In a March 11, 2014, summary order, the Second Circuit (Katzmann, C.C.J., Sack, C.J., and Rakoff, D.J.) vacated an order denying the plaintiff’s motion for attorneys’ fees under the Americans With Disabilities Act (the “ADA”). The court also remanded and reassigned the case because Eastern District Judge Sterling Johnson, Jr. had conducted his own investigation of the premises at issue and determined that plaintiff’s counsel had not succeeded in remedying the ADA violations—and therefore was not deserving of attorneys’ fees.
The seemingly sui generis case is Costello v. Flatman LLC, No. 13-1446 (Mar. 11, 2014). The plaintiff obtained a default judgment against the defendant for violations of the ADA and moved for attorneys’ fees as provided in the statute. The district judge visited each of the businesses identified in the plaintiff’s eight lawsuits, and took judicial notice that the “‘alleged structural deficiencies preventing access to persons with disabilities still exist.'” Slip Op. at 3 (quoting district court). Based on those observations, the district court concluded that plaintiff’s counsel “never sought to remedy these failings” and consequently that he should receive no attorneys’ fees. Id. In vacating and remanding, the Circuit explained that structural defects in the buildings that prevented access to the disabled did not represent the kind of fact appropriate for judicial notice because “it is not clear” that such defects are “not subject to reasonable dispute” or that the district court’s conclusions could be “readily determined from sources whose accuracy cannot reasonably be questioned.” Id. The Panel also granted the plaintiff’s request that on remand the case be assigned to another judge, given “the district court’s error in conducting its own investigation of the restaurants and taking judicial notice of its findings.” Id. at 4. The Court did not question the district judge’s impartiality, but said he would likely have difficulty on remand putting his own findings out of his mind.