Childress v. Fox Associates, LLC

          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 ...