Opinion
Civil Action 20-cv-01827-RM-NRN
07-01-2021
HARLIE W. LOESBY, Plaintiff, v. JENNIFER W. FISCHER, Esq., LISA C. SECOR, Esq., RONNIE FISCHER, Esq., and FISCHER & FISCHER, P.C., a Colorado Corporation, Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS' AMENDED MOTION TO DISMISS THE SECOND AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(B)(6) AND (1) (DKT. #51)
N. REID. NEUREITER UNITED STATES MAGISTRATE JUDGE
This case is before the Court pursuant to an Order (Dkt. #52) issued by Judge Raymond P. Moore referring Defendants Jennifer K. Fischer, Lisa C. Secor, Ronnie Fischer, and Fischer & Fischer, P.C.'s (“Law Firm”) (collectively, “Defendants”) Amended Motion to Dismiss the Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) and (1). (Dkt. #51.) After requesting several extensions of time, Plaintiff Harlan W. Loesby filed a response on May 10, 2021. (Dkt. #80.) Defendants filed a reply on May 21, 2021. (Dkt. #82.) On May 24, 2021, the Court held a Motion Hearing by videoconference (Dkt. #83), at which Mr. Loesby was given leave to file a brief (no more than five pages) sur-reply that included citations to the authority that supported his position. Mr. Loesby then filed six “addendums” and “responses” (Dkt. ##84-89), only one of which (Dkt. #86) is consistent with the Court's order issued at the Motion Hearing. The Court will therefore only consider this one filing.
A duplicative response was also filed at Dkt. #81.
The Court has taken judicial notice of the Court's file and considered the applicable Federal Rules of Civil Procedure and case law. Now, being fully informed and for the reasons discussed below, it is RECOMMENDED that the subject motion be GRANTED.
Unless otherwise noted, all allegations are taken from Mr. Loesby's Second Amended Complaint (Dkt. #28) and are presumed to be true for the purposes of these motions to dismiss. All citations to docketed materials are to the page number in the CM/ECF header, which sometimes differs from a document's internal pagination.
Defendants Jennifer and Ronnie Fischer and Lisa Secor are attorneys at the Law Firm, and they represented Mr. Loesby in a probate action in Colorado state court, Case No. 2016PR30453, filed in the Arapahoe County District Court of Colorado (the “Underlying Case”). They moved to withdraw as counsel on grounds that Mr. Loesby had rendered engagement unreasonably difficult, and the motion was granted by an order dated June 25, 2018. This lawsuit claims that by terminating their representation of Mr. Loesby, Defendants violated Title III of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”). Mr. Loesby also asserts various state law claims.
LEGAL STANDARDS
I. Pro Se Litigants
Mr. Loesby proceeds pro se. Accordingly, the Court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (the court may not “supply additional factual allegations to round out a plaintiffs complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). A plaintiffs pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
II. Motion to Dismiss Under Rule 12(b)(6)
Rule 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiffs factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 F.2d at 1198. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the Court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-81. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
However, the Court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertions]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).
III. Motion to Dismiss Under Fed.R.Civ.P. 12(b)(1)
Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of subject matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of the plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008) (recognizing federal courts are courts of limited jurisdiction and “there is a presumption against our jurisdiction”). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013). A motion to dismiss under Rule 12(b)(1) “admits all well-pleaded facts in the complaint as distinguished from conclusory allegations.” Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1151 (10th Cir. 2015). Accordingly, Mr. Loesby bears the burden in this case of establishing that this Court has jurisdiction to hear his claims.
Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. Holt v. United States, 46 F.3d 1000, 1002 (10th 1995).
First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in
the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.Id. at 1002-03 (citations omitted); see also Pueblo of Jemez, 790 F.3d at 1148 n.4.
ANALYSIS
Defendants argue that Mr. Loesby's Second Amended Complaint fails to state a claim for relief under the ADA or Section 504. Without Mr. Loesby asserting a valid federal claim, Defendants also request that the Court decline to exercise supplemental jurisdiction over the alleged state law claims. The Court agrees that Mr. Loesby fails to state a valid federal claim and recommends that supplemental jurisdiction be declined.
