance of a stay is necessary to other parties or the public. The Douds then assert that Yellow

21

Cab has waited too long to seek a stay. Finally, the Douds point out that Yellow Cab has failed to

22

offer a supersedeas bond.

23

In its reply, Yellow Cab maintains that it is unfair and improper to require the immediate

24

enforcement of an interim order that is not a final judgment and not yet appealable, and as such

25

asks that the court exercise its discretion to stay enforcement of the order. (ECF No. 132 at 1-2.)

26

Yellow Cab further contends that immediate enforcement of the award is not in the public’s

27

interest in these circumstances because the amount of the award is inconsistent with the Douds

28

success in this case, where they were granted partial summary judgment as to only one of four

-3-

1

claims raised in that motion. (Id. at 2-3.) Yellow Cab asserts that the court has discretion to issue

2

a stay without the need of a supersedeas bond. (Id. at 3-4.)

3

II. DISCUSSION

4

“Congress passed the ADA in 1990 to provide clear, strong, consistent, enforceable

5

standards addressing discrimination against individuals with disabilities.” Molski v. M.J. Cable,

6

Inc., 481 F.3d 724, 730 (9th Cir. 2007) (citation and quotation marks omitted). 42 U.S.C. section

7

12205 provides for the recovery of attorney’s fees and costs by the “prevailing party” in an

8

action brought under the ADA. Congress enacted the fee-shifting provision in civil rights statutes

9

“to ensure effective access to the judicial process for persons with civil rights grievances.”

10

Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (internal quotation marks and citation omitted).

11

The Supreme Court has said: “If successful plaintiffs were routinely forced to bear their own

12

attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by

13

invoking the injunctive powers of the federal courts.” Newman v. Piggie Park Enters., Inc., 390

14

U.S. 400, 402 (1968) (per curiam). “Prevailing party” status under the ADA is evaluated within

15

the framework established by the Supreme Court under the Civil Rights Attorney’s Fees Awards

16

Act of 1976, 42 U.S.C. section 1988, which provides for the recovery of reasonable attorney’s

17

fees and costs to the prevailing party under various civil rights acts. See Fischer v. SJB-P.D.,

18

Inc., 214 F.3d 1115, 1118 (9th Cir. 2000) (citation omitted).
The court has determined that the Douds are the “prevailing party” with respect to their

19
20

denial of service claims brought under Title III of the ADA because of their success on the

21

motion for preliminary injunction and partial summary judgment relative to those claims. (ECF

22

No. 70.) As a result, the court awarded them $152,273 in attorneys’ fees and $4,122.06 in costs.

23

(ECF No. 94). The order awarding the costs and fees was entered on May 18, 2015. (ECF No.

24

94.) Yellow Cab has not paid the fees and costs, and waited over three months after the order

25

was entered to question the propriety of an interim award of fees and to request a stay of the

26

order pending the entry of final judgment in the case. (ECF No. 121.)

27

///

28

///

-4-

1

Preliminarily, the court points out that when Yellow Cab opposed the motion for an

2

interim award of attorney’s fees and costs (ECF No. 37), it did not raise the argument it raises

3

now−that the court does not have authority to make an interim award of fees.

4

It is well settled that district courts may impose interim awards of attorney’s fees and

5

costs in various contexts, including civil rights lawsuits, and in suits where the operative statute

6

does not expressly provide for an interim award of fees, where the party has prevailed on the

7

merits on some claims. See, e.g., Hanrahan v. Hampton, 446 U.S. 754 (1980); Bradley v. School

8

Board of City of Richmond, 416 U.S. 696 (1974); Rosenfeld v. United States, 859 F.2d 717, 720

9

(9th Cir. 1988).

10

Bradley was a protracted school desegregation case where the district court awarded the

11

plaintiffs interim fees before the case was concluded. Bradley, 416 U.S. at 698. The Supreme

12

Court upheld the award, stating that “[t]o delay a fee award until the entire litigation is concluded

13

would work substantial hardship on plaintiffs and their counsel, and discourage the institution of

14

actions despite the clear congressional intent to the contrary[.]” Id. at 723. “A district court must

15

have discretion to award fees and costs incident to the final disposition of interim matters.” Id.

16

(citing 6 J. Moore, Federal Practice 54.70(5) (1974 ed.)).

17

This issue was confronted by the Supreme Court again in Hanrahan v. Hampton, 446

18

U.S. 754 (1980), which involved the Civil Rights Attorney’s Fee Awards Act of 1976, 42 U.S.C.

