United States District Court, E.D. Virginia, Newport News Division
KENNETH R. FLAUM, Plaintiff,
GLOUCESTER LANES, INC., et al, Defendants.
OPINION AND ORDER
HENRY COKE MORGAN, Jr., Senior District Judge.
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.
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"), Plaintiffsued 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 issueof attorney's fees andcostsat a latertime. Doc. 53. OnAugust 19, 2014, the Courtgranted themotion for summary judgment. Doc. 57. The Court ordered Plaintiffto submit a detailed memorandum addressing attorney's fees by September 8, 2014. Id . Plaintiff filed the attorney's fee motion on September 5, 2014. Doc. 59. Defendantresponded in oppositionon September 30, 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 enteredjudgment 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 ofdeath on October 31. Id . The instant Motion to Substitute was filed on January 13, 2015. Doc. 82.
Federal Rule ofCivil Procedure 25(a) allows the Court to substitute the proper party upon the death ofa party, provided that the cause ofaction 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.Appx. 798, 800 (11th Cir. 2008). Thus, substitution is only proper if Plaintiffs ADA claim survives his death.
The Fourth Circuit has not explicitly addressed the question ofsurvivalof claims under the ADA. In addressingan ADEA claim, the Fourth Circuit has held that federal common law governs the survivorship of an ADEA claim. Fariss v. Lynchburg Foundry, 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 claim survives the decedent. Hager v. First Virginia 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 of the 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 ...