UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                



Aaron Dalton,                            Case No. 0:17-cv-04427 (SRN/LIB) 

          Plaintiff,                                                     

v.                                                                       
                                     MEMORANDUM OPINION                  
Simonson Station Stores, Inc., and         AND ORDER                     
Bemidji Management Company L.L.C.,                                       

          Defendants.                                                    



Padraigin Browne, Browne Law LLC, 8530 Eagle Point Boulevard, Suite 100, Lake Elmo, 
Minnesota 55042, for Plaintiff.                                           

Edward Peter Sheu and Brian J. Linnerooth, Best & Flanagan LLP, Sixty South Sixth 
Street, Suite 2700, Minneapolis, Minnesota 55402, for Defendants.         


SUSAN RICHARD NELSON, United States District Judge                        

    Before the Court are the Motion to Amend Judgment [Doc. No. 127] filed by Plaintiff 
Aaron Dalton, the Motion for Attorneys’ Fees and Non-Taxable Expenses [Doc. No. 121] 
filed by Defendants Simonson Station Stores, Inc., and Bemidji Management Company 
L.L.C. (hereafter “Simonson Station”), and Plaintiff’s Amended Objection [Doc. No. 145] to 
Defendants’ Bill of Costs [Doc. No. 134].  For the reasons set forth below, Plaintiff’s motion 
is granted in part and denied in part, Defendants’ motion is denied, Plaintiff’s Amended 
Objection is sustained, and Defendants’ Bill of Costs is denied.          
I.   BACKGROUND                                                           
    In June 2017, Dalton, who has cerebral palsy and uses a wheelchair and van with a 

wheelchair lift, visited the Simonson Station, a service station and convenience store located 
in Alexandria, Minnesota.  (See Sheu Decl. [Doc. No. 88], Ex. 1 (Pl.’s Interrog. Response 
Nos. 3–4); id., Ex. 3 (Pl.’s Interrog. Response No. 17); Second Am. Compl. [Doc. No. 80] 
¶¶ 13, 14, 12.)   At that time, the station’s designated disability-accessible parking was located 
on the south side of the building, and the designated accessible entrance was on the east side.  
(See Sheu Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶ 6, Ex. 2 at 4.)  On Dalton’s visit, he observed 

several  violations  of  the  ADA  and  the  Americans  with  Disabilities  Act  Accessibility 
Guidelines (“ADAAG”), related to proper signage, accessible parking spaces, parking lot 
access aisles, an accessible entrance, excessive slopes, and a safe route of transfer.  (See id., 
Ex. 1 (Pl.’s Interrog. Response No. 6); see also Second Am. Compl. ¶¶ 14–24.)   Based on 
those conditions, Dalton did not feel comfortable exiting his vehicle, and he left the Simonson 

Station.  (Dalton Decl. [Doc. No. 95] ¶ 11.)                              
    In  September  2017,  Dalton  filed  this  disability  discrimination  lawsuit,  asserting 
violations of the ADA and ADAAG, for which he seeks injunctive relief.  (See generally, 
Compl. [Doc. No. 1].)  In February 2018, while Defendants’ Second Motion to Dismiss was 
pending, the Court directed the parties to meet and confer at the station to determine whether 

any of Defendants’ changes had resolved Plaintiff’s concerns.  (See Feb. 18, 2018 Order [Doc. 
No. 35] at 1.)  On February 21, 2018, Dalton made his second and final visit to the Simonson 
Station.  (Dalton Decl. ¶ 14.) He contends that at that time, the driver of his van could not pull 
all the way into an accessible-marked spot.  (Id. ¶ 11.) Also, Dalton contends that he was 
forced to take his wheelchair through a traffic lane in order to reach the door of the store, and 
required a stranger’s help to maneuver onto the ramp and into the store.  (Id. ¶¶ 15–17.)  In 

his declaration, Dalton asserts that sloped parking spaces and access aisles may damage his 
vehicle and make it more difficult to safely transfer between his van and the parking lot.  (Id. 
¶ 20.)  Additionally, he states that he would like “the option to exit [his] vehicle and enter 
Simonson Stationstores while [his] vehicle is parked at the gas pump.”  (Id.  ¶ 22.)   
    Ruling on Defendants’ Second Motion to Dismiss in May 2018, the Court found that 
Dalton sufficiently alleged standing to assert claims regarding the slope of the accessible 

parking spaces, the route to the entrance extending into the traffic lane, and the exterior side 
of the closest entrance.  (May 23, 2018 Order [Doc. No. 53] at 14–15.)    
    In June 2018, Peter Hansmeier, a salaried employee of Plaintiff’s counsel’s law firm, 
Browne Law, LLC, (Hansmeier Decl. [Doc. No. 96] ¶ 2; Sheu Decl., Ex. 1 (Pl.’s Interrog. 
Response No. 4)), and the brother-in-law of Plaintiff’s counsel, appeared for Dalton at a joint 

inspection of the station.  He found that some of the slopes in the south-side accessible parking 
area and access aisle, as well as the slopes of the maneuvering clearances at the nearest (east) 
entry, exceeded the ADA limits.  (Hansmeier Decl. ¶¶ 10–11.)  He also found that the distance 
from the door to the edge of the curb at the north entrance did not comply with the ADA, nor 
did certain slopes in that area comply.  (Id. ¶ 20.)  Defendants’ expert, Julee Quarve-Peterson 

recommended that Defendants move the location of the accessible parking from the south 
side of the building to the west side and designate the nearest entrance, on the north side, as 
an accessible entry.  (Sheu Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶¶ 4, 6–7.)    
    At some point between July and October 2018, Defendants undertook Ms. Quarve-
Peterson’s recommendations and relocated the accessible parking to a single space on the 

west side of the building, and converted the entrance closest to that space—the north 
entry—as the designated accessible entrance.  (Id. ¶¶ 7, 14.)  They also repaved the 
relocated accessible parking space, access aisle, ramp, and maneuvering space.  (Id.; Ex. 5 
to Quarve-Peterson Rpt. (Close-Out Rpt.) at 2).)   Ms. Quarve-Peterson inspected the work 
and found it compliant with the ADA and ADAAG.  (Sheu Decl., Ex. 6 (Quarve-Peterson 
Rpt.) ¶ 14; Ex. 5 to Quarve Peterson Rpt. (Close-Out Rpt.) at 3).)        

    In September 2018, Dalton filed the Second Amended Complaint, which is the 
operative complaint here.  While Dalton acknowledges that Defendants remedied some of 
the violations by installing signs and marking an access aisle, he alleges that the station 
lacks two accessible parking spaces and continues to violate the ADA with respect to the 
east entrance.  (Second Am. Compl. ¶¶ 21–22, 25–26.)   The allegations in the Second 

Amended Complaint, however, do not take into account the remediation measures that 
Defendants undertook between July and October 2018.                       
    On October 16, 2018, Mr. Hansmeier returned to the station to inspect the most 
recent remedial work.  (Supp’l Hansmeier Decl. [Doc. No. 97] ¶ 7.)  He observed the 
relocated accessible parking spot on the west side of the building, new signage, changes to 

the surface of the accessible parking space, a new curb ramp and sidewalk between the new 
parking space and north entrance, and directional signage signaling that the north entrance 
was accessible.  (Id. ¶ 10.)  While he observed that many of the slopes were compliant, he 
found that slopes in the hashed-off area between the access aisle and curb ramp, and on the 
ramp between the parking space and north entrance, were not compliant.  (Id. ¶¶ 14–17.)  

    The Pretrial Scheduling Order in this case required that Plaintiff disclose any expert 
opinions on or before October 1, 2018.  (Pretrial Sched. Order [Doc. No. 51] at 4.)  He 
failed to do so.  (Sheu Decl. ¶ 7.)  Dalton did not seek an extension, and did not disclose 
his expert report until November 7, 2018, after Defendants had timely disclosed their expert 
report.  (Id., Ex. 10 (Browne Letter transmitting Hansmeier Decls.)  Defendants moved to 
exclude Hansmeier’s opinion, arguing that it was both unhelpful and untimely.  (Defs. 

Mem. Supp. Mot. for Summ. J. at 29–38.)                                   
    A. The July 18 Order                                                 
    In the July 18, 2019 Amended Order on the parties’ cross motions for summary 
judgment (“the July 18 Order”) [Doc. No. 120], Dalton v. Simonson Station Stores, Inc., 
No. 17-cv-4427 (SRN/LIB), 

 (D. Minn. July 18, 2019), the Court denied 

Plaintiff’s  motion  and  granted  Defendants’  motion  due  to  a  lack  of  subject  matter 
jurisdiction.  The Court noted that because Dalton sought injunctive relief, he was required 
to demonstrate the threat of an ongoing or future injury.  Id.  at *7, 9.  The Court applied 
several factors to determine whether Dalton had shown a likelihood of facing a future threat 
of injury at the Simonson Station, finding that he failed to do so.  Id. at *9.  Accordingly, 

the Court found that he lacked standing and dismissed his claim without prejudice.  Id.  
Shortly thereafter, the Clerk of Court entered judgment [Doc. No. 119].   
    B. Parties’ Post-Judgment Motions                                    
    Pursuant to Federal Rule of Civil Procedure 59(e), Plaintiff seeks to amend or alter 

judgment, relying on Disability Support Alliance v. Heartwood Enters., 

 (8th 
Cir. 2018).  (Pl.’s Mem. Supp. Mot. to Am. J. [Doc. No. 128] at 2–3.)   Dalton asserts that 
the Court erred in granting Defendants summary judgment, arguing that he submitted 
sufficient evidence to create an issue of fact on the question of standing.  (Id.)  Defendants 
oppose this motion and contend that the facts here are distinguishable from those in 
Heartwood.  (Defs.’ Opp’n to Mot. to Am. J. [Doc. No. 138] at 1–5.)       

