SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6377-95T3
NEW JERSEY CITIZEN ACTION,
Plaintiff-Respondent,
v.
THE RIVIERA MOTEL CORPORATION,
Defendant-Appellant.
_________________________________________________________________
Submitted: December 17, 1996 - Decided: January 16,
1997
Before Judges Michels, Muir, Jr. and Kleiner.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County.
Kelso & Kaplan, attorneys for appellant
(Robert J. Zullo, Jr., of counsel and on
the brief).
Kopelson & Westreich, attorneys for
respondent (Robert Westreich, of counsel
and on the brief).
The opinion of the court was delivered by
MICHELS, P.J.A.D.
Defendant Riviera Motel Corporation (correctly known as
Riviera Motor Hotel, Inc.), appeals from a judgment of the Law
Division that awarded plaintiff New Jersey Citizen Action counsel
fees and costs in the total sum of $4,366.20 in this action to
obtain compliance with federal and state laws governing
accessibility to public accommodations by the disabled.
Plaintiff is a New Jersey not-for-profit corporation,
consisting of disabled individuals, organizations dedicated to
the rights of the disabled, and organizations whose members
include the disabled, including those disabled individuals who
live, work, and recreate in and around Bergen County. The
organization is essentially an advocacy organization for the
disabled whose members have an interest in the accessibility of
places of public accommodation.
Plaintiff notified defendant that its motel in Fort Lee, New
Jersey, violated laws governing accessibility for the disabled.
When remedial action was not forthcoming, plaintiff instituted
this action seeking remediation, counsel fees, and costs.
Plaintiff alleged that defendant's motel had not been
constructed, altered, or modified to be accessible to persons
with disabilities in that the entrance barred access by
wheelchair users, there was an absence of parking for the
disabled, an absence of an accessible room and other
architectural barriers. In the First Count of the complaint,
plaintiff charged that defendant's failure to render its motel
premises accessible to persons with disabilities violated the New
Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et seq.,
New Jersey Handicapped Access Law (HAL), N.J.S.A. 52:32-4, and
regulations of the New Jersey Uniform Construction Code,
specifically the Barrier Free Design Code (BFDC), N.J.A.C. 5:23-7. In the Second Count, plaintiff charged that defendant's
failure to render the motel premises accessible to persons with
disabilities violated the Americans with Disabilities Act of 1990
(ADA),
42 U.S.C.A.
§12181 et seq.
After issue was joined, plaintiff and defendant entered into
a stipulation of partial dismissal in which defendant agreed to
undertake certain remedial measures sought by plaintiff which
were readily achievable within the meaning of
42 U.S.C.A.
§12181. Plaintiff agreed to dismiss with prejudice and without
costs and counsel fees all of the state claims under the First
Count. Defendant did not agree that plaintiff was entitled to
counsel fees and costs with respect to the ADA claims under the
Second Count and the parties, therefore, agreed to submit that
issue to the court. The precise terms of the stipulation are as
follows:
1. The Defendant shall, on or before
October 1, 1996, cause one of its motel rooms
to be rendered wheelchair accessible by
altering it to comply with the ADA
Accessibility Guidelines adopted pursuant to
Title III of the Americans with Disabilities
Act,
42 SC 12181 et seq.
2. The Defendant shall, on or before
August 1, 1996, provide two designated
handicapped parking spaces, including one
with a sixteen foot width, sized and signed
in conformance with the ADA and applicable
state law.
3. The Defendant shall, on or before
August 1, 1996, provide an accessible route
of travel from the designated parking spaces
to the Defendant's motel office and ground
floor, guest rooms. The route of travel
shall conform with Title III of the ADA.
4. The Defendant will, on or before August 1, 1996, equip one motel room with a text telephone and visual alarms for the hearing impaired in conformance with Title
III of the ADA provided the cost does not
exceed $250.00.
5. As to Plaintiff's entitlement to an
award of counsel fees and costs, the Parties
have reached no agreement. They will seek to
negotiate their differences and, failing
agreement, shall submit those issues to the
Court.
6. Plaintiff dismisses all state law
claims, with prejudice and without costs, and
without fees, as set forth in Count I.
7. Defendant stipulates that the
alterations agreed to herein are "readily
achievable" within the meaning of Title III
of the ADA.
At the conclusion of the counsel fee hearing, Judge Lawrence
B. Smith in the Law Division held that plaintiff had standing to
maintain the ADA action and awarded plaintiff counsel fees of
$4,000 and costs of $366.20 for a total of $4,366.20. Defendant
appealed.
