United States Court of Appeals
For the First Circuit
No. 04-2050
ERIN GOODWIN, AS EXECUTRIX OF THE ESTATE OF GARY LUNNIN,
Plaintiff, Appellant,
v.
C.N.J., INC., D/B/A "CARPETMAX OF WHITMAN," ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Robert S. Wolfe and Robert Wolfe Associates, P.C. on brief for
appellant.
Paul J. Murphy, Kevin P. Sweeney, and Menard, Murphy & Walsh
LLP on brief for appellees.
January 30, 2006
SELYA, Circuit Judge. Gary Lunnin, an independent carpet
installer, brought a claim under Title III of the Americans with
Disabilities Act, 42 U.S.C. §§ 12181-12189, against C.N.J., Inc.,
a retailer of commercial and residential carpeting, and two of its
functionaries, Joseph Speredelozzi and Paul Phillips (collectively,
C.N.J.). Lunnin alleged that C.N.J. had discriminated against him
on the basis of a disability (i.e., his affliction with HIV) and
sought both injunctive relief and pecuniary damages. Finding
Lunnin's factual proffer inadequate, the district court granted
summary judgment in favor of the defendants.
Lunnin took a timely appeal but died before it could be
heard. His personal representative, Erin Goodwin (the Executrix),
successfully moved for substitution as party plaintiff. See Fed.
R. App. P. 43(a)(1); Fed. R. Civ. P. 25(a). The defendants now
seek summary disposition on grounds of mootness and want of
subject-matter jurisdiction. The Executrix opposes the motion.
Since the case is fully briefed, we decide it after full
consideration.
In the end, we conclude that the claim for injunctive
relief is moot; that the district court lacked jurisdiction to hear
and determine the claims for pecuniary damages; and that the
ancillary prayer for attorneys' fees does not save the suit.
Consequently, we dismiss the appeal in part and, as to what
remains, affirm the judgment below.
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I.
Background
The facts germane to the disposition of this appeal are
not in dispute.
At the dates relevant hereto, C.N.J. operated a retail
carpet store in Whitman, Massachusetts. From time to time, it
engaged the services of independent contractors to install
carpeting purchased by its customers. Installers who wished to
undertake such assignments would report on a daily basis to a
warehouse adjacent to C.N.J.'s retail emporium. In the 2000-2001
time frame, Lunnin, initially as a subcontractor to an installer
and subsequently as an installer in his own right, repaired to the
warehouse in search of installation assignments. C.N.J.'s
management and staff allegedly subjected him to discriminatory
treatment directed at both his sexual orientation and his
affliction with HIV.
Lunnin's retort was twofold. First, he began to ply his
trade wholly independent of C.N.J. Second, he filed a complaint
with the Massachusetts Commission Against Discrimination. He
eventually withdrew that filing and, on October 24, 2002, brought
a civil action in the United States District Court for the District
of Massachusetts. His complaint alleged causes of action under
Title I and Title III of the ADA, 42 U.S.C. §§ 12112, 12182, and a
miscellany of state-law claims. Only the Title III claim is
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implicated by this appeal. With respect to that claim, Lunnin
prayed for relief in the form of compensatory damages, punitive
damages, an injunction, and attorneys' fees pursuant to 42 U.S.C.
§ 2000a-3(b).
After discovery had taken place, Lunnin conceded that he
was an independent contractor, not an employee of C.N.J., and
voluntarily dismissed his Title I claim. The district court, in a
bench decision, thereafter granted the defendants' motion for
summary judgment with respect to the Title III claim. The court
ruled that 42 U.S.C. § 12182(a) did not cover the alleged
discrimination because the warehouse, which serviced only C.N.J.'s
own needs and those of independent contractors catering to C.N.J.,
was not a "public accommodation" within the meaning of the statute.
As an alternate ground, the court concluded that (i) Title III of
the ADA did not authorize an award of damages and (ii) there was no
live controversy sufficient to ground injunctive relief thereunder
because Lunnin had indicated, during a deposition, that he had no
intention of returning to C.N.J. to seek installation work.
Finally, the court, as a matter of discretion, dismissed the state-
law claims without prejudice. See 28 U.S.C. § 1367(c)(3); see also
Martinez v. Colon, 54 F.3d 980, 990-91 (1st Cir. 1995). Judgment
entered on May 14, 2004. This timely appeal followed.