    Not only do Defendants oppose Plaintiff’s motion, they move for attorneys’ fees 
and non-taxable expenses, as well as taxable costs, in light of the Court’s July 18 ruling. In 
their motion, Defendants argue that they are entitled to $48,078.52 in attorneys’ fees and 
expenses pursuant to the following authority:  (1) the ADA’s fee-shifting provision; (2) 
Plaintiff’s failure to accept Defendants’ Rule 68 settlement offer; and (3) pursuant to 

 based on the conduct of Plaintiff’s counsel.  (Defs.’ Mem. Supp. Mot. for 
Fees & Costs [Doc. No. 135] at 6; Supp’l Sheu Decl. [Doc. No. 148] ¶ 4.)  Under Rule 
54(d), they seek $145.79 in taxable costs. (Bill of Costs at 1.)          
    Defendants assert that after Plaintiff filed this suit, they made good faith efforts to 
remedy the identified ADA violations.  (Sheu Decl. [Doc. No. 136] ¶ 2.)  Shortly thereafter, 

Plaintiff’s counsel, Ms. Browne, submitted an opening settlement demand of $6,000.  (Id. 
¶ 2–3; 

 Ex. 1 (Emails Between P. Browne & G. Shaft).)  Ms. Browne also intimated that 
if Defendants’ corporate counsel hired Mr. Sheu as defense counsel, the case would not 
settle.  (Id.) (“If you end up going with Mr. Sheu, I want to make sure you and your client 
understand the full cost of that route. . . . I do not know how to say this without being 
impolitic, but of all the cases I have had, . . . , the cases with Mr. Sheu have by far been the 

most contentious with the most filings and hours incurred on both sides.  Further, I have 
not settled a single case with him.”)  Defendants subsequently hired Mr. Sheu, and did not 
accept the settlement demand.  (Sheu Decl. ¶ 4.)                          
    It appears that Plaintiff submitted the next settlement demand in February 2018, 
requesting $6,000 and an automatic door opener at the station.  (Id. ¶ 6.)  After Defendants 
declined to settle, in May 2018, Browne submitted a settlement demand for $7,000, plus 

the performance of certain remedial work.  (Id. ¶ 7; 

 Ex. 2 (May 2018 Emails Between 
P. Browne & E. Sheu).)  In June 2018, Defendants provided Plaintiff with a Rule 68 offer 
to settle for $1,000 and to provide full remediation of any actual barriers that Plaintiff 
identified.  (Id. ¶ 9; 

 Ex. 3 (June 2018 Letter & R. 68 Offer from E. Sheu to P. Browne).)  
Ms. Browne did not respond to the offer.  (Id. ¶ 9.)  In January 2019, Ms. Browne submitted 

a demand for $30,000 and the performance of remedial work.  (Id. ¶ 10; 

 Ex. 4 (Jan. 
2019 Email from P. Browne to E. Sheu).)  Defendants did not accept the demand, and 
instead moved for summary judgment.                                       
    Plaintiff opposes Defendants’ motion for fees and costs, arguing that Defendants 
are not entitled to such an award under any of the cited authority, and even if they were, 

Dalton argues, some of the fees are excessive and not properly supported by the record.  
(Pl.’s Opp’n to Def.’s Mot. for Fees & Costs [Doc. No. 143] at 1–18.)  Likewise, Plaintiff 
argues that Defendants are not entitled to an award of taxable costs.  (Pl.’s Am. Obj. to Bill 
of Costs [Doc. No. 145].)                                                 
II.  DISCUSSION                                                           
    A. Plaintiff’s Motion to Amend or Alter Judgment1                    

    Rule 59(e) allows for the filing of a motion to alter or amend a judgment within 28 
days after entry of the judgment. Fed. R. Civ. P. 59(e). According to the Eighth Circuit, 
“Rule 59(e) motions serve the limited function of correcting ‘manifest errors of law or fact 
or to present newly discovered evidence.’”  United States v. Metro. St. Louis Sewer Dist., 

 (8th Cir. 2006) (citation omitted). The Court has “broad discretion” in 
determining whether to grant such a motion. 

 (citation omitted).       

    As the Court observed in the July 18 Order, in the context of an ADA claim, “a 
party’s intention to return to a facility that allegedly contains architectural barriers is a 
threat of future harm that is an injury in fact.”  Smith v. Bradley Pizza, Inc., 

 (D. Minn. 2018) (citing Sawczyn v. BMO Harris Bank Nat’l Ass’n, 

 As a threshold matter, Defendants oppose Plaintiff’s motion on procedural grounds.  They 
argue that Plaintiff’s counsel, Ms. Browne, violated this Court’s Local Rules by failing to 
make a good-faith effort to meet and confer prior to filing Plaintiff’s Motion to Amend or 
Alter Judgment.  (Def.’s Opp’n to Mot. to Am. J. at 1–2.)  They contend that on the filing 
deadline, Ms. Browne left a voicemail message and sent two follow-up emails to defense 
counsel.  (Sheu Decl. [Doc. No. 139], Exs. 1 & 2.)  Plaintiff’s meet-and-confer statement 
reports that Ms. Browne attempted to meet and confer via phone and email, but did not 
hear back from defense counsel at the time of filing.  (Meet-and-Confer Statement [Doc. 
No. 130].)                                                                

Local Rule 7.1(a) of this Court sets forth the meet-and-confer requirement prior to filing a 
motion.  If the moving party is unable to meet and confer prior to filing, “the moving party 
must promptly meet and confer with the opposing party” afterwards and “must supplement 
the motion with a meet-and-confer statement.”  D. Minn. L.R. 7.1(a)(A)-(B).  Plaintiff does 
not appear to have filed a subsequent meet-and-confer statement. Despite this apparent 
failing, the Court will nevertheless consider Plaintiff’s motion on the merits.   
Supp. 3d 1108, 1111 (D. Minn. 2014)). A “plaintiff must have a concrete, particularized 
and  credible  plan  to  return  to  [the]  [d]efendant’s  place  of  business  for  use  of  the 

accommodations.”  Steelman v. Rib Crib No. 18, Nos. 11-3422-CV-S-RED, et al., 

, at *2 (W.D. Mo. Sept. 12, 2012).   A mere intent to return to the defendant’s 
place of business “some day” is insufficient.  Steger v. Franco, 

, 893 (8th Cir. 
2000).                                                                    
    As noted, Plaintiff relies on Heartwood, 

, in support of his motion 
to amend judgment.  In Heartwood, the Eighth Circuit found that the district court properly 

determined that a question of disputed fact remained as to standing.2  The individual 
plaintiff, Wong, lived in Minneapolis, and the place of public accommodation in question, 
an office building, was located approximately 12 miles away in St. Paul.  Disability Support 
Alliance v. Heartwood Enters., LLC, No. 15-cv-529 (PAM/FLN) [Doc. No. 1-1] (Compl. 
¶¶ 9, 11.)  Wong submitted a declaration stating that he had tried to visit the office building 

in order to see a doctor located there, and he had a strong interest in returning, after the 
removal of the alleged barriers to access.  Heartwood, 

.  In his deposition, 
Wong also testified that he wanted to meet with this particular doctor because he advertised 
therapies that might be helpful to Wong’s  condition.  

   While the Eighth Circuit 
questioned Wong’s credibility, it affirmed the district court’s ruling that he had made a 

showing of actual injury, sufficient to survive summary judgment, in light of his stated 
intention to return to the business in the future.  

                   

2 While the Eighth Circuit agreed that standing remained a fact question, it ultimately 
affirmed summary judgment on the merits.  Heartwood, 885 F.3d at 547–48.   
    While the record here contains Dalton’s declaration that he planned to visit the 
Simonson Station to check on its progress of remediation, and on “future trips with others 

while traveling further along Interstate Highway 94 to Moorhead,” (Dalton Decl. ¶ 7), the 
Court found this insufficient to demonstrate an injury in fact.  Dalton, 

, 
at *7–9.  Unlike the plaintiff in Heartwood, Dalton had no specific plans to visit the 
Simonson Station on June 24, 2017, and had never visited it prior to that date.3  See id. at 
*8. Also unlike Wong, who lived near the business in question, Dalton lives approximately 
145 miles from the Simonson Station, id. (citing Steelman, 

, at *3), and 

has no definite plans to return.  

  Moreover, as the Court noted, Dalton never stated why 
or how frequently he travelled through Alexandra, or why or how often he visits Moorhead.  
Id. at *8.                                                                
    On summary judgment in Smith v. Bradley Pizza, Inc., this Court found that the 
plaintiff lacked standing for several reasons, including that he failed to identify evidence 

showing that he faced an immediate and real threat of injury by the defendants.  No. 17-
cv-2032  (ECT/KMM),  

,  at  *7  (D.  Minn.  June  12,  2019),  appeal 
docketed, No. 19-2474 (8th Cir. July 15, 2019).  The Court noted that the plaintiff, Smith, 
testified that he usually purchased pizza from his local Domino’s Pizza in Burnsville, 
Minnesota, as opposed to the defendant’s business in Red Wing, Minnesota, and he had 

never been to Bradley Pizza, other than on the occasion that prompted his lawsuit.  

  

3 As Defendants note, “plaintiff seems to have traveled up north on June 24, 2017 simply 
to target defendants and others for ADA actions.”  (Def.’s Opp’n to Mot. to Am. J. at 4 
n.1) (citing Dalton v. City of Alexandria, No. 18-cv-352 (NEB/LIB), Compl. [Doc. No. 1]) 
(alleging June 24, 2017 visit).                                           
Further, the Court found that Smith’s general plans to visit Red Wing because of its status 
as a tourist destination were, at most, indicative of “some day” intentions, insufficient to 

establish a threat of future injury.  

                                 
    In contrast, on summary judgment in Hillesheim v. O.J.’s Café, Inc., No. 17-cv-
00239-LSC-MDN (D. Neb. Nov. 14, 2018 [Doc. No. 67 at 11–13]), the court there noted 
that the plaintiff lived in the same city in which the defendant café was located and 
frequently drove past it.  Similarly, in Sawczyn, 8 F. Supp.3d at 1112, this Court found on 
a motion to dismiss that the plaintiff had demonstrated the likelihood of returning to the 

challenged ATMs in the future, noting that he lived within three and eleven miles from the 
machines in question and regularly traveled within this zone.             
    Assuming without deciding that the facts here are distinguishable from those in 
Heartwood,  precluding  the  finding  of  any  genuine  dispute  of  material  fact,  Plaintiff 
additionally lacks standing on grounds of mootness, an issue that the parties also presented 

on summary judgment.                                                      
    Article III of the Constitution limits the jurisdiction of the federal courts to “Cases” 
and “Controversies.”  U.S. Const., art. III, § 2, cl. 1.  “A case becomes moot—and therefore 
no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues presented 
are no longer live or the parties lack a legally cognizable interest in the outcome.’”  Already, 

LLC v. Nike, Inc., 

 (2013) (quoting Murphy v. Hunt, 

 
(1982) (per curiam)).  If circumstances change such that “a federal court can no longer 
grant effective relief, the case is moot.”  Beck v. Mo. State High Sch. Activities Ass’n, 

 (8th Cir. 1994) (per curiam).  But “a defendant’s voluntary cessation of a 
challenged practice does not deprive a federal court of its power to determine the legality 
of the practice,” so when a defendant argues mootness by voluntary conduct, it must be 

“absolutely clear that the allegedly wrongful behavior could not reasonably be expected to 
recur.”  Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 

 
(2000) (citations omitted).  The party asserting mootness bears the burden of establishing 
that the case has become moot.  Kennedy Bldg. Assocs. v. Viacom, Inc., 

, 745 
(8th Cir. 2004).                                                          
    As the Court noted in the July 18 Order, Dalton is a plaintiff in approximately 43 

similar accessibility actions before this Court.  Dalton, 

, at *1 n.3.  His 
attorney, Ms. Browne, appears as counsel of record in approximately 171 similar ADA 
cases in this District.  

  In some of the related cases filed by Browne and her husband, 
this Court has expressed concern over a legal strategy that appears to involve “a moving 
litigation target.”  See Smith v. RW’s Bierstube, Inc., No. 17-cv-1866 (PJS/HB), 

,  at  *2  (D.  Minn.  Nov.  8,  2017)  (“Often  a  defendant  quickly  remedies  the 
violations cited by Browne in an effort to render the cases moot, and Browne responds by 
attempting to find other violations and amend her complaint.”); Hillesheim v. Buzz Salons, 
LLC, No. 16-cv-2225 (MJD/TNL), 

, at *6 (D. Minn. June 19, 2017) 
(referring to “what appears to be a moving litigation target,” and “a litigation strategy 

designed  to  draw  out  these  proceedings.”).    While  this  litigation  strategy  may  be 
challenging for defendants, it can pose problems for plaintiffs as well.   Here, while 
Defendants have undertaken remediation measures and significantly changed their parking 
area, Plaintiff’s Second Amended Complaint concerns the state of the parking lot as 
Plaintiff encountered it in June 2017.                                    