Defendant seeks a reversal of the judgment awarding
plaintiff counsel fees and costs, contending that plaintiff lacks
standing to commence a private action under Title III of the ADA.
Defendant argues that plaintiff was not "a person aggrieved"
within the meaning of the ADA and the Civil Rights Act of 1964
because it suffered no injury in fact and failed to comply with
the administrative prerequisites to a suit under the ADA and the
Civil Rights Act. We disagree and affirm. We have carefully
considered the record and arguments presented and are satisfied
the trial court properly held that plaintiff had standing to
maintain this action against defendant under the ADA and that
plaintiff was entitled to counsel fees and costs under the ADA.
We turn first to the critical issue of whether plaintiff has standing to maintain an action under the ADA. Standing refers to the plaintiff's ability or entitlement to maintain an action before the court. New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, 82 N.J. 57, 67 (1980); Al Walker, Inc. v. Borough of Stanhope, 23 N.J. 657, 660 (1957). Courts will not entertain matters in which plaintiffs do not have sufficient legal standing. In re Quinlan, 70 N.J. 10, 34, cert. denied, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed.2d 289 (1976); Al Walker, Inc. v. Borough of Stanhope, supra, 23 N.J. at 660. In order to possess standing, the plaintiff must have a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and there must be a substantial likelihood that the plaintiff will suffer harm in the event of an unfavorable decision. New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, supra, 82 N.J. at 67; Crescent Pk. Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107 (1971); In re Tp. of Howell, 254 N.J. Super. 411, 416 (App. Div.), certif. denied, 127 N.J. 548 (1991).
[T]he essential purposes of the standing doctrine in New Jersey. . . . are to assure that the invocation and exercise of judicial power in a given case are appropriate. Further, the relationship of plaintiffs to the subject matter of the litigation and to other parties must be such to generate confidence in the ability of the judicial process to get to the truth of the matter and in the integrity and soundness of the final adjudication. Also, the standing doctrine serves to fulfill the paramount judicial
responsibility of a court to seek just and
expeditious determinations on the ultimate
merits of deserving controversies.
[New Jersey State Chamber of Commerce v. New
Jersey Election Law Enforcement Comm'n,
supra, 82 N.J. at 69.]
Though the concept of standing is clear when viewed in
isolation, it is unclear exactly how the concept relates to
jurisdiction, justiciability, and real party in interest. Our
Supreme Court, in Watkins v. Resorts Int'l Hotel & Casino, Inc.,
124 N.J. 398, 424 (1991), stated that standing is "a threshold
justiciability requirement [which] must be determined before a
court may proceed to consider the substantive merits of the
case." The Court explained:
Standing is . . . a threshold issue. It
neither depends on nor determines the merits
of a plaintiff's claim. Standing, like
jurisdiction, involves a threshold
determination of the court's power to hear
the case.
Although a dismissal for lack of
standing may involve considerations similar
to those involved in a dismissal for failure
to state a claim on which relief can be
granted, the two types of dismissals are
distinct. Standing involves "limits on the
exercise of . . . jurisdiction." A dismissal
for lack of standing, like one for lack of
jurisdiction, amounts to a refusal by the
court to resolve the matter. A dismissal for
failure to state a claim, on the other hand,
occurs only after the court has agreed to
resolve the controversy.
[Id. at 417-18 (citations omitted) (second
omission in original).]
In Gilbert v. Gladden,
87 N.J. 275, 280-81 (1981), the Court
stated that subject-matter jurisdiction and justiciability must
be distinguished from each other and analyzed separately.
[T]he justiciability inquiry must be
distinguished from the issue of whether
subject-matter jurisdiction exists. The
latter question involves merely a threshold
determination as to whether the Court is
legally authorized to decide the question
presented. If the answer to this question is
in the negative, consideration of the cause
is "wholly and immediately foreclosed." See
Baker v. Carr,
369 U.S. 186, 198,
82 S. Ct. 691,
7 L. Ed.2d 663, 674 (1962). In respect
of justiciability, however, the inquiry
proceeds beyond the threshold determination
"to the point of deciding whether the duty
asserted can be judicially identified and its
breach judicially determined, and whether
protection for the right asserted can be
judicially molded. Id."
[Id.]
