Guglielmo v. Nebraska Furniture Mart, Inc.

Filing 46

OPINION AND ORDER re: 39 MOTION for Attorney Fees . filed by Nebraska Furniture Mart, Inc. Defendant sought and received a decision from the Court dismissing the Complaint. The Court cannot say, however, on the unusual procedural fa cts of this case, that it was unreasonable for Plaintiff either to bring or to persist with his litigation. Accordingly, and for the reasons set forth herein, Defendant's request for attorney's fees is DENIED. The Clerk of Court is directed to terminate the motion at docket entry 39. (Signed by Judge Katherine Polk Failla on 9/9/2021) (rro)

Case 1:19-cv-11197-KPF Document 46 Filed 09/09/21 Page 1 of 17

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOSEPH GUGLIELMO, on behalf of
himself and all others similarly situated,
Plaintiff,
-v.-

19 Civ. 11197 (KPF)
OPINION AND ORDER

NEBRASKA FURNITURE MART, INC.,
Defendant.
KATHERINE POLK FAILLA, District Judge:
In December 2019, Plaintiff Joseph Guglielmo filed this action against
Defendant Nebraska Furniture Mart, Inc., alleging that a website operated by
Defendant denied equal access to blind and visually-impaired consumers in
violation of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 1218112189 (the “ADA”), and the New York City Human Rights Law, N.Y.C. Admin.
Code §§ 8-101 to 8-131 (the “NYCHRL”). One year later, the Court dismissed
the action without prejudice in accordance with both Federal Rule of Civil
Procedure 12(b)(1), for lack of subject matter jurisdiction, and Federal Rule of
Civil Procedure 12(b)(2), for lack of personal jurisdiction. (Dkt. #35).
Defendant now seeks to recover fees pursuant to the attorney’s fees provision
of the ADA, 42 U.S.C. § 12205. For the reasons set forth in the remainder of
this Opinion, the Court denies Defendant’s motion to recover attorney’s fees.

Case 1:19-cv-11197-KPF Document 46 Filed 09/09/21 Page 2 of 17

BACKGROUND 1
A.

Factual Background
Defendant, a Nebraska-based retailer of furniture and appliances, owns

and maintains a website, www.nfm.com (the “Website”), through which it offers
its products and services for sale and delivery to customers. (Compl. ¶¶ 2122). Plaintiff, who is visually impaired and legally blind (id. at ¶ 23), visited the
Website on multiple occasions and found that it lacked features and
accommodations that would make the Website accessible to himself and to
similarly-abled persons (id. at ¶¶ 24-28). Plaintiff alleged that these barriers to
access denied him the ability to use and enjoy the Website in the same fashion
as sighted persons. (Id. at ¶ 29).
B.

Procedural Background
On December 6, 2019, Plaintiff initiated this action with the filing of a

complaint. (Dkt. #1). Following letter briefing from the parties regarding
Defendant’s intent to move to dismiss the Complaint (Dkt. #14, 16), the Court
set a briefing schedule for Defendant’s anticipated motion at a March 18, 2020
conference (Minute Entry for March 18, 2020). Pursuant to that schedule,

1

Certain facts in this Opinion are drawn from Plaintiff’s Complaint (“Compl.” (Dkt. #1)).
However, the instant motion relates primarily to Plaintiff’s conduct in this litigation. As
such, the Court draws facts regarding the procedural history from the record in this
case, including Defendant’s January 31, 2020 letter (Dkt. #14); the June 23, 2020 joint
letter from the parties (Dkt. #28); and Defendant’s July 2, 2020 letter (Dkt. #30).
For ease of reference, the Court refers to certain of the parties’ correspondence using
the convention “Pl. [Date] Ltr.”; “Def. [Date] Ltr.”; or “Joint [Date] Ltr.” The Court refers
to Defendant’s brief in support of its motion for attorney’s fees as “Def. Br.” (Dkt. #391); Plaintiff’s brief in opposition as “Pl. Opp.” (Dkt. #44); and Defendant’s reply brief as
“Def. Reply” (Dkt. #45).

