Opinion
No. 1:02-cv-059
January 26, 2004
ORDER
In accordance with the accompanying memorandum opinion filed herewith, the motion by plaintiff Access Now, Inc. ("Access Now") for leave to file a supplemental response [Court File No. 47] is GRANTED. The supplemental response tendered by Access Now, Inc. shall be filed and made part of the record.
The motion by defendant Town of Jasper, Tennessee, for an award of attorney's fees and litigation expenses against plaintiff Access Now, Inc. pursuant to 42 U.S.C. § 12205 and FED. R. CIV. P. 54(d)(2) [Court File No. 40] is GRANTED. Defendant Town of Jasper is hereby AWARDED and shall recover from plaintiff Access Now, Inc. $15,730.50 in attorney's fees, $1,242.95 in expenses, and $14,488.00 in expert witness fees and other related expenses, which comes to a grand total of $31,461.45. Plaintiff Access Now, Inc. SHALL PAY the sum of $31,461.45 to defendant Town of Jasper within thirty (30) days from the date of entry of this order.
SO ORDERED.
MEMORANDUM OPINION
Defendant Town of Jasper moves pursuant to 42 U.S.C. § 12205 and FED. R. CIV. P. 54(d)(2) for an award of reasonable attorney's fees and other litigation expenses against plaintiff Access Now, Inc. ("Access Now"). [Court File No. 40]. Defendant seeks $15,730.50 in attorney's fees, $1,242.95 in expenses, and $14,488.00 in expert witness fees and related expenses. The grand total is $31,461.45.
Defendant only seeks to recover its attorney's fees and litigation expenses from Access Now with regard to Count II of the plaintiffs' complaint which was dismissed by the Court on partial summary judgment for lack of standing. [Court File No. 33]. Defendant does not seek attorney's fees and expenses with regard to Count I of the plaintiffs' complaint that was adjudicated at trial. Moreover, defendant does not seek to recover any attorney's fees and expenses from plaintiff Pamela Kitchens in her capacity as the parent and guardian for her minor child, Tiffany Masterson.
After reviewing the record, the Court concludes the defendant's motion is well taken and it will be GRANTED. Access Now will be ordered pursuant to 42 U.S.C. § 12205 and FED. R. CIV. P. 54(d)(2) to pay the attorney's fees and litigation expenses incurred by the defendant with regard to mounting a defense against Count II of the complaint. The Court finds that Count II of the complaint filed by Access Now was frivolous, unreasonable, and/or groundless from its inception. Access Now's egregious conduct in filing the specious ADA claim under Count II caused the defendant to unnecessarily expend substantial sums of public funds to defend itself. It is, therefore, appropriate for the Court to exercise its discretion under 42 U.S.C. § 12205 and Rule 54(d)(2) to require Access Now to pay these attorney's fees and expenses to the prevailing defendant.
Access Now moves for leave to file a supplemental response to the defendant's reply [Court File No. 47] and the motion will be GRANTED. The Court has taken Access Now's supplemental response into consideration.
I. Standard of Review
Access Now brought this action under Title II of the Americans With Disabilities Act, 42 U.S.C. § 12131-12150 ("ADA"). 42 U.S.C. § 12205 provides that in any action commenced pursuant to the ADA, the Court, in its discretion, may allow the prevailing party a reasonable attorney's fee, including litigation expenses and costs.
An award of attorney's fees and litigation expenses may be made to a prevailing defendant under 42 U.S.C. § 12205 upon a finding that a plaintiff's ADA complaint was frivolous, unreasonable, or without foundation, even though the complaint was not brought by the plaintiff in subjective bad faith. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978); No Barriers, Inc. v. Brinker Chill's Texas, Inc., 262 F.3d 496, 498 (5th Cir. 2001); Parker v. Sony Pictures Entertainment, Inc., 260 F.3d 100, 111 (2nd Cir. 2001); Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1190 (9th Cir. 2001); Bercovitch v. Baldwin School, Inc., 191 F.3d 8, 10-11 (1st Cir. 1999); Bruce v. City of Gainesville, 177 F.3d 949, 951 (11th Cir. 1999); Adkins v. Briggs Stratton Corp., 159 F.3d 306, 307(7th Cir. 1998); Baaske v. City of Rolling Meadows, 191 F. Supp.2d 1009, 1018 (N.D.ill. 2002); Red Cloud-Owen v. Albany Steel, Inc., 958 F. Supp. 94, 97-98 (N.D.N.Y. 1997); cf. Riddle v. Egensperger, 266 F.3d 542, 547 (6th Cir. 2001) (Analyzing claim by prevailing defendant for attorney's fees under 42 U.S.C. § 1988).