Clearly, subject-matter jurisdiction and justiciability are both threshold issues, that is, issues which must be addressed before considering the substantive merits of the matter. Subject-matter jurisdiction refers to "the power of a court to hear and determine cases of the class to which the proceeding in question belongs. It solely rests upon the court's having been granted such power by the Constitution or by valid legislation, and cannot be vested by agreement of the parties." State v. Osborn, 32 N.J. 117, 122 (1960). Justiciability refers to whether a matter is appropriate for judicial review. Because standing affects whether a matter is appropriate for judicial review rather than whether the court has the power to review the matter, and standing is a judicially constructed and self-imposed
limitation, it is an element of justiciability rather than an
element of jurisdiction. See In re Boardwalk Regency Corp.,
90 N.J. 361, 368, appeal dismissed sub nom.,
459 U.S. 1081,
103 S.
Ct. 562,
74 L. Ed.2d 927 (1982); Salorio v. Glaser,
82 N.J. 482,
490-91, cert. denied,
449 U.S. 874,
101 S. Ct. 215,
66 L. Ed.2d 94 (1980); Al Walker, Inc. v. Borough of Stanhope, supra, 23 N.J.
at 660.
The justiciable doctrine of standing fulfills an important
purpose, but it is no more than its requirements. It is the
requirements of standing (sufficient stake in the outcome, real
adverseness, etc.) which fulfill the doctrine's purpose. A
plaintiff does not meet standing's requirements simply because
the defendant, as here, may not have raised the issue or objected
to the plaintiff's lack of standing in the trial court. Hence,
in order for standing to have real meaning, standing cannot be
waived. If standing were waivable, the public could no longer be
"assure[d] that the invocation and exercise of judicial power in
a given case are appropriate." New Jersey State Chamber of
Commerce v. New Jersey Election Law Enforcement Comm'n, supra, 82
N.J. at 69.
Case law of other states reveals that the standing waiver
issue is split among them though it is difficult to say exactly
how because there is confusion as to the exact meaning of
standing and as to how standing relates to jurisdiction and how
it is distinguished, if at all, from "real party in interest."
Some states distinguish between the concepts of standing and real
party in interest and hold that the real party in interest
defense is waivable whereas the lack of standing defense is not
waivable. See generally Texas Ass'n of Business v. Texas Air
Control Bd.,
852 S.W.2d 440, 443-45 (Tex. 1993); Kumar Corp. v.
Nopal Lines, Ltd.,
462 So.2d 1178, 1182-83 (Fla. Dist. Ct.
App.), review denied,
476 So.2d 675 (1985). Federal courts also
recognize a distinction under federal law between standing and
real party in interest and hold that the real party in interest
defense is waivable whereas the lack of standing defense is not
waivable.See footnote 1 See Federal Deposit Ins. Corp. v. Bachman,
894 F.2d 1233, 1235-36 (10th Cir. 1990); Allegheny Int'l, Inc. v.
Allegheny Ludlum Steel Corp.,
40 F.3d 1416, 1431 (3d Cir. 1994);
Lucas v. Lucas,
946 F.2d 1318, 1322 n.6 (8th Cir. 1991).
New Jersey law does not recognize any distinction between
the concepts of standing and real party in interest. In fact,
the discussion of standing as it relates to associations as sole
party plaintiffs occurs in the comments to R. 4:26-1. See
Pressler, Current N.J. Court Rules, comment on R. 4:26-1 (1996).
R. 4:26-1, in pertinent part, provides:
Every action may be prosecuted in the
name of the real party in interest; but an
executor, administrator, guardian of a person
or property, trustee . . . may sue in the
fiduciary's own name without joining the
person for whose benefit the suit is brought.
The rule indicates that associations need to have standing
in order to qualify as "real parties in interest," but it does
not indicate any substantive distinction between the concepts.
In fact, "real party in interest" has been described generally by
language which is strikingly similar to the language usually
employed to describe standing. For instance, the essential
meaning of the real party in interest rule is that each party
bringing an action must be beneficially entrusted or rightfully
or substantially interested in the outcome of the litigation "so
that the judgment, when entered, will be binding and conclusive
and the defendant will be saved from further harassment or
vexation at the hands of other claimants to the same demand."
Goldstein v. Commonwealth Trust Co.,
19 N.J. Super. 39, 46 (Law
Div. 1952). See also Board of Ed., Tp. of Woodbridge v. Kane
Acoustical Co.,
51 N.J. Super. 319, 329 (App. Div. 1958).
Consequently, plaintiff must have standing to qualify as a real
party in interest in order to maintain this action because
defendant cannot waive that justiciability requirement.
