The Estate of Kenneth R. Flaum v. Gloucester Lanes, Inc. et al, No. 4:2013cv00131 - Document 84 (E.D. Va. 2015)

Court Description: OPINION AND ORDER that the Court GRANTS the 82 Motion to Substitute; directing the Clerk to substitute The Estate of Kenneth R. Flaum as the plaintiff in this action, and to terminate Kenneth R. Flaum as a plaintiff in this action. Signed by District Judge Henry C. Morgan, Jr on 1/26/2015 and filed on 1/27/2015. (rsim, )

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The Estate of Kenneth R. Flaum v. Gloucester Lanes, Inc. et al Doc. 84 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Newport News Division FILED JAN 2 7 2015 KENNETH R. FLAUM, CLERK, U.S. DISTRICT COURT NORFOLK. VA Plaintiff, v. Civil Action No: 4:13cvl31 GLOUCESTER LANES, INC., et al, Defendants. OPINION AND ORDER This matter is before the Court upon the Motion to Substitute The Estate of Kenneth Robert Flaum as a party plaintiff. Doc. 82. Counsel has requested a hearing. Doc. 83. Defendants have not filed an opposition. Accordingly, the issues are fully briefed, and a hearing will not aid the decisional process. For the reasons stated herein, the Court GRANTS the Motion to Substitute. I. Background These two consolidated actions arose under Title III of the American with Disabilities Act ("ADA") and the Virginians with Disabilities Act ("VDA"). At the time offiling, Plaintiff Kenneth R. Flaum ("Plaintiff or "Flaum") was a disabled person who resided in Gloucester County, VA. The Complaints in the instant Action were filed on September 27, 2013. In one action (hereinafter the "Hillside case") Plaintiff sued Defendants Hillside Cinema, L.L.C.; Mahmood Kalantar ("Kalantar"); and Belinda Kalantarzadeh ("Kalantarzadeh"), and in another (hereinafter the "Gloucester case"), Plaintiff sued Defendants Gloucester Lanes, Inc.; Kalantar; and Kalantarzadeh (collectively "Defendants") for violations of the ADA and VDA. In the Hillside case, Plaintiff filed a Motion for Summary Judgment on July 15,2014. Doc. 50. Defendants responded on July 28, conceding liability and asking the Court to rule on the issue of Dockets.Justia.com attorney's fees andcostsat a latertime. Doc. 53. On August 19,2014, the Courtgranted the motion for summary judgment. Doc. 57. The Court ordered Plaintiff to submit a detailed memorandum addressing attorney's fees by September 8, 2014. Id. Plaintiff filed the attorney's fee motion on September5,2014. Doc. 59. Defendant responded in oppositionon September30,2014. Doc. 69. In the Gloucester case, Plaintiff filed a Motion for Summary Judgment on September 8, 2014. Doc. 60. Defendants did not file an opposition; rather counsel for Defendants filed a Motion to Withdraw on September 11, 2014. Doc. 63. The Court denied the Motion to Withdraw on September 29, 2014. Doc. 68. The parties then filed a notice of settlement on October 2, 2014. Doc. 72. The Court adopted consent decrees requiring the consolidated Defendants to modify the properties at issue, and entered judgment against the consolidated Defendants on October 6,2014.' Doc. 75. In the consent decrees, the parties agreed to have the Court decide the issue of attorney's fees in both cases. On October 7, 2014, a Motion for Attorney's Fees was filed in the Gloucester case. Doc. 76. On October 14, Plaintiff passed away. Doc. 79 at 1. Counsel filed a suggestion of death on October 31. Id. The instant Motion to Substitute was filed on January 13, 2015. Doc. 82. II. Discussion Federal Rule of Civil Procedure 25(a) allows the Court to substitute the proper party upon the death of a party, provided that the cause of action has not been extinguished upon the party's death. In this case, Plaintiff is seeking attorney's fees, and the right to an attorney's fee under the ADA is personal to the client, and not the attorney; thus, it belongs to the estate, and not counsel. Long v. Morton Plant Hosp. Ass'n Inc., 265 F. App'x 798, 800 (11th Cir. 2008). Thus, substitution is only proper if Plaintiffs ADA claim survives his death. 