Maria C. Childress, An Individual, on behalf of Herself and Others Similarly Situated, also known as Tina Childress; Association of Late Deafened Adults, (ALDA), an Illinois Corporation Plaintiffs - Appellees
v.
Fox Associates, LLC, doing business as Fabulous Fox Theatre Defendant-Appellant Mary Stodden, An Individual, on behalf of Herself and Others Similarly Situated Petitioner - Appellee Hearing Loss Association of America, Greater St. Louis Chapter, (HLAA-StL), an unincorporated affiliate of the Hearing Loss of America, A Maryland Corporation Plaintiff - Appellee Maria C. Childress, An Individual, on behalf of Herself and Others Similarly Situated, also known as Tina Childress; Association of Late Deafened Adults, (ALDA), an Illinois Corporation Plaintiffs - Appellees Mary Stodden, Individual, on behalf of Herself and Others Similarly Situated Petitioner - Appellee Hearing Loss Association of America, Greater St. Louis Chapter, (HLAA-StL), an unincorporated affiliate of the Hearing Loss of America, A Maryland Corporation Plaintiff - Appellee
v.
Fox Associates, LLC, doing business as Fabulous Fox Theatre Defendant-Appellant
Submitted: April 17, 2019
Appeals from United States District Court for the Eastern
District of Missouri - St. Louis
Before
SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
SHEPHERD, Circuit Judge.
Fox
Associates, LLC, doing business as the Fabulous Fox Theater,
appeals the district court's[1] adverse grant of summary
judgment and award of attorney's fees, expenses, and
costs on an Americans with Disabilities Act claim brought by
Maria Childress and Mary Stodden, two individuals with
hearing impairments, as well as two organizations that serve
individuals with hearing impairments. Having jurisdiction
under 28 U.S.C. § 1291, we affirm.
I.
Fox
Associates runs the Fabulous Fox Theater (the Fox), a 4,
500-seat live theater in St. Louis, Missouri. The Fox does
not develop or produce its own shows; rather, it provides a
venue for traveling Broadway shows to perform. These
traveling shows do not rehearse at the Fox for any length of
time before performing. They simply arrive at the venue, set
up their sets and equipment pursuant to their needs, and
conduct multiple performances of the same production.
In
April 2016, Maria Childress, a late-deafened adult, contacted
the Fox and requested captioning for a performance of the
musical Rent, scheduled for May 2017. Childress,
while fluent in American Sign Language (ASL), prefers
captioned shows to ASL-interpreted shows so that she can
experience the writers' original dialogue and lyrics
rather than an ASL interpreter's version. The Fox told
Childress that it did not offer captioning and had no plans
to do so in the future, but that Childress was welcome to
attend a scheduled ASL-interpreted performance of the show.
Childress
and the Association of Late-Deafened Adults (ALDA) filed suit
against Fox Associates under Title III of the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12182, in June
2016.[2] She sought injunctive and declaratory
relief, including mandated captions at all performances for
which the Fox received a captioning request two weeks in
advance, publicity that captions were available along with a
way to request them, and sale of tickets to deaf and
hard-of-hearing patrons by non-telephonic means. After
Childress sued, the Fox offered to amend its policies and to
offer a single prescheduled captioned performance of each
Broadway production as long as a theater patron requested
captions for a performance of that production two weeks in
advance. To that end, the Fox provided a single scheduled
captioned performance-a Saturday matinee-for each of six
separate productions from May 2017 to January 2018. The Fox
also began publicizing the availability of these performances
and provided a means to request captioning and purchase
tickets through its website.
Childress
was unable to attend the prescheduled captioned performance
of School of Rock in January 2018, so the Fox
provided a second captioned performance a week earlier. It
notified Childress, however, that this second captioned
performance was an exception to its policy and that future
requests for additional captioned performances would not
always be granted.[3] When Michele Westmaas, a season
ticketholder and member of ALDA, requested that the Fox
provide captioning at the remaining 2018 performance for
which she had tickets, the Fox instead exchanged her tickets
for tickets to the prescheduled captioned performance.
While
Childress's initial request asked the Fox to provide open
captioning, the Fox chose to provide closed
captioning.[4] It therefore purchased six electronic
tablets that allow theater patrons to view captions during a
performance. The tablets can be used from any seat in the
theater. The Fox also offers device holders for these tablets
so that patrons can view captions hands-free, but these
holders can only be affixed to wheelchair-accessible seating
due to fire hazards. Captions are generated and appear in
real time so as to exactly duplicate what occurs onstage,
including dialogue, song lyrics, and sound effects. Because
every live performance is slightly different, a live,
in-person court reporter must be present to transcribe
captions for each performance.
Following
the Fox's implementation of its
single-captioned-performance policy, both parties moved for
summary judgment. The plaintiffs argued that, because the ADA
requires equal service, the Fox was required to offer
captioning when requested, subject only to the ADA's
"undue burden" affirmative defense. Because Fox
Associates refused to provide financial information during
discovery, stating that such information was irrelevant, and
because the undue burden defense requires consideration of a
defendant's financial state, the plaintiffs contended
that Fox Associates had waived the defense. Fox Associates
argued that requiring captioning whenever it was requested
was not a reasonable modification to the Fox's policies,
practices, and procedures and that, because it provided
captioning whenever the plaintiffs requested it, their claim
for injunctive relief was moot. It further argued that it was
not yet raising an undue burden argument and that this fact,
alone, prevented a grant of summary judgment against it.
The
district court found that the plaintiffs brought suit under
the ADA's auxiliary aids and services requirements,
see 42 U.S.C. § 12182(b)(2)(A)(iii), rather
than the less-specific section addressing modification to
"policies, practices, and procedures," see
42 U.S.C. § 12182(b)(2)(A)(ii). It further found that
failing to offer captioning at any performance where captions
were requested "results in deaf persons being excluded,
denied services, or otherwise treated differently than other
individuals merely because of the absence of [an auxiliary]
aid. This failure violates 42 U.S.C. §
12182(b)(2)(A)(iii)." Childress v. Fox Assocs.,
LLC, No. 4:16 CV 931 CDP, 2018 WL 1858157, at *4 (E.D.
Mo. Apr. 18, 2018). Fox Associates presented no argument
regarding the undue burden defense and the district court
granted summary judgment for the plaintiffs. It awarded them
injunctive relief and, as relevant to this appeal, required
the Fox to provide captioning whenever it received a request
two weeks in advance.
Following
the grant of summary judgment in their favor, the plaintiffs
moved for an award of attorney's fees, expenses, and
costs under 42 U.S.C. § 12205. The district court
granted the motion and calculated reasonable attorney's
fees based on the lodestar method. See Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). It reduced the
requested amount of attorney's fees, however, based on
its findings that the plaintiffs' attorney billed for
clerical or secretarial work and expended time on matters
irrelevant to the case as filed. The district court therefore
granted the plaintiffs $97, 920 in attorney's fees rather
than their requested $100, 845.
Fox
Associates now appeals, arguing that it provides deaf and
hard-of-hearing individuals with meaningful access to its
benefits and it should be allowed flexibility to consolidate
multiple captioning requests into one performance because
providing captions is expensive. Fox Associates further
challenges the award of attorney's fees, arguing that the
district court used an inflated hourly rate to calculate
those fees, allowed the plaintiffs' counsel to bill for
tasks he should ...