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Defendant’s opening papers were due by May 1, 2020; Plaintiff’s opposition
papers were due by June 8, 2020; and Defendant’s reply was due by June 22,
2020. (Id.). Defendant filed its motion to dismiss and supporting papers on
May 1, 2020. (Dkt. #24, 25). However, a few days after the date on which
Plaintiff’s submission was due, on June 11, 2020, Defendant filed an answer to
the Complaint. (Dkt. #27). Plaintiff did not timely file his opposition papers,
and when later he requested leave to file an untimely submission, the Court
denied his request. (Dkt. #34).
On June 23, 2020, the Court received a joint letter from the parties
indicating that Plaintiff had offered a joint stipulation of dismissal to Defendant
on June 8, 2020, and on several occasions thereafter. (Dkt. #28). In the letter,
Defendant stated that because it had incurred “significant effort” in filing its
motion to dismiss, it was seeking “an order from this Court rather than a
voluntary dismissal.” (Id. at 2). 2 Defendant also acknowledged the strategy
behind its decision to file an answer when it did, namely, “to protect its ability
to obtain such an order.” (Id.). For his part, Plaintiff noted in the same letter
that he “ha[d] offered to dismiss this matter with prejudice, which is exactly the
same relief Defendant is seeking from its motion to dismiss,” and argued
further that Defendant’s decision to file an answer served as an effective
dismissal of its motion. (Id.).

2

In telephonic conferences with the Court on March 18, 2020, and June 25, 2020,
counsel for Defendant echoed these sentiments, by noting that Defendant was sincerely
concerned about website accessibility and interested in a decision from the Court on its
motion to dismiss.

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On July 2, 2020, Defendant submitted a letter notifying the Court that it
had refused an additional stipulation of dismissal that Plaintiff had proposed
following a June 25, 2020 pretrial conference with the Court, because it had
determined that the stipulation failed to provide the precise relief sought in its
motion to dismiss. (Dkt. #30). Subsequently, in response to an order of the
Court (Dkt. #31), the parties submitted briefing on the question of whether
Defendant’s filing of an answer had rendered its motion to dismiss moot (Dkt.
#32, 33). By endorsement dated August 10, 2020, the Court determined that
Defendant’s Answer had not mooted its motion to dismiss. (Dkt. #34).
Ultimately, the Court dismissed the Complaint without prejudice in an Opinion
and Order dated December 18, 2020, citing deficiencies as to standing,
mootness, and personal jurisdiction. (Dkt. #35).
On January 4, 2021, Defendant filed the instant motion for attorney’s
fees and supporting papers. (Dkt. #39). Plaintiff filed letter motions on
January 18, 2021, and February 2, 2021, requesting extensions to file a
response (Dkt. #40, 42), both of which the Court granted (Dkt. #41, 43). On
February 8, 2021, Plaintiff filed his opposition to Defendant’s motion. (Dkt.
#44). Defendant submitted its reply in support of its motion on February 16,
2021. (Dkt. #45).

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DISCUSSION
A.

Applicable Law
The ADA provides that a court “in its discretion, may allow the prevailing

party … a reasonable attorney’s fee, including litigation expenses and costs[.]”
42 U.S.C. § 12205. “Before deciding whether an award of attorney’s fees is
appropriate in a given case, then, a court must determine whether the party
seeking fees has prevailed in the litigation.” CRST Van Expedited, Inc. v.
E.E.O.C., 136 S. Ct. 1642, 1646 (2016) (“CRST”). “To be considered a prevailing
party, the [party] must achieve a material, judicially-sanctioned alteration of
the legal relationship that favors it.” Indep. Project, Inc. v. Ventresca Bros.
Constr. Co., 397 F. Supp. 3d 482, 490 (S.D.N.Y. 2019); see also CRST, 136 S.
Ct. at 1646 (“[T]he ‘touchstone of the prevailing party inquiry must be the
material alteration of the legal relationship of the parties.’ … This change must
be marked by ‘judicial imprimatur.’” (emphasis omitted) (first quoting Tx. State
Teachers Ass’n. v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989), and
then quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t. of Health &
Human Res., 532 U.S. 598, 605 (2001))).
A prevailing defendant is entitled to recover reasonable attorney’s fees
“only when the plaintiff’s ‘claim was frivolous, unreasonable, or groundless,
or ... the plaintiff continued to litigate after it clearly became so.’” Parker v.
Sony Pictures Ent., Inc., 260 F.3d 100, 111 (2d Cir. 2001) (quoting
Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 422 (1978)). “[T]he
determination as to whether the claims were frivolous, unreasonable, or

