United States District Court, D. Minnesota
Padraigin Browne, Browne Law LLC, 8530 Eagle Point Boulevard,
Suite 100, Lake Elmo, Minnesota 55042, for Plaintiff.
Peter Sheu and Brian J. Linnerooth, Best & Flanagan LLP,
Sixty South Sixth Street, Suite 2700, Minneapolis, Minnesota
55402, for Defendants.
MEMORANDUM OPINION AND ORDER
RICHARD NELSON, United States District Judge
the Court are the Motion to Amend Judgment [Doc. No. 127]
filed by Plaintiff Aaron Dalton, the Motion for
Attorneys' Fees and Non-Taxable Expenses [Doc. No. 121]
filed by Defendants Simonson Station Stores, Inc., and
Bemidji Management Company L.L.C. (hereafter “Simonson
Station”), and Plaintiff's Amended Objection [Doc.
No. 145] to Defendants' Bill of Costs [Doc. No. 134]. For
the reasons set forth below, Plaintiff's motion is
granted in part and denied in part, Defendants' motion is
denied, Plaintiff's Amended Objection is sustained, and
Defendants' Bill of Costs is denied.
2017, Dalton, who has cerebral palsy and uses a wheelchair
and van with a wheelchair lift, visited the Simonson Station,
a service station and convenience store located in
Alexandria, Minnesota. (See Sheu Decl. [Doc. No.
88], Ex. 1 (Pl.'s Interrog. Response Nos. 3-4);
id., Ex. 3 (Pl.'s Interrog. Response No. 17);
Second Am. Compl. [Doc. No. 80] ¶¶ 13, 14, 12.) At
that time, the station's designated disability-accessible
parking was located on the south side of the building, and
the designated accessible entrance was on the east side.
(See Sheu Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶
6, Ex. 2 at 4.) On Dalton's visit, he observed several
violations of the ADA and the Americans with Disabilities Act
Accessibility Guidelines (“ADAAG”), related to
proper signage, accessible parking spaces, parking lot access
aisles, an accessible entrance, excessive slopes, and a safe
route of transfer. (See id., Ex. 1 (Pl.'s
Interrog. Response No. 6); see also Second Am.
Compl. ¶¶ 14-24.) Based on those conditions, Dalton
did not feel comfortable exiting his vehicle, and he left the
Simonson Station. (Dalton Decl. [Doc. No. 95] ¶ 11.)
September 2017, Dalton filed this disability discrimination
lawsuit, asserting violations of the ADA and ADAAG, for which
he seeks injunctive relief. (See generally, Compl.
[Doc. No. 1].) In February 2018, while Defendants' Second
Motion to Dismiss was pending, the Court directed the parties
to meet and confer at the station to determine whether any of
Defendants' changes had resolved Plaintiff's
concerns. (See Feb. 18, 2018 Order [Doc. No. 35] at
1.) On February 21, 2018, Dalton made his second and final
visit to the Simonson Station. (Dalton Decl. ¶ 14.) He
contends that at that time, the driver of his van could not
pull all the way into an accessible-marked spot.
(Id. ¶ 11.) Also, Dalton contends that he was
forced to take his wheelchair through a traffic lane in order
to reach the door of the store, and required a stranger's
help to maneuver onto the ramp and into the store.
(Id. ¶¶ 15-17.) In his declaration, Dalton
asserts that sloped parking spaces and access aisles may
damage his vehicle and make it more difficult to safely
transfer between his van and the parking lot. (Id.
¶ 20.) Additionally, he states that he would like
“the option to exit [his] vehicle and enter Simonson
Stationstores while [his] vehicle is parked at the gas
pump.” (Id. ¶ 22.)
on Defendants' Second Motion to Dismiss in May 2018, the
Court found that Dalton sufficiently alleged standing to
assert claims regarding the slope of the accessible parking
spaces, the route to the entrance extending into the traffic
lane, and the exterior side of the closest entrance. (May 23,
2018 Order [Doc. No. 53] at 14-15.)
2018, Peter Hansmeier, a salaried employee of Plaintiff's
counsel's law firm, Browne Law, LLC, (Hansmeier Decl.