    Though Plaintiff disagrees with Ms. Quarve-Peterson’s assessment of compliance 
with the ADA, he concedes that many aspects of the newly installed parking spot, aisle, 
and entry are compliant. (See Supp’l Hansmeier Decl. ¶¶ 10, 14–15.)  Thus, to the extent 
that Plaintiff’s allegations concern these remedied areas, they are moot.    
    This leaves Dalton’s asserted injuries related to the east entry and the lack of two 
accessible parking spaces in the parking lot.  (See Pl.’s Summ. J. Reply [Doc. No. 108] at 

1–2; 11–12.)  As to the east entry, it is no longer the designated accessible entry.  (Sheu 
Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶ 14.)  Plaintiff maintains that Defendants must 
nevertheless remedy it, despite the subsequent alterations and designation of the north entry 
as the accessible entry.  (Pl.’s Summ. J. Mem. at 19.)  Dalton argues that Defendants’ years-
earlier renovations, made in 2011–12, required Defendants to make alterations to the east 

entrance to the maximum extent feasible.  (Id.)  But in 2018, on the advice of an ADA 
accessibility expert, Defendants initiated significant remediation and have now designated 
the north entry as the accessible entry.  (Sheu Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶ 14.)  
Defendants  have  presented  uncontroverted  evidence  that  Dalton’s  allegations  of  a 
noncompliant entry were addressed by relocating the accessible entry.4  (Id.)  Moreover, 


4 As noted earlier, while Plaintiff relies on the opinion of his purported expert, Mr. 
Hansmeier, Hansmeier’s opinion was not timely disclosed.  (Sheu Decl. ¶ 7.)  Before the 
district court in Heartwood, in which Ms. Browne’s husband served as plaintiff’s counsel, 
the plaintiff also failed to timely disclose Hansmeier as a fact or expert witness.  Disability 
Support  Alliance  v.  Heartwood  Enter.,  LLC,  No.  15-cv-529  (PAM/FLN),  

, at *2–3 (D. Minn. 2016). In that case, this Court granted the defendant’s motion 
while Dalton contends that Defendants must provide two accessible entrances, he did not 
plead this requirement,5 nor does he demonstrate an injury in fact resulting from the 

presence of only one designated accessible entry.  In fact, he has not visited the Simonson 
Station since the relocation of the parking space and the designation of the north entrance 
as the accessible entrance.                                               
    Nor do the facts support an injury in fact with regard to the purported need for two 
accessible parking spaces.  To the contrary, Dalton acknowledges that the parking lot has 
25 striped parking spaces, for which only one accessible spot is required.  (See Pl.’s Summ. 

J. Reply at 12.)  But because some customers may park in spots that are not clearly 
delineated, or the 25 painted markings may fade, or Defendants may choose not to comply 
in the future, he argues that Defendants should have two spaces.  (Id.)  Not only are these 


to strike Hansmeier as a witness. 

  Defendants in the instant case move to exclude 
Hansmeier’s opinion. (Defs.’ Mem. Supp. Mot. for Summ. J. at 29–38.)  The Court finds 
no reasonable basis for Dalton’s failure to disclose Hansmeier’s opinion here. Due to 
Plaintiff’s  late  disclosure,  Defendants  disclosed  their  expert  report  before  Plaintiff 
disclosed his report. Moreover, this is not the first time that Plaintiff has failed to abide by 
the rules, whether by seeking leave of Court to file a motion to amend the complaint, or by 
adhering to the Local Rules’ meet-and-confer requirements. For all of these reasons, the 
Court grants Defendants’ request to exclude Hansmeier’s opinion.          

5  To  the  extent  that  Plaintiff  points  to  general  allegations  in  the  Second  Amended 
Complaint requiring Defendants to comply with ADAAG sections 206, 208, 402, 403, 404, 
405, 406, and 502, and that the listing of alleged violations “[are] not to be considered all-
inclusive,” (Second Am. Compl. ¶ 33), the Court finds this insufficient to state a claim for 
two accessible entrances. This language merely references the requirements of the ADA 
and the ADAAG.  “Alleging bare violations of the ADA without evidence of an actual 
injury is insufficient to establish Article III standing.”  Hillesheim v. Holiday Stationstores, 
Inc.,  

  (8th  Cir.  2018)  (finding,  on  summary  judgment,  that  the 
plaintiff’s declaration did little more than describe the alleged violations, other than noting 
that he was deterred from visiting the store in the future).              
potential circumstances speculative, Dalton presents no evidence showing that he was 
unable to find a designated accessible spot on either of his two visits to the station.     

    Accordingly, the Court finds that Defendants have voluntarily ceased their allegedly 
discriminatory conduct and the uncontroverted evidence demonstrates that the parking lot 
and entrance are complaint with the ADA.6                                 
    In order to meet the burden of establishing that the “challenged conduct cannot 
reasonably be expected to start up again,” see Friends of the Earth, 

, 
Defendants submit the declarations of Arch Simonson, the managing partner of Bemidji 

Management Company, LLC, which owns the Simonson Station in Alexandria, and the 
secretary and treasurer of Simonson Station Stores, Inc., which leases and operates the 
Simonson  Station. (See Oct.  2017  Simonson  Decl. [Doc.  No.  10] ¶  2.)   In  an  earlier 
declaration, Mr. Simonson noted that Defendants take great pride in their facilities and their 
high level of customer service for customers with disabilities.  (Id. ¶ 4.)  He stated that after 

buying the property, Defendants renovated the station’s restrooms to ensure that they were 
accessible to disabled customers.  (Id.)  After receiving the Complaint, Defendants initially 
took measures to rectify Plaintiff’s concerns.  (Id. ¶ 5.)  When Plaintiff identified problems 
with some of the remedial measures, in June 2018, Defendants retained Ms. Quarve-Peterson 
to evaluate any additional necessary changes to the property.  (Sheu Decl., Ex. 6 (Quarve-


6 To the extent that Dalton argues that ADA slope violations remain, the allegations in the 
Second Amended Complaint concern the state of the parking area prior to the remediation 
that occurred between July and October 2018.  (Second Am. Compl. ¶¶ 18, 21, 26, 32, 33).  
Due to the fundamental changes in the parking lot since that time, these allegations have 
been rendered moot, and the Court does not consider any additional findings in Mr. 
Hansmeier’s report, as the Court has excluded it.                         
Peterson Rpt.) ¶ 3.)  Based on her recommendations, they undertook significant renovations.  
(Id. ¶ 14.)  Although this lawsuit was the catalyst for Defendants’ remediation efforts, an 

ADA lawsuit was also the catalyst in Wright v. RL Liquor, 

 (8th Cir. 
2018), where the court found the plaintiff’s parking-lot claims moot, noting, among other 
things, that after the store became aware of the lack of van-accessible parking, it undertook 
structural changes.                                                       
    As for Defendants’ future plans to maintain these renovations, Simonson attests that 
“[i]t is our policy to maintain accessible features and cure or fix barriers and possible barriers 

to access at the Simonson Station Store, including without limitation the exterior parking 
space, access aisle, and path to the closest entry.  We monitor these and other surfaces as they 
are affected by seasonal issues and the freeze and thaw cycle of Minnesota’s winter.” (Jan. 
2019 Simonson Decl. [Doc. No. 90] ¶¶ 4–5.)  For instance, Simonson states that Defendants 
leveled out an isolated rough spot in the parking lot during routine maintenance in January 

2019.  (Id. ¶¶ 6–8.)  The Court finds that Defendants have sufficiently shown their plans to 
maintain the renovations in the future.                                   
    In the instant motion, Plaintiff requests that the Court vacate judgment dismissing 
the case.7 (Pl.’s Mem. Supp. Mot. to Am. J. at 6.)  Because the Court will supplement the 


7 Plaintiff does not expressly request that the Court vacate its July 18 ruling with respect to 
his  objections  to  Magistrate  Judge  Brisbois’  September  11,  2018  Report  & 
Recommendation, in which the magistrate judge denied Dalton’s motion, in part, to amend 
the complaint.  In ruling on Plaintiff’s objections, the Court found that Plaintiff’s proposed 
allegations failed to demonstrate the threat of an ongoing or future injury.  Dalton, 

, at *10.  Consistent with the Court’s ruling here, it will likewise amend the 
July 18 Order to reflect that the proposed allegations were also rendered moot, and Plaintiff 
therefore lacks subject matter jurisdiction on this additional basis.     
reasoning of its prior ruling to include mootness, it grants Plaintiff’s Motion to Amend or 
Alter Judgment, in part, on this basis, and denies it in part, as to the overall basis for entry 

of judgment.  That basis—a lack of subject matter jurisdiction—remains the same.  For all 
of the foregoing reasons, the Court finds that the allegations in the Second Amended 
Complaint have been rendered moot, and the Court lacks subject matter jurisdiction over 
them.  The Court will vacate the July 18, 2019 Order, and issue an amended ruling that 
grants  Defendants’  summary  judgment  motion,  denies  Plaintiff’s  summary  judgment 
motion, dismisses the case without prejudice, and directs entry of judgment.  Because the 

July 18 Order directed entry of judgment, the Court will likewise enter an amended 
judgment.                                                                 
    B. Defendants’ Motion for Attorneys’ Fees and Costs                  
    As noted, Defendants seek an award of their attorneys’ fees and costs, citing several 
sources of authority: (1) a provision of the ADA for an award of fees to a prevailing party; 

(2) Rule 68; and (3) 

.  Additionally, pursuant to Federal Rule of Civil 
Procedure 54(d), Defendants seek the taxation of certain costs.  (See Bill of Costs [Doc. 
No. 134].)                                                                
         1.   ADA & Rule 54(d)                                           
    Under the ADA, courts may award reasonable attorneys’ fees and costs to the 

prevailing  party.    

  (“In  any  action  or  administrative  proceeding 
commenced pursuant to this chapter, the court or agency, in its discretion, may allow the 
prevailing  party,  other  than  the  United States, a  reasonable  attorney’s  fee,  including 
litigation expenses, and costs. . . .”).  However, “[a] prevailing defendant in an ADA case 
is entitled to attorney fees only in very narrow circumstances.” Buzz Salons, 

, at *9 (citing Quasius v. Schwan Food Co., No. 08-cv-575 (JNE/JJG), 

, at *1 (D. Minn. Aug. 13, 2010)).                                 
    In the context of Title VII discrimination litigation, the Supreme Court has held that 
“a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that 
his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to 
litigate after it clearly became so.”  Christiansburg Garment Co. v. EEOC, 

 (1978).  In Christiansburg, the Supreme Court identified two strong considerations 

that counseled for an attorneys’ fee award to a prevailing plaintiff but not to a prevailing 
defendant:  (1) the plaintiff is the designated instrument to vindicate “a policy that Congress 
considered of the highest priority”; and (2) an award of fees to a prevailing plaintiff 
constitutes an award against a violator of federal law.  

 at 418–19.   
    While the Eighth Circuit has not expressly applied the Christiansburg standard to a 

defendant’s fee petition under the ADA, this Court, and other district courts have done so.  
See Buzz Salons, 

, at *9; Steelman v. Delano, No. 4:12-CV-00134 (CEJ), 

, at *3 (E.D. Mo. 2012).  In Steelman, the court observed that “[a]lthough 
not yet addressed by the Eighth Circuit, ‘each circuit that has addressed the issue has 
concluded that the considerations that govern fee-shifting under § 706(k) of Title VII or 

under 42 U.S .C. § 1988 apply to the ADA’s fee-shifting provision, because the almost 
identical language in each indicates Congress’ intent to enforce them similarly.’”  