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groundless requires an evaluation of the allegations and the proof in light of
the controlling principles of substantive law.” LeBlanc-Sternberg v. Fletcher,
143 F.3d 765, 770 (2d Cir. 1998). This standard may be met even where an
action was “not brought in subjective bad faith.” E.E.O.C. v. J.B. Hunt Transp.,
Inc., 75 F. App’x 853, 854 (2d Cir. 2003) (summary order) (quoting
Christiansburg, 434 U.S. at 421).
That said, “courts should not engage in post hoc reasoning in
determining whether a suit was frivolous, because the prospects for a plaintiff’s
success are difficult to assess at the outset of a suit.” Access 4 All, Inc. v.
Ulster Heights Props., Inc., No. 07 Civ. 2923 (LBS), 2009 WL 256008, at *2
(S.D.N.Y. Feb. 2, 2009); see also Christiansburg, 434 U.S. at 421-22 (“[I]t is
important that a district court resist the understandable temptation to engage
in post hoc reasoning. … [T]he course of litigation is rarely predictable. … Even
when the law or the facts appear questionable or unfavorable at the outset, a
party may have an entirely reasonable ground for bringing suit.”). In that
regard, “[t]he fact that a plaintiff may ultimately lose [his] case is not in itself a
sufficient justification for the assessment of fees in favor of a defendant.”
Nicholas v. Harder, 637 F. App’x 51, 52 (2d Cir. 2016) (summary order)
(internal quotation marks omitted) (quoting Hughes v. Rowe, 449 U.S. 5, 14
(1980)).
B.

The Court Denies Defendant’s Motion for Attorney’s Fees
The parties vigorously dispute Defendant’s entitlement to attorney’s fees.

Defendant argues that Plaintiff lacked “a basis in law or fact for the allegations

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in his Complaint” and, at the very least, was unreasonable in continuing to
litigate after Defendant’s motion to dismiss was filed by contesting Defendant’s
ability to continue with that motion after filing an answer. (See Def. Br. 7-8).
Plaintiff proffers two arguments in response: (i) “Defendant is not a ‘prevailing
party’ under § 12205” (Pl. Opp. 3-4); and (ii) Plaintiff did not litigate in bad faith
because his claims were not “frivolous, unreasonable, or groundless,” nor was
it unreasonable for him to continue the litigation after the motion to dismiss
had been filed (id. at 7-8, 11-14 (internal quotation marks omitted) (quoting
Access 4 All, 2009 WL 256008, at *9)). The Court will address the parties’
arguments in turn, but to preview, it finds that Defendant is not entitled to
recover attorney’s fees. 3
1.

Defendant Is a Prevailing Party Under the Statute

The Court begins with the antecedent issue of whether Defendant is a
prevailing party under the ADA. Plaintiff emphasizes the fact that the Court
dismissed the case on non-merits grounds, and argues in particular that
“dismissal on personal jurisdiction grounds is not a sufficiently material
alteration of the legal relationship to qualify the winner as a prevailing party.”
(Pl. Opp. 4). Defendant rejoins that because the Court dismissed the
Complaint based on both lack of subject matter jurisdiction and personal

3

Plaintiff additionally argues that Defendant’s fee request is so deficient that it merits
denial of fees. (Pl. Opp. 17-20). The Court agrees with Plaintiff that the hours and
rates Defendant requests are excessive, particularly considering that it requests fees
solely for the work of partners. See Carrington v. Graden, No. 18 Civ. 4609 (KPF), 2020
WL 5758916, at *16 (S.D.N.Y. Sept. 28, 2020) (reducing fees to account for “top-heavy”
division of labor where partner performed majority of work rather than associates).
Given its resolution of the motion, however, the Court need not resolve this additional
argument.

