Range, Jr. v. 230 West 41st Street LLC

Background

The plaintiff, who uses a wheelchair, sued Domino’s Pizza LLC, Domino’s Pizza Franchising LLC, 230 West 41st Street LLC, and Hat Trick Pizza, Inc., challenging access measures at a Domino’s restaurant in Midtown Manhattan. Domino’s answered that it did not own, lease, operate, maintain, manage, occupy, or control the store. The opinion states that Hat Trick admitted leasing the premises and that 230 West admitted owning them.

Domino’s repeatedly asked the plaintiff to dismiss the claims against it. After Robert Cookston, Hat Trick’s owner, testified on December 6, 2019, Domino’s again sought voluntary dismissal. Cookston testified that Domino’s gave some instructions about the store remodel’s aesthetics, but Hat Trick was responsible for operating the store in compliance with applicable laws and regulations. The parties could not agree on dismissal because the plaintiff insisted that his state and local claims be dismissed without prejudice.

Domino’s moved for summary judgment on all of the plaintiff’s claims. The plaintiff did not oppose that motion. The court granted summary judgment to Domino’s, finding that the plaintiff had offered no evidence from which reasonable jurors could find Domino’s liable and that Domino’s had no role in operating, owning, leasing, or managing the store.

Fee Motion and Parties’ Positions

Domino’s sought attorney’s fees and litigation costs under 28 U.S.C. § 1927. That statute permits a court to require a lawyer who unreasonably and improperly multiplies court proceedings to pay the additional fees and costs caused by that conduct. Domino’s initially sought larger amounts but reduced its request to $16,330.00 in attorney’s fees and $1,001.36 in costs. It withdrew its initial request under fee provisions of the Americans with Disabilities Act and the New York City Human Rights Law.

Domino’s argued that the plaintiff’s counsel continued the case even after learning that Domino’s had no viable connection to the store. The plaintiff argued that Domino’s had made unsupported claims of noninvolvement, that Cookston’s testimony showed some Domino’s involvement, and that the plaintiff’s counsel had tried to negotiate a dismissal.

Court’s Analysis

The court stated that sanctions under Section 1927 require clear evidence that the claims were entirely meritless and pursued for an improper purpose, along with conduct amounting to or resembling bad faith. The court concluded that the action was not frivolous when filed, but that the plaintiff’s counsel vexatiously extended the proceedings after Cookston’s deposition.

The court rejected the plaintiff’s reliance on a portion of Cookston’s testimony, finding that the evidence—including evidence submitted by Domino’s and Cookston and not opposed by the plaintiff—showed that Domino’s did not manage or operate the store. The court found that, despite knowing there was no viable theory of liability against Domino’s, the plaintiff’s counsel continued to insist on a dismissal without prejudice. When those efforts failed, counsel did not oppose summary judgment, which produced the result counsel had opposed seeking through dismissal.

The court found that counsel’s conduct was objectively unreasonable and showed bad faith. It therefore determined that Section 1927 sanctions were appropriate for Domino’s fees and costs incurred after December 6, 2019.

Amounts Awarded and Disposition

The court awarded all $16,330.00 in requested attorney’s fees because the time records supported fees incurred after December 6, 2019, relating to Domino’s summary judgment motion and fee application. The court reduced the requested costs by $123.67 for travel expenses incurred on December 6, 2019, because it awarded only costs incurred after the deposition. The resulting cost award was $877.69.

The court granted Domino’s motion for attorney’s fees and litigation costs. It ordered Parker Hanski, the plaintiff’s counsel, to pay Domino’s $16,330.00 in attorney’s fees and $877.69 in costs within 30 days. The Clerk of Court was directed to close the motion.