WILLIAM H. ORRICK, District Judge.
Plaintiffs are entitled to reasonable attorney's fees when they prevail in lawsuits establishing a violation of the Americans with Disabilities Act ("ADA" or the "Act"), which has been described as "a milestone on the path to a more decent, tolerant, progressive society." Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J., concurring). This motion presents the problem of determining a fair award in an uncomplicated ADA matter to an experienced law firm that has been repeatedly criticized for the same unreasonable billing practices that it used in this case. Plaintiff's counsel, the Law Offices of Paul S. Rein ("Rein Law"), seeks $87,730 in fees and $14,283 in costs (totaling $102,013) when its case required scant discovery and motion practices and resulted in a $10,000 payment to its client and up to $25,000 in remedial costs at the premises of the defendants. Because of unreasonable overstaffing and billing practices, detailed below, I will award $50,453.68 in fees and $11,550 in costs, totaling $62,003.68.
The ADA was adopted in 1990 to provide a "national mandate for the elimination of discrimination against individuals with disabilities" and to "address the major areas of discrimination faced day-to-day by people with disabilities."
Because of the benefit successful ADA plaintiffs confer upon the public at large, Congress authorizes that the prevailing party be awarded attorneys' fees "to encourage attorneys to handle these important cases."
In order to advance the objectives of the ADA, attorneys' fees awarded to prevailing plaintiffs must be sufficient to attract competent counsel. But fee awards should not produce a windfall to attorneys. See, e.g., MacDougal v. Catalyst Nightclub, 58 F.Supp.2d 1101, 1107 (N.D. Cal. 1999) ("a reasonable attorney's fee should be adequate to attract competent counsel but [should] not produce windfalls to attorneys") (citing Blum v. Stenson, 465 U.S. 886 (1984)).
Attorneys' fees in ADA cases often greatly exceed the cost of the substantive relief, generating the hostility of small businesses towards ADA plaintiffs' attorneys. But the enforcement of the ADA and California's access laws by private attorneys general is central to those statutes' enforcement. Since the ADA provides for strict liability for denial of access— motive and intent are irrelevant—it is often wise for defendants to promptly investigate the premises and if they are not in compliance, admit liability and agree to fix the problems, forestalling the need for plaintiffs to incur attorneys' fees to achieve ADA compliance.
To advance efficient and effective litigation of ADA cases and to address defendants' concerns about costs, in 2005 this District adopted General Order 56 to set a protocol for litigating ADA cases.
A purpose of paragraph 6 is to limit the expenditure of attorneys' fees after the parties reach a tentative agreement. By requiring plaintiffs to provide defendants a statement of attorneys' fees and costs incurred to date, and, if requested, detailed supporting documentation, paragraph 6 affords defendants the opportunity to assess the reasonableness of the claimed fees. If the claimed fees and costs are reasonable, the parties can settle without incurring the expense of a fees motion. On the other hand, if the parties cannot resolve the fees issue because a plaintiff claims an unreasonable amount of attorneys' fees, the court may reduce any eventual fee award on the basis that the plaintiff unreasonably protracted the litigation. See, e.g., Jankey v. Poop Deck, 537 F.3d 1122, 1132 (9th Cir. 2008) (a court has discretion to reduce a fee award where the plaintiff unreasonably protracted litigation).
Plaintiff Gerardo Hernandez is a "physically disabled person who cannot walk due to paraplegia and who requires use of a wheelchair for locomotion." Second Amended Complaint ¶ 4 [Dkt. No. 56]. On November 11, 2011, Hernandez had dinner at Taqueria El Grullense in Redwood City. He alleges that he attempted to use the restroom after his meal but he "had difficulty entering the men's restroom in his motorized wheelchair because the doorway was very narrow and not of the required width to provide access; he could not physically get in far enough to reach the toilet." Id. ¶ 11. This episode caused Hernandez "to suffer difficulty, discomfort and embarrassment, all to his physical, mental and emotional damages." Id.
Hernandez returned to Taqueria El Grullense in the last week of January 2012. Id. ¶ 12. According to the Second Amended Complaint,
Id. Hernandez never complained or mentioned these incidents to Taqueria El Grullense.
Hernandez, represented by Rein Law, filed suit on June 22, 2012 against Taqueria El Grullense, Juan Francisco Gamez Garcia, and Oscar Pang Cheng Liu and Chu Ching Liu as Trustees of the Oscar Pang Cheng Liu and Chu Ching Liu Trust, alleging denials of full and equal access to public facilities in violation of the ADA and California law. Garcia is the operator of Taqueria El Grullense and the lessee of the property. Oscar Pang-Cheng Liu and Chu-Ching Kuo Liu, through their trust, are the owners of the property.