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jurisdiction — neither of which could be cured with the filing of an amended
complaint — Defendant prevented Plaintiff from achieving his goal of materially
altering the parties’ relationship, and was therefore the prevailing party. (Def.
Reply 4-6). For the following reasons, the Court agrees with Defendant that it
is a prevailing party.
First, the Court’s determination regarding mootness binds the parties.
Plaintiff misstates this Court’s ruling in claiming that it “found that Plaintiff
lacked personal jurisdiction because of a pleading deficiency related to the
issue of Plaintiff’s intent to return to the website” (Pl. Opp. 6), as the Court in
fact found Plaintiff lacked standing for this reason, among others. See
Guglielmo v. Neb. Furniture Mart, Inc., No. 19 Civ. 11197 (KPF), 2020 WL
7480619, at *5 (S.D.N.Y. Dec. 18, 2020). Plaintiff’s argument that the Court’s
determinations regarding lack of personal jurisdiction and mootness “played no
role in the binding force of the opinion” is similarly erroneous. (Pl. Opp. 6).
Federal courts have no authority to issue advisory opinions and decide
questions that have no effect on the parties’ rights. See Penguin Books USA Inc.
v. Walsh, 929 F.2d 69, 72 (2d Cir. 1991).
Thus, while each basis was sufficient for dismissal, the Court’s
determination regarding mootness affected the rights of the parties because
otherwise the ruling would have been an impermissible advisory opinion.
Moreover, it is immaterial that the Complaint was dismissed without prejudice
as the Court lacks authority to dismiss with prejudice when dismissing a
complaint pursuant to Rule 12(b)(1). Carter v. HealthPort Techs., LLC, 822 F.3d

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47, 54 (2d Cir. 2016) (collecting cases) (“[W]here there is a lack of Article III
standing, ‘Article III deprives federal courts of the power to dismiss a case with
prejudice.’” (quoting Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d
Cir. 1999))).
Second, because the Court’s determinations are binding, Defendant is
“unquestionably” the prevailing party because the Court’s dismissal of the
Complaint “unambiguously rebuffs [Plaintiff’s] attempt to effect a material
alteration in the legal relationship between the parties.” Blair v. Alstom
Transp., Inc., No. 16 Civ. 3391 (PAE), 2020 WL 4504842, at *7 (S.D.N.Y. Aug. 5,
2020) (internal quotation marks omitted) (quoting Raniere v. Microsoft Corp.,
887 F.3d 1298, 1303 (Fed. Cir. 2018)). As a defendant’s “primary objective” is
the prevention of a material alteration in the parties’ legal relationship, a final
judgment achieving that objective suffices to render a defendant the prevailing
party. See CRST, 136 S. Ct. at 1651. Once again, the fact that the dismissal
was not based on the merits is no obstacle to finding that Defendant is the
prevailing party. See id. (“The defendant may prevail even if the court’s final
judgment rejects the plaintiff’s claim for a nonmerits reason.”).
Third, even accepting Plaintiff’s argument that whether Defendant is the
prevailing party is a “question … of suability — that is, whether the prevailing
party can be sued again without a material change in the defeated party’s
position” — Defendant is the prevailing party. (Pl. Opp. 4). Plaintiff cannot,
despite his arguments to the contrary (see id. at 6), cure through amendment
the deficiencies that were the basis for dismissal. Even if Plaintiff could

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replead and demonstrate standing, he would be unlikely to overcome the
Court’s findings on mootness given Defendant’s remediation efforts, see
Guglielmo, 2020 WL 7480619, at *6, and would also be unable to establish that
the Court has personal jurisdiction over Defendant, see id. at *9 (“Because
Plaintiff has failed to establish that Defendant transacts any business in New
York, if it were found that the Court had subject matter jurisdiction over this
case, it would nonetheless dismiss for want of personal jurisdiction.”).
Conversely, if Plaintiff attempted to start over in a court that had personal
jurisdiction over Defendant, such efforts would be futile given the Court’s
decisions on mootness and standing. Cf. Fashion Television LLC v. APT
Satellite Co., No. 17 Civ. 5413 (LTS) (SN), 2018 WL 4300526, at *4 (S.D.N.Y.
Sept. 10, 2018) (“[B]ecause the dismissal of Plaintiff’s claims for lack of
personal jurisdiction does not preclude Plaintiff from asserting its claim in a
proper jurisdiction, the legal relationship between the parties has not been
conclusively altered and Defendant is not a prevailing party within the meaning
of the statute.”). 4 Thus, the cases Plaintiff cites in support of his argument
that a dismissal for personal jurisdiction is insufficient to render Defendant the
prevailing party are inapt. (See Pl. Opp. 4-6 (citing Fashion Television LLC,
2018 WL 4300526, at *4)).