, at *3 (citing No Barriers, Inc. v. Brinker Chili’s Texas, Inc., 

 (5th Cir. 2001); Parker v. Sony Pictures Entm’t, Inc., 

 (2nd Cir. 
2001); Brown v. Lucky Stores, Inc., 

 (9th Cir. 2001)).  

    Defendants urge a plain reading of the ADA’s provision on attorneys’ fees and argue 
that the Christiansburg standard is inapplicable.  (Defs.’ Mem. Supp. Mot. for Fees & Costs 
at 9).  They cite Supreme Court precedent, arising under different statutes, that adheres to 
strict rules of statutory construction:  Food Mktg. Inst. v. Argus Leader Media, 

 (2019), involving whether commercial information is exempt from disclosure 
under the Freedom of Information Act—unrelated to attorneys’ fees, and Fogerty  v. 

Fantasy, Inc., 

, 522–25 (1994), concerning whether prevailing plaintiffs and 
prevailing defendants must be treated alike in awarding attorneys’ fees under the Copyright 
Act.  This authority does not prohibit the application of the Christiansburg standard to a 
fee petition under the ADA.                                               
    Defendants also rely on Poe v. John Deere Co., 

 (8th Cir. 1982), in 

support of their argument that the Christiansburg standard is inapplicable.  (Defs.’ Notice 
of Supp’l Auth. [Doc. No. 150] at 1.)  Poe does not concern an attorneys’ fee award under 
the ADA, but rather, it concerns Rule 54(d) costs taxed against a plaintiff who lost at trial.  
In rejecting the application of the Christiansburg standard to Rule 54(d) costs, the Eighth 
Circuit noted the distinction between costs, which “are awarded to prevailing party as a 

matter of course,” and attorney’s fees, which are not.  Poe, 

.  The court 
further addressed the legislative intent behind such distinctions, stating, 
    Congress has preferred civil-rights litigants by providing that courts must 
    ordinarily award attorneys’ fees if they prevail, but may tax attorneys’ fees 
    against them only if their suit was unreasonable, frivolous, meritless, or 
    vexatious. Congress has not, however, carved out an exception to Rule 54(d) 
    relieving a losing civil-rights litigant of the burden of bearing the costs of 
    litigation. The rationale for this distinction is clear. Whereas the magnitude 
    and unpredictability of attorney’s fees would deter parties with meritorious 
    claims from litigation, the costs of suit in the traditional sense are predictable 
    and, compared to the costs of attorneys’ fees, small.                

  In light of the Eighth Circuit’s express distinctions between attorney’s fees under civil 
rights statutes, and taxable costs under Rule 54(d), Poe’s rejection of the Christiansburg 
standard as to Rule 54(d) costs does not mean that the standard is likewise inapplicable to 
fee awards under the ADA.  To the contrary, the rationale quoted above in Poe supports an 
inference that Christiansburg would apply to an analysis of attorneys’ fees under the ADA.   
    Applying Christiansburg here, the Court cannot say that Dalton’s suit was frivolous, 
unreasonable, or groundless.  Indeed, the Court denied Defendant’s motion to dismiss 
many months ago and Defendants undertook two rounds of remediation to the Simonson 
Station.                                                                  
    But even applying a strict constructionist approach, § 12205 provides that “the court 
. . . , in its discretion, may” allow an award of reasonable attorneys’ fees to the prevailing 
party.    

.    Irrespective  of  Christiansburg,  Defendants  are  not  the 
prevailing  party.    To  determine  “prevailing  party”  status,  there  must  be  a  “material 
alternation of the legal relationship of the parties,” that is “marked by judicial imprimatur.” 
CRST Van Expedited, Inc. v. E.E.O.C., 

 (2016) (citations omitted).  
Here, there has been no adjudication on the merits to materially alter “the legal relationship 
of the parties necessary to permit an award of attorney’s fees.”  Buckhannon Bd. & Care 

Home, Inc. v. W. Va. Dep’t of Health & Human Res., 

 (2001) (citations 
omitted).  In particular, in Hillesheim v. Buzz Salons, this Court noted that where a claim 
is resolved on grounds of mootness, the parties’ legal relationship is unchanged such that 

the defendant does not become a prevailing party entitled to fees.  

, at 
*9 (citing Kohler v. Bed Bath & Beyond of Cal., LLC, 

 (9th Cir. 2015)).   
    This was a hotly contested legal dispute. Both parties filed several motions and 
Defendants twice undertook remediation of the identified ADA violations.  The Court 
appreciates Defendants’ good faith efforts to remedy its facility, however, based on these 
facts, the Court, in its discretion, declines to award Defendants attorneys’ fees and expenses 

under § 12205 of the ADA.                                                 
    For the same reasons, the Court declines to award costs under Rule 54(d).  Rule 
54(d)(1) states, “Unless a federal statute, these rules, or a court order provides otherwise, 
costs—other than attorney’s fees—should be allowed to the prevailing party.”  Again, 
Defendants are not the “prevailing party,” as judgment was not entered in their favor and 

Plaintiff’s claims were involuntarily dismissed.  Cf. Poe, 

 (affirming award 
of Rule 54(d) costs against plaintiff who lost at trial); Sequa Corp. v. Cooper, 

, 1037–38 (8th Cir. 2001) (affirming district court’s jurisdictional authority to award 
costs under Rule 54(d), even though “a voluntary dismissal without prejudice means that 
neither party can be said to have prevailed.”) The Court thus finds that taxation of costs 

under Rule 54(d) is inappropriate.                                        
         2.   Rule 68 Offer                                              
    Defendants also seek an award of attorneys’ fees and costs pursuant to Federal Rule 

of Civil Procedure 68.  In general, Rule 68 concerns a prior offer of judgment, on specified 
terms, made by the defendant, the offeror, to the plaintiff, the offeree.  However, in 
situations in which the plaintiff/offeree rejects the offer and ultimately the plaintiff obtains 
a judgment that “is not more favorable than the unaccepted offer, the offeree must pay the 
[defendant’s/offeror’s] costs incurred after the offer was made.”  Fed. R. Civ. P. 68(d).  
Where the underlying statute defines “costs” to include attorneys’ fees, such fees may be 

included as costs pursuant to Rule 68.  Marek v. Chesny, 

 (1975) (finding that 
attorneys’ fees may be awarded to a prevailing party under the Civil Rights Act, which 
provides that attorneys’ fees may be awarded “as part of the costs.”).    
    The Supreme Court has held that “it is clear that [Rule 68] applies only to offers 
made by the defendant and only to judgments obtained by the plaintiff.”  Delta Air Lines, 

Inc. v. August, 

 (1981).  Citing Pittari v. American Eagle Airlines, Inc., 

 (8th Cir. 2006), however, Defendants assert that a defendant’s costs “are 
available even if a plaintiff’s ADA claims fail on the merits.”  (Defs.’ Mem. Supp. Mot. 
for Fees & Costs at 14.)                                                  
    Pittari involved the Eighth Circuit’s reversal of an ADA plaintiff’s jury verdict and 

related award of attorney’s fees and costs to the plaintiff.  468 F.3d at 1062–63.  The 
appellate court found that there was insufficient evidence in the record to establish that the 
defendant, American Eagle, regarded the plaintiff, Pittari, as disabled in a major life 
activity.  

.  Accordingly, the Eighth Circuit overturned the jury’s verdict and 
reversed the district court’s denial of the defendant’s motion for judgment as a matter of 
law.  

  As a result, the court reversed the district court’s award of attorney’s fees and 

costs to the plaintiff, who was no longer the prevailing party.  

  Further, the Eighth 
Circuit stated that the defendant was entitled to its Rule 68 post-offer costs “because Pittari 
rejected American Eagle’s offer of judgment and failed to receive a more favorable 
judgment.”  

.  The Eighth Circuit remanded the matter to the district court to 
determine the amount of American Eagle’s post-offer costs.  

           
    On remand, the district court cited the Supreme Court’s decision in Delta Air Lines, 

and noted that Rule 68 applies only to judgments obtained by the plaintiff, and “does not 
apply to judgments in favor of the defendant.”  Pittari v. Am. Eagle Airlines, 

 (W.D. Ark. 2007) (citing 

); see also Scottsdale Ins. Co. v. Tolliver, 

 (10th Cir. 2011) (finding that defendant could not rely on Rule 68 to 
shift costs when it received judgment in its favor, as “Rule 68 only applies to offers made 

by the party defending against a claim and only to judgments obtained by the plaintiff.”); 
Goldberg v. Pac. Indem. Co., 

, 754–55 (9th Cir. 2010) (same); Park Manor, 
Ltd. v. Dep’t of Health & Human Servs., 

 (7th Cir. 2007) (noting that Rule 68 
“penalizes the greedy winning plaintiff but is inapplicable if the defendant wins.”); Allen 
v. U.S. Steel Corp., 

 (5th Cir. 1982) (citing Delta Air Lines and finding that 

Rule 68 only applies when the district court enters judgment in favor of the plaintiff for an 
amount less than the defendant’s settlement offer).  In Pittari, because the court of appeals 
overturned the plaintiff’s verdict and entered judgment in the defendant’s favor, the district 
court, on remand, thus found that Rule 68 was inapplicable.  

.   
    Here, dismissal is without prejudice, and without an award of judgment to either 
party.  Accordingly, the Court finds that Rule 68 is inapplicable because judgment is not 
in Plaintiff’s favor.8                                                    

         3.   

                                           
    Defendants also rely on 

 as authority in support of their petition 
for attorneys’ fees and costs.  Section 1927 provides that “[a]ny attorney . . .  who so 
multiplies the proceedings in any case unreasonably and vexatiously may be required by 
the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably 

incurred because of such conduct.”  The Eighth Circuit has advised that sanctions under 
this provision are warranted “when an attorney’s conduct, viewed objectively, manifests 
either intentional or reckless disregard of the attorney’s duties to the court.”  Clark v. 
United Parcel Serv., Inc., 

 (8th Cir. 2006).           
    The Court finds, in its discretion, that this standard is not met here, for the reasons 

noted above in the denial of fees under Defendants’ other authority.      






8 Because the Court finds that Rule 68 is inapplicable for the reasons noted above, it does 
not reach the underlying question of whether attorneys’ fees are included as  “costs” under 
§ 12205 of the ADA. Compare 

 (stating that a reasonable attorney’s fee, 
including costs, may be awarded to the prevailing party) with 

 (providing 
that a prevailing party in a § 1983 action may be awarded a reasonable attorney’s fee “as 
part of the costs”.).                                                     
III.  ORDER                                                               
    Based on the submissions and the entire file and proceedings herein, IT IS HEREBY 

ORDERED that:                                                             
    1.  Plaintiff’s  Motion  to  Alter  or  Amend  Judgment  [Doc.  No.  127]  is 
      GRANTED in part, and DENIED in part;                               

    2.  The Judgment [Doc. No. 119], July 16, 2019 Order [Doc. No. 118], July 
      18, 2019 Amended Order [Doc. No. 120] are VACATED;                 

    3.  Defendants’ Motion for Attorneys’ Fees and Non-Taxable Costs [Doc. No. 
      121] is DENIED;                                                    

    4.  Plaintiff’s Amended Objection to the Bill of Costs [Doc. No. 145] is 
      SUSTAINED; and                                                     

    5.  Defendants’ Bill of Costs [Doc. No. 134] is DENIED.              


Dated:  October 29, 2019           s/Susan Richard Nelson                 
                                  SUSAN RICHARD NELSON                   
                                  United States District Judge           

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                



Aaron Dalton,                            Case No. 0:17-cv-04427 (SRN/LIB) 

          Plaintiff,                                                     

v.                                                                       
                                     MEMORANDUM OPINION                  
Simonson Station Stores, Inc., and         AND ORDER                     
Bemidji Management Company L.L.C.,                                       

          Defendants.                                                    



Padraigin Browne, Browne Law LLC, 8530 Eagle Point Boulevard, Suite 100, Lake Elmo, 
Minnesota 55042, for Plaintiff.                                           

Edward Peter Sheu and Brian J. Linnerooth, Best & Flanagan LLP, Sixty South Sixth 
Street, Suite 2700, Minneapolis, Minnesota 55402, for Defendants.         


