Costello v. Flatman, LLC , 558 F. App'x 59 ( 2014 )

13-1446
Costello v. Flatman, LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
11th day of March, two thousand fourteen.
PRESENT: ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
Circuit Judge,
JED S. RAKOFF,
District Judge.*
_____________________________________________
MIKE COSTELLO,
Plaintiff-Appellant,
v. No. 13-1446
FLATMAN, LLC, a New York limited liability company,
Defendant-Appellee,
SHAHID DIN, an individual, DBA Subway, LINCOLN
FIVE REALTY, LLC, a New York limited liability company,
Defendants.
_____________________________________________
*
The Honorable Jed S. Rakoff, United States District Judge for the Southern District of
New York, sitting by designation.
For Plaintiff-Appellant: G. Oliver Koppell, Esq., New York, NY
No appearance for Defendant-Appellee
Appeal from a judgment of the United States District Court for the Eastern District of
New York (Johnson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is VACATED and REMANDED for
reconsideration in light of this Order.
Plaintiff-Appellant Mike Costello appeals from a March 28, 2013 order of the United
States District Court for the Eastern District of New York (Johnson, J.), denying his motion for
attorneys’ fees following the entry of default judgment against Defendant-Appellee Flatman,
LLC, on Costello’s claims for violations of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12188(a)(1). We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
Pursuant to the ADA, a district court, “in its discretion, may allow the prevailing party . .
. a reasonable attorney’s fee.” 42 U.S.C. § 12205. We review a decision “to award or deny
attorneys’ fees for abuse of discretion.” Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 96
(2d Cir. 2008). “A district court has abused its discretion if it based its ruling on an erroneous
view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that
cannot be located within the range of permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d
Cir. 2008) (internal citations, quotation marks, and brackets omitted).
Costello argues on appeal that the district court abused its discretion by denying his
motion for attorneys’ fees in its entirety. For the most part, Costello’s arguments lack merit. For
example, Costello contends that the district court abused its discretion because its
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characterization of his suit and the actions of his attorneys demonstrated a disdain for ADA suits
writ large and a disrespect for this case in particular. However, the district court acknowledged
the worthy goals of the ADA, when used appropriately, but it found, based on counsel’s
submissions to that court and their litigation history, that the attorneys’ efforts here were not
deserving of a fee award.
However, we cannot affirm the district court’s denial of attorneys’ fees on the record
before us. In its order, the district court noted that it visited “each of the businesses that were
named defendants in Plaintiff’s eight lawsuits” and purported to take judicial notice of the fact
that “most if not all of the alleged structural deficiencies preventing access to persons with
disabilities still exist.” App. 115–16 & n.14. The district court drew from its observations the
conclusions that plaintiff’s counsel never sought to remedy these failings, that counsel’s conduct
was “mendacious,” and therefore that they should receive no attorneys’ fees. Id. at 116.
However, a court may take judicial notice only of facts that are “not subject to reasonable
dispute” because they are generally known in the jurisdiction or “can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.
201(b). While the district court may be correct in its observations that certain structural defects
existed at the time of its visit, it is not clear to this Court that such defects are “not subject to
reasonable dispute”or that the conclusions that the district court drew from its observations may
be “readily determined from sources whose accuracy cannot reasonably be questioned.” Cf.
Ajdin v. Bureau of Citizenship & Immigration Servs., 437 F.3d 261, 265 (2d Cir. 2006) (per
curiam) (expressing concern with the Board of Immigration Appeals’ taking of administrative
notice, akin to judicial notice, of an improvement in conditions in another country because this
statement “represents a debatable assessment . . . rather than a statement of fact of the kind
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normally appropriate for the taking of administrative or judicial notice”). Moreover, the district
court did not provide notice of its investigation or its findings prior to the issuance of its opinion,
which deprived Costello of an opportunity to contest the factual findings contained in the order
denying attorneys’ fees. See Fed. R. Evid. 201(e) (“On timely request, a party is entitled to be
heard on the propriety of taking judicial notice and the nature of the fact to be noticed.”). Thus,
Costello’s claim on appeal that he would have provided some explanation for the status of those
facilities undermines the district court’s decision to take judicial notice in this context. See Int’l
Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998)
(“Because the effect of judicial notice is to deprive a party of the opportunity to use rebuttal
evidence, cross-examination, and argument to attack contrary evidence, caution must be used in
determining that a fact is beyond controversy under Rule 201(b).”). Under these circumstances,
the district court erred in taking judicial notice of the conditions of these businesses and drawing
adverse conclusions therefrom, and we cannot say with certainty that the district court would
have reached the same conclusion with respect to attorneys’ fees absent this error. Therefore, we
must remand for reconsideration of the motion for attorneys’ fees.
Finally, we grant Costello’s request that this case be reassigned upon remand to a
different district court judge in light of the district court’s error in conducting its own
investigation of the restaurants and taking of judicial notice of its findings. While we do not
question the well-respected judge’s impartiality—or even his conclusions—we remand the case
to a different district judge because “the original judge would reasonably be expected upon
remand to have substantial difficulty in putting out of his or her mind . . . findings determined to
be . . . based on evidence that must be rejected.” United States v. Robin, 553 F.2d 8, 10 (2d Cir.
1977) (per curiam) (denial of petition for rehearing en banc); accord Shcherbakovskiy v. Da
Capo Al Fine, Ltd., 490 F.3d 130, 142 (2d Cir. 2007).
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Accordingly, we VACATE the order of the district court and REMAND for
reconsideration of the motion for attorneys’ fees. The case shall be assigned to another district
court judge sitting in the United States District Court for the Eastern District of New York
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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