The legislative history of the ADA clearly indicates that
associations may bring ADA claims on behalf of disabled
individuals. "The term `person' is used in the enforcement
section to make it clear that organizations representing
individuals with disabilities shall have standing to sue under
the ADA." Staff of House Comm. on Education and Labor, 101st
Cong., 2d Sess., Report on The Americans With Disabilities Act
489 (Comm. Print 1990); H.R. Rep. No. 485, 101st Cong., 2nd
Sess., 49 (1990), reprinted in 1
990 U.S.C.C.A.N. 445. See also
Concerned Parents To Save Dreher Park Ctr. v. City of West Palm
Beach,
846 F. Supp. 986, 990 (S.D. Fla. 1994) (emphasis added)
("to show a violation of Title II [of the ADA], a plaintiff must
show: (1) that he is, or he represents, the interests of a
`qualified individual with a disability'"). Of course, the
association representing the individual(s) must satisfy the
standing requirements of the court and other procedural hurdles
such as, real party in interest requirements.
42 U.S.C.A. 12188(a)(1) of the ADA, which governs
enforcement of Subchapter III - Public Accommodations and
Services Operated by Private Entities, provides:
The remedies and procedures set forth in
section 2000a-3(a) of this title are the
remedies and procedures this subchapter
provides to any person who is being subjected
to discrimination on the basis of disability
in violation of this subchapter or who has
reasonable grounds for believing that such
person is about to be subjected to
discrimination in violation of section 12183
of this title. Nothing in this section shall
require a person with a disability to engage
in a futile gesture if such person has actual
notice that a person or organization covered
by this subchapter does not intend to comply
with its provisions.
42 U.S.C.A.
§2000a-3(a) of the Civil Rights Act of 1964
provides:
Whenever any person has engaged or there
are reasonable grounds to believe that any
person is about to engage in any act or
practice prohibited by section 2000a-2 of
this title, a civil action for preventive
relief . . . may be instituted by the person
aggrieved and, upon timely application, the
court may, in its discretion permit the
Attorney General to intervene in such civil .
. . .
State courts have concurrent jurisdiction over ADA claims.
Krouse v. American Sterilizer Co.,
872 F. Supp. 203, 205-06 (W.D.
Pa. 1994); Jones v. Illinois Central R.R.,
859 F. Supp. 1144,
1145 (N.D. Ill. 1994). However, even though "the existence of
such concurrent jurisdiction does not alter the fact that ADA
claims are federal-question claims", Jones v. Illinois Central
R.R., supra, 859 F. Supp. at 1145, whether or not a party has
standing to bring an ADA claim in state court is a question of
state law rather than federal law.
We have recognized often that the constraints
of Article III do not apply to state courts,
and accordingly the state courts are not
bound by the limitations of a case or
controversy or other federal rules of
justiciability even when they address issues
of federal law, as when that are called upon
to interpret the Constitution or, in this
case, a federal statute.
Although the state courts are not bound
to adhere to federal standing requirements,
they possess the authority, absent a
provision for exclusive federal jurisdiction,
to render binding judicial decisions that
rest on their own interpretations of federal
law.
[Asarco Inc. v. Kadish,
490 U.S. 605, 617,
109 S. Ct. 2037, 2045,
104 L. Ed.2d 696, 715
(1989) (citations omitted).]