In applying these criteria, this Court must resist the temptation to engage in post hoc reasoning by concluding that just because Access Now has not ultimately prevailed, its complaint must have been frivolous, unreasonable or without foundation from the beginning. Christiansburg, 434 U.S. at 421-22; Tahfs v. Proctor, 316 F.3d 584, 596 (6th Cir. 2003); Riddle, 266 F.3d at 547; Wayne v. Village of Sebring, 36 F.3d 517, 530 (6th Cir. 1994). "This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable." Christiansburg, 434 U.S. at 422. In some cases, decisive facts may not emerge until discovery or trial. "Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit." Id. at 422; see also Tahfs, 316 F.3d at 596; Riddle, 266 F.3d at 547-48; Muzquiz v. W.A. Foote Memorial Hosp., Inc., 70 F.3d 422, 432 (6th Cir. 1995).
In the wake of Christiansburg, 434 U.S. at 421-22, the Sixth Circuit has held that an award of attorney's fees to a prevailing defendant in a federal civil rights action is an extreme sanction, and must be limited to egregious cases of misconduct. Tahfs, 316 F.3d at 596; Riddle, 266 F.3d at 547; Jones v. The Continental Corp., 789 F.2d 1225, 1232 (6th Cir. 1986).
II. Analysis A. Count II of Complaint Was Frivolous. Unreasonable, and Groundless
To determine whether the ADA claim by Access Now is frivolous, unreasonable, or groundless, the Court must focus its attention on and determine Access Now's basis for filing Count II of its complaint. Tahfs, 316 F.3d at 596; Riddle, 266 F.3d at 548; Smith v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir. 1985). On March 1, 2002, plaintiffs Access Now and Pamela Kitchens filed their complaint against defendant Town of Jasper under the ADA. [Court File No. 1]. The complaint drafted by Access Now contains two counts or causes of action. This is discussed in the memorandum opinion and order entered by the Court on June 10, 2003. [Court File No. 33].
Defendant made a motion for summary judgment under FED. R. CIV. P. 56. [Court File No. 15]. On June 10, 2003, the Court granted in part and denied in part the summary judgment motion. The Court denied the defendant's summary judgment motion concerning Count I of the complaint and Count I proceeded to trial on June 17, 2003. The Court granted partial summary judgment in the defendant's favor and dismissed Count II.
As the Court explains in its June 10, 2003 memorandum opinion, Count II of the complaint is very confusing and poorly drafted. Although Access Now sought to plead a claim under Title II of the ADA, it mistakenly cited to Title III of the ADA, 42 U.S.C. § 12181-12189. Title III of the ADA obviously has no application whatsoever to defendant Town of Jasper because it is a public, governmental entity. Title III of the ADA governs disability discrimination in public accommodations and services operated by private entities. See e.g Sandison v. Michigan High School Athletic Ass'n, 64 F.3d 1026, 1036 (6th Cir. 1995). This Court ruled that to the extent the plaintiffs were pleading that defendant Town of Jasper had violated Title III of the ADA, said portion of Count II of the complaint was dismissed with prejudice. A claim against the defendant under Title III of the ADA was patently frivolous, unreasonable, and groundless. Access Now ultimately conceded that Count II of the complaint contained numerous errors and should not have been drafted to plead a claim under Title III of the ADA. However, Access Now never made a motion under FED. R. CIV. P. 15(a) for leave to amend Count II of the complaint to correct its significant mistakes and errors in pleading.
Furthermore, to the extent that Count II of the complaint could be liberally construed as asserting a claim under Title II of the ADA, this Court granted partial summary judgment to the defendant and dismissed it on the ground of lack of standing. Access Now failed to come forward with any proof showing that Access Now or any of its members, including Tiffany Masterson, had suffered an injury in fact concerning Count II of the complaint. Access Now does not bother to explain how it ever hoped to possibly prove Count II of the complaint when it was unprepared and unable to jump the initial hurdle of establishing standing. Access Now never presented an affidavit from Tiffany's mother, Pamela Kitchens, raising an issue of material fact whether Tiffany had suffered an injury in fact for purposes of making out a prima facie claim and demonstrating standing under Count II.