SUSAN RICHARD NELSON, United States District Judge                        

    Before the Court are the Motion to Amend Judgment [Doc. No. 127] filed by Plaintiff 
Aaron Dalton, the Motion for Attorneys’ Fees and Non-Taxable Expenses [Doc. No. 121] 
filed by Defendants Simonson Station Stores, Inc., and Bemidji Management Company 
L.L.C. (hereafter “Simonson Station”), and Plaintiff’s Amended Objection [Doc. No. 145] to 
Defendants’ Bill of Costs [Doc. No. 134].  For the reasons set forth below, Plaintiff’s motion 
is granted in part and denied in part, Defendants’ motion is denied, Plaintiff’s Amended 
Objection is sustained, and Defendants’ Bill of Costs is denied.          
I.   BACKGROUND                                                           
    In June 2017, Dalton, who has cerebral palsy and uses a wheelchair and van with a 

wheelchair lift, visited the Simonson Station, a service station and convenience store located 
in Alexandria, Minnesota.  (See Sheu Decl. [Doc. No. 88], Ex. 1 (Pl.’s Interrog. Response 
Nos. 3–4); id., Ex. 3 (Pl.’s Interrog. Response No. 17); Second Am. Compl. [Doc. No. 80] 
¶¶ 13, 14, 12.)   At that time, the station’s designated disability-accessible parking was located 
on the south side of the building, and the designated accessible entrance was on the east side.  
(See Sheu Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶ 6, Ex. 2 at 4.)  On Dalton’s visit, he observed 

several  violations  of  the  ADA  and  the  Americans  with  Disabilities  Act  Accessibility 
Guidelines (“ADAAG”), related to proper signage, accessible parking spaces, parking lot 
access aisles, an accessible entrance, excessive slopes, and a safe route of transfer.  (See id., 
Ex. 1 (Pl.’s Interrog. Response No. 6); see also Second Am. Compl. ¶¶ 14–24.)   Based on 
those conditions, Dalton did not feel comfortable exiting his vehicle, and he left the Simonson 

Station.  (Dalton Decl. [Doc. No. 95] ¶ 11.)                              
    In  September  2017,  Dalton  filed  this  disability  discrimination  lawsuit,  asserting 
violations of the ADA and ADAAG, for which he seeks injunctive relief.  (See generally, 
Compl. [Doc. No. 1].)  In February 2018, while Defendants’ Second Motion to Dismiss was 
pending, the Court directed the parties to meet and confer at the station to determine whether 

any of Defendants’ changes had resolved Plaintiff’s concerns.  (See Feb. 18, 2018 Order [Doc. 
No. 35] at 1.)  On February 21, 2018, Dalton made his second and final visit to the Simonson 
Station.  (Dalton Decl. ¶ 14.) He contends that at that time, the driver of his van could not pull 
all the way into an accessible-marked spot.  (Id. ¶ 11.) Also, Dalton contends that he was 
forced to take his wheelchair through a traffic lane in order to reach the door of the store, and 
required a stranger’s help to maneuver onto the ramp and into the store.  (Id. ¶¶ 15–17.)  In 

his declaration, Dalton asserts that sloped parking spaces and access aisles may damage his 
vehicle and make it more difficult to safely transfer between his van and the parking lot.  (Id. 
¶ 20.)  Additionally, he states that he would like “the option to exit [his] vehicle and enter 
Simonson Stationstores while [his] vehicle is parked at the gas pump.”  (Id.  ¶ 22.)   
    Ruling on Defendants’ Second Motion to Dismiss in May 2018, the Court found that 
Dalton sufficiently alleged standing to assert claims regarding the slope of the accessible 

parking spaces, the route to the entrance extending into the traffic lane, and the exterior side 
of the closest entrance.  (May 23, 2018 Order [Doc. No. 53] at 14–15.)    
    In June 2018, Peter Hansmeier, a salaried employee of Plaintiff’s counsel’s law firm, 
Browne Law, LLC, (Hansmeier Decl. [Doc. No. 96] ¶ 2; Sheu Decl., Ex. 1 (Pl.’s Interrog. 
Response No. 4)), and the brother-in-law of Plaintiff’s counsel, appeared for Dalton at a joint 

inspection of the station.  He found that some of the slopes in the south-side accessible parking 
area and access aisle, as well as the slopes of the maneuvering clearances at the nearest (east) 
entry, exceeded the ADA limits.  (Hansmeier Decl. ¶¶ 10–11.)  He also found that the distance 
from the door to the edge of the curb at the north entrance did not comply with the ADA, nor 
did certain slopes in that area comply.  (Id. ¶ 20.)  Defendants’ expert, Julee Quarve-Peterson 

recommended that Defendants move the location of the accessible parking from the south 
side of the building to the west side and designate the nearest entrance, on the north side, as 
an accessible entry.  (Sheu Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶¶ 4, 6–7.)    
    At some point between July and October 2018, Defendants undertook Ms. Quarve-
Peterson’s recommendations and relocated the accessible parking to a single space on the 

west side of the building, and converted the entrance closest to that space—the north 
entry—as the designated accessible entrance.  (Id. ¶¶ 7, 14.)  They also repaved the 
relocated accessible parking space, access aisle, ramp, and maneuvering space.  (Id.; Ex. 5 
to Quarve-Peterson Rpt. (Close-Out Rpt.) at 2).)   Ms. Quarve-Peterson inspected the work 
and found it compliant with the ADA and ADAAG.  (Sheu Decl., Ex. 6 (Quarve-Peterson 
Rpt.) ¶ 14; Ex. 5 to Quarve Peterson Rpt. (Close-Out Rpt.) at 3).)        

    In September 2018, Dalton filed the Second Amended Complaint, which is the 
operative complaint here.  While Dalton acknowledges that Defendants remedied some of 
the violations by installing signs and marking an access aisle, he alleges that the station 
lacks two accessible parking spaces and continues to violate the ADA with respect to the 
east entrance.  (Second Am. Compl. ¶¶ 21–22, 25–26.)   The allegations in the Second 

Amended Complaint, however, do not take into account the remediation measures that 
Defendants undertook between July and October 2018.                       
    On October 16, 2018, Mr. Hansmeier returned to the station to inspect the most 
recent remedial work.  (Supp’l Hansmeier Decl. [Doc. No. 97] ¶ 7.)  He observed the 
relocated accessible parking spot on the west side of the building, new signage, changes to 

the surface of the accessible parking space, a new curb ramp and sidewalk between the new 
parking space and north entrance, and directional signage signaling that the north entrance 
was accessible.  (Id. ¶ 10.)  While he observed that many of the slopes were compliant, he 
found that slopes in the hashed-off area between the access aisle and curb ramp, and on the 
ramp between the parking space and north entrance, were not compliant.  (Id. ¶¶ 14–17.)  

    The Pretrial Scheduling Order in this case required that Plaintiff disclose any expert 
opinions on or before October 1, 2018.  (Pretrial Sched. Order [Doc. No. 51] at 4.)  He 
failed to do so.  (Sheu Decl. ¶ 7.)  Dalton did not seek an extension, and did not disclose 
his expert report until November 7, 2018, after Defendants had timely disclosed their expert 
report.  (Id., Ex. 10 (Browne Letter transmitting Hansmeier Decls.)  Defendants moved to 
exclude Hansmeier’s opinion, arguing that it was both unhelpful and untimely.  (Defs. 

Mem. Supp. Mot. for Summ. J. at 29–38.)                                   
    A. The July 18 Order                                                 
    In the July 18, 2019 Amended Order on the parties’ cross motions for summary 
judgment (“the July 18 Order”) [Doc. No. 120], Dalton v. Simonson Station Stores, Inc., 
No. 17-cv-4427 (SRN/LIB), 

 (D. Minn. July 18, 2019), the Court denied 

Plaintiff’s  motion  and  granted  Defendants’  motion  due  to  a  lack  of  subject  matter 
jurisdiction.  The Court noted that because Dalton sought injunctive relief, he was required 
to demonstrate the threat of an ongoing or future injury.  Id.  at *7, 9.  The Court applied 
several factors to determine whether Dalton had shown a likelihood of facing a future threat 
of injury at the Simonson Station, finding that he failed to do so.  Id. at *9.  Accordingly, 

the Court found that he lacked standing and dismissed his claim without prejudice.  Id.  
Shortly thereafter, the Clerk of Court entered judgment [Doc. No. 119].   
    B. Parties’ Post-Judgment Motions                                    
    Pursuant to Federal Rule of Civil Procedure 59(e), Plaintiff seeks to amend or alter 

judgment, relying on Disability Support Alliance v. Heartwood Enters., 

 (8th 
Cir. 2018).  (Pl.’s Mem. Supp. Mot. to Am. J. [Doc. No. 128] at 2–3.)   Dalton asserts that 
the Court erred in granting Defendants summary judgment, arguing that he submitted 
sufficient evidence to create an issue of fact on the question of standing.  (Id.)  Defendants 
oppose this motion and contend that the facts here are distinguishable from those in 
Heartwood.  (Defs.’ Opp’n to Mot. to Am. J. [Doc. No. 138] at 1–5.)       

