Dalton v. Simonson Station Stores, Inc.

          Padraigin Browne, Browne Law LLC, 8530 Eagle Point Boulevard, Suite 100, Lake Elmo, Minnesota 55042, for Plaintiff.

          Edward Peter Sheu and Brian J. Linnerooth, Best & Flanagan LLP, Sixty South Sixth Street, Suite 2700, Minneapolis, Minnesota 55402, for Defendants.

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON, United States District Judge

         Before 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.

         I. BACKGROUND

         In June 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.)

         In 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.)

         Ruling 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.)

         In June 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, 6-7.)

         At some 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).)

         In 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.

         On 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.)

         The 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.)

         A. The July 18 Order

         In the 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].

         B. Parties' Post-Judgment Motions

         Pursuant 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.)

         Not 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.)

         Defendants 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.)

         It 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 judgment.

         Plaintiff 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. 145].)

         II. DISCUSSION

         A. Plaintiff's Motion to Amend or Alter Judgment ^[1]

         Rule 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 ...