When the defendant moved for summary judgment under FED. R. Civ. P. 56 to dismiss Count II of the complaint on the ground of lack of standing [Court File No. 15], it should have been obvious to an objectively reasonable litigant in the same position as Access Now that the plaintiffs clearly lacked standing. Instead of voluntarily dismissing or dropping Count II of the complaint to avoid the further unnecessary expense and waste of time in continuing to litigate a futile claim, Access Now deliberately chose to vigorously oppose the defendant's summary judgment motion to dismiss Count II. Access Now unreasonably persisted in litigating and pursuing Count II right up to the eve of trial.
Access Now is very experienced in litigation under ADA. Access Now, a Florida not-for-profit corporation, promotes itself as being an organization with substantial knowledge and expertise in ADA cases. It engages in activities and litigation designed to obtain compliance with the ADA and correct ADA violations. See, e.g., Access Now, Inc. and Edward Resnick v. South Florida Stadium Corp., 161 F. Supp.2d 1357 (S.D. Fla. 2001); Edward Resnick and Access Now, Inc. v. Magical Cruise Co., Ltd., 148 F. Supp.2d 1298 (M.D. Fla. 2001); Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd., 146 F. Supp.2d 1334 (S.D. Fla. 2001); Access Now, Inc. v. Walt Disney World Co., 211 F.R.D. 452 (M.D. Fla. 2001); Access Now, Inc. and Edward Resnick v. Cunard Line Limited Co. and Carnival Corp., 2001 WL 1622015 (S.D. Fla. Oct. 31, 2001); Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd., 2001 WL 617529 (S.D. Fla. May 2, 2001); Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd., 197 F.R.D. 522 (S.D. Fla. 2000).
It is well settled that standing is the threshold question in every civil case in federal court. Grendell v. Ohio Supreme Court, 252 F.3d 828, 832 (6th Cir. 2001); Allstate Ins. Co. v. Thrifty Rent-A-Car Systems, 249 F.3d 450, 456 (6th Cir. 2001); Coyne v. American Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999). Plaintiffs bear the burden of showing that they have standing. Raines v. Byrd, 521 U.S. 811, 818-19 (1997); United States v. Hayes, 515 U.S. 737, 743 (1995); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1996); Coyne, 183 F.3d at 494. Moreover, Access Now was required to establish standing at the time this suit was initially filed in federal district court. Jurisdiction and standing are assessed under the facts existing when the complaint is filed. Lujan, 504 U.S. at 569 n. 4; Hyman v. City of Louisville, 2002 WL 31780201, **3 (6th Cir. Dec. 9, 2002); Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 524 (6th Cir. 2001).
The law governing the issue of standing should come as no surprise to Access Now. Prior to bringing the present suit against defendant Town of Jasper, Access Now had ample opportunity to learn firsthand about standing in ADA cases.
In Edward Resnick and Access Now, Inc. v. Magical Cruise Co., Ltd., 148 F. Supp.2d 1298, the United States District Court for the Middle District of Florida dismissed an ADA suit brought by Access Now on the ground of lack of standing. Access Now and its co-plaintiff, Edward Resnick, were unable to show that Mr. Resnick had suffered an injury in fact sufficient to establish standing. The timing of the Magical Cruise decision is important. The Florida district court rendered its decision in Magical Cruise, 148 F. Supp.2d 1298, on June 25, 2001, approximately eight months before Access Now filed the instant suit against defendant Town of Jasper on March 1, 2002.
Essentially the same situation occurred in Access Now, Inc. and Edward Resnick v. South Florida Stadium Corp., 161 F. Supp. 1357, decided on September 10, 2001. In that case, the United States District Court for the Southern District of Florida held inter alia that Access Now and its co-plaintiff, Mr. Resnick, lacked standing to assert certain claims under ADA because they could not meet their burden of showing an injury in fact. Id. at 1363-1366. Mr. Resnick was a quadriplegic restricted to a wheelchair. To the extent plaintiffs Access Now and Mr. Resnick complained about ADA violations that discriminated against blind or deaf persons, or any disabilities other than those specific disabilities actually suffered by Mr. Resnick, the district court determined they lacked standing to pursue such claims under the ADA. Mr. Resnick was not blind or deaf. Standing is limited to claims for which the plaintiff "is among the injured." Id. at 1364 (quoting Lujan, 504 U.S. at 560). It was held that Access Now and Mr. Resnick lacked standing to complain about alleged ADA violations on behalf of all disabled individuals since it would improperly expand the standing doctrine beyond the limits of Article III of the United States Constitution. South Florida Stadium, 161 F. Supp.2d at 1364 (citing Lewis v. Casey, 518 U.S. 343, 358 n. 6 (1996)).
