Second Circuit Remands for Reconsideration of Attorney Fee Request in ADA Public Accommodation Case

Recently, the Second Circuit held, in Costello v. Flatman, that the district court erred by declining to award a prevailing plaintiff attorney fees under the Americans with Disabilities Act.

In this lawsuit (as explained in the district court’s March 28, 2013 opinion), wheelchair-bound plaintiff Mike Costello alleged that while visiting a Brooklyn Subway restaurant, he was unable to “access the restaurant because of its failure to comply with provisions of the ADA.”

Eastern District Judge Sterling Johnson granted plaintiff a default judgment against defendant Flatman, and awarded plaintiff compensatory damages in the amount o $14.31. Plaintiff sought approximately $15,172.50 in attorney fees under the ADA (42 U.S.C. § 12205) and the Civil Rights Attorney’s Fees Act of 1976 (42 U.S.C. § 1988).

The district court denied plaintiff’s motion, citing plaintiff’s attorneys’ “mendacious” conduct and accusing them of engaging in a scheme by which

an unscrupulous law firm sends a disabled individual to as many businesses as possible, in order to have him aggressively seek out any and all violations of the ADA. Then, rather than simply informing a business of the violations and attempting to remedy the matter through conciliation and voluntary compliance, a lawsuit is filed, requesting damage awards that would put many of the targeted establishments out of business. Faced with the specter of costly litigation and a potentially fatal judgment against them, most businesses quickly settle the matter.

The court then observed that:

Nothing is more telling than the outcomes of each of the eight lawsuits filed by Plaintiff in this courthouse. Upon recently visiting each of the businesses that were named defendants in Plaintiff’s eight lawsuits, the Court was shocked to see that most if not all of the alleged structural deficiencies preventing access to persons with disabilities still exist.

The district judge thus took judicial notice, under Federal Rule of Evidence 201(b), of the building conditions observed.

The trial court was deemed, by at least one group (not surprisingly one with management leanings) as a “blast against frivolous, serial ADA lawsuits.”

The Second Circuit, however, disagreed with the lower court’s decision – which was based, at least in part, of the district judge’s taking judicial notice of the building conditions – to deny plaintiff’s request for attorney fees.

It reasoned:

[A] court may take judicial notice only of facts that are “not subject to reasonable dispute” because they are generally known in the jurisdiction or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). While the district court may be correct in its observations that certain structural defects existed at the time of its visit, it is not clear to this Court that such defects are “not subject to reasonable dispute” or that the conclusions that the district court drew from its observations may be “readily determined from sources whose accuracy cannot reasonably be questioned.”

It also faulted the district court for not “provid[ing] notice of its investigation or its findings prior to the issuance of its opinion, which deprived Costello of an opportunity to contest the factual findings contained in the order denying attorneys’ fees.”

The Second Circuit thus remanded the case to the district court for reconsideration of plaintiff’s motion for attorneys’ fees, and granted plaintiff’s request that the case be reassigned to a different district judge.


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