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Adams v. Cowley Cinema 8, LLC

United States District Court, D. Kansas

May 15, 2019

Guadalupe Adams, Plaintiff,
v.
Cowley Cinema 8, LLC, Defendant. Guadalupe Adams, Plaintiff,
v.
Spangles, Inc., Defendant. Guadalupe Adams, Plaintiff,
v.
Regal Hotels, LLC, Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE

         The defendants in these three ADA actions have moved for attorney fees against plaintiff Guadalupe Adams pursuant to Section 1972 and the inherent power of the court. The three cases all involve the same counsel for plaintiff, Pete Monismith, and for the respective defendants Cowley County Cinema 8, Regal Hotels, and Spangles Inc., David Calvert. As with many of the other actions filed on behalf of Adams in the District of Kansas, each of these cases allege various ADA violations at a given small or medium size commercial enterprise. Each case was filed in early 2018, Adams identifying particular violations of ADA disability access provisions.

         Although it discusses particular aspects of each case below, the court resolves the present motions by a single Order, to be entered in each case, for three reasons. First, unlike most cases filed by Adams prior to her death in late 2018, case, the three defendants here did not settle or fail to defend the claims, but instead moved energetically to remediate the identified access barriers. Each of the three cases accordingly presents a nearly identical sequence of events by which defendants notified plaintiff of the repairs which would render the allegations in the complaints moot, and the responsive escalation by plaintiff by meritless pleading. Second, the arguments presented by the parties are in many instances identical. Finally, a uniform approach allows the court to take note of a pattern of behavior which the court concludes is both vexatious and contrary to the remedial spirit of the ADA.

         Sanctions under § 1927 may be awarded where an attorney “acts recklessly or with indifference to the law.” Steinert v. Winn Grp., 440 F.3d 1214, 1222. (10th Cir. 2006). Such recklessness is demonstrated when counsel shows “a serious and standard disregard for the orderly process of justice.” AeroTech, Inc. v. Estes, 110 F.3d 1523, 1528 (10th Cir. 1997). The court must take care not to inhibit representation undertaken with “legitimate zeal.” Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987) (en banc).

         Cowley Cinema 8

         Both parties filed motions for summary judgment: Adams on August 28 and the Cinema on September 17. (Dkt. 12, 15). Adams has argued the Cinema failed to timely respond to its discovery requests in July and August, and points to an ambiguity as to actual status of repairs, based on the Cinema's August 22, 2018 report which stated both that all ADA deficiencies “have been corrected” but also stated that they “are in the process of being corrected.” The Cinema's motion argued that Adams' claims were moot, given the repairs addressing all deficiencies identified in the July 16 Rule 34 report provided by the plaintiff.

         The court finds no support in the record for the claim by the plaintiff that she was “deterred from proving her case” because of a lack of evidence that the repairs were actually completed. (Dkt. 31, at 8). The assertion is untrue, and in any event, plaintiff could have obtained relief by filing a motion to compel. Instead, she filed a plainly insufficient motion for summary judgment, apparently as a means of thwarting the defendant's attempt at remediation. Reviewing the pleadings, the court finds that Adams' challenges to the evidence establishing the repairs are plainly insufficient, and the asserted “discovery disputes“ would not have prevented summary judgment.

         Plaintiff complains that the repairs were documented by an owner of the theater, who is not an ADA expert, and complains that the Cinema had failed to respond to discovery requests. But the plaintiff fails to show an expert was needed. The affiant presented evidence as a fact witness, documenting that all of the ADA deficiencies identified by Adams' expert had been resolved. Adams has offered no evidence to rebut the fact that the repairs have occurred.

         The alleged discovery dispute, based on the Cinema' August 22 response to plaintiff's interrogatories, was not a substantial basis for delaying resolution of the action. But even assuming the existence of a good faith discovery dispute, it does not explain plaintiff's conduct. Rather than filing a Motion to Compel the missing evidence, plaintiff filed a Motion for Summary Judgment, far in advance of the dispositive motion deadline. The plaintiff's Motion for Summary Judgment is entirely generic and manifestly insufficient as a matter of law. The key allegation of fact - that the Rule 34 violations “currently and continually exist at the properly” is not supported by any evidentiary record citation, in clear disregard of the D.Kan. Rule 56.1. Taken in context, these precipitous actions suggest that plaintiff, faced with a defendant who would rapidly have corrected all the previously identified ADA deficiencies, vexatiously attempted to multiply the litigation to defendant's detriment. Certainly, after defendant filed its own summary judgment motion on September 17, 2019, this conclusion is strongly supported by the facts of the case.

         This multiplication also manifested itself in the discovery “dispute, ” which also reflects a sudden attempt to expand the scope of the litigation far beyond the previously identified ADA deficiencies. The plaintiff's interrogatories either addressed facts previously apparent at the time of the Rule 34 inspection, or were addressed to issues beyond the specific deficiencies previously identified in the Rule 34 report.

         The plaintiff argues that no sanctions should be awarded because the Cinema was not entitled to summary judgment based on mootness, stressing the heavy burden attending that defense, and citing the rejection of the defense in an ADA case, Mize v. Kai, Inc., 2017 WL 5195203 (D. Colo. Nov. 9, 2017).

         However, the court in Mize denied defendant's mootness argument when presented as a motion to dismiss, prior to any discovery. The court concluded that the “Defendant fails, at this juncture, ” to meet its burden, with the result that “[a]t this stage, the court concludes that the more prudent course is to allow discovery to proceed on these issues such that the Parties can better support their positions at summary judgment.” Id. at *4.

         Once discovery has documented the existence of physical modifications to physical barriers, courts have not hesitated to dismiss similar ADA actions as moot. Thus, “courts have generally found that the alleged discrimination cannot reasonably be expected to recur because structural modifications are unlikely to be altered in the future.” National Alliance for Accessibility v. Walgreen Co., 2011 WL 5975809, *3 (M.D. Fla. Nov. 28, 2011) (internal quotations omitted). The burden of demonstrating that a harm is not likely to occur in the future is “formidable, ” Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2005) (citing Friends of the Earth v. Laidlaw Env. Serv., 528 US. 167, 191 (2000)), but it is not insuperable. Thus, in Tandy the court ...


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