Furthermore, in South Florida Stadium, 161 F. Supp.2d at 1364-66, Access Now claimed that Mr. Resnick was being subjected to disability discrimination by architectural barriers at a sports stadium. The Southern District of Florida held that Mr. Resnick's entry into the stadium did not automatically confer upon him a presumption that he was injured by any and all architectural barriers in the stadium. Mr. Resnick's standing depended upon his showing that he was injured in fact, or subjected to discrimination under the ADA, as a result of a particular architectural barrier. The standing of Access Now and Mr. Resnick to maintain a claim under the ADA was limited to architectural barriers that Mr. Resnick had encountered when moving around the stadium in his wheelchair or his actual knowledge of specific barriers to his wheelchair. The decision in South Florida Stadium, 161 F. Supp.2d at 1363-66, should have been most instructive to Access Now, especially with regard to what is necessary to show standing in ADA cases involving architectural barriers. To establish standing, the plaintiff is always required to demonstrate an injury in fact.
As a result of its prior litigation experience in Magical Cruise, 148 F. Supp.2d 1298, and South Florida Stadium, 161 F. Supp.2d 1357, Access Now was very familiar with the requirement that it must be prepared to prove standing when filing lawsuits in federal district court under ADA. The bottom line is that when Access Now brought the instant suit against defendant Town of Jasper on March 1, 2002, Access Now was well acquainted with the requirement that it be able to show standing on Count II of the complaint. In light of what had previously been decided on similar standing issues in Magical Cruise, 148 F. Supp.2d 1298, and South Florida Stadium, 161 F. Supp.2d 1357, Access Now has no valid excuse for asserting Count II in the complaint against defendant Town of Jasper when Access Now was completely unprepared to meet its burden of showing that there was an injury in fact and that the plaintiffs had standing on Count II.
In sum, when Access Now drafted and filed the plaintiffs' complaint in this case, Access Now either knew or reasonably should have know that it did not have sufficient facts to establish standing on Count II of the complaint. In the absence of a credible explanation from Access Now on this point, the Court can only conclude that Count II of the complaint was frivolous, unreasonable, and groundless from its inception. Consequently, it is proper to order Access Now pursuant to 42 U.S.C. § 12205 and FED. R. CIV. P. 54(d)(2) to pay the attorney's fees and litigation expenses incurred by defendant Town of Jasper in defending itself against Count II.
B. Defendant's Motion is Timely Filed Under FED. R. CIV. P. 54(d)(2)
Access Now argues that the defendant's motion for attorney's fees and expenses should be denied because it was not timely filed under FED. R. CIV. P. 54(d)(2). This argument fails. The Court concludes that the defendant's motion has been timely filed.
Access Now's argument is predicated on a false premise. Access Now contends that when the Court granted partial summary judgment to the defendant on June 10, 2003, and dismissed Count II of the complaint [Court File No. 33], the Court thereby dismissed all claims of Access Now and the only plaintiff remaining in the case at that point was Pamela Kitchens, in her capacity as parent and legal guardian of Tiffany Masterson. In other words, Access Now says that after June 10, 2003, it was no longer a plaintiff in this case. This is simply untrue.
Based on this false premise, Access Now goes on to argue that the defendant was required to file its motion for attorney's fees and expenses against Access Now under FED. R. CIV. P. 54(d)(2) within fourteen days from the entry of partial summary judgment on June 10, 2003. Access Now says that because the defendant did not file its motion until July 16, 2003 [Court File No. 40], the motion is untimely and the defendant waived its right to seek attorney's fees and expenses from Access Now under Rule 54(d)(2).
This argument by Access Now misrepresents the record. As the Court reads and understands the plain language in the complaint [Court File No. 1], Access Now is a party plaintiff under Count I of the complaint. Access Now was a plaintiff representing Tiffany by virtue of the fact that Tiffany was a member of Access Now. There is nothing in the complaint indicating or explicitly stating that Access Now is not a plaintiff with regard to Count I.
The language in Count I uses the plural term "plaintiffs" which is a clear reference to all of the plaintiffs, including Access Now. On pages 5-6 of the complaint at the conclusion of pleading Count I, the "plaintiffs" demand injunctive and declaratory relief. Count I demands that the Court award attorney's fees, costs, and other expenses to the "plaintiffs." Access Now essentially wants this Court, for the first time, to construe the all-inclusive term "plaintiffs" as used in Count I to mean that Access Now was excluded from being a plaintiff under Count I. Access Now's tortured interpretation of the plain language in the complaint is unreasonable and the Court rejects it. Access Now drafted and signed the complaint. If Access Now did not want to be a plaintiff as to Count I, it should have made it explicitly clear in the complaint.