    Not only do Defendants oppose Plaintiff’s motion, they move for attorneys’ fees 
and non-taxable expenses, as well as taxable costs, in light of the Court’s July 18 ruling. In 
their motion, Defendants argue that they are entitled to $48,078.52 in attorneys’ fees and 
expenses pursuant to the following authority:  (1) the ADA’s fee-shifting provision; (2) 
Plaintiff’s failure to accept Defendants’ Rule 68 settlement offer; and (3) pursuant to 

 based on the conduct of Plaintiff’s counsel.  (Defs.’ Mem. Supp. Mot. for 
Fees & Costs [Doc. No. 135] at 6; Supp’l Sheu Decl. [Doc. No. 148] ¶ 4.)  Under Rule 
54(d), they seek $145.79 in taxable costs. (Bill of Costs at 1.)          
    Defendants assert that after Plaintiff filed this suit, they made good faith efforts to 
remedy the identified ADA violations.  (Sheu Decl. [Doc. No. 136] ¶ 2.)  Shortly thereafter, 

Plaintiff’s counsel, Ms. Browne, submitted an opening settlement demand of $6,000.  (Id. 
¶ 2–3; 

 Ex. 1 (Emails Between P. Browne & G. Shaft).)  Ms. Browne also intimated that 
if Defendants’ corporate counsel hired Mr. Sheu as defense counsel, the case would not 
settle.  (Id.) (“If you end up going with Mr. Sheu, I want to make sure you and your client 
understand the full cost of that route. . . . I do not know how to say this without being 
impolitic, but of all the cases I have had, . . . , the cases with Mr. Sheu have by far been the 

most contentious with the most filings and hours incurred on both sides.  Further, I have 
not settled a single case with him.”)  Defendants subsequently hired Mr. Sheu, and did not 
accept the settlement demand.  (Sheu Decl. ¶ 4.)                          
    It appears that Plaintiff submitted the next settlement demand in February 2018, 
requesting $6,000 and an automatic door opener at the station.  (Id. ¶ 6.)  After Defendants 
declined to settle, in May 2018, Browne submitted a settlement demand for $7,000, plus 

the performance of certain remedial work.  (Id. ¶ 7; 

 Ex. 2 (May 2018 Emails Between 
P. Browne & E. Sheu).)  In June 2018, Defendants provided Plaintiff with a Rule 68 offer 
to settle for $1,000 and to provide full remediation of any actual barriers that Plaintiff 
identified.  (Id. ¶ 9; 

 Ex. 3 (June 2018 Letter & R. 68 Offer from E. Sheu to P. Browne).)  
Ms. Browne did not respond to the offer.  (Id. ¶ 9.)  In January 2019, Ms. Browne submitted 

a demand for $30,000 and the performance of remedial work.  (Id. ¶ 10; 

 Ex. 4 (Jan. 
2019 Email from P. Browne to E. Sheu).)  Defendants did not accept the demand, and 
instead moved for summary judgment.                                       
    Plaintiff opposes Defendants’ motion for fees and costs, arguing that Defendants 
are not entitled to such an award under any of the cited authority, and even if they were, 

Dalton argues, some of the fees are excessive and not properly supported by the record.  
(Pl.’s Opp’n to Def.’s Mot. for Fees & Costs [Doc. No. 143] at 1–18.)  Likewise, Plaintiff 
argues that Defendants are not entitled to an award of taxable costs.  (Pl.’s Am. Obj. to Bill 
of Costs [Doc. No. 145].)                                                 
II.  DISCUSSION                                                           
    A. Plaintiff’s Motion to Amend or Alter Judgment1                    

    Rule 59(e) allows for the filing of a motion to alter or amend a judgment within 28 
days after entry of the judgment. Fed. R. Civ. P. 59(e). According to the Eighth Circuit, 
“Rule 59(e) motions serve the limited function of correcting ‘manifest errors of law or fact 
or to present newly discovered evidence.’”  United States v. Metro. St. Louis Sewer Dist., 

 (8th Cir. 2006) (citation omitted). The Court has “broad discretion” in 
determining whether to grant such a motion. 

 (citation omitted).       

    As the Court observed in the July 18 Order, in the context of an ADA claim, “a 
party’s intention to return to a facility that allegedly contains architectural barriers is a 
threat of future harm that is an injury in fact.”  Smith v. Bradley Pizza, Inc., 

 (D. Minn. 2018) (citing Sawczyn v. BMO Harris Bank Nat’l Ass’n, 

 As a threshold matter, Defendants oppose Plaintiff’s motion on procedural grounds.  They 
argue that Plaintiff’s counsel, Ms. Browne, violated this Court’s Local Rules by failing to 
make a good-faith effort to meet and confer prior to filing Plaintiff’s Motion to Amend or 
Alter Judgment.  (Def.’s Opp’n to Mot. to Am. J. at 1–2.)  They contend that on the filing 
deadline, Ms. Browne left a voicemail message and sent two follow-up emails to defense 
counsel.  (Sheu Decl. [Doc. No. 139], Exs. 1 & 2.)  Plaintiff’s meet-and-confer statement 
reports that Ms. Browne attempted to meet and confer via phone and email, but did not 
hear back from defense counsel at the time of filing.  (Meet-and-Confer Statement [Doc. 
No. 130].)                                                                

Local Rule 7.1(a) of this Court sets forth the meet-and-confer requirement prior to filing a 
motion.  If the moving party is unable to meet and confer prior to filing, “the moving party 
must promptly meet and confer with the opposing party” afterwards and “must supplement 
the motion with a meet-and-confer statement.”  D. Minn. L.R. 7.1(a)(A)-(B).  Plaintiff does 
not appear to have filed a subsequent meet-and-confer statement. Despite this apparent 
failing, the Court will nevertheless consider Plaintiff’s motion on the merits.   
Supp. 3d 1108, 1111 (D. Minn. 2014)). A “plaintiff must have a concrete, particularized 
and  credible  plan  to  return  to  [the]  [d]efendant’s  place  of  business  for  use  of  the 

accommodations.”  Steelman v. Rib Crib No. 18, Nos. 11-3422-CV-S-RED, et al., 

, at *2 (W.D. Mo. Sept. 12, 2012).   A mere intent to return to the defendant’s 
place of business “some day” is insufficient.  Steger v. Franco, 

, 893 (8th Cir. 
2000).                                                                    
    As noted, Plaintiff relies on Heartwood, 

, in support of his motion 
to amend judgment.  In Heartwood, the Eighth Circuit found that the district court properly 

determined that a question of disputed fact remained as to standing.2  The individual 
plaintiff, Wong, lived in Minneapolis, and the place of public accommodation in question, 
an office building, was located approximately 12 miles away in St. Paul.  Disability Support 
Alliance v. Heartwood Enters., LLC, No. 15-cv-529 (PAM/FLN) [Doc. No. 1-1] (Compl. 
¶¶ 9, 11.)  Wong submitted a declaration stating that he had tried to visit the office building 

in order to see a doctor located there, and he had a strong interest in returning, after the 
removal of the alleged barriers to access.  Heartwood, 

.  In his deposition, 
Wong also testified that he wanted to meet with this particular doctor because he advertised 
therapies that might be helpful to Wong’s  condition.  

   While the Eighth Circuit 
questioned Wong’s credibility, it affirmed the district court’s ruling that he had made a 

showing of actual injury, sufficient to survive summary judgment, in light of his stated 
intention to return to the business in the future.  

                   

2 While the Eighth Circuit agreed that standing remained a fact question, it ultimately 
affirmed summary judgment on the merits.  Heartwood, 885 F.3d at 547–48.   
    While the record here contains Dalton’s declaration that he planned to visit the 
Simonson Station to check on its progress of remediation, and on “future trips with others 

while traveling further along Interstate Highway 94 to Moorhead,” (Dalton Decl. ¶ 7), the 
Court found this insufficient to demonstrate an injury in fact.  Dalton, 

, 
at *7–9.  Unlike the plaintiff in Heartwood, Dalton had no specific plans to visit the 
Simonson Station on June 24, 2017, and had never visited it prior to that date.3  See id. at 
*8. Also unlike Wong, who lived near the business in question, Dalton lives approximately 
145 miles from the Simonson Station, id. (citing Steelman, 

, at *3), and 

has no definite plans to return.  

  Moreover, as the Court noted, Dalton never stated why 
or how frequently he travelled through Alexandra, or why or how often he visits Moorhead.  
Id. at *8.                                                                
    On summary judgment in Smith v. Bradley Pizza, Inc., this Court found that the 
plaintiff lacked standing for several reasons, including that he failed to identify evidence 

showing that he faced an immediate and real threat of injury by the defendants.  No. 17-
cv-2032  (ECT/KMM),  

,  at  *7  (D.  Minn.  June  12,  2019),  appeal 
docketed, No. 19-2474 (8th Cir. July 15, 2019).  The Court noted that the plaintiff, Smith, 
testified that he usually purchased pizza from his local Domino’s Pizza in Burnsville, 
Minnesota, as opposed to the defendant’s business in Red Wing, Minnesota, and he had 

never been to Bradley Pizza, other than on the occasion that prompted his lawsuit.  

  

3 As Defendants note, “plaintiff seems to have traveled up north on June 24, 2017 simply 
to target defendants and others for ADA actions.”  (Def.’s Opp’n to Mot. to Am. J. at 4 
n.1) (citing Dalton v. City of Alexandria, No. 18-cv-352 (NEB/LIB), Compl. [Doc. No. 1]) 
(alleging June 24, 2017 visit).                                           
Further, the Court found that Smith’s general plans to visit Red Wing because of its status 
as a tourist destination were, at most, indicative of “some day” intentions, insufficient to 

establish a threat of future injury.  

                                 
    In contrast, on summary judgment in Hillesheim v. O.J.’s Café, Inc., No. 17-cv-
00239-LSC-MDN (D. Neb. Nov. 14, 2018 [Doc. No. 67 at 11–13]), the court there noted 
that the plaintiff lived in the same city in which the defendant café was located and 
frequently drove past it.  Similarly, in Sawczyn, 8 F. Supp.3d at 1112, this Court found on 
a motion to dismiss that the plaintiff had demonstrated the likelihood of returning to the 

challenged ATMs in the future, noting that he lived within three and eleven miles from the 
machines in question and regularly traveled within this zone.             
    Assuming without deciding that the facts here are distinguishable from those in 
Heartwood,  precluding  the  finding  of  any  genuine  dispute  of  material  fact,  Plaintiff 
additionally lacks standing on grounds of mootness, an issue that the parties also presented 

on summary judgment.                                                      
    Article III of the Constitution limits the jurisdiction of the federal courts to “Cases” 
and “Controversies.”  U.S. Const., art. III, § 2, cl. 1.  “A case becomes moot—and therefore 
no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues presented 
are no longer live or the parties lack a legally cognizable interest in the outcome.’”  Already, 

LLC v. Nike, Inc., 

 (2013) (quoting Murphy v. Hunt, 

 
(1982) (per curiam)).  If circumstances change such that “a federal court can no longer 
grant effective relief, the case is moot.”  Beck v. Mo. State High Sch. Activities Ass’n, 

 (8th Cir. 1994) (per curiam).  But “a defendant’s voluntary cessation of a 
challenged practice does not deprive a federal court of its power to determine the legality 
of the practice,” so when a defendant argues mootness by voluntary conduct, it must be 

“absolutely clear that the allegedly wrongful behavior could not reasonably be expected to 
recur.”  Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 

 
(2000) (citations omitted).  The party asserting mootness bears the burden of establishing 
that the case has become moot.  Kennedy Bldg. Assocs. v. Viacom, Inc., 

, 745 
(8th Cir. 2004).                                                          
    As the Court noted in the July 18 Order, Dalton is a plaintiff in approximately 43 

similar accessibility actions before this Court.  Dalton, 

, at *1 n.3.  His 
attorney, Ms. Browne, appears as counsel of record in approximately 171 similar ADA 
cases in this District.  

  In some of the related cases filed by Browne and her husband, 
this Court has expressed concern over a legal strategy that appears to involve “a moving 
litigation target.”  See Smith v. RW’s Bierstube, Inc., No. 17-cv-1866 (PJS/HB), 

,  at  *2  (D.  Minn.  Nov.  8,  2017)  (“Often  a  defendant  quickly  remedies  the 
violations cited by Browne in an effort to render the cases moot, and Browne responds by 
attempting to find other violations and amend her complaint.”); Hillesheim v. Buzz Salons, 
LLC, No. 16-cv-2225 (MJD/TNL), 

, at *6 (D. Minn. June 19, 2017) 
(referring to “what appears to be a moving litigation target,” and “a litigation strategy 

designed  to  draw  out  these  proceedings.”).    While  this  litigation  strategy  may  be 
challenging for defendants, it can pose problems for plaintiffs as well.   Here, while 
Defendants have undertaken remediation measures and significantly changed their parking 
area, Plaintiff’s Second Amended Complaint concerns the state of the parking lot as 
Plaintiff encountered it in June 2017.                                    

