Ford v. Jalisco Market et al

Filing 83

MEMORANDUM DECISION AND ORDER-granting 75 Motion for Attorney Fees; denying 79 Motion for Leave to File Surreply. Accordingly, the court awards Defendants attorneys' fees for all attorneys' fees expended on or after September 19, 2017, which according to their counsels' affidavit is $1,536. Signed by Judge Clark Waddoups on 12/6/17. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

CAROLYN FORD,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING MOTION FOR
ATTORNEYS FEES AND DENYING
MOTION FOR LEAVE TO FILE
SURREPLY

v.
JALISCO MARKET, LLC, a Utah Limited
Liability Company, MARK A. WILSON, an
individual, and John Does I-X, XYZ
Corporations and/or Limited Liability
Companies I-X,

Case No. 2:16-cv-00619
Judge Clark Waddoups

Defendants.

Before the court are Defendants’ Motion for Attorneys’ Fees (ECF No. 75.) and Plaintiff’s
Motion for Leave to File Surreply. (ECF No. 79.) Defendants filed an Errata retracting any
suggestion that Plaintiff did not pay filing fees at the time of filing certain complaints under the
American with Disabilities Act (“ADA”) before the district court. See ECF No. 81. Thus, any
reference “aimed at impugning the Plaintiff’s character and intent” has been mooted and does not
need to be addressed. Accordingly, Plaintiff’s request to file a surreply under Local Rule 71(b)(2)(B) in order to rebut “false and inflammatory allegations” is denied. Likewise, Plaintiff’s
request for oral argument on the Motion for Attorneys’ Fees is denied. The court will address
Defendants’ request for attorneys’ fees below.
Here, Plaintiff’s complaint alleged four causes of action: 1) injunction for violation of
Title III of the ADA; 2) declaratory relief; 3) nuisance under §78B-6-1101 of the Utah Code; and
4) unjust enrichment. (ECF No. 2.) All of Plaintiff’s causes of action were dismissed pursuant to

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the court’s Order granting Defendants’ Motion to Dismiss, which the court converted to a motion
for summary judgment. (ECF No. 74.) Thus, Defendants are the prevailing party of a final
judgment.
The American with Disabilities Act, allows the court “in its discretion” to award
reasonable attorneys’ fees to the prevailing party “in any action or administrative proceeding
commenced pursuant to this chapter.” 42 U.S.C. § 12205. The Supreme Court held in
Christiansburg Garmernt Co. v. EEOC, 434 U.S. 412 (1978), that a prevailing defendant in an
action brought under Title VII of the Civil Rights Act of 1964 should ordinarily only recover
attorneys’ fees if the district court finds “that the plaintiff’s action was frivolous, unreasonable, or
without foundation, even though not brought in bad faith.” Id. at 421. “This standard applies as
well to the recovery of attorneys’ fees by prevailing defendants in an ADA action.” Twilley v.
Integris Baptist Med. Ctr., Inc., 16 Fed. Appx. 923, 926 (10th Cir. 2001) (internal citation
omitted). “Dismissal of claims at the summary-judgment stage will not automatically meet the
standard for imposing fees against the plaintiff.” Mitchell v. City of Moore, Okla., 218 F.3d 1109,
1203 (10th Cir. 2000). If a Plaintiff, however, “continued to litigate after it” became clear her
claims were “frivolous, unreasonable, or groundless[,]” attorneys’ fees should be assessed to the
defendants. Christianburg, 434 U.S. at 422. 1 See also E.E.O.C. v. TriCore Reference Labs., 493
Fed. Appx. 955, 961 (10th Cir. 2012) (affirming award of fees to defendants where EEOC
continued to litigate after discovery showed there were no grounds to proceed).