See also Salorio v. Glaser, supra, 82 N.J. at 490-91; Urban
League of Essex County v. Township of Mahwah, 147 N.J. Super. 28,
33 (App. Div.), certif. denied,
74 N.J. 278 (1977).
New Jersey courts take a broad and liberal approach to
standing. See Crescent Pk. Tenants Ass'n v. Realty Equities
Corp., supra, 58 N.J. at 101, 108; Dome Realty, Inc. v. City of
Paterson,
150 N.J. Super. 448, 452 (App. Div. 1977). "In the
overall we have given due weight to the interests of individual
justice, along with the public interest, always bearing in mind
that throughout our law we have been sweepingly rejecting
procedural frustrations in favor of `just and expeditious
determinations on the ultimate merits.'" Crescent Pk. Tenants
Ass'n v. Realty Equities Corp., supra, 58 N.J. at 107-08. Thus,
"courts hold that where the plaintiff is not simply an interloper
and the proceeding serves the public interest, standing will be
found." In re Quinlan, supra, 70 N.J. at 34-35 (holding that
father has standing to assert the constitutional rights of his
incompetent daughter). See also Salorio v. Glaser, supra, 82
N.J. at 491 (reiterating that "in cases of great public interest,
any `slight additional private interest' will be sufficient to
afford standing"). These principles comport with the proposition
that standing rules and other justiciability norms "are not to be
applied in a wooden fashion to preclude `expeditious relief from
uncertainty with respect to rights when claims are in genuine
conflict." Ridgewood Educ. Ass'n v. Ridgewood Bd. of Educ.,
284 N.J. Super. 427, 431-32 (App. Div. 1995) (quoting Bell v.
Township of Stafford,
110 N.J. 384, 391 (1988)).
Having applied these rules of standing to associations,
courts have concluded that an association has standing to sue as
the sole party plaintiff when it has a real stake in the outcome
of the litigation, there is a real adverseness in the proceeding,
and the complaint "is confined strictly to matters of common
interest and does not include any individual grievance which
might perhaps be dealt with more appropriately in a proceeding
between the individual [member] and the [defendant]." Crescent
Pk. Tenants Ass'n v. Realty Equities Corp., supra, 58 N.J. at
109. See generally Pressler, Current N.J. Court Rules, comment
on R. 4:26-1 (1996).
[E]ven in the absence of injury to itself, "an
association may have standing solely as the
representative of its members." In such a situation,
the association must allege that its members, or any of
them, "are suffering immediate or threatened injury as
a result of the challenged action of the sort that
would make out a justiciable case had the members
themselves brought suit."
[In re Ass'n of Trial Lawyers of America,
228 N.J. Super. 180, 186 (App. Div.) (quoting
Warth v. Seldin,
422 U.S. 490, 511,
95 S. Ct. 2197, 2211,
95 L. Ed.2d 343, 362 (1975)),
certif. denied,
113 N.J. 660 (1988).]
However, an association does not have standing where its
"representational interest is too ethereal to justify judicial
recognition and acknowledgement." Id. at 187.
Plaintiff is a not-for-profit consumer advocacy
organization. Plaintiff's members include disabled individuals,
organizations dedicated to the rights of the disabled, and
organizations whose members include the disabled, including
individuals who live, work, and recreate in and around Bergen
County. In sum, based on the record before us, plaintiff is an
organization whose members "have a genuine interest in the
accessibility of places of public accommodation," and, therefore,
the trial court properly found that it had standing to maintain
this ADA action.
The issue then remains as to whether plaintiff is entitled to counsel fees and costs under the ADA. 42 U.S.C.A. §12205 of the ADA, which governs attorneys' fees, provides:
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, and the United States shall be liable for the foregoing the same as a private individual.
"To prevail [under the ADA], a party must succeed on any significant issue in litigation and obtain a result that affects the defendant's behavior towards the plaintiff. . . . Success does not always require a formal monetary judgment; a plaintiff may prevail by obtaining a settlement or injunctive relief." Frey v. Alldata Corp., 895 F. Supp. 221, 225 (E.D. Wis. 1995) (citation omitted). See also Fowler v. New York State Bd. of Law Examiners, 885 F. Supp. 66, 68-69 (W.D. N.Y. 1994). Federal
courts have also looked to other federal statutes for guidance in
defining "prevailing party" under the ADA because "[t]he
analytical considerations for awarding attorneys' fees under . .
. the ADA [is] essentially the same as the analysis under [42
U.S.C.A.] Section 1988." Alexander S. ex rel. Bowers v. Boyd,
929 F. Supp. 925, 930 (D. S.C. 1995). Thus, in determining
whether a plaintiff was a prevailing party for purposes of the
ADA, one court relied on
42 U.S.C.A.
§1988 under which
a plaintiff must obtain relief on the merits
that directly benefits him or her through an
enforceable judgment, or a plaintiff must
obtain comparable relief through a consent
decree or settlement. Farrar v. Hobby,
506 U.S. 103, 111,
113 S.Ct. 566, 572-73,
121 L.
Ed. 2d 494 (1992). A plaintiff prevails
"when actual relief on the merits of his
claim materially alters the legal
relationship between the parties by modifying
the defendant's behavior in a way that
directly benefits the plaintiff."
