case as an organization or association of disabled persons. Therefore,
the court need determine only whether Baaske can bring this case based
upon a relationship with the disabled persons whose rights he is asserting
in this case.
Courts have allowed non-disabled plaintiffs to sue municipalities under
Title II of the ADA as long as those plaintiffs allege: (1) a
relationship or association with a disabled person and (2) "some
specific, separate, and direct injury" that the plaintiff has suffered as
a result of his association with the disabled individual. Micek, 1999 WL
966970, at *3, In Micek the plaintiff was an employee of the defendant
city. His son was born with significant hearing loss and needed speech
therapy. Micek's employee health insurance refused to cover the cost of
the therapy because of the extent of his son's disability and Micek was
forced to pay for his son's therapy. Micek sued the city under Title II
of the ADA, alleging that the city had denied his claims for health
benefits for his family under his employee health insurance based upon
the hearing disability of his wife and son. The court noted that Micek
could bring a discrimination claim under Title II because of his
relationship with his disabled son. However, the court held that Micek
lacked standing under the ADA because he had suffered no separate and
direct injury because he had received the same insurance coverage as all
other city employees. Id., at *3-*4 See also, Niemcier v. Tri-State Fire
Prot. Dist., No. 99 C 7391, 2000 WL 1222207, at *4 (N.D. Ill. Aug. 24,
2000) (holding that barrier to plaintiff's ability to reproduce and raise
a family with his wife did not constitute a separate injury when
insurance company refused to cover cost of fertility treatments for
infertile wife); Simenson v. Hoffman, No. 95 C 1401, 1995 WL 631804
(N.D. Ill. Oct 24, 1995) (holding that plaintiff, the father of a
disabled child, did not suffer a separate injury when a doctor refused to
treat the disabled child and asked the family to leave the care center).
The court finds the reasoning of Micek, Niemeier, and Simenson
Baaske purports to bring this case on behalf of a class of individuals
with disabilities. He alleges that the firehouse renovation denies those
disabled individuals access to a public building. (Compl. ¶ 6.)
Baaske does not allege any relationship or association between himself
and the disabled persons. Nor does he allege that he has suffered any
separate injury, as defined in Micek, Niemeier, and Simenson, as a result
of the firehouse renovation's alleged noncompliance with the ADA.
Accordingly, the court concludes that Baaske's case falls outside the
zone of interests that the ADA protects. The court will now look to
whether Baaske has third party standing to assert the rights of the
disabled individuals on whose behalf he alleges that he brings this
ii. Third party standing
The City argues that Baaske does not have third-party standing to bring
this case. Baaske argues that he has standing to bring this case on
behalf of the disabled because: (1) the express language of the ADA
grants him standing and (2) the letter that he received from the Civil
Rights Division of the Department of Justice grants him standing. The
court will first address the City's argument and then look to each of
Baaske's arguments in turn.
As a general rule, a plaintiff must assert his own legal rights and
cannot rely upon the rights of another to provide the basis for his claim
for relief Massey, 196 F.3d at 739. However, a plaintiff has third party
standing to assert the claims of some other person when he can show: (1)
a close relationship between himself and the injured party and (2) some
obstacle to the injured party's ability to
protect his own interests.
Massey v. Wheeler, 221 F.3d 1030, 1035 (7th Cir. 2000) (citing Powers v.
Ohio, 499 U.S. 400, 411 (1991)). In this case, as already noted supra
Sect. II.B.2.b, Baaske does not allege any relationship whatsoever
between himself and the group of disabled individuals on whose behalf he
purports to bring this case. Furthermore, Baaske does not allege that the
disabled individuals' ability to protect their interests in access to the
firehouse is hindered in any way. Therefore, Baaske does not satisfy the
requirements for third party standing to bring this case. The court now
turns to Baaske's two arguments.
Baaske argues that 42 U.S.C. § 121 88(a)(1) expressly grants him
standing in this case because, according to Baaske, it allows "any person
. . . who has reasonable grounds for believing that [a disabled] person
is about to be subjected to discrimination in violation of (this Act)" to
sue under the ADA. (Pl.'s Resp. to Defs.' Sec. Mot. to Dismiss Pl.'s
Compl. at 3.) He argues that the ADA thus allows any person who
reasonably believes that any disabled person is about to suffer
discrimination to assert the rights of that disabled person in a
lawsuit. Baaske's argument, however, misstates the language of
42 U.S.C. § 121 88(a) 1), which states, in relevant part, that
remedies are available to "[A]ny person . . . who has reasonable grounds
for believing that [a disabled] person is about to be subjected to
discrimination in violation of section 12183 of this title."