[Doc. No. 96] ¶ 2; Sheu Decl., Ex. 1 (Pl.'s
Interrog. Response No. 4)), and the brother-in-law of
Plaintiff's counsel, appeared for Dalton at a joint
inspection of the station. He found that some of the slopes
in the south-side accessible parking area and access aisle,
as well as the slopes of the maneuvering clearances at the
nearest (east) entry, exceeded the ADA limits. (Hansmeier
Decl. ¶¶ 10-11.) He also found that the distance
from the door to the edge of the curb at the north entrance
did not comply with the ADA, nor did certain slopes in that
area comply. (Id. ¶ 20.) Defendants'
expert, Julee Quarve-Peterson recommended that Defendants
move the location of the accessible parking from the south
side of the building to the west side and designate the
nearest entrance, on the north side, as an accessible entry.
(Sheu Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶¶ 4,
point between July and October 2018, Defendants undertook Ms.
Quarve-Peterson's recommendations and relocated the
accessible parking to a single space on the west side of the
building, and converted the entrance closest to that
space-the north entry-as the designated accessible entrance.
(Id. ¶¶ 7, 14.) They also repaved the
relocated accessible parking space, access aisle, ramp, and
maneuvering space. (Id.; Ex. 5 to Quarve-Peterson
Rpt. (Close-Out Rpt.) at 2).) Ms. Quarve-Peterson inspected
the work and found it compliant with the ADA and ADAAG. (Sheu
Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶ 14; Ex. 5 to
Quarve Peterson Rpt. (Close-Out Rpt.) at 3).)
September 2018, Dalton filed the Second Amended Complaint,
which is the operative complaint here. While Dalton
acknowledges that Defendants remedied some of the violations
by installing signs and marking an access aisle, he alleges
that the station lacks two accessible parking spaces and
continues to violate the ADA with respect to the east
entrance. (Second Am. Compl. ¶¶ 21-22, 25-26.) The
allegations in the Second Amended Complaint, however, do not
take into account the remediation measures that Defendants
undertook between July and October 2018.
October 16, 2018, Mr. Hansmeier returned to the station to
inspect the most recent remedial work. (Supp'l Hansmeier
Decl. [Doc. No. 97] ¶ 7.) He observed the relocated
accessible parking spot on the west side of the building, new
signage, changes to the surface of the accessible parking
space, a new curb ramp and sidewalk between the new parking
space and north entrance, and directional signage signaling
that the north entrance was accessible. (Id. ¶
10.) While he observed that many of the slopes were
compliant, he found that slopes in the hashed-off area
between the access aisle and curb ramp, and on the ramp
between the parking space and north entrance, were not
compliant. (Id. ¶¶ 14-17.)
Pretrial Scheduling Order in this case required that
Plaintiff disclose any expert opinions on or before October
1, 2018. (Pretrial Sched. Order [Doc. No. 51] at 4.) He
failed to do so. (Sheu Decl. ¶ 7.) Dalton did not seek
an extension, and did not disclose his expert report until
November 7, 2018, after Defendants had timely disclosed their
expert report. (Id., Ex. 10 (Browne Letter
transmitting Hansmeier Decls.) Defendants moved to exclude
Hansmeier's opinion, arguing that it was both unhelpful
and untimely. (Defs. Mem. Supp. Mot. for Summ. J. at 29-38.)
The July 18 Order
July 18, 2019 Amended Order on the parties' cross motions
for summary judgment (“the July 18 Order”) [Doc.
No. 120], Dalton v. Simonson Station Stores, Inc.,
No. 17-cv-4427 (SRN/LIB), 2019 WL 3243257 (D. Minn. July 18,
2019), the Court denied Plaintiff's motion and granted
Defendants' motion due to a lack of subject matter
jurisdiction. The Court noted that because Dalton sought
injunctive relief, he was required to demonstrate the threat
of an ongoing or future injury. Id. at *7, 9. The
Court applied several factors to determine whether Dalton had
shown a likelihood of facing a future threat of injury at the
Simonson Station, finding that he failed to do so.
Id. at *9. Accordingly, the Court found that he
lacked standing and dismissed his claim without prejudice.
Id. Shortly thereafter, the Clerk of Court entered
judgment [Doc. No. 119].
Parties' Post-Judgment Motions
to Federal Rule of Civil Procedure 59(e), Plaintiff seeks to
amend or alter judgment, relying on Disability Support
Alliance v. Heartwood Enters., 885 F.3d 543 (8th Cir.