At no time during the course of the litigation up through the end of trial did Access Now ever take the position or advise the Court that Access Now did not consider itself to be a plaintiff with regard to Count I. [ See, e.g., Court File No. 23, Plaintiffs' Response in Opposition to Summary Judgment Motion]. In the aftermath of the Court's opinion and order on June 10, 2003, Access Now never said that all of its claims had been finally adjudicated and it was no longer a plaintiff for purposes of going to trial on Count I. When Count I proceeded to trial on June 17, 2003, Access Now appeared as a plaintiff and represented itself along with Pamela Kitchens and Tiffany.
Access Now's argument is further undercut by the final pretrial order [Court File No. 34] entered on June 12, 2003, two days after this Court rendered its memorandum opinion and order granting partial summary judgment and dismissing Count II. The final pretrial order provides that it supplants the pleadings. The final pretrial order in effect identifies Access Now as a party plaintiff that was proceeding to trial on Count I of the complaint as a representative of its member, Tiffany. There is nothing in the final pretrial order stating or indicating that Access Now is not a plaintiff with regard to Count I. If Access Now did not intend to be a plaintiff with regard to Count I, it had every opportunity to make its position crystal clear in the final pretrial order but it failed to do so.
Furthermore, at no time during the course of the litigation up through the end of trial did this Court ever indicate to the parties that the Court did not consider Access Now to be a plaintiff with regard to Count I. There is nothing in the memorandum opinion and order rendered by this Court on June 10, 2003, that states or indicates that: (1) all claims brought by Access Now against the defendant were finally adjudicated and dismissed on partial summary judgment; (2) Access Now was no longer a plaintiff in the case since Count II had been dismissed; and (3) Access Now is not a party plaintiff with regard to Count I of the complaint.
The memorandum opinion and order rendered on June 10, 2003, discusses and analyzes Count I. The Court made it abundantly clear that Count I was brought by the "plaintiffs." The Court's use of the plural term "plaintiffs," which is taken directly from the precise language contained in Count I of the complaint, obviously means that the Court includes Access Now as a plaintiff with regard to Count I. There can be no other reasonable, logical interpretation of the Court's June 10, 2003 opinion.
After the trial, the Court rendered a memorandum opinion and entered a separate final judgment on June 26, 2003. [Court File Nos. 38, 39]. The opinion was devoted to adjudicating Count I of the complaint. In the memorandum opinion, this Court clearly refers to and considers Access Now as being a party plaintiff with regard to Count I that was heard at trial.
The judgment [Court File No. 39] provides that if the prevailing party, defendant Town of Jasper, intends to seek an award of reasonable attorney's fees and expenses pursuant to 42 U.S.C. § 12205 and FED. R. CIV. P. 54(d)(2), the defendant shall file its motion within twenty (20) days from the date of entry of the judgment. Thus, the defendant had twenty days from the date of entry of the judgment on June 26, 2003, within which to file its motion. Defendant complied with the judgment and order by timely filing its motion on July 16, 2003. [Court File No. 40]. FED. R. CIV. P. 54(d)(2) provides that, unless otherwise provided by statute or court order, the prevailing party shall file its motion no later than fourteen (14) days after entry of judgment. This Court ordered that defendant Town of Jasper had twenty days to file its motion and the defendant met the deadline. Defendant has fully complied with the Court's order and Rule 54(d)(2). C. Defendant's Itemized Attorney's Fees and Expenses are Reasonable
In support of its motion, the defendant submits the affidavit of attorney Nathan Rowell itemizing the various attorney's fees and litigation expenses. [Court File 40, Exhibit A]. The Court has reviewed Nathan Rowell's affidavit, and finds that all of the attorney's fees and expenses itemized therein are reasonable and were necessarily incurred by the defendant.
Access Now objects to the defendant's claim for expert witness fees in the amount of $14,488.00. The gist of Access Now's objection is that the issue of lack of standing, which ultimately led to the dismissal on partial summary judgment of Count II of the complaint, was a purely a matter of law that did not require the defendant to incur the expense of a retained expert witness. Access Now argues there is no correlation between the defendant's expert witness fees and the dismissal of Count II for lack of standing. Access Now contends that the expert opinion and information provided by the defendant's expert witness did not lead to the dismissal of Count II on summary judgment. Moreover, Access Now says that the defendant's summary judgment motion to dismiss Count II for lack of standing could have been filed earlier in the case before the defendant incurred the expense of retaining an expert witness. The defendant's expert witness was not deposed and did not testify at trial.