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Both parties cite three factors they claim are cited in Twilley and should thus be considered by
this court in assessing the motion for attorneys’ fees: whether 1) plaintiff established a prima facie
case; 2) the defendant offered to settle; and 3) the trial court dismissed the case prior to trial.
These factors are not cited in Twilley nor have they been adopted by the Tenth Circuit. They come
from an Eleventh Circuit case, Bonner v. Mobile Energy Serv. Co., L.L.C., 246 F.3d 1303, 1304
(11th Cir. 2001). Accordingly, they will not be considered by the court in its analysis.
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Here, on October 4, 2016, Defendants filed a Motion to Dismiss, arguing they had
remedied the ADA violations alleged in Plaintiff’s Complaint. (ECF No. 26.) The motion was
accompanied by two declarations that lacked the perjury language required by 28 U.S.C. § 1746
and were thus inadmissible.
On April 26, 2017, the court issued an Order to Show Cause in this matter noting that after
reviewing Plaintiff’s Complaint “it is not apparent” Defendants are subject to the ADAAG. (ECF
No. 60.) Plaintiff filed a response attesting, in relevant part, that Defendants’ premises were in
violation of both the 1991 and 2010 Standards of the ADAAG, and that Defendants were required
to comply with the 2010 Standards pursuant to 28 C.F.R. 36.406 (a)(3). (ECF No. 61.)
On May 19, 2017, Defendants filed a Response to Order to Show Cause asserting that
because the ADA violations in Plaintiff’s Complaint had been remedied, the court should dismiss
the action for lack of standing. (ECF No. 62.) The Defendants attached numerous records in
support of their position, including six photographs and an invoice from Low Price Asphalt
Maintenance, LLC. (ECF Nos. 62-1 through 62-4.) Neither the photographs nor the invoice,
however, were authenticated and thus were not admissible evidence.
The court held a hearing on the Motion to Dismiss on May 26, 2017, and concluded: “it
needs the record to be supplemented with admissible and authenticated material as to whether
defendants are in compliance with the relevant standards and/or whether compliance is readily
achievable including the financial factors required by ADA law.” (ECF No. 63.)
Thereafter, on June 29, 2017, Defendants filed a Submission of ADA Compliance (“ADA
Submission”) with four declarations. (ECF No. 64.) Although the declarations generally claimed
the issues with the parking space and aisle at the market had been rectified, once again, none of

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the declarations was provided under penalty of perjury, and all were thus inadmissible. (See in
particular ECF Nos. 64-1 and 64-3.)
Thereafter, the court converted the motion to dismiss into a motion for summary judgment
and entered a Docket Text Order giving both parties an opportunity to re-file affidavits in support
of the motion for summary judgment. (ECF Nos. 66-67.) On September 19, 2017, Defendants
filed four affidavits, including the Affidavit of Juan Arechiga. (ECF No. 70.) In this affidavit,
Mr. Arechiga testified how “until recently” he believed the work done by Low Price Asphalt
Maintenace LLC in November 2016, had made the parking lot ADA compliant. Id. at ¶ 10. But
“due to issues raised,” he made the choice to spend more money and “additional work was done
on June 14, 2017, with minor modifications made on August 11, 2017, to make certain it was
fully and completely ADA compliant.” Id. at ¶ 12. Two other affidavits filed in September 19,
2017, by Kevin Hunt, a licensed general contractor, and Guillermo Garcia, an employee of Low
Price Asphalt Maintenance, LLC, confirm that after the work done in the summer 2017, the
parking space and adjacent aisle was now in full compliance with ADA Standards.
After receiving those four affidavits, Plaintiff chose to continue litigating this matter. She
provided her own declaration (ECF No. 73.), as well as the Declaration of Dennis Brunetti, a
Certified International Code Council Inspector, (ECF No. 72.) in an attempt to defeat Defendants’
motion for summary judgment. Neither declaration raised admissible evidence that any ADA
violation was continuing. Thus, Plaintiff chose to continue to litigate after it became clear her
claim was “frivolous, unreasonable, or groundless,” and thus attorneys’ fees should be awarded to
the defendants.
According to defense counsel’s affidavit, his clients spent a total of $30,830.00 on
attorneys’ fees in this matter. Here, based on the testimony provided by Mr. Juan Arechiga, it

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appears Jalisco Market conducted the “minor modifications” that made the parking lot fully ADA
compliant on August 11, 2017. (ECF No. 70 at ¶ 12.). Defendants’ counsel, however, did not file
declarations with the court about this issue until September 19, 2017. See Court Docket. The
Plaintiff, therefore, was not fairly place on notice about Defendants’ rectifications to the parking
lot until September 19, 2017. Once she learned of it, Plaintiff chose to continue to litigate rather
than dismiss or settle this matter. See Twilley, 16 Fed. Appx. at 926. Accordingly, the court
awards Defendants attorneys’ fees for all attorneys’ fees expended on or after September 19,
2017, which according to their counsels’ affidavit is $1,536.
The court orders as follows:
1.

Plaintiff’s Motion for Leave (ECF No. 79.) is DENIED.

2.

Defendants’ Motion for Attorneys’ Fees (ECF No. 75.) is GRANTED in the

amount of $1,536.
SO ORDERED this 6th day of December, 2017.

BY THE COURT:
______________________________
The Honorable Clark Waddoups
United States District Court Judge

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