506 U.S.
at 111-112,
113 S.Ct. at 573.
[Pedigo v. P.A.M. Transport, Inc.,
98 F.3d 396, 397-98 (8th Cir. 1996).]
Another court also relied on
42 U.S.C.A.
§1988 in
determining whether plaintiffs were prevailing parties under a
number of federal statutes including the ADA. Alexander S. ex
rel. Bowers v. Boyd, supra, 929 F. Supp. at 930. The court
discussed the requirements of a prevailing party under that
section, stating:
"To qualify as a `prevailing party,' a
plaintiff need not prevail in every claim or
issue raised, but only `on any significant
issue in litigation which achieves some of
the benefit the parties sought in bringing
suit.'" Spencer v. General Elec. Co.,
706 F.
Supp. 1234, 1236 (E.D.Va. 1989) (quoting
Hensley v. Eckerhart,
461 U.S. 424, 433,
103 S.Ct. 1933, 1939,
76 L.Ed.2d 40 (1983))
(other citations omitted) aff'd,
894 F.2d 651
(4th Cir. 1990). Moreover, "[a] party may
prevail by virtue of a voluntary action by
the opposing party through settlement or a
consent decree." Child v. Spillane,
866 F.2d 691, 692 (4th Cir. 1989).
The "prevailing party" inquiry
essentially asks whether a causal connection
exists between plaintiff's litigation and the
relief plaintiff has obtained. Spencer,
706 F. Supp. at 1236-37 (citing Spillane, 866
F.2d at 693). The party seeking the fees
must show that the lawsuit "contributed in a
significant way to the winning of benefits or
relief from the factual/legal condition that
the fee claimant has sought to change."
Spillane, 866 F.2d at 693 (citations
omitted). The court may award fees where a
party's efforts have merely served as a
catalyst to the beneficial result which has
occurred. Id.
At the very least, a plaintiff must show
that "actual relief on the merits of his
claim materially alter[ed] the legal
relationship between the parties by modifying
the defendant's behavior in a way that
directly benefit[ed] the plaintiff." Farrar,
506 U.S. at 111,
113 S.Ct. at 573.
[Id. at 930-931 (footnote omitted).]
It cannot be seriously challenged that plaintiff is a
"prevailing party" in this case. Plaintiff succeeded on
significant issues in litigation by obtaining beneficial relief
through a modification of defendant's behavior. There is no
doubt that plaintiff's lawsuit was not only significant in
achieving that beneficial relief, but was in fact the direct
causal force behind plaintiff's success.
Defendant also argues that even if plaintiff has standing to recover attorney's fees, plaintiff is barred from recovering any fees because it has failed to comply with the administrative prerequisites of the ADA and the Civil Rights Act, 42 U.S.C.A. §2000a-3. Defendant contends that "[s]atisfaction of the administrative procedures provided in Section 2000a-3(c) is a condition precedent to bringing an action under Title III of the ADA." Therefore, according to defendant, because plaintiff failed to follow these procedures, it is barred from any private right of action under the ADA, including any action for an award of attorney's fees. We disagree.
42 U.S.C.A. §2000a-3(c) provides:
In the case of an alleged act or practice prohibited by this subchapter which occurs in a State, or political subdivision of a State, which has a State or local law prohibiting such act or practice and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no civil action may be brought under subsection (a) of this section before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority by registered mail or in person, provided that the court may stay proceedings in such civil action pending the termination of State or local enforcement proceedings.
Defendant cites N.J.S.A. 10:5-1 et seq., the Law Against Discrimination, and specifically N.J.S.A. 10:5-5.1, 10:5-6, and 10:5-10, as the State laws which prohibit the "act or practice" challenged in the underlying suit and which creates an authority
which NJCA should have contacted before filing its ADA action.
Plaintiff counters that "New Jersey has no law that required this
Defendant to make itself handicap accessible and so, there was no
prerequisite to suit under the ADA."
Defendant's argument assumes that
42 U.S.C.A.
§2000a-3(c)
is applicable to actions brought under the ADA. In fact, there
is no indication within the ADA that this section is applicable
to actions brought under
42 U.S.C.A.
§12188. Section 12188
confines itself to the remedies and procedures set forth in
42 U.S.C.A.
§2000a-3(a). There is no mention of Section 2000a-3(c)
in Section 12188, and, thus, plaintiff did not have to comply
with the procedural requirements of Section 2000a-3(c).
Accordingly, the judgment awarding plaintiff counsel fees and costs is affirmed.
Footnote: 1Fed. R. Civ. P. 17(a) Real Party in Interest provides:
Every action shall be prosecuted in the name
of the real party in interest. An executor,
administrator, guardian . . . may sue in that
person's own name without joining the party
for whose benefit the action is brought . . .
. No action shall be dismissed on the ground
that it is not prosecuted in the name of the
real party in interest until a reasonable
time has been allowed after objection for
ratification of commencement of the action
by, or joinder or substitution of, the real
party in interest; and such ratification,
joinder or substitution shall have the same
effect as if the action had been commenced in
the name of the real party in interest.
[Emphasis added.]