42 U.S.C. § 12188 (a)(1) (emphasis added). Section 12183 applies to
"New construction and alterations in public accommodations and commercial
facilities." 42 U.S.C. § 12183. For reasons already explained, supra
Sect. II.B.1, the City is a public entity and not a public
accommodation. Therefore, 42 U.S.C. § 12188 (a)(1) does not apply to
suits against the City or other public entities. Consequently, the court
concludes that 42 U.S.C. § 121 88(a)(1) does not give Baaske
standing in this case.
Baaske argues also that he has standing to bring this case because the
letter that he received from the Civil Rights Division of the Department
of Justice states that he has a right to file suit to obtain relief for
the ADA violations that he alleges. (Pl.'s Resp. to Defs.' Sec. Mot. to
Dismiss Pl.'s Compl., Ex. 1.) Baaske argues that the letter informed him
of his right to sue and therefore constituted a grant of standing. He
provides no case law to support his argument and the court's own research
has not revealed any authority to support his position. The party
invoking federal jurisdiction must bear the burden of establishing
standing. Boudreau v. Ryan, No. 00 C 5392, 2002 WL 314794, at *3 (N.D.
Ill. Feb. 25, 2002) (citing Lujan, 504 U.S. at 561). Because Baaske fails
to meet this burden with regard to his argument about his letter, the
court is unpersuaded by that argument.
The court concludes that Baaske does not have standing to bring this
claim under Title II of the ADA. Therefore, the court grants the City's
motion to dismiss.
C. Buns's Motion to Dismiss
Burns moves to dismiss Baaske's claims against him on the grounds that
those claims are redundant. However, for reasons already discussed, supra
Sect. II.B, Baaske does not have standing to bring this case. Therefore,
Burns's motion to dismiss is denied as moot.
D. Attorney's Fees
Both defendants argue that they are entitled to attorney's fees, as a
sanction pursuant to Rule 11 and because they are entitled to statutory
attorney's fees under 42 U.S.C. § 12205. The defendants base
their claim for attorney's fees on their assertion that Baaske's claims
were not grounded in law or fact. Baaske responds that defendants are
not entitled to attorney's fees because he has not received notice, as
required by Rule 11. Plaintiff does not respond to defendants' arguments
regarding statutory attorney's fees.
1. Rule 11
Rule 11 requires that a motion for sanctions be separate from any other
motions or requests. FED. R. Civ. P. 11(c)(1)(A); Johnson v. Waddell &
Reed, Inc., 74 F.3d 147, 151 (7th Cir. 1996). Additionally, a party's
motion for sanctions under Rule 11 first must be served upon the opposing
party. Id. In this case, the City has not filed a separate motion for
Rule 11 sanctions but instead has inserted a request that the court grant
attorney's fees at the end of its motion to dismiss. Additionally, the
City does not dispute Baaske's argument that it failed to comply with the
notice requirement under Rule 11. Because the City failed to comply with
the procedural requirements of Rule 11, the court denies its request for
attorney's fees under the rule.
2. Attorney's Fees Under the ADA
Under the ADA, a court has discretion to award a reasonable attorney's
fee to a prevailing party. 42 U.S.C. § 12205. When a court
grants.&defendant's motion to dismiss, that defendant is a "prevailing
party" and entitled to receive attorney's fees. See Adkins v. Briggs &
Stratton Corp., 159 F.3d 306, 307 (7th Cir. 1998) (considering defendant
who prevailed on a motion to dismiss in an ADA case a "prevailing party,"
for purposes of attorney's fees). Awarding attorney's fees to a
prevailing defendant in an ADA case is appropriate only when the suit is
brought in bad faith or when it is "frivolous, unreasonable, or without
foundation." Id. The mere fact that a plaintiff loses his case is not a
sufficient justification for the assessment of fees against him. Vitug
v. Multistate Tax Comm'n, 883 F. Supp. 215, 218 (N.D. Ill. 1995) (citing
Hughes v. Rowe, 449 U.S. 5, 14 (1980)). Additionally, a plaintiff's
erroneous interpretation in a case of first impression should not,
without more, lead the court to conclude that the plaintiff's claims are
frivolous, unreasonable, or without foundation. Vitug, 883 F. Supp. at
In this case, Baaske's claims raised two issues of first impression in
this circuit. Therefore, the court cannot conclude that his claims were
frivolous, unreasonable or without foundation. See Bisciglia v. Kenosha
Unified Sch. Dist. No. 1, 45 F.3d 223. 228 (7th Cir. 1995) (considering
whether a plaintiff's case raises an issue of first impression in
determining whether that case is frivolous, unreasonable, or without
foundation). Accordingly, the court denies the defendants' request for
attorney's fees under 42 U.S.C. § 12205.
For the reasons set forth herein, the court grants the City's motion to
dismiss. Also, the court denies Burns's motion to dismiss as moot.
Finally, the court denies both defendants' requests for attorney's fees.
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