4

Further, as noted by Plaintiff, the district court in Fashion Television LLC itself
recognized that “some courts have reasoned that dismissal for lack of personal
jurisdiction does alter the legal relationship between the parties because such a
dismissal forever bars the plaintiff from litigating its claim in the particular court.”
Fashion Television LLC v. APT Satellite Co., No. 17 Civ. 5413 (LTS) (SN), 2018 WL
4300526, at *4 (S.D.N.Y. Sept. 10, 2018).

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2.

Plaintiff’s Claims Were Not Frivolous at the Outset

Of course, qualifying as a prevailing party is only part of the analysis.
The Court finds that Defendant has failed to show that Plaintiff’s claims meet
the standard articulated by the Supreme Court in Christiansburg for awarding
attorney’s fees to a prevailing defendant. Plaintiff’s claims, albeit lacking in
detail, were not so devoid of factual and legal bases as to be considered
groundless. Moreover, as discussed at other points in this Opinion, for the
Court to find that Plaintiff’s “claim was frivolous, unreasonable, or groundless,
or that [he] continued to litigate after it clearly became so” would require it
impermissibly to engage in post hoc reasoning. Christiansburg, 434 U.S. at
422.
Defendant focuses first on the commencement of the litigation, arguing
that the Complaint was frivolous at the outset given the “lack of factual
pleadings to support Plaintiff’s claim[.]” (Def. Br. 6-7). Defendant also
emphasizes that “Plaintiff and his counsel had a duty to determine that the
Court had personal jurisdiction” over Defendant that they failed to fulfill. (Id.
at 9). The Court disagrees. Working in reverse order, the Court finds that the
Website’s conflicting language regarding Defendant’s delivery policy imparted a
measure of reasonableness to Plaintiff’s arguments for personal jurisdiction.
Compare Guglielmo, 2020 WL 7480619, at *8 n.4 (noting that the Website
states that Defendant delivers “to ‘47 states (excluding Alaska, Hawaii and
California)’” but an “NFM Card may be required for purchases in some areas”),
with id. at *8 (discussing the Declaration of Jeffrey Douglas submitted in

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support of Defendant’s motion to dismiss, noting the Website’s statement that
Defendant only delivers within a 300-mile radius of its stores). It was not until,
at the earliest, the March 18, 2020 pre-motion conference that Plaintiff was on
notice that Defendant could not deliver to him in New York. (Def. Br. 11 n.2).
Given this lack of clarity, Plaintiff was not unreasonable in presuming, at the
time he filed the Complaint, that he could make a purchase in New York and
thus establish personal jurisdiction. See Access 4 All, 2009 WL 256008, at *2
(“Even though the facts supporting Plaintiffs’ claims may have been
questionable at the outset of litigation, the Court cannot unequivocally say that
Plaintiffs’ claim should have never been brought.”).
Turning next to the issue of vagueness, the Court finds that it would
constitute revisionist history to deem Plaintiff’s claims to be frivolous merely
because it ultimately found his “vague allegations … insufficient to establish a
concrete and particularized injury for standing purposes.” Guglielmo, 2020 WL
7480619, at *4. Indeed, the Second Circuit has cautioned courts against
engaging in such post hoc reasoning “by concluding that, because a plaintiff
did not ultimately prevail, his action must have been unreasonable or without
foundation.” Nicholas, 637 F. App’x at 52 (internal quotation marks and
citation omitted).
“A claim ‘is frivolous where it lacks an arguable basis either in law or in
fact.’” Shakur v. Selsky, 391 F.3d 106, 113 (2d Cir. 2004) (quoting Neitzke v.
Williams, 490 U.S. 319, 325 (1989)). Plaintiff’s allegations, while vague, were
not entirely bereft of factual or legal bases. Plaintiff alleged that he has a