I. The ADA Claim
Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a).
For the purposes of this motion, the Court will assume without deciding that Mr. Loesby has a “disability” covered by the ADA.
There can be no doubt that law offices are considered “public accommodations” within the meaning of the ADA. See 42 U.S.C. §12181(7)(F) (clarifying that, among other entities, the following “are considered public accommodations”: “a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment”) (emphasis added); see also Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227, 1230-31 (10th Cir. 2016) (addressing requirement of “public accommodation”).
Defendants instead argue that Title III's definition of “public accommodation” is restricted to actual, physical places, and Mr. Loesby has not alleged that he was deprived of the full and equal enjoyment of the Law Firm's services due to the physical space of its offices. There is a split in authority whether Title III's “public accommodation” definition is restricted to physical spaces. See J.H. by & through Holman v. Just for Kids, Inc., 248 F.Supp.3d 1210, 1215 (D. Utah 2017) (recognizing that the First, Second, and Seventh Circuits have each held that Title III's prohibitions extend beyond physical places, but ultimately siding with Third, Fifth, Sixth, and Ninth Circuits, which have each held that Title III's definition of “public accommodation” is restricted to “actual, physical places.”). While both positions have merit, the Court is inclined to agree with the Circuits that reject the expansive interpretation of the term “public accommodation” as extending beyond physical spaces because it does not square with the plain language of the statute.
However, the Court need not decide this issue because, no matter the definition of “public accommodation, ” Mr. Loesby has not plausibly alleged that Defendants discriminated against him on the basis of his alleged disabilities. The Second Amended Complaint alleges that Defendants terminated their representation of Mr. Loesby because “the client has rendered the Engagement unreasonably difficult.” Dkt. #28 at 6, ¶ 5. This is a valid reason for an attorney to withdraw. See ABA Model Rule 1.16(b)(6) (stating that a lawyer can withdraw where “the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client”). Mr. Loesby does not allege how this was pretextual justification, or otherwise link Defendants' decision to his disabilities. An attorney is entitled to fire a difficult client. An attorney is also entitled under the law to fire difficult client with a disability, so long as the disability is not the reason for the firing. Mr. Loesby does not allege that he was fired because of his disability.
In his response, Mr. Loesby claims that Defendants
denied him unfettered Equal Access to and use of E-Mail Communications with them and the Courts as an Accommodation . . . and denied him Equal Access to Electronic Court Filings which is recognized as an Accommodation, and failed to provide an ADA Qualified Website which is recognized as a Facility Accommodation under Section 504.(Dkt. #80 at 15, ¶ 18.)
However, these allegations are not contained in the Second Amended Complaint, and on a Rule 12(b)(6) motion, the Court considers only the allegations contained in the complaint, documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity, and any matters of which the Court may take judicial notice. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Even if Mr. Loesby did raise these facts in his Second Amended Complaint, they do not describe conduct that can be considered discriminatory. Restricting the number of emails a client can send in a given day and not providing a client with the attorney's various log-in credentials did not meaningfully prevent Mr. Loesby from enjoying the Law Firm's services and are not ADA violations.
Mr. Loesby also argues that Defendants had an obligation to inform the probate court of his disabilities. This argument lacks merit. Defendants assert, and the Second Amended Complaint confirms (see Dkt. #28 at 9, ¶ 12), that Mr. Loesby was appointed a guardian ad litem in the Underlying Case. Thus, the state court was aware of his disabilities. Neither Mr. Loesby nor his guardian ad litem objected to Defendants' motion to withdraw or the court's order granting said motion. Once that order was entered, Defendants had no legal obligation to continue to represent Mr. Loesby, and Mr. Loesby cites no authority for the proposition that Defendants were required to (1) request a hearing on the motion, or (2) find him replacement counsel.