2018). (Pl.'s Mem. Supp. Mot. to Am. J. [Doc. No. 128] at
2-3.) Dalton asserts that the Court erred in granting
Defendants summary judgment, arguing that he submitted
sufficient evidence to create an issue of fact on the
question of standing. (Id.) Defendants oppose this
motion and contend that the facts here are distinguishable
from those in Heartwood. (Defs.' Opp'n to
Mot. to Am. J. [Doc. No. 138] at 1-5.)
only do Defendants oppose Plaintiff's motion, they move
for attorneys' fees and non-taxable expenses, as well as
taxable costs, in light of the Court's July 18 ruling. In
their motion, Defendants argue that they are entitled to $48,
078.52 in attorneys' fees and expenses pursuant to the
following authority: (1) the ADA's fee-shifting
provision; (2) Plaintiff's failure to accept
Defendants' Rule 68 settlement offer; and (3) pursuant to
28 U.S.C. § 1927 based on the conduct of Plaintiff's
counsel. (Defs.' Mem. Supp. Mot. for Fees & Costs
[Doc. No. 135] at 6; Supp'l Sheu Decl. [Doc. No. 148]
¶ 4.) Under Rule 54(d), they seek $145.79 in taxable
costs. (Bill of Costs at 1.)
assert that after Plaintiff filed this suit, they made good
faith efforts to remedy the identified ADA violations. (Sheu
Decl. [Doc. No. 136] ¶ 2.) Shortly thereafter,
Plaintiff's counsel, Ms. Browne, submitted an opening
settlement demand of $6, 000. (Id. ¶ 2-3;
id., Ex. 1 (Emails Between P. Browne & G.
Shaft).) Ms. Browne also intimated that if Defendants'
corporate counsel hired Mr. Sheu as defense counsel, the case
would not settle. (Id.) (“If you end up going
with Mr. Sheu, I want to make sure you and your client
understand the full cost of that route. . . . I do not know
how to say this without being impolitic, but of all the cases
I have had, . . ., the cases with Mr. Sheu have by far been
the most contentious with the most filings and hours incurred
on both sides. Further, I have not settled a single case with
him.”) Defendants subsequently hired Mr. Sheu, and did
not accept the settlement demand. (Sheu Decl. ¶ 4.)
appears that Plaintiff submitted the next settlement demand
in February 2018, requesting $6, 000 and an automatic door
opener at the station. (Id. ¶ 6.) After
Defendants declined to settle, in May 2018, Browne submitted
a settlement demand for $7, 000, plus the performance of
certain remedial work. (Id. ¶ 7; id.,
Ex. 2 (May 2018 Emails Between P. Browne & E. Sheu).) In
June 2018, Defendants provided Plaintiff with a Rule 68 offer
to settle for $1, 000 and to provide full remediation of any
actual barriers that Plaintiff identified. (Id.
¶ 9; id. Ex. 3 (June 2018 Letter & R. 68
Offer from E. Sheu to P. Browne).) Ms. Browne did not respond
to the offer. (Id. ¶ 9.) In January 2019, Ms.
Browne submitted a demand for $30, 000 and the performance of
remedial work. (Id. ¶ 10; id., Ex. 4
(Jan. 2019 Email from P. Browne to E. Sheu).) Defendants did
not accept the demand, and instead moved for summary
opposes Defendants' motion for fees and costs, arguing
that Defendants are not entitled to such an award under any
of the cited authority, and even if they were, Dalton argues,
some of the fees are excessive and not properly supported by
the record. (Pl.'s Opp'n to Def.'s Mot. for Fees
& Costs [Doc. No. 143] at 1-18.) Likewise, Plaintiff
argues that Defendants are not entitled to an award of
taxable costs. (Pl.'s Am. Obj. to Bill of Costs [Doc. No.
Plaintiff's Motion to Amend or Alter Judgment
59(e) allows for the filing of a motion to alter or amend a
judgment within 28 days after entry of the judgment.
Fed.R.Civ.P. 59(e). According to the Eighth Circuit,
“Rule 59(e) motions serve the limited function of
correcting ‘manifest errors of law or fact or to
present newly discovered evidence.'” United
States v. Metro. St. Louis Sewer Dist., 440 F.3d 930,
933 (8th Cir. 2006) (citation ...