In his appellate brief, Lunnin argued that he was
entitled, at a minimum, to injunctive relief under Title III. He
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also argued that the remedial framework of Title III contemplates
a damages remedy in the nature of restitution. Therefore, his
Title III claim was neither moot nor beyond the compass of the
district court's subject-matter jurisdiction.1 The defendants
disagreed with all of these propositions. Following full briefing,
Lunnin's death on April 3, 2005, the appointment of the Executrix,
and the allowance of her motion to substitute, this appeal is now
ripe for decision.
II.
Analysis
We divide our substantive discussion into three segments.
We deal first with the claim for injunctive relief, then with the
claim for monetary damages, and, finally, with the claim for
attorneys' fees.
A.
Injunctive Relief
In addressing the claim for injunctive relief, we begin
with bedrock: the general rule is that, in a federal court,
justiciability requires the existence of an actual case or
controversy. See U.S. Const. art. III, § 2, cl. 1; see also Cruz
v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001). The "case or
controversy" requirement persists at all stages of the litigation
1
Lunnin did not contest either the dismissal with prejudice of
the Title I claim or the dismissal without prejudice of the state-
law claims.
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and not merely at the time suit is instituted. See Roe v. Wade,
410 U.S. 113, 125 (1973); see also Erwin Chemerinsky, Federal
Jurisdiction 125-26 (4th ed. 2003) (collecting cases). If events
transpire following the taking of an appeal that make it impossible
for the court of appeals to provide effective relief, the matter is
no longer justiciable. Matos v. Clinton Sch. Dist., 367 F.3d 68,
72 (1st Cir. 2004).
Whether a plaintiff has a sufficient stake in the
litigation is measured, at the commencement of an action, through
the doctrine of standing. See U.S. Parole Comm'n v. Geraghty, 445
U.S. 388, 397 (1980). Whether subsequent events have dissipated
the plaintiff's interest is assessed through the prism of mootness.
Becker v. FEC, 230 F.3d 381, 386 n.3 (1st Cir. 2000); Oakville Dev.
Corp. v. FDIC, 986 F.2d 611, 613 (1st Cir. 1993). A case becomes
moot if, at some time after the institution of the action, the
parties no longer have a legally cognizable stake in the outcome.
Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam). Thus, the
first question we must confront is whether Lunnin's demise renders
his flagship claim — his prayer for injunctive relief — moot.
In his original complaint, Lunnin requested "equitable
relief in the form of an order directing the defendants to provide
the plaintiff with future installation work under reasonable terms
consistent with those given to other experienced carpet
installers." That is injunctive relief, pure and simple. Title
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III of the ADA envisions such relief in an appropriate case. See
42 U.S.C. §§ 12188(a)(1), 2000a-3(a); see also Dudley v. Hannaford
Bros. Co., 333 F.3d 299, 304 (1st Cir. 2003).
The rub is that Lunnin, who is now deceased, cannot
conceivably benefit from such an order. Neither can the Executrix,
who is merely administering Lunnin's estate and not carrying on his
business. Because Lunnin's death divests an injunction to bar
future acts of discrimination of all utility, such an injunction
cannot issue. After all, a federal court may not grant injunctive
relief when, as in this case, intervening events have eliminated
any reasonable anticipation that the aggrieved party will, in the
future, be faced with a recurrence of the alleged harm. County of
Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Metro-Goldwyn
Mayer, Inc. v. 007 Safety Prods., Inc., 183 F.3d 10, 15 (1st Cir.
1999).
In reaching this result, we do not break new ground.
This branch of the mootness doctrine often has been invoked as a
basis for dismissal when the court is faced with the death of a
plaintiff who has requested injunctive relief peculiar to his
situation. See, e.g., Hall v. Unum Life Ins. Co., 300 F.3d 1197,
1207 n.5 (10th Cir. 2002); Harrow v. Prudential Ins. Co., 279 F.3d
244, 249 (3d Cir. 2002); Plumley v. Landmark Chev., Inc., 122 F.3d
308, 312 (5th Cir. 1997). In concert with this impeccable line of
authority, we hold that this aspect of the case is moot.
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B.
Monetary Damages
The plaintiff's complaint also included a demand for
compensatory and punitive damages stemming from the alleged
violation of Title III of the ADA. A finding of mootness with
respect to a prayer for injunctive relief does not automatically
render a companion claim for monetary damages moot. Typically, a
substituted plaintiff, such as a decedent's personal
representative, has a legally cognizable interest in the recovery
of money damages owed to the decedent's estate. See Consol. Rail
Corp. v. Darrone, 465 U.S. 624, 630 (1984). Consequently, if
Lunnin had a viable claim for compensatory or punitive damages
arising out of the defendants' past conduct, that claim ordinarily
would survive his death and Article III's "case or controversy"
element would to that extent be satisfied. See Hall, 300 F.3d at
1207 n.5; Harrow, 279 F.3d at 249.
