UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CV-61169-RAR

ALYSHA PRINCESS CESAIRE, on her own behalf 

and on behalf of her child, E.B., a minor,

Plaintiff,

v.

SHERIFF GREGORY TONY, in his official capacity 

as Sheriff of Broward County, et al.,

Defendants.

_______________________________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION 

THIS CAUSE comes before the Court on United States Magistrate Ryon M. McCabe’s 

Report and Recommendation (“Report”), [ECF No. 154], on Defendant’s Motion to Dismiss the 

Third Amended Complaint (“Motion”), [ECF No. 143]. The Report recommends granting the 

Motion as to all claims for injunctive relief and declaratory relief, with prejudice, and denying the 

Motion as to claims for wrongful act damages and nominal damages under Title II of the ADA. 

See Rep. at 11–12. Defendant filed Objections to the Report (“Objs.”), [ECF No. 157], and 

Plaintiff filed a Response to Defendant’s Objections (“Response to Objs.”), [ECF No. 161].

When a magistrate judge’s disposition has been properly objected to, district courts must 

review the disposition de novo. FED. R. CIV. P. 72(b)(3). Because Defendant timely filed 

objections to the Report with regard to the claims for wrongful act damages and nominal damages 

until Title II of the ADA, the Court has conducted a de novo review of Magistrate Judge McCabe’s

legal and factual findings to which Defendant objected. Upon careful review of the record, the 

Report, Defendant’s Objections, and Plaintiff’s Response, the Court agrees with Magistrate Judge

McCabe’s recommendations.

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A. Claims for Damages

Title II of the ADA expressly incorporates the remedies set forth in the Rehabilitation Act, 

providing that “[t]he remedies, procedures, and rights set forth in [§ 505(a)(2) of the Rehabilitation 

Act] shall be the remedies, procedures, and rights this subchapter provides to any person alleging 

discrimination on the basis of disability.” 42 U.S.C. § 12133. The Supreme Court, finding the 

Rehabilitation Act silent as to available remedies, has outlined the types of damages recoverable

in Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022)—informed by damages 

“traditionally available for breach of contract.” Id. at 226 (citing Barnes v. Gorman, 536 U.S. 181, 

187 (2002)). The Supreme Court explained that Spending Clause statutes, which include the 

Rehabilitation Act, operate by conditioning an offer of federal funding on a promise by the 

recipient not to discriminate, in what amounts essentially to a contract between the Government 

and the recipient of funds. Id. at 219. The Supreme Court reasoned that because emotional 

distress damages are not recoverable under traditional contract law, they are likewise unavailable 

under Spending Clause statutes. Id. at 230. 

While important to note that Title II of the ADA is not a Spending Clause statute and may 

not invoke the same contractual dynamic that shaped the outcome in Cummings, the Supreme 

Court acknowledged that “the ADA’s status as a ‘non Spending Clause’ tort statute” was “quite 

irrelevant” because “[t]he ADA could not be clearer that the ‘remedies, procedures, and rights . . .

this subchapter provides’ for violations of § 202 are the same as the ‘remedies, procedures, and 

rights set forth in’ § 505(a)(2) of the Rehabilitation Act, which is Spending Clause legislation.” 

Barnes v. Gorman, 536 U.S. 181, 189 n.3 (2002) (internal citations omitted). It follows that those 

remedies available under the Rehabilitation Act are available under Title II of the ADA. Many 

other district courts have considered the issue and unanimously applied Cummings’ limitations of 

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recoverable damages under Spending Clause statutes to determine the damages recoverable under 

the ADA. See, e.g., Doherty v. Bice, No. 18-cv-10898, 2023 WL 5103900, at *6 (S.D.N.Y. Aug. 

9, 2023) (collecting cases) (“[A]ll other federal courts that have apparently considered this issue 

have likewise found that emotional distress damages are not available under the ADA because, as 

the Cummings Court concluded, they are not available under the Rehabilitation Act.”). 

Accordingly, the Court will extend the contract law analysis applied in Rehabilitation Act claims

to Plaintiff’s ADA claims. 

Plaintiff agrees that she is not seeking emotional distress damages, which are not 

compensable under traditional contract law. Resp. to Mot. to Dismiss (“Resp.”), [ECF No. 148] 

at 3. She claims instead that her “actual damages” are the result of “retain[ing] and pay[ing] an 

attorney for her dependency proceedings.” Id. at 4. Plaintiff alleges that Defendant’s actions 

“forced [her] to retain and pay private counsel for the Florida State Court dependency hearings,” 

resulting in actual damages. Third Amended Complaint (“TAC”) ¶¶ 3, 46, 83. 

Traditional contract law recognizes that when a defendant’s actions caused the plaintiff to 

engage in litigation against another party, the plaintiff may be entitled to litigation expenses under 

the “wrongful act doctrine.” Restatement (First) of Contracts § 334 (Am. Law Inst. 1932). The 

wrongful act doctrine applies a narrow exception to the “default assumption” that “each party is 

responsible for its own legal fees” unless provided for by express statutory authority or by 

contract. Johnson v. Florida, 348 F.3d 1334, 1350 (11th Cir. 2003); Ohio Farmers Ins. Co. v. 

Nestal, No. 8:10-CV-1948-T-33MAP, 2011 WL 2532394, at *9 (M.D. Fla. June 1, 2011). 