1The Courtwithheld entering judgmentin the Hillside case when it granted the motion for summary judgment so as to further explore the extent of the modifications sought. - 2 - The Fourth Circuit has not explicitly addressedthe question of survival of claims under the ADA. In addressing an ADEA claim, the Fourth Circuit has held that federal common law governs the survivorship of an ADEA claim. Fariss v. LynchburgFoundry, 769 F.2d 958,962 n.3 (4th Cir. 1985). Applying Fariss, the Western District of Virginia found that under federal common law principles, an ADA claimsurvives the decedent. Hager v. FirstVirginia Banks, Inc., No. 7:01cv53, 2002 WL 57249, at *3 n.2 (W.D. Va. Jan. 10, 2002). However, the Southern District of West Virginia has reached the opposite conclusion, finding that state law governs the survival of ADA claims. Green ex rel. Estate of Green v. City of Welch. 467 F. Supp. 2d 656, 667 (S.D. W. Va. 2006). Here, Fariss controls and Hager is the more persuasive decision. Courts that have found that state law governs the survival of ADA claims have relied on 42 U.S.C. § 1988(a) to find that state law governs the survival of ADA claims. Kettner v. Compass Group USA, Inc., 570 F. Supp. 2d 1121, 1131 (D. Minn. 2008). As the Kettner court explained in finding the survival of ADA claim was governed by federal law, With respect to the applicability of Section 1998(a), the statute itself confines its application to actions under titles 13, 24, and 70 of the Revised Statutes for the protection of all persons in the United States in their civil rights. Title 13 of the Revised Statutes consisted of R.S. §§ 530 to 1093. Likewise, Title 24 consisted of R.S. §§ 1977 to 1001, which are classified to sections 1981 to 1983,1985 to 1987, and 1989 to 1994 of what is now Title 42 of the U.S. Code. And Title 70 of the Revised Statutes consisted of R.S. §§ 5323 to 5550, the federal criminal code at the time, which is now codified as Title 18. Thus, these annotations clearly explain which federal civil rights are covered by Section 1988(a). None ofthe above-reference sections of the Revised Statutes corresponds to statutes codifying the ADEA, the ADA, or the Rehabilitation Act.... The list of cases to which Section 1988(a), by its very language, applies does not include ADA or Title VII cases. Id. at 1127-28 (internal quotation marks and citations omitted). The Kettner court further noted that the courts that were finding the survival of ADA claims governed by state law have not supported - 3 - their conclusions "with any persuasive analysis—or in fact any analysis at all—of the statutory language." See id at 1131-32 (collectingcases). Thus, becausethe ADA is remedial in nature,and not punitive, under federal common law the plaintiffs cause of action survives. Id at 1134. The logic of Kettner is sound, and further the Kettner court was faced with the survival of claims under both the ADEA and ADA. Thus, it is consistent with both Farrjs, controlling circuit precedent, and Hager, persuasive precedent from a sister court within the circuit. Attorney's fees provisions are an important mechanism for partiesto vindicate the violation of their civil rights,and thus areremedial in nature.2 See Disabled Patriotsof America, Inc. v. Reserve Hotel Ltd.. 659 F. Supp. 2d 877, 895 n.10 (N.D. Ohio 2009) (discussingthe legislativehistory of 42 U.S.C. § 1988and the purpose of 42 U.S.C. § 12205). Thus, substitution is proper in this case. III. Conclusion Accordingly, the Court GRANTS the Motion to Substitute. The Clerk is DIRECTED to substitute The Estate ofKenneth R. Flaum as the plaintiff in this action, and to terminate Kenneth R. Flaum as a plaintiff in this action. The Clerk is REQUESTED to deliver a copy of this Order to all parties and counsel of record. 1st It is so ORDERED. Henry Coke Morgan, Jr. Senior United States District Judge ,jJn HENRY COKE MORGAN, JR H P^ SENIOR UNITED STATES DISTRICT JUDGE Norfolk, VA January^, zO15 2Moreover, theparties expressly provided fortheCourt to determine theprecise award ofattorney's fees intheconsent decrees, adopted as theCourt's judgment. Thisfurther supports substitution, as generally '"anaction is notabated bythe death of a partyafterthe cause has reached a verdict or final judgmentandwhilethejudgmentstands, evenwhere the judgment is based on a cause of action that would nothave survived hadthe party died before judgment."' Chopra v. General Elec.Co..527 F. Supp.2d 230,239-40 (D. Conn. 2007)(quoting 1AmJur. 2d Abatement, Survival andRevival § 58 (2005)). - 4 -

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