It is against this backdrop that we appraise the
viability of the Title III claim for money damages. That appraisal
entails review of the summary judgment granted in favor of the
defendants on the damages aspect of the Title III claim. We afford
de novo review to the disposition of a summary judgment motion.
Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000). We
will affirm the entry of summary judgment as long as the record
reveals "that there is no genuine issue as to any material fact and
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that the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c). In conducting this tamisage, we use
the same criteria that guided the lower court and draw all
reasonable inferences in the nonmovant's favor. Cox v. Hainey, 391
F.3d 25, 29 (1st Cir. 2004); Acosta v. Ames Dep't Stores, Inc., 386
F.3d 5, 8 (1st Cir. 2004).
In an appellate venue, we are not bound by the district
court's reasoning and may affirm a summary judgment order on any
ground made manifest by the record. Cox, 391 F.3d at 29; Houlton
Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.
1999). Exercising this latitude, we choose to focus on the
question of whether Title III provides a damages remedy at all.2
If it does not, the appellant's claim fails.
The Executrix asserts that the Title III claim is
actionable because that statute contemplates awards of damages to
private parties. In considering this question, "[t]he judicial
task is to interpret the statute Congress has passed to determine
whether it displays an intent to create not just a private right
but also a private remedy." Alexander v. Sandoval, 532 U.S. 275,
286 (2001); see Transamerica Mortg. Advisors, Inc. v. Lewis, 444
U.S. 11, 15-16 (1979) (noting that "what must ultimately be
2
In taking this approach, we leave for another day the more
nuanced question of whether C.N.J.'s warehouse can be deemed a
public accommodation.
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determined is whether Congress intended to create the private
remedy asserted").
Where, as here, an issue turns on a question of statutory
construction, "the beginning point must be the language of the
statute." Riva v. Massachusetts, 61 F.3d 1003, 1007 (1st Cir.
1995). In this instance, the statute, 42 U.S.C. § 12188,
establishes a remedial scheme for the enforcement of Title III of
the ADA by incorporating the anodynes available under Title II of
the Civil Rights Act of 1964:
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 .
. . 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.
42 U.S.C. § 12188(a)(1). In turn, the applicable enforcement
provision, 42 U.S.C. § 2000a-3(a), states that a "person aggrieved"
may institute "a civil action for preventive relief, including an
application for a permanent or temporary injunction, restraining
order, or other order." By the plain terms of that provision, a
private party may obtain only forward-looking relief; damages for
past harms are not available. See Newman v. Piggy Park Enters.,
390 U.S. 400, 402 (1968) (per curiam); cf. 42 U.S.C. §
12188(b)(2)(B) (authorizing federal courts to award money damages
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to persons aggrieved in parens patriae suits brought by the
Attorney General under Title III).
This court has recognized that section 12188(a)(1) does
not contemplate an award of money damages in suits brought by
private parties. See Dudley, 333 F.3d at 304 (explaining that the
"compendium of remedies" afforded by section 12188(a)(1) includes
injunctive relief, but not money damages). Several other courts of
appeals have reached the same conclusion. See, e.g., Powell v.
Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 86 (2d Cir. 2004); Bowers
v. NCAA, 346 F.3d 402, 433 (3d Cir. 2003); Am. Bus Ass'n v. Slater,
231 F.3d 1, 5 (D.C. Cir. 2000); Smith v. Wal-Mart Stores, Inc., 167
F.3d 286, 293 (6th Cir. 1999); Jairath v. Dyer, 154 F.3d 1280, 1283
n.7 (11th Cir. 1998). This unbroken skein of cases makes manifest
that money damages are not an option for private parties suing
under Title III of the ADA. Accordingly, the district court
correctly concluded that it lacked jurisdiction to consider the
plaintiff's claims for either compensatory or punitive damages.
The Executrix strives to convince us that the "other
order" language contained in section 2000a-3(a), quoted supra,
encompasses within its purview a broad panoply of equitable
remedies, including an award of restitution. This premise does not
help the Executrix because her claim for money damages does not
fall plausibly within the rubric of restitution. Restitution is a
remedy associated with the concept of unjust enrichment. LaRocca
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v. Borden, Inc., 276 F.3d 22, 28 (1st Cir. 2002). The remedy of
restitution is available only when equitable considerations demand
that a party disgorge an undeserved benefit or gain. See Texaco
P.R., Inc. v. Dep't of Consumer Affairs, 60 F.3d 867, 875 (1st Cir.