However, in the absence of statute or contract, “when the wrongful act of a defendant forces the 

plaintiff into litigation with others, the plaintiff’s attorneys’ fees from that litigation are treated as 

the legal consequences of the defendant’s conduct and may be recovered as damages.” Anago 

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Franchising, Inc. v. Shaz, LLC, No. 10-62273, 2013 WL 12086840, at *1 (S.D. Fla. May 9, 2013)

(quoting Johnson Law Group v. Elimadebt USA, LLC, No. 09-81331, 2010 WL 2035284, at *8 

(S.D. Fla. May 24, 2010)). Thus, the wrongful act doctrine applies only to “the costs of litigation 

with third parties, not subsequent litigation with the defendants who committed the wrongful act.” 

Id. (emphasis added).

Nominal damages are also recognized under traditional contract law and available to 

Plaintiff, even where she fails to prove actual damages. Restatement (Second) of Contracts § 346 

(Am. Law Inst. 1981); see also Alhassid v. Bank of America, N.A., No. 14-20484, 2015 WL 

11216721, at *5 (S.D. Fla. Sept. 14, 2015). Defendant argues that because Plaintiff does not 

specifically plead nominal damages, no such damages are authorized. Objs. at 6. However, the 

Eleventh Circuit has affirmed an award for nominal damages when the complaint requested only 

compensatory damages and “any other relief the court deem[s] appropriate.” Boxer v. Donald, 169 

F. App’x 555, 559 (11th Cir. 2006) (award of damages for violation of constitutional rights 

properly included nominal and compensatory damages). As Magistrate Judge McCabe notes,

Defendant has cited no case law rebutting this proposition. And other district courts have agreed

and applied the Cummings framework to awards for nominal damages. Nieves v. Plaza Rehab. & 

Nursing Ctr., No. 120CV01191JLROTW, 2023 WL 4763945, at *9 (S.D.N.Y. July 26, 2023); see 

also Klaneski v. Bristol Hosp., Inc., No. 3:22-CV-1158 (VAB), 2023 WL 4304925 (D. Conn. June 

30, 2023) (holding that while plaintiff’s claim for punitive and emotional distress damages under 

the Affordable Care Act was prohibited, plaintiff was permitted to amend her complaint to add 

claims for, inter alia, nominal damages, since “these types of remedies are not subject to the 

restrictions set forth in Cummings and Barnes.”). Accordingly, Plaintiff’s claims are subject to the 

award of nominal damages. 

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Defendant, Sheriff Gregory Tony, in his official capacity as Sheriff of Broward County 

(“BSO”), argues that Magistrate Judge McCabe misapplied the controlling law as to the wrongful

act doctrine because the Complaint alleges that BSO was a party to the dependency proceedings 

from which Plaintiff seeks to recover litigation expenses. Objs. at 2. In turn, Plaintiff argues that

BSO was not a party to the dependency proceeding and BSO conflates itself with the State of 

Florida Attorney General’s Office and Florida Department of Children and Families (“DCF”). 

Resp. to Objs. at 3. However, the TAC is unclear as to the relationship between BSO and DCF, 

and the Court agrees with Magistrate Judge McCabe that, at this stage, the Court cannot yet resolve 

the issue of whether the entities should be treated as a single actor for purposes of the wrongful act 

doctrine. Report at 8–9. 

B. Claims for Injunctive and Declaratory Relief

The parties have not objected to Magistrate Judge McCabe’s findings that the claims for 

injunctive relief and declaratory relief should be dismissed. Report at 3–4, 10–11. When no party 

has objected, “the court need only satisfy itself that there is no clear error on the face of the record 

in order to accept the recommendation.” FED. R. CIV. P. 72 advisory committee’s note to 1983 

addition (citation omitted). Although Rule 72 itself is silent on the standard of review, the Supreme 

Court has acknowledged Congress’s intent was to only require a de novo review where objections 

have been properly filed, not when neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 

(1985) (“It does not appear that Congress intended to require district court review of a magistrate[] 

[judge]’s factual or legal conclusions, under a de novo or any other standard, when neither party 

objects to those findings.” (alterations added)). In any event, the “[f]ailure to object to the 

magistrate [judge]’s factual findings after notice precludes a later attack on these findings.” Lewis 

v. Smith, 855 F.2d 736, 738 (11th Cir. 1988) (citing Nettles v. Wainwright, 677 F.2d 404, 410 (5th 

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Cir. 1982)). Because there are no objections to the injunctive and declaratory relief aspects of the 

Report, the Court did not conduct a de novo review of these issues. Rather, the Court reviewed 

the Report’s analysis of injunctive and declaratory relief for clear error and found none. Thus, 

based on the foregoing, it is hereby 

ORDERED AND ADJUDGED as follows:

1. The Report, [ECF No. 154], is AFFIRMED AND ADOPTED. 

2. Defendant’s Motion to Dismiss, [ECF No. 143], is GRANTED as to all claims for 

injunctive and declaratory relief. Said claims are DISMISSED with prejudice.

3. Defendant’s Motion to Dismiss, [ECF No. 143], is DENIED as to claims for wrongful 

act damages and nominal damages under Title II of the ADA.

4. Consequently, the only recoverable damages remaining in this case under the sole count 

of the Complaint for violation of Title II of the ADA shall be wrongful act damages and 

nominal damages.

DONE AND ORDERED in Miami, Florida, this 6th day of November, 2023.

 

_________________________________

RODOLFO A. RUIZ II

UNITED STATES DISTRICT JUDGE

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