Smith v. Bradley Pizza, Inc.

Background

Scott Smith brought an action seeking an order requiring compliance with Title III of the Americans with Disabilities Act. He alleged architectural barriers in the parking lot and entryway of a public accommodation owned and operated by Bradley Pizza, Inc. and Pamela M. Dahl. The defendants asserted, among other defenses, that Smith lacked standing, that the requested remediation was not readily achievable, and that Smith had unclean hands.

The order concerned the parties’ competing motions to compel discovery under Federal Rule of Civil Procedure 37. The court stated that it was not deciding the merits of Smith’s disability-access claims or the defendants’ readily achievable defense.

Smith’s Motion to Compel

The court denied Smith’s motion in its entirety.

First, Smith sought an order requiring Dahl to sign the initial answers to interrogatories. The court found that Dahl had signed supplemented and amended answers that superseded the earlier answers. The earlier interrogatories also had been served before Dahl was served with the lawsuit. The court therefore concluded that Smith had not shown a violation of a discovery obligation, and Dahl was not required to sign the initial answers.

Second, Smith sought financial information from Dahl and Bradley Pizza to address the defendants’ argument that certain remediation was not readily achievable. The court denied the request for Dahl’s financial information because Smith filed the motion before the discovery responses were due, making the request premature and unnecessary. The court denied the request for Bradley Pizza’s financial information because it was irrelevant under the lease. The lease assigned responsibility for the parking lot, common areas, and exterior maintenance and repairs to the landlord, and the court found that Bradley Pizza lacked control over or responsibility for those areas.

The court found Smith’s motion was not substantially justified except with respect to the request for Bradley Pizza’s financial information. Under Rule 37, the court required Smith, his counsel, or both to pay the defendants’ reasonable expenses, including attorney’s fees, incurred in responding to the portions of the motion that lacked substantial justification. The defendants were directed to submit materials supporting those expenses, excluding expenses attributable to the request for Bradley Pizza’s financial information.

Defendants’ Motion to Compel

The court granted in part and denied in part the defendants’ motion.

Prior ADA settlements. The defendants sought Smith’s prior settlement agreements and information about compensation from similar disability-access lawsuits. The court granted this part in part. Smith must produce nonconfidential settlement agreements from the two-year period preceding the October 30, 2018 hearing and documents showing the total compensation he received from settled ADA lawsuits during that period. The court denied the request for confidential settlement agreements because the burden and expense of producing them outweighed their likely benefit. The court found both sides’ positions substantially justified on this issue and awarded no expenses for it.

Fees prepaid for Peter Hansmeier’s deposition. The court granted the defendants’ request for a refund of amounts prepaid for Hansmeier’s deposition. The court did not decide whether Hansmeier was qualified as an expert. Instead, it concluded that the record did not show that Smith or his counsel’s law firm incurred an additional expense for Hansmeier’s deposition beyond Hansmeier’s ordinary salary. Because there was no expense requiring reimbursement, the court found that Hansmeier was not entitled to payment under Rule 26(b)(4)(E). Smith was ordered to reimburse the defendants for the amounts prepaid.

Fees for Julee Quarve-Peterson’s deposition. The court required Smith to pay JQP, Inc. an additional $260.83 for Quarve-Peterson’s reasonable deposition fees attributable to this case. It found that her $250 hourly rate for deposition testimony was reasonable. It did not require Smith to pay for 2.25 hours of preparation or one hour of travel because the defendants had not shown that those charges were reasonable under the circumstances. Because the deposition involved three cases, the court divided the reasonable deposition-time charge among them and calculated Smith’s additional payment for this case as $260.83.

The court awarded the defendants reasonable expenses for seeking payment of Quarve-Peterson’s full $250 hourly deposition rate, finding Smith’s refusal to pay that rate not substantially justified. It declined to apportion expenses for the other issues in the defendants’ motion.

Disposition

The court denied Smith’s Motion to Compel Discovery. It granted in part and denied in part the Defendants’ Motion to Compel. The order required the specified discovery and payments but did not resolve the underlying ADA claims or defenses.