                                                                NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 18-3088
                                     ____________

                 MARYANN COTTRELL; RICHARD G. HOLLAND,
                                          Appellants

                                           v.

   NICHOLSON PROPERTIES LLC, d/b/a/ Hollybush Car Wash, d/b/a Hollybush
 Laundromat; GEORGE NICHOLSON, SR.; GEORGE NICHOLSON, JR.; JOHN and
                            JANE DOES
                           ____________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                               (D.C. No. 1-12-cv-02128)
                      District Judge: Honorable Noel L. Hillman
                                     ____________

                         Submitted April 4, 2019
  Before: CHAGARES and HARDIMAN, Circuit Judges, and GOLDBERG, District
                                Judge.*

                                 (Filed: April 11, 2109)




      *
        The Honorable Mitchell S. Goldberg, District Judge of the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
                                      ____________

                                       OPINION**
                                      ____________

HARDIMAN, Circuit Judge.

       Maryann Cottrell and Richard Holland, now proceeding pro se, appeal the District

Court’s summary judgment in favor of Nicholson Properties, George Nicholson, Sr., and

George Nicholson, Jr. We will affirm.

                                             I1

       Nicholson, Sr. banned Cottrell and Holland from his commercial property after

they recorded (and reported) vehicles illegally parked in handicap spots on several

occasions. Cottrell and Holland sued Nicholson Properties, Nicholson, Sr., and

Nicholson, Jr. for retaliating against them in violation of the Americans with Disabilities

Act (ADA) and the New Jersey Law Against Discrimination (NJLAD). In response to

Defendants’ motion for summary judgment, Cottrell and Holland filed a “Cross-Motion




       **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       1
         The District Court had jurisdiction over the ADA claim under 28 U.S.C. § 1331
and supplemental jurisdiction over the New Jersey Law Against Discrimination claim
under 28 U.S.C. § 1367. We have jurisdiction under 28 U.S.C. § 1291. Our review of the
District Court’s summary judgment is plenary, and we apply the same standard as the
District Court. E.g., Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).
We review for abuse of discretion the denial of an adverse spoliation inference, Jutrowski
v. Twp. of Riverdale, 904 F.3d 280, 289 (3d Cir. 2018), and a district court’s
determination on attorney’s fees and costs, Templin v. Independence Blue Cross, 785
F.3d 861, 864 (3d Cir. 2015).
                                              2
for Adverse Inference and Attorneys’ Fees.” The District Court granted Defendants’

summary judgment motion and denied Plaintiffs’ cross-motion. Cottrell and Holland now

claim the District Court erred because they: (1) are entitled to adverse inferences because

the Nicholsons withheld video evidence and names of witnesses; (2) demonstrated that

the Nicholsons’ legitimate nondiscriminatory reason for the ban was pretext for

discriminatory animus; and (3) deserve attorney’s fees under the catalyst theory because

Defendants withdrew the ban during litigation.

                                             A

       We begin with Cottrell and Holland’s contention that they were entitled to adverse

inferences as to some videos the Nicholsons allegedly withheld, and as to witnesses the

Nicholsons failed to identify. Appellants argue the District Court should have presumed

that “whatever was on those videotapes and whatever would have been said at the witness

depositions would [have] support[ed] Plaintiffs’ position.” Cottrell Br. 18.

       The District Court disagreed, finding that an adverse inference was inappropriate

for the videos because Cottrell and Holland failed to demonstrate the Nicholsons actually

suppressed any videos, which were made at least two years before the suit was filed. The

Court also denied their request for an adverse inference as to the unidentified witnesses

because Cottrell and Holland provided no legal support for it, and the Nicholsons

identified those witnesses when prompted by Plaintiffs in depositions.

       The District Court did not abuse its discretion on either front. Spoliation occurs

when: “the evidence was in the party’s control; the evidence is relevant to the claims or
                                             3
defenses in the case; there has been actual suppression or withholding of evidence; and,

the duty to preserve the evidence was reasonably foreseeable to the party.” Bull v. United

Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012). As noted by the District Court, there

was no evidence the Nicholsons suppressed or withheld the video recordings of events

happening several years before the litigation was filed. And their argument about the

unidentified witnesses is unavailing because the Nicholsons provided their names during

deposition testimony.

                                             B

       We next consider whether Appellants demonstrated that the Nicholsons’ proffered

reason for the ban—the duo’s harassment of customers—was simply a pretext for

discriminatory animus. Cottrell and Holland contend the video evidence supports their

pretext argument, as a jury might conclude after viewing the footage that they were not

disruptive and the Nicholsons displayed animus against them. They also argue the Court

erred by concluding that Nicholson, Jr.’s later treatment of them—which included

harassment and efforts to interfere with Cottrell’s parental rights over her disabled

daughter—did not establish pretext for retaliation.