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disability under the ADA and that Defendant “denie[d] him full and equal
opportunity to use its website.” (Compl. ¶ 31). These allegations, despite not
being sufficient to allege standing, are sufficient to allege a prima facie ADA
claim. See Winegard v. Crain Commc’ns, Inc., No. 20 Civ. 1509 (AJN), 2021 WL
1198960, at *2-3 (S.D.N.Y. Mar. 30, 2021) (concluding that plaintiff had
established a prima facie ADA claim where he alleged that he had a disability
and that he was denied “full and equal opportunity” to use defendant’s
website). Further, in opposing the instant motion, Plaintiff submitted a written
report of the Website’s defects that existed at the time he filed the Complaint.
(Pl. Opp., Ex. A). And Defendant effectively concedes the existence of prior
barriers to equal access, given its prior submission attesting that it had
undertaken remediation efforts to address those barriers. Guglielmo, 2020 WL
7480619, at *6 (summarizing Defendant’s efforts to improve the Website’s
accessibility). Consequently, though the Court found that Plaintiff’s Complaint
was subject to dismissal, it cannot find that the Complaint was frivolous. See
Antolini v. Thurman, No. 19 Civ. 9674 (JMF) (KNF), 2021 WL 3774112, at *1
(S.D.N.Y. Aug. 24, 2021) (“[Although Defendants prevailed, the Court cannot
say that Plaintiff’s claim was frivolous. … There is no dispute that the premises
at issue are, in fact, inaccessible. … Plaintiff simply failed to build a sufficient
record to support his claims under the applicable ADA standards.”).

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3.

Plaintiff Was Not Unreasonable in Continuing to Litigate

Defendant alternatively argues that, even if Plaintiff’s claims were not
frivolous at the outset, “Plaintiff learned of the deficiencies in [his] case
repeatedly through the proceedings” and was unreasonable in continuing to
litigate. (Def. Br. 7). 5 Relatedly, Defendant contends that Plaintiff’s arguments
regarding the mooting effect of the Answer were themselves frivolous. (Id. at
13-14). Plaintiff counters that in litigating these mootness issues, his counsel
was acting in accordance with “his professional obligations of zealous
advocacy.” (Pl. Opp. 15-17).
Plaintiff’s arguments regarding the mootness of Defendant’s motion to
dismiss were not frivolous, nor was he unreasonable in continuing the
litigation by making such arguments. The best indication that Plaintiff’s
arguments were not an attempt to “re-litigate settled questions of law” (Def. Br.
13), is the fact that the Court ordered briefing on the issue in the first instance.
And as confirmed by the parties’ submissions, there is limited precedent on
point, such that Plaintiff’s citation to Brisk v. Miami Beach, 709 F. Supp. 1146
(S.D. Fla. 1989), was not unreasonable. (See Pl. July 10, 2020 Ltr. 2; see also
Def. July 17, 2020 Ltr.). Contrary to Defendant’s argument, none of the cases
on which it relies to contend that Brisk “was repeatedly rejected by the Second
Circuit” directly contradicts the holding in Brisk, as each solely addresses the

5

See also Def. Reply 7 (“Plaintiff … continued to litigate after learning he could not make
a purchase on the [Website], being advised of legal authority that supported
[Defendant’s] jurisdictional arguments, his own expert concluding there was not a basis
for his claims, and learning of remediation [Defendant] made to the Website.”).