19

§ 1988. As stated, supra, courts utilize the framework for determining “prevailing party” status

20

under section 1988 in ADA cases as well. See Fischer, 214 F.3d at 1118. In Hanrahan, the

21

Supreme Court noted that “Congress contemplated the award of fees pendente lite2 in some

22

cases.” Hanrahan, 446 U.S. at 757 (citation omitted). That being said, “it seems clearly to have

23

been the intent of Congress to permit such an interlocutory award only to a party who has

24

established his entitlement to some relief on the merits of his claims, either in the trial court or on

25

appeal.” Id. By way of example, Congress referenced cases where “the party to whom fees were

26

awarded had established the liability of the opposing party, although final remedial orders had

27
28
2

This means while the action is pending. Pendente Lite, Black’s Law Dictionary (10th ed. 2014).

-5-

1

not been entered.” Id. (referencing Bradley, 416 U.S. 696; Mills v. Electric Auto-Lite Co., 396

2

U.S. 375 (1970)).

3

The Supreme Court also highlighted Congress’s approval of the language in Bradley that

4

“’the entry of any order that determines substantial rights of the parties may be an appropriate

5

occasion upon which to consider the propriety of an award of counsel fees ...” Id. (citing H.R.

6

Rep. No. 94-1558 at 8, which quotes Bradley, 416 U.S. at 723, n. 28). It further quoted the

7

Senate’s finding that “award of counsel fees pendente lite would be ‘especially appropriate

8

where a party has prevailed on an important matter in the course of litigation, even when he

9

ultimately does not prevail on all issues.’” Id. (citing S. Rep. No. 94-1011 at 5, U.S. Code Cong.

10

& Admin. News 1976, p. 5912) (emphasis added by Hanrahan)). Thus, the Supreme Court

11

concluded in Hanrahan that “Congress intended to permit the interim award of counsel fees only

12

when a party has prevailed on the merits of at least some of his claims.” Id. In Hanrahan, the

13

Supreme Court found that the respondent had not prevailed on the merits of any of their claims,

14

and reversed the award of attorney’s fees. Id. at 758-59.

15

Here, the Douds have unquestionably prevailed on the merits of their claims brought

16

under Title III of the ADA. Therefore, the court properly exercised its discretion in issuing the

17

order awarding them interim attorneys’ fees and costs. It is immaterial that they were not

18

successful on all claims raised in the motion for partial summary judgment. All that is required is

19

that they prevail on some of their claims, Hanrahan, 446 U.S. 758-59, which they did.

20

Yellow Cab asks the court to stay the order awarding interim fees, relying primarily on

21

the argument that there is no guarantee that the amount could be repaid if they are ultimately

22

successful on appeal. Yellow Cab, however, does not lend any support to its conjecture that it

23

could not ultimately obtain repayment of the fees from the Douds’ counsel if it were ultimately

24

successful on appeal. See, e.g., Rosenfeld, 859 F.2d at 721-22 (finding that appeal under

25

collateral order exception was not appropriate where challenging party had no evidence to

26

support argument that it could not obtain repayment of fees following successful appeal).

27
28

-6-

1

Nor has Yellow Cab presented any other evidence that would justify the court entering a stay of

2

its order. Therefore, the court declines to stay its interim award of fees pending entry of final

3

judgment.

4

The court will hold in abeyance the Douds’ motion for an order to show cause why

5

Yellow Cab should not be held in contempt of court for failure to pay the awarded costs and fees

6

and will grant Yellow Cab one last opportunity to comply with the court’s order. If it fails to do

7

so, or fails to negotiate other arrangements for payment of the award, the court will revisit the

8

Douds’ motion and is inclined to make a finding that Yellow Cab is in contempt of court.
III. CONCLUSION

9
10

IT IS HEREBY ORDERED that Yellow Cab’s request for a stay of the court’s order

11

awarding interim attorneys’ fees and costs (ECF No. 121) is DENIED. The $152,273 in

12

attorneys’ fees and $4,122 in costs awarded to the Douds (ECF No. 94) shall be paid WITHIN

13

FOURTEEN DAYS OF THE DATE OF THIS ORDER.

14

IT IS FURTHER ORDERED that the court will hold the Douds’ motion for an order to

15

show cause re contempt (ECF No. 113) in abeyance during this time. If after fourteen days from

16

the date of this order, Yellow Cab has not paid the sum due or negotiated another arrangement

17

for payment with the Douds and their counsel, the Douds shall file a notice to that effect and the

18

court will address the Douds’ motion at that time. Yellow Cab is cautioned that if it does not pay

19

the sum owing to the Douds within the prescribed time frame or negotiate other arrangements for

20

payment, the court is inclined to issue a finding that Yellow Cab is in contempt of the court’s

21

orders and will impose the appropriate contempt sanction(s) at that time.

22

IT IS SO ORDERED.

23

Dated: September 23, 2015.

____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28

-7-