    Though Plaintiff disagrees with Ms. Quarve-Peterson’s assessment of compliance 
with the ADA, he concedes that many aspects of the newly installed parking spot, aisle, 
and entry are compliant. (See Supp’l Hansmeier Decl. ¶¶ 10, 14–15.)  Thus, to the extent 
that Plaintiff’s allegations concern these remedied areas, they are moot.    
    This leaves Dalton’s asserted injuries related to the east entry and the lack of two 
accessible parking spaces in the parking lot.  (See Pl.’s Summ. J. Reply [Doc. No. 108] at 

1–2; 11–12.)  As to the east entry, it is no longer the designated accessible entry.  (Sheu 
Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶ 14.)  Plaintiff maintains that Defendants must 
nevertheless remedy it, despite the subsequent alterations and designation of the north entry 
as the accessible entry.  (Pl.’s Summ. J. Mem. at 19.)  Dalton argues that Defendants’ years-
earlier renovations, made in 2011–12, required Defendants to make alterations to the east 

entrance to the maximum extent feasible.  (Id.)  But in 2018, on the advice of an ADA 
accessibility expert, Defendants initiated significant remediation and have now designated 
the north entry as the accessible entry.  (Sheu Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶ 14.)  
Defendants  have  presented  uncontroverted  evidence  that  Dalton’s  allegations  of  a 
noncompliant entry were addressed by relocating the accessible entry.4  (Id.)  Moreover, 


4 As noted earlier, while Plaintiff relies on the opinion of his purported expert, Mr. 
Hansmeier, Hansmeier’s opinion was not timely disclosed.  (Sheu Decl. ¶ 7.)  Before the 
district court in Heartwood, in which Ms. Browne’s husband served as plaintiff’s counsel, 
the plaintiff also failed to timely disclose Hansmeier as a fact or expert witness.  Disability 
Support  Alliance  v.  Heartwood  Enter.,  LLC,  No.  15-cv-529  (PAM/FLN),  

, at *2–3 (D. Minn. 2016). In that case, this Court granted the defendant’s motion 
while Dalton contends that Defendants must provide two accessible entrances, he did not 
plead this requirement,5 nor does he demonstrate an injury in fact resulting from the 

presence of only one designated accessible entry.  In fact, he has not visited the Simonson 
Station since the relocation of the parking space and the designation of the north entrance 
as the accessible entrance.                                               
    Nor do the facts support an injury in fact with regard to the purported need for two 
accessible parking spaces.  To the contrary, Dalton acknowledges that the parking lot has 
25 striped parking spaces, for which only one accessible spot is required.  (See Pl.’s Summ. 

J. Reply at 12.)  But because some customers may park in spots that are not clearly 
delineated, or the 25 painted markings may fade, or Defendants may choose not to comply 
in the future, he argues that Defendants should have two spaces.  (Id.)  Not only are these 


to strike Hansmeier as a witness. 

  Defendants in the instant case move to exclude 
Hansmeier’s opinion. (Defs.’ Mem. Supp. Mot. for Summ. J. at 29–38.)  The Court finds 
no reasonable basis for Dalton’s failure to disclose Hansmeier’s opinion here. Due to 
Plaintiff’s  late  disclosure,  Defendants  disclosed  their  expert  report  before  Plaintiff 
disclosed his report. Moreover, this is not the first time that Plaintiff has failed to abide by 
the rules, whether by seeking leave of Court to file a motion to amend the complaint, or by 
adhering to the Local Rules’ meet-and-confer requirements. For all of these reasons, the 
Court grants Defendants’ request to exclude Hansmeier’s opinion.          

5  To  the  extent  that  Plaintiff  points  to  general  allegations  in  the  Second  Amended 
Complaint requiring Defendants to comply with ADAAG sections 206, 208, 402, 403, 404, 
405, 406, and 502, and that the listing of alleged violations “[are] not to be considered all-
inclusive,” (Second Am. Compl. ¶ 33), the Court finds this insufficient to state a claim for 
two accessible entrances. This language merely references the requirements of the ADA 
and the ADAAG.  “Alleging bare violations of the ADA without evidence of an actual 
injury is insufficient to establish Article III standing.”  Hillesheim v. Holiday Stationstores, 
Inc.,  

  (8th  Cir.  2018)  (finding,  on  summary  judgment,  that  the 
plaintiff’s declaration did little more than describe the alleged violations, other than noting 
that he was deterred from visiting the store in the future).              
potential circumstances speculative, Dalton presents no evidence showing that he was 
unable to find a designated accessible spot on either of his two visits to the station.     

    Accordingly, the Court finds that Defendants have voluntarily ceased their allegedly 
discriminatory conduct and the uncontroverted evidence demonstrates that the parking lot 
and entrance are complaint with the ADA.6                                 
    In order to meet the burden of establishing that the “challenged conduct cannot 
reasonably be expected to start up again,” see Friends of the Earth, 

, 
Defendants submit the declarations of Arch Simonson, the managing partner of Bemidji 

Management Company, LLC, which owns the Simonson Station in Alexandria, and the 
secretary and treasurer of Simonson Station Stores, Inc., which leases and operates the 
Simonson  Station. (See Oct.  2017  Simonson  Decl. [Doc.  No.  10] ¶  2.)   In  an  earlier 
declaration, Mr. Simonson noted that Defendants take great pride in their facilities and their 
high level of customer service for customers with disabilities.  (Id. ¶ 4.)  He stated that after 

buying the property, Defendants renovated the station’s restrooms to ensure that they were 
accessible to disabled customers.  (Id.)  After receiving the Complaint, Defendants initially 
took measures to rectify Plaintiff’s concerns.  (Id. ¶ 5.)  When Plaintiff identified problems 
with some of the remedial measures, in June 2018, Defendants retained Ms. Quarve-Peterson 
to evaluate any additional necessary changes to the property.  (Sheu Decl., Ex. 6 (Quarve-


6 To the extent that Dalton argues that ADA slope violations remain, the allegations in the 
Second Amended Complaint concern the state of the parking area prior to the remediation 
that occurred between July and October 2018.  (Second Am. Compl. ¶¶ 18, 21, 26, 32, 33).  
Due to the fundamental changes in the parking lot since that time, these allegations have 
been rendered moot, and the Court does not consider any additional findings in Mr. 
Hansmeier’s report, as the Court has excluded it.                         
Peterson Rpt.) ¶ 3.)  Based on her recommendations, they undertook significant renovations.  
(Id. ¶ 14.)  Although this lawsuit was the catalyst for Defendants’ remediation efforts, an 

ADA lawsuit was also the catalyst in Wright v. RL Liquor, 

 (8th Cir. 
2018), where the court found the plaintiff’s parking-lot claims moot, noting, among other 
things, that after the store became aware of the lack of van-accessible parking, it undertook 
structural changes.                                                       
    As for Defendants’ future plans to maintain these renovations, Simonson attests that 
“[i]t is our policy to maintain accessible features and cure or fix barriers and possible barriers 

to access at the Simonson Station Store, including without limitation the exterior parking 
space, access aisle, and path to the closest entry.  We monitor these and other surfaces as they 
are affected by seasonal issues and the freeze and thaw cycle of Minnesota’s winter.” (Jan. 
2019 Simonson Decl. [Doc. No. 90] ¶¶ 4–5.)  For instance, Simonson states that Defendants 
leveled out an isolated rough spot in the parking lot during routine maintenance in January 

2019.  (Id. ¶¶ 6–8.)  The Court finds that Defendants have sufficiently shown their plans to 
maintain the renovations in the future.                                   
    In the instant motion, Plaintiff requests that the Court vacate judgment dismissing 
the case.7 (Pl.’s Mem. Supp. Mot. to Am. J. at 6.)  Because the Court will supplement the 


7 Plaintiff does not expressly request that the Court vacate its July 18 ruling with respect to 
his  objections  to  Magistrate  Judge  Brisbois’  September  11,  2018  Report  & 
Recommendation, in which the magistrate judge denied Dalton’s motion, in part, to amend 
the complaint.  In ruling on Plaintiff’s objections, the Court found that Plaintiff’s proposed 
allegations failed to demonstrate the threat of an ongoing or future injury.  Dalton, 

, at *10.  Consistent with the Court’s ruling here, it will likewise amend the 
July 18 Order to reflect that the proposed allegations were also rendered moot, and Plaintiff 
therefore lacks subject matter jurisdiction on this additional basis.     
reasoning of its prior ruling to include mootness, it grants Plaintiff’s Motion to Amend or 
Alter Judgment, in part, on this basis, and denies it in part, as to the overall basis for entry 

of judgment.  That basis—a lack of subject matter jurisdiction—remains the same.  For all 
of the foregoing reasons, the Court finds that the allegations in the Second Amended 
Complaint have been rendered moot, and the Court lacks subject matter jurisdiction over 
them.  The Court will vacate the July 18, 2019 Order, and issue an amended ruling that 
grants  Defendants’  summary  judgment  motion,  denies  Plaintiff’s  summary  judgment 
motion, dismisses the case without prejudice, and directs entry of judgment.  Because the 

July 18 Order directed entry of judgment, the Court will likewise enter an amended 
judgment.                                                                 
    B. Defendants’ Motion for Attorneys’ Fees and Costs                  
    As noted, Defendants seek an award of their attorneys’ fees and costs, citing several 
sources of authority: (1) a provision of the ADA for an award of fees to a prevailing party; 

(2) Rule 68; and (3) 

.  Additionally, pursuant to Federal Rule of Civil 
Procedure 54(d), Defendants seek the taxation of certain costs.  (See Bill of Costs [Doc. 
No. 134].)                                                                
         1.   ADA & Rule 54(d)                                           
    Under the ADA, courts may award reasonable attorneys’ fees and costs to the 

prevailing  party.    

  (“In  any  action  or  administrative  proceeding 
commenced pursuant to this chapter, the court or agency, in its discretion, may allow the 
prevailing  party,  other  than  the  United States, a  reasonable  attorney’s  fee,  including 
litigation expenses, and costs. . . .”).  However, “[a] prevailing defendant in an ADA case 
is entitled to attorney fees only in very narrow circumstances.” Buzz Salons, 

, at *9 (citing Quasius v. Schwan Food Co., No. 08-cv-575 (JNE/JJG), 

, at *1 (D. Minn. Aug. 13, 2010)).                                 
    In the context of Title VII discrimination litigation, the Supreme Court has held that 
“a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that 
his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to 
litigate after it clearly became so.”  Christiansburg Garment Co. v. EEOC, 

 (1978).  In Christiansburg, the Supreme Court identified two strong considerations 

that counseled for an attorneys’ fee award to a prevailing plaintiff but not to a prevailing 
defendant:  (1) the plaintiff is the designated instrument to vindicate “a policy that Congress 
considered of the highest priority”; and (2) an award of fees to a prevailing plaintiff 
constitutes an award against a violator of federal law.  

 at 418–19.   
    While the Eighth Circuit has not expressly applied the Christiansburg standard to a 

defendant’s fee petition under the ADA, this Court, and other district courts have done so.  
See Buzz Salons, 

, at *9; Steelman v. Delano, No. 4:12-CV-00134 (CEJ), 

, at *3 (E.D. Mo. 2012).  In Steelman, the court observed that “[a]lthough 
not yet addressed by the Eighth Circuit, ‘each circuit that has addressed the issue has 
concluded that the considerations that govern fee-shifting under § 706(k) of Title VII or 

under 42 U.S .C. § 1988 apply to the ADA’s fee-shifting provision, because the almost 
identical language in each indicates Congress’ intent to enforce them similarly.’”  

