Metropolitan News-Enterprise


Wednesday, August 13, 2008


Page 3


Court: Lack of ADA Notice Does Not Justify Denial of Fee Award


By SHERRI M. OKAMOTO, Staff Writer


A plaintiff’s failure to provide prelitigation notice under the Americans with Disabilities Act, and his prolonging of litigation, did not justify an outright denial of attorney fees, the Ninth U.S. Circuit Court of Appeals held yesterday.

Reversing and remanding the district court’s order denying Les Jankey’s motion for fees, the three-judge panel ruled that Jankey’s failure to provide prelitgation notice could not be considered in determining whether a fee award was unjust, but only in determining whether he deliberately protracted the litigation.

Jankey, a wheelchair user, patronized the Mermaid restaurant in Hermosa Beach. After finding the restaurant’s restroom inaccessible, he proceeded next door to the Poop Deck, a beer and wine bar, for a drink and to use the restroom.

At the bar, Jankey allegeldy encountered architectural barriers that denied him access to the bar and restrooms. Jankey later filed suit against the Poop Deck and the owner of the building housing both the Poop Deck and Mermaid establishments for violating the ADA. He also filled a separate action against the Mermaid and the property owner.

Neither Jankey nor his attorneys provided the defendants with any form of prelitigation notice informing defendants of the alleged accessibility violations before filing suit.

Defense counsel, E. Thomas Moroney, sent Jankey’s attorney a letter proposing a compromise whereby the defendants would construct a unisex, ADA compliant restroom within the Mermaid restaurant, for use by both Mermaid and Poop Deck customers.

Jankey’s attorney, Julia Adams of Thomas E. Frankovich PLC, did not respond despite Moroney’s repeated attempts to contact her. Nearly four months later, the head of the firm, Thomas Frankovich, sent a letter accepting defendants’ proposal and demanding $41,500 in damages and attorney fees.

The defendants made an offer of $2,500, which Jankey rejected. Frankovich then sent a letter to Moroney for the first time objecting to the defendants’ proposed shared restroom facility because Poop Deck customers would have “to go outside and around the building to reach the [ADA-compliant] restroom,” and insisting that two fully accessible restrooms were required if interior access was not provided.

About a month later, the parties entered into a settlement agreement whereby the defendants agreed to build the joint unisex bathroom, place signage within the Poop Deck, widen certain doorways, and create an accessible seating area. In addition, the agreement provided that “[t]he issues of attorneys’ fees, costs and litigation expenses remain before the court” and that the district court retained jurisdiction to enforce the terms of the agreement.

Jankey’s attorneys then filed a fee request, which the defendants opposed.

Senior U.S. District Court Judge Ronald S.W. Lew of the Central District of California denied Jankey’s motion. He determined that Jankey’s failure to provide prelitigation notice and delay in responding to defendants’ proposed remedy “unreasonably protracted litigation,” and therefore, found that a fee award would be “unjust.”

But Judge Susan P. Graber, writing for the appellate court, explained the ADA does not require that a plaintiff provide prelitigation notice. “Litigants and their lawyers should not be penalized for failing to meet a purported technical requirement that does not exist,” she wrote.

Because denying attorney fees as unjust due to the lack of prelitigation notice would “constitute, in essence, a sanction for failing to provide notice,” she reasoned, the ADA did not permit a district court to consider the lack of prelitigation notice as a factor in determining whether a request for attorney fees under the ADA would be unjust.

However, Graber continued, district courts may consider non-required conduct, in deciding whether litigants have unfairly protracted litigation. While the lack of prelitigation notice “‘should not become a shortcut for reducing an award,’” Graber concluded it is a permissible consideration “if it is specifically connected to a reason why the lawsuit, once filed, would have been resolved more cheaply.”

Based on the record, Graber concluded the lack of prelitigation notice did not result in the incurring of any unnecessary fees during the litigation, but noted the record supported Lew’s finding that Jankey’s attorneys had unreasonably protracted the litigation by failing to respond to defendants’ settlement overtures in a timely manner.

Accordingly, Graber wrote, the district court had discretion on remand to determine whether and to what extent the protraction of litigation should affect Jankey’s award of attorney fees.

Judge Marsha S. Berzon and U.S. District Judge Claudia Wilkin of the Northern District of California, sitting by designation, joined Graber in her opinion.

The case is Jankey v. Poop Deck, 06-55957.


Copyright 2008, Metropolitan News Company