Mr. Loesby also contends that Defendants violated the ADA by failing to engage in an “Interactive Process” with him and probate court. But the interactive accommodation process is a feature of ADA discrimination claims brought under Title I which has to do with disability discrimination by employers, not Title III which addresses public accommodations. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999) (“The obligation to engage in an interactive process is inherent in the statutory obligation to offer a reasonable accommodation to an otherwise qualified disabled employee. The interactive process is typically an essential component of the process by which a reasonable accommodation can be determined.”) (emphasis added); see also Tauscher v. Phoenix Bd. of Realtors, Inc., 931 F.3d 959, 964 (9th Cir. 2019) (“The ADA does not make this ‘interactive process' requirement applicable to public accommodations and services.”). As Mr. Loesby emphasizes in his response, his claims in this case are brought pursuant to only Title III. Therefore, Defendants' alleged failure to engage in an “interactive process” is irrelevant.
Ultimately, it appears to be Mr. Loesby belief that because he is disabled, Defendants were required to represent him. No individual, disabled or not, can force an attorney represent him or her. Instead, the law requires that Mr. Loesby plausibly allege that Defendants terminated their legal representation because of his disability. He has not done so.
The examples Mr. Loesby cites in his supplemental brief (Dkt. #86) actually serve to highlight this difference. For instance, an attorney in New Mexico entered into a settlement agreement with the Department of Justice because he refused to pay for a qualified interpreter for a deaf client, and instead insisted on using the client's nine-year-old son. See Dep't of Justice, Settlement Agreement Between the United States of America and Joseph David Camacho, Esquire, Albuquerque, New Mexico Under the Americans with Disabilities Act, Department of Justice Complaint Number 202-49-37 (Aug. 9, 2007), http://www.ada.gov/albuquerue.htm. This violates the ADA because without effective communication, attorneys cannot properly represent their clients and fulfill their professional responsibilities. Similarly, a law firm and collection agency violated the ADA by refusing to accept calls made by individuals with disabilities through relay services and insisted on directing the callers to call back when a manager was available. See Settlement Agreement Between the United States of America and Peroutka and Peroutka, P.A. Under the Americans with Disabilities Act, DJ # 202-35-207 and DJ # 202-35-236, http://www.ada.gov/peroutkasa.htm. The ADA requires that such public accommodations provide auxiliary aids when necessary to ensure effective communication with individuals with disabilities. Id. (citing 42 U.S.C. § 12182(b)(2)(A)(iii)). By contrast, in this case, Mr. Loesby does not allege that he needed but did not receive any accommodation or auxiliary aids from Defendants, only that they chose not to represent him anymore. That is not a basis for liability under the ADA.
Mr. Loesby also refers to instances where law firms refused to allow clients to bring a service animal into the firms' offices. See United States v. LeHoulier, No.:09-cv-02582-MSK-MEH (D. Colo. March 29, 2010); United States v. Larkin, Axelrod, Ingrassia & Tetenbaum, No. 11 Civ. 8003(VB)(PED) (S.D.N.Y June 28, 2012). These clients needed a service dog to accommodate their disability. Here, again, Mr. Loesby does not identify any comparable discriminatory action on the part of Defendants.
Finally, Title III only permits injunctive relief recovery-not monetary damages. See Lewis v. Burger King, 361 Fed.Appx. 937, 938 n.1 (10th Cir. 2010); accord A.R. v. Kogan, 964 F.Supp. 269, 271 (N.D. Ill. 1997) (explaining that relief under Title III is “specifically limited to providing injunctive relief and not damages” (emphasis in original)). The Underlying Case is concluded, so Mr. Loesby cannot be afforded any injunctive relief requiring that Defendants continue to represent him, and there is no indication that Mr. Loesby has plans to hire Defendants for any other legal work. The existence of a live case or controversy must exist at all stages of litigation. Front Range Equine Rescue v. Vilsack, 782 F.3d 565, 568 (10th Cir. 2015). “[A] claim for prospective injunction becomes moot once the event to be enjoined has come and gone.” Citizen Ctr v. Gessler, 770 F.3d 900, 907 (10th Cir. 2014). Accordingly, the Court agrees with Defendants that Mr. Loesby's ADA claim is moot, and therefore subject to dismissal under Rule 12(b)(1). See Phillips v. Tiona, 508 Fed.Appx. 737, 754 (10th Cir. 2013) (“Because [plaintiff's] sole remedy for a Title III claim is injunctive relief, and he alleged only past exposure to ADA violations, we perceive no error” in district court's dismissal of claim on basis that “court lacked jurisdiction”).