, at *3 (citing No Barriers, Inc. v. Brinker Chili’s Texas, Inc., 

 (5th Cir. 2001); Parker v. Sony Pictures Entm’t, Inc., 

 (2nd Cir. 
2001); Brown v. Lucky Stores, Inc., 

 (9th Cir. 2001)).  

    Defendants urge a plain reading of the ADA’s provision on attorneys’ fees and argue 
that the Christiansburg standard is inapplicable.  (Defs.’ Mem. Supp. Mot. for Fees & Costs 
at 9).  They cite Supreme Court precedent, arising under different statutes, that adheres to 
strict rules of statutory construction:  Food Mktg. Inst. v. Argus Leader Media, 

 (2019), involving whether commercial information is exempt from disclosure 
under the Freedom of Information Act—unrelated to attorneys’ fees, and Fogerty  v. 

Fantasy, Inc., 

, 522–25 (1994), concerning whether prevailing plaintiffs and 
prevailing defendants must be treated alike in awarding attorneys’ fees under the Copyright 
Act.  This authority does not prohibit the application of the Christiansburg standard to a 
fee petition under the ADA.                                               
    Defendants also rely on Poe v. John Deere Co., 

 (8th Cir. 1982), in 

support of their argument that the Christiansburg standard is inapplicable.  (Defs.’ Notice 
of Supp’l Auth. [Doc. No. 150] at 1.)  Poe does not concern an attorneys’ fee award under 
the ADA, but rather, it concerns Rule 54(d) costs taxed against a plaintiff who lost at trial.  
In rejecting the application of the Christiansburg standard to Rule 54(d) costs, the Eighth 
Circuit noted the distinction between costs, which “are awarded to prevailing party as a 

matter of course,” and attorney’s fees, which are not.  Poe, 

.  The court 
further addressed the legislative intent behind such distinctions, stating, 
    Congress has preferred civil-rights litigants by providing that courts must 
    ordinarily award attorneys’ fees if they prevail, but may tax attorneys’ fees 
    against them only if their suit was unreasonable, frivolous, meritless, or 
    vexatious. Congress has not, however, carved out an exception to Rule 54(d) 
    relieving a losing civil-rights litigant of the burden of bearing the costs of 
    litigation. The rationale for this distinction is clear. Whereas the magnitude 
    and unpredictability of attorney’s fees would deter parties with meritorious 
    claims from litigation, the costs of suit in the traditional sense are predictable 
    and, compared to the costs of attorneys’ fees, small.                

  In light of the Eighth Circuit’s express distinctions between attorney’s fees under civil 
rights statutes, and taxable costs under Rule 54(d), Poe’s rejection of the Christiansburg 
standard as to Rule 54(d) costs does not mean that the standard is likewise inapplicable to 
fee awards under the ADA.  To the contrary, the rationale quoted above in Poe supports an 
inference that Christiansburg would apply to an analysis of attorneys’ fees under the ADA.   
    Applying Christiansburg here, the Court cannot say that Dalton’s suit was frivolous, 
unreasonable, or groundless.  Indeed, the Court denied Defendant’s motion to dismiss 
many months ago and Defendants undertook two rounds of remediation to the Simonson 
Station.                                                                  
    But even applying a strict constructionist approach, § 12205 provides that “the court 
. . . , in its discretion, may” allow an award of reasonable attorneys’ fees to the prevailing 
party.    

.    Irrespective  of  Christiansburg,  Defendants  are  not  the 
prevailing  party.    To  determine  “prevailing  party”  status,  there  must  be  a  “material 
alternation of the legal relationship of the parties,” that is “marked by judicial imprimatur.” 
CRST Van Expedited, Inc. v. E.E.O.C., 

 (2016) (citations omitted).  
Here, there has been no adjudication on the merits to materially alter “the legal relationship 
of the parties necessary to permit an award of attorney’s fees.”  Buckhannon Bd. & Care 

Home, Inc. v. W. Va. Dep’t of Health & Human Res., 

 (2001) (citations 
omitted).  In particular, in Hillesheim v. Buzz Salons, this Court noted that where a claim 
is resolved on grounds of mootness, the parties’ legal relationship is unchanged such that 

the defendant does not become a prevailing party entitled to fees.  

, at 
*9 (citing Kohler v. Bed Bath & Beyond of Cal., LLC, 

 (9th Cir. 2015)).   
    This was a hotly contested legal dispute. Both parties filed several motions and 
Defendants twice undertook remediation of the identified ADA violations.  The Court 
appreciates Defendants’ good faith efforts to remedy its facility, however, based on these 
facts, the Court, in its discretion, declines to award Defendants attorneys’ fees and expenses 

under § 12205 of the ADA.                                                 
    For the same reasons, the Court declines to award costs under Rule 54(d).  Rule 
54(d)(1) states, “Unless a federal statute, these rules, or a court order provides otherwise, 
costs—other than attorney’s fees—should be allowed to the prevailing party.”  Again, 
Defendants are not the “prevailing party,” as judgment was not entered in their favor and 

Plaintiff’s claims were involuntarily dismissed.  Cf. Poe, 

 (affirming award 
of Rule 54(d) costs against plaintiff who lost at trial); Sequa Corp. v. Cooper, 

, 1037–38 (8th Cir. 2001) (affirming district court’s jurisdictional authority to award 
costs under Rule 54(d), even though “a voluntary dismissal without prejudice means that 
neither party can be said to have prevailed.”) The Court thus finds that taxation of costs 

under Rule 54(d) is inappropriate.                                        
         2.   Rule 68 Offer                                              
    Defendants also seek an award of attorneys’ fees and costs pursuant to Federal Rule 

of Civil Procedure 68.  In general, Rule 68 concerns a prior offer of judgment, on specified 
terms, made by the defendant, the offeror, to the plaintiff, the offeree.  However, in 
situations in which the plaintiff/offeree rejects the offer and ultimately the plaintiff obtains 
a judgment that “is not more favorable than the unaccepted offer, the offeree must pay the 
[defendant’s/offeror’s] costs incurred after the offer was made.”  Fed. R. Civ. P. 68(d).  
Where the underlying statute defines “costs” to include attorneys’ fees, such fees may be 

included as costs pursuant to Rule 68.  Marek v. Chesny, 

 (1975) (finding that 
attorneys’ fees may be awarded to a prevailing party under the Civil Rights Act, which 
provides that attorneys’ fees may be awarded “as part of the costs.”).    
    The Supreme Court has held that “it is clear that [Rule 68] applies only to offers 
made by the defendant and only to judgments obtained by the plaintiff.”  Delta Air Lines, 

Inc. v. August, 

 (1981).  Citing Pittari v. American Eagle Airlines, Inc., 

 (8th Cir. 2006), however, Defendants assert that a defendant’s costs “are 
available even if a plaintiff’s ADA claims fail on the merits.”  (Defs.’ Mem. Supp. Mot. 
for Fees & Costs at 14.)                                                  
    Pittari involved the Eighth Circuit’s reversal of an ADA plaintiff’s jury verdict and 

related award of attorney’s fees and costs to the plaintiff.  468 F.3d at 1062–63.  The 
appellate court found that there was insufficient evidence in the record to establish that the 
defendant, American Eagle, regarded the plaintiff, Pittari, as disabled in a major life 
activity.  

.  Accordingly, the Eighth Circuit overturned the jury’s verdict and 
reversed the district court’s denial of the defendant’s motion for judgment as a matter of 
law.  

  As a result, the court reversed the district court’s award of attorney’s fees and 

costs to the plaintiff, who was no longer the prevailing party.  

  Further, the Eighth 
Circuit stated that the defendant was entitled to its Rule 68 post-offer costs “because Pittari 
rejected American Eagle’s offer of judgment and failed to receive a more favorable 
judgment.”  

.  The Eighth Circuit remanded the matter to the district court to 
determine the amount of American Eagle’s post-offer costs.  

           
    On remand, the district court cited the Supreme Court’s decision in Delta Air Lines, 

and noted that Rule 68 applies only to judgments obtained by the plaintiff, and “does not 
apply to judgments in favor of the defendant.”  Pittari v. Am. Eagle Airlines, 

 (W.D. Ark. 2007) (citing 

); see also Scottsdale Ins. Co. v. Tolliver, 

 (10th Cir. 2011) (finding that defendant could not rely on Rule 68 to 
shift costs when it received judgment in its favor, as “Rule 68 only applies to offers made 

by the party defending against a claim and only to judgments obtained by the plaintiff.”); 
Goldberg v. Pac. Indem. Co., 

, 754–55 (9th Cir. 2010) (same); Park Manor, 
Ltd. v. Dep’t of Health & Human Servs., 

 (7th Cir. 2007) (noting that Rule 68 
“penalizes the greedy winning plaintiff but is inapplicable if the defendant wins.”); Allen 
v. U.S. Steel Corp., 

 (5th Cir. 1982) (citing Delta Air Lines and finding that 

Rule 68 only applies when the district court enters judgment in favor of the plaintiff for an 
amount less than the defendant’s settlement offer).  In Pittari, because the court of appeals 
overturned the plaintiff’s verdict and entered judgment in the defendant’s favor, the district 
court, on remand, thus found that Rule 68 was inapplicable.  

.   
    Here, dismissal is without prejudice, and without an award of judgment to either 
party.  Accordingly, the Court finds that Rule 68 is inapplicable because judgment is not 
in Plaintiff’s favor.8                                                    

         3.   

                                           
    Defendants also rely on 

 as authority in support of their petition 
for attorneys’ fees and costs.  Section 1927 provides that “[a]ny attorney . . .  who so 
multiplies the proceedings in any case unreasonably and vexatiously may be required by 
the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably 

incurred because of such conduct.”  The Eighth Circuit has advised that sanctions under 
this provision are warranted “when an attorney’s conduct, viewed objectively, manifests 
either intentional or reckless disregard of the attorney’s duties to the court.”  Clark v. 
United Parcel Serv., Inc., 

 (8th Cir. 2006).           
    The Court finds, in its discretion, that this standard is not met here, for the reasons 

noted above in the denial of fees under Defendants’ other authority.      






8 Because the Court finds that Rule 68 is inapplicable for the reasons noted above, it does 
not reach the underlying question of whether attorneys’ fees are included as  “costs” under 
§ 12205 of the ADA. Compare 

 (stating that a reasonable attorney’s fee, 
including costs, may be awarded to the prevailing party) with 

 (providing 
that a prevailing party in a § 1983 action may be awarded a reasonable attorney’s fee “as 
part of the costs”.).                                                     
III.  ORDER                                                               
    Based on the submissions and the entire file and proceedings herein, IT IS HEREBY 

ORDERED that:                                                             
    1.  Plaintiff’s  Motion  to  Alter  or  Amend  Judgment  [Doc.  No.  127]  is 
      GRANTED in part, and DENIED in part;                               

    2.  The Judgment [Doc. No. 119], July 16, 2019 Order [Doc. No. 118], July 
      18, 2019 Amended Order [Doc. No. 120] are VACATED;                 

    3.  Defendants’ Motion for Attorneys’ Fees and Non-Taxable Costs [Doc. No. 
      121] is DENIED;                                                    

    4.  Plaintiff’s Amended Objection to the Bill of Costs [Doc. No. 145] is 
      SUSTAINED; and                                                     

    5.  Defendants’ Bill of Costs [Doc. No. 134] is DENIED.              


Dated:  October 29, 2019           s/Susan Richard Nelson                 
                                  SUSAN RICHARD NELSON                   
                                  United States District Judge