The Court rejects these arguments. The key point is that until such time as the Court ruled on the defendant's summary judgment motion and decided to dismiss Count II for lack of standing, the defendant was required to fully prepare for trial. From the defendant's perspective, it was imperative that it have a qualified expert ready to testify at trial regarding Count II to counter and rebut the plaintiff's expert witness in the event the summary judgment motion was denied and the case proceeded to trial on Count II. Defendant could not simply cease preparing for trial on Count II and blithely assume that it would not need an expert witness.
When the defendant moved for summary judgment, Access Now vigorously opposed the motion and Access Now objected to Count II being dismissed. This meant that the defendant had to continue trial preparations with its expert witness. Access Now has no one but itself to blame for the defendant being forced into the position of having to incur the expense of the expert witness fees in preparation for trial. Under these circumstances, it is eminently fair and reasonable for the Court to order Access Now to reimburse the defendant for the expert witness fees and related expenses.
There is a direct causal connection between Access Now bringing a frivolous, unreasonable, and groundless ADA claim in Count II of the complaint and the defendant incurring the expense of its expert witness to defend against Count II. Defendant incurred the expense of getting an expert witness on the issue of alleged architectural barriers solely because Access Now asserted Count II in the complaint and Access Now actively opposed the defendant's summary judgment motion.
D. Access Now Can Be Held Solely Responsible For Fees and Expenses
In its supplemental response, Access Now argues it is unfair to hold Access Now solely responsible for paying all of the attorney's fees and other litigation expenses. Access Now contends that Pamela Kitchens was also a plaintiff named in the complaint on Count II, and Access Now should not be singled out to pay all of the defendant's attorney's fees and expenses incurred with regard to Count II. Access Now requests that the amount sought by the defendants be reduced by half or cut in half since the defendant has only made a motion seeking an award from Access Now.
This argument fails. Although Access Now seeks to portray itself as being co-equal with Pamela Kitchens in sharing responsibility for Count II, the fact remains that Access Now's attorneys shouldered the primary burden of prosecuting this case. Based on the facts and circumstances in this case, it is fair and just to hold Access Now responsible for all of the defendant's attorney's fees and litigation expenses incurred with regard to Count II. The Court will not reduce by half the amount sought by the defendant on the theory that Pamela Kitchens bears the same degree of fault and responsibility as Access Now in pleading and prosecuting Count II.
The Court has no doubt that Access Now was the prime mover behind the decision to include Count II in the complaint alleging architectural barriers. It was Access Now that wanted to fight the battle with defendant Town of Jasper concerning alleged architectural barriers. There is no probative evidence in this case showing that Tiffany ever actually experienced any problems with purported architectural barriers within the Town of Jasper. It is obvious that Pamela Kitchens' only concern in this suit was to obtain a Court decision allowing her to maintain the miniature horse at her residence as a companion and pet for Tiffany. Access Now drafted the complaint, and it was Access Now's decision to include and vigorously advocate Count II. Pamela Kitchens has no expertise in ADA litigation, and she merely relied upon the legal advice and recommendations she received from Access Now. In truth and in fact, the party who by far bears the lion's share of the responsibility and fault for litigating Count II of the complaint is Access Now.
Consequently, there is good reason why Access Now can and should be required to pay all of the attorney's fees and expenses demanded by the defendant without any reduction based on Pamela Kitchens being named as nominal plaintiff on Count II. As far as the Court can determine, the only reason Pamela Kitchens was named as a plaintiff in Count II was an effort by Access Now to conjure up and invent some basis for Access Now to have standing, through Tiffany, to pursue an ADA cause of action based on the flawed theory of architectural barriers.
III. Conclusion
Accordingly, a separate order will enter GRANTING the defendant's motion for an award of attorney's fees and litigation expenses against plaintiff Access Now [Court File No. 40] pursuant to 42 U.S.C. § 12205 and FED. R. CIV. P. 54(d)(2). Defendant Town of Jasper will be AWARDED $15,730.50 in attorney's fees, $1,242.95 in expenses, and $14,488.00 in expert witness fees and related expenses. The grand total is $31,461.45.