       The District Court granted summary judgment in favor of Defendants after

applying the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973).2 The Court found that while Cottrell and Holland established a prima facie


       2
      The McDonnell-Douglas burden-shifting framework applies to both ADA and
NJLAD claims once a prima facie case of retaliation is established. See McDonnell
                                          4
case of retaliation under the ADA and NJLAD, Defendants provided a legitimate

nondiscriminatory reason for banning them from the property. The Court cited the

Nicholsons’ testimony that they decided to ban Cottrell and Holland because their

behavior was alarming customers. Plaintiffs then had the burden of showing that the

Nicholsons’ stated reason “was not the ‘true reason’ but was instead a pretext.” Cottrell v.

Nicholson Props. LLC, 2018 WL 4062723, at *11 (D.N.J. Aug. 24, 2018) (citing Fuentes

v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)). But Plaintiffs’ pretext argument “focuse[d]

on why Defendants’ proffered reason should be disbelieved,” alleging that the video

evidence shows they did not engage in misconduct. Id. After considering the video—as

well as the duo’s contention that Nicholson, Jr. harassed them—the District Court found

that Plaintiffs “failed to proffer sufficient evidence from which a reasonable factfinder

could conclude it was more likely than not that a ‘discriminatory animus’ motivated

Defendants in banning Plaintiffs.” Id. at *11, *12 n.13.

       We perceive no error in the District Court’s analysis. To establish pretext under

Fuentes v. Perskie, plaintiffs must “point to some evidence . . . from which a factfinder

could reasonably either (1) disbelieve the [Defendant’s] articulated legitimate reasons; or

(2) believe that an invidious discriminatory reason was more likely than not a motivating

or determinative cause of the [Defendant’s] action.” 32 F.3d at 764. By merely pointing

to the video evidence and their harassment claims against Nicholson, Jr., Appellants


Douglas Corp., 411 U.S. at 802; Jansen v. Food Circus Supermarkets, Inc., 541 A.2d
682, 691 (N.J. 1988).
                                           5
made neither showing. We agree with the District Court that the video undercuts their

argument, as “a reasonable factfinder would find the video entirely consistent with

Defendants’ proffered reason” because it shows Cottrell and Holland irritated customers

and disrupted business. Cottrell, 2018 WL 4062723, at *11.

       Nor did the District Court err in concluding that Cottrell and Holland’s harassment

claims against Nicholson, Jr. were “insufficient to show that Defendants’ decision to ban

Plaintiffs from their property was motivated by anything other than unwarranted

disruptions to Defendants’ businesses and third parties.” Id. at *12 n.13. According to

Cottrell and Holland’s Second Amended Complaint, the harassment occurred about two

years after the Nicholsons instituted the ban. Because the claims against Nicholson Jr.

arose long after the Nicholsons banned Appellants, a reasonable factfinder could not

conclude that discriminatory animus motivated the earlier decision to ban them from the

property.3

       In sum, the District Court did not err in granting summary judgment in favor of

Defendants because Cottrell and Holland failed to show that Defendants’ legitimate

nondiscriminatory reason for banning them was pretextual.




       3
        To the extent Appellants contend that the District Court abused its discretion or
otherwise erred by not considering whether Nicholson Jr.’s harassment was itself
actionable retaliation, Appellants present no legal support or citation to the record for this
contention. We therefore decline to address it further. See Fed. R. App. P. 28(a)(8);
United States v. Fattah, 914 F.3d 112, 189 n.38 (3d Cir. 2019).
                                             6
                                              C

       Finally, Cottrell and Holland seek attorney’s fees under the catalyst theory, which

applies when there is a “factual causal nexus between plaintiff’s litigation and the relief

ultimately achieved,” so long as that relief “had a basis in law.” Singer v. State, 472 A.2d

138, 142 (N.J. 1984). According to Appellants, “the nexus between the litigation and the

relief is obvious” because they sought an injunction against the ban, which Defendants

rescinded after learning Cottrell and Holland obtained counsel. Cottrell Br. 26.

       The District Court rightly rejected this argument because the Supreme Court has

held “that the ‘catalyst theory’ is not a permissible basis for the award of attorney’s fees

under the . . . ADA.” Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human

Res., 532 U.S. 598, 610 (2001). Although the District Court did not address the theory’s

applicability to the NJLAD claim, this avenue is also unavailing because the relief gained

here—lifting the ban—did not have “a basis in law.” Singer, 472 A.2d at 142. While

Cottrell and Holland ultimately received their desired outcome, Defendants’ decision to

lift the ban was not required by law because Appellants did not establish a legal basis for

an injunction under these facts. See id. So there was no abuse of discretion to deny

attorney’s fees.

                                      *       *      *

       For the reasons stated, we will affirm the District Court’s order.




                                              7