1995). The complaint in this case contains no averment that the
defendants were unjustly enriched (or enriched at all, for that
matter) by the allegedly discriminatory conduct.
The Executrix's argument is flawed in another respect.
At bottom, restitution is a retrospective remedy. It is designed
to restore funds previously taken. See LaRocca, 276 F.3d at 28.
So viewed, restitution does not fit into the taxonomy of
"preventive relief," which is the only type of relief authorized by
section 12188(a)(1). Restitution is, therefore, unavailable in a
Title III claim. See Dudley, 333 F.3d at 304 (stating that the
remedies available under section 12188(a)(1) redress prospective
rather than retrospective harm).
The Executrix's position is not furthered by her citation
to cases such as Lussier v. Runyon, 50 F.3d 1103 (1st Cir. 1995).
Those cases involve claims for retaliation. Under the ADA,
retaliation claims arise not under Title III but, rather, under
Title V, 42 U.S.C. § 12203. See Olivaris-Sifre v. P.R. Dep't of
Health, 214 F.3d 23, 25-26 (1st Cir. 2000); Darian v. Univ. of
Mass. Boston, 980 F. Supp. 77, 79 n.2 (D. Mass. 1997). No such
claim lies under Title III, see Freilich v. Bd. of Dirs. of Upper
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Chesapeake Health, Inc., 142 F. Supp. 2d 679, 699-701 (D. Md.
2001), and the complaint embodies no claim under Title V.3
If more were needed — and we doubt that it is — Lunnin
waived any available Title V claim. Under the familiar raise-or-
waive rule, legal theories not asserted in the lower court cannot
be broached for the first time on appeal. See Rodi v. S. New Engl.
Sch. of Law, 389 F.3d 5, 19 n.3 (1st Cir. 2004). Lunnin never
pleaded a claim for retaliation under Title V in his district court
complaint. Rather, he stated explicitly that his ADA claims were
brought under Title I (later abandoned) and Title III. Lunnin's
failure to assert a retaliation claim in the court below brings
this case squarely within the raise-or-waive rule. Consequently,
the belated assertion of such a claim cannot provide a basis for
upsetting the summary judgment order.
C.
Attorneys' Fees
The Executrix makes a last-ditch argument that the
potential for an award of attorneys' fees saves her Title III
claim. That argument is unconvincing. A litigant's interest in a
possible award of attorneys' fees is not enough to create a
justiciable case or controversy if none exists on the merits of the
3
The plaintiff also cites Odin v. Prudential Ins. Co., 798
F.2d 1 (1st Cir. 1986), a case decided four years before the
passage of the ADA. That case adds nothing to our deliberations.
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underlying claim. Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480
(1990). As the Lewis Court stated:
Where on the face of the record it appears
that the only concrete interest in the
controversy has terminated, reasonable caution
is needed to be sure that mooted litigation is
not pressed forward, and unnecessary judicial
pronouncements on even constitutional issues
obtained, solely in order to obtain
reimbursement of sunk costs.
Id.; see also Steel Co. v. Citizens for a Better Env't, 523 U.S.
83, 107-08 (1998) (concluding that "[t]he litigation must give the
plaintiff some other benefit besides reimbursement of costs that
are a byproduct of the litigation itself"); N.Y. State Fed'n of
Taxi Drivers, Inc. v. Westchester County Taxi & Limo. Comm'n, 272
F.3d 154, 159 (2d Cir. 2001) (similar).
In an effort to blunt the force of this logic, the
Executrix asseverates that a freestanding award of fees may be made
under the authority of 42 U.S.C. § 2000e-5(g) even when other
relief is unavailable. We need not dwell upon the merits of that
asseveration because the Executrix overlooks the fact that section
2000e-5(g) does not apply to claims under Title III. Only the
remedies in section 2000a-3(a) are applicable to Title III claims.
See 42 U.S.C. § 12188 (a)(1); see also Dudley, 333 F.3d at 304.
III.
Conclusion
We need go no further. For the reasons elucidated above,
we dismiss the appeal as moot insofar as it concerns the claim for
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injunctive relief and summarily affirm the grant of summary
judgment in the defendants' favor as to the claims for pecuniary
damages and attorneys' fees. See 1st Cir. R. 27(c). All parties
shall bear their own costs.
So Ordered.
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