Civil Rights: Defendant Not Entitled To Recover Statutory Fees Where Plaintiff’s ADA Claim Was Dismissed For Lack Of Standing

Fees Are Not Allowable Under ADA Fee Statute, But Rule 11 Was Available to Recoup Fees If The Defense Can Prove The Action Was Frivolous.

            The Ninth Circuit, in Fernandez v. 23676-23726 Malibu Road, LLC, No. 22-55626 (9^th Cir. July 26, 2023) (published), held that an American with Disabilities Act (ADA) plaintiff whose case is dismissed for lack of standing cannot be exposed to attorney’s fees claimed by the defense under the ADA’s fee provision, 42 U.S.C. § 12205.  However, that is not to say that plaintiff may be exposed to fees as sanctions under F.R.C.P., Rule 11, if it can be shown that plaintiff’s action was frivolous in nature.