II. The Section 504 Claim
Section 504 of the Rehabilitation Act provides, in relevant part, that “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). Generally, to prevail on a claim under Section 504, a plaintiff must prove: “(1) that he is a ‘handicapped individual' under the Act, (2) that he is ‘otherwise qualified' for the benefit sought, (3) that he was discriminated against solely by reason of his handicap, and (4) that the program or activity in question receives federal financial assistance.'” Cohon ex rel. Bass v. New Mex. Dep't of Health, 646 F.3d 717, 725 (10th Cir. 2011) (internal alterations omitted) (quoting Johnson by Johnson v. Thompson, 971 F.2d 1487, 1492 (10th Cir. 1992)).
Mr. Loesby's Section 504 claim fails as a matter of law because the Second Amended Complaint does not plausibly allege that Defendants receive federal assistance. Accordingly, the Court recommends that this claim be dismissed.
Mr. Loesby states in his response that the Law Firm received $52, 253 in federal SBA loans. (Dkt. #80 at 6.) This allegation is not contained in Second Amended Complaint, and Mr. Loesby cannot amend his complaint by adding factual allegations in response to Defendants' motion to dismiss. See Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995) (holding that a court is limited to assessing the legal sufficiency of the allegations contained within the four corners of the complaint) (citation omitted); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (holding that “it is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss”) (citations omitted); Abdulina v. Eberl's Temp. Servs., Inc., 79 F.Supp.3d 1201, 1207 (D. Colo. 2015).The Court will not consider Mr. Loesby's claim regarding the Law Firm's alleged receipt of federal funding, raised for the first time in his response. See Johnson v. Ahtna Tech. Servs. Inc., No. CV-18-00053-PHX-SPL, 2018 WL 4510539, at *2 (D. Ariz. Sept. 20, 2018) (“The Court finds that the Defendant's participation in the SBA, while entirely speculative at this point and not addressed in the Complaint, is insufficient to bring the Defendant under the umbrella of the Rehabilitation Act.”).
III. State Law Claims
For the reasons stated above, Mr. Loesby's federal question claims should be dismissed. The Court does not have diversity jurisdiction over his remaining state law claims (all parties are from Denver, Colorado), so they are subject to the Court's exercising supplemental jurisdiction, which is discretionary. See 28 U.S.C. § 1367(c). The Tenth Circuit has “generally held that ‘[i]f federal claims are dismissed before trial, leaving only issues of state law, the federal court should decline to the exercise of jurisdiction by dismissing the case without prejudice.'” Brooks v. Gaenzle, 614 F.3d 1213, 1229 (10th Cir. 2010) (quoting Bauchman v. W. High Sch., 132 F.3d 542, 549 (10th Cir. 1997)). “Notions of comity and federalism demand that state court try its own lawsuits, absent compelling reasons to the contrary.” Thatcher Enters. v. Cache Cnty. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990). Therefore, the Court recommends that the entirety of Mr. Loesby's Second Amended Complaint (Dkt. #28) be dismissed without prejudice. See Borandi v. All. for Sustainable Energy, LLC, No. 13-CV-02026-RM-MJW, 2015 WL 2448321, at *4 (D. Colo. May 21, 2015) (declining to exercise supplemental jurisdiction over state law claims and counterclaims, noting that such claims can be refiled in state court).
RECOMMENDATION
It is hereby RECOMMENDED that Defendants Jennifer K. Fischer, Lisa C. Secor, Ronnie Fischer, and Fischer & Fischer, P.C.'s Amended Motion to Dismiss the Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) and (1) (Dkt. #51) be GRANTED and that Plaintiff's Second Amended Complaint (Dkt. #28) be DISMISSED WITHOUT PREJUDICE.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).