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issue of simultaneous filing of a motion to dismiss and an answer. (See Def.
Br. 13-14 (citing Invamed, Inc. v. Barr Labs., Inc., 22 F. Supp. 2d 210, 215
(S.D.N.Y. 1998); Hosain-Bhuiyan v. Barr Labs., Inc., No. 17 Civ. 114 (VB), 2017
WL 4122621, at *2 (S.D.N.Y. Sept. 14, 2017)). 6 Accordingly, Plaintiff was not
frivolous in arguing for the Court to consider Brisk.
Further, as Plaintiff had failed to oppose the motion to dismiss, he had
no choice but to oppose the Answer. 7 To review, rather than oppose the motion
to dismiss, Plaintiff had offered a stipulation of dismissal with prejudice on
multiple occasions, both before and after Defendant’s filing of its Answer;
Defendant had rebuffed these efforts. (See Joint June 23, 2020 Ltr. 1-2; Def.
July 2, 2020 Ltr. 1-2). Defendant refused specifically because it sought a
finding that the Court lacked personal jurisdiction and subject matter
jurisdiction (Joint June 23, 2020 Ltr. 2; Def. July 2, 2020 Ltr. 1-2), and it
doubled down on this strategy by filing the Answer in order to preserve its
ability to receive such a finding (Def. July 2, 2020 Ltr. 2; see also Def. Reply 7).
Once Defendant filed its Answer and abrogated Plaintiff’s ability to file a
voluntary dismissal under Rule 41(a)(1)(i), Plaintiff’s counsel reasonably chose

6

In Defendant’s initial letter briefing on the issue of mootness, it referred the Court to
another case in this District that had observed that Federal Rule of Civil Procedure
12(b) does not “prohibit filing the answer after a motion to dismiss has been filed but
before it has been decided.” (Def. July 17, 2020 Ltr. 3 (citing Lifeguard Licensing Corp.
v. Kozak, No. 15 Civ. 8459 (LGS) (JCF), 2016 WL 3144049, at *4 (S.D.N.Y. May 23,
2016))). Defendant’s citation to this lone decision does not change the Court’s
determination that Plaintiff’s arguments were not frivolous.

7

For avoidance of doubt, the Court would have preferred that Plaintiff abided by the
Court’s scheduling orders, but understands his decision to pursue a stipulation of
dismissal.

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to argue that the Answer mooted the motion to dismiss, a motion that Plaintiff
was otherwise unable to oppose. Cf. Int’l Techs. Mktg., Inc. v. Verint Sys., Ltd.,
991 F.3d 361, 368 (2d Cir. 2021) (opining that, in the context of Rule 11(b)
sanctions, “separating frivolous claims from mere zealous advocacy can be
difficult”).
Separately, Plaintiff’s continuation of the litigation once Defendant
notified him of purported deficiencies in the Complaint and mootness issues
was not unreasonable. Though Plaintiff had been made aware on or about
January 31, 2020, that Defendant had “taken steps to resolve these few issues
and ensure that the Website is compliant with the ADA now and in the future,”
he was not required to conclude that his claims were moot. (Def. Jan. 31, 2020
Ltr. 2). The caselaw is clear that defendants must meet a “formidable burden”
of showing it is “absolutely clear the alleged wrongful behavior could not
reasonably be expected to recur” in order for a plaintiff’s claim to be mooted.
See, e.g., Mercer v. Jericho Hotels, LLC, No. 19 Civ. 5604 (VSB), 2019 WL
6117317, at *3 (S.D.N.Y. Nov. 18, 2019) (internal quotation marks omitted)
(quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S. 167,
189 (2000)). Further, a few courts outside this Circuit have concluded that,
due to the dynamic character of websites and the possibility that accessibility
barriers may arise when a website is updated or otherwise changed, an ADA
claim involving a website can never be mooted. See Diaz v. Kroger Co., No. 18
Civ. 7953 (KPF), 2019 WL 2357531, at *4 (S.D.N.Y. June 4, 2019) (collecting
cases). Accordingly, considering the high bar Defendant was required to meet,

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Plaintiff was reasonable in believing his claims to be viable despite Defendant’s
remediation efforts.
CONCLUSION
Defendant sought and received a decision from the Court dismissing the
Complaint. The Court cannot say, however, on the unusual procedural facts of
this case, that it was unreasonable for Plaintiff either to bring or to persist with
his litigation. Accordingly, and for the reasons set forth herein, Defendant’s
request for attorney’s fees is DENIED. The Clerk of Court is directed to
terminate the motion at docket entry 39.
SO ORDERED.
Dated:

September 9, 2021
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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