On September 5, 2012, defendants Oscar Pang-Cheng Liu and Chu-Ching Kuo Liu filed a motion to dismiss on the grounds that the complaint named the wrong trust. Hernandez did not oppose the motion to dismiss. Instead, Hernandez sought leave to file an amended complaint naming the proper trust, which the defendants did not oppose. On October 9, 2012, the Court denied the motion to dismiss and granted Hernandez's motion for leave to file a first amended complaint. Hernandez's first amended complaint was filed on October 9, 2012. Dkt. No. 29.
The Court entered a case management order on October 26, 2012, setting a joint site inspection for November 15, 2012. On February 28, 2013, Hernandez filed a motion for leave to file a second amended complaint "to give FRCP Rule 8 procedural notice of alleged additional barriers to disabled access discovered during the joint General Order 56 site inspection." Dkt. No. 53. The motion was unopposed. The Court granted Hernandez leave to file a second amended complaint on March 19, 2013.
The parties attended mediation on March 20, 2013 where they came to terms on injunctive relief and damages. The defendants agreed to pay Hernandez $10,000 in damages and to complete remedial measures not to exceed $25,000, including building handicap access ramps and creating a handicap accessible unisex bathroom. In accordance with General Order 56, plaintiff provided a statement of their fees and costs at the mediation—$58,693.
On November 8, 2013, Hernandez, through Rein Law, offered to settle the case for $55,000 in attorneys' fees and costs. The defendants did not respond to this offer. Instead, on November 25, 2013, the defendants made a Rule 68 offer of $30,000 in attorneys' fees and costs. Dkt. No. 72 at 21. Hernandez, through Rein Law, rejected the defendants' Rule 68 offer and filed the motion for attorneys' fees on December 20, 2013. Dkt. No. 72.
Hernandez seeks $87,730
"A prevailing plaintiff under the ADA should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Jankey, 537 F.3d at 1130 (internal punctuation and citation omitted). The party seeking fees "bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley v. Eckerhardt, 461 U.S. 424, 437 (1983). "When it sets a fee, the district court must first determine the presumptive lodestar figure by multiplying the number of hours reasonably expended on the litigation by the reasonable hourly rate." Secalt S.A. v. Wuxi Shenxi Const. Mach. Co., Ltd., 668 F.3d 677, 689 (9th Cir. 2012) (citation omitted); see also Carter v. Caleb Brett LLC, 2014 WL 350087 (9th Cir. Feb. 3, 2014) ("When determining a reasonable fee award under a federal fee-shifting statute . . . a district court must first calculate the lodestar by multiplying the number of hours reasonably expended by the reasonable hourly rate.") (internal punctuation and citation omitted).
"Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Hensley, 461 U.S. at 434. Accordingly, the district court should exclude from this initial calculation hours that were not "reasonably expended," including where a case is overstaffed or where claimed hours are "excessive, redundant, or otherwise unnecessary." Id.; Jankey, 537 F.3d at 1132. District courts should also account for the "wasteful use of highly skilled and highly priced talent for matters easily delegable to non-professionals or less experienced associates. . . . A Michelangelo should not charge Sistine Chapel rates for painting a farmer's barn." Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir. 1983); MacDougal, 58 F. Supp. 2d at 1105 (same).
Then, where appropriate, "the district court may adjust the `presumptively reasonable' lodestar figure based upon the factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), that have not been subsumed in the lodestar calculation." Secalt, 668 F.3d at 689 (citation omitted). The Kerr factors are: "(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the `undesirability' of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases." Kerr, 526 F.2d at 70. "A mere statement that a court has considered the Kerr guidelines does not make a decision within the court's discretion." Carter v. Caleb Brett LLC, 2014 WL 350087, *1 (9th Cir. Feb. 3, 2014) (citation omitted). "While detailed calculations are not mandated, something more than a bald, unsupported amount is necessary to affirm an award of attorneys' fees. Id. (citation and punctuation omitted). The district court must "explain how it arrived at its determination with sufficient specificity to permit an appellate court to determine whether the district court abused its discretion in the way the analysis was undertaken." Id. at *2 (citation omitted).
In addition, a court has discretion to reduce a fee award where the plaintiff unreasonably protracted litigation. Jankey, 537 F.3d at 1132 ("the court may consider whether Plaintiff protracted the litigation in deciding whether to reduce fees").
My task is to first multiply the number of hours reasonably expended on the litigation by the reasonable hourly rate in order build the presumptively reasonable lodestar figure. To the extent that my consideration of the Kerr factors has not already been subsumed in the initial lodestar calculation, I may then adjust the lodestar figure up or down based on the Kerr factors. In addition, I may reduce the fee award if the plaintiff unreasonably protracted litigation.
Rein Law is "dedicated exclusively to litigating disability access discrimination lawsuits under the ADA and under California law." Rein Decl. ¶ 2 [Dkt. No. 73]. Rein, the principal of Rein Law, charges $645 per hour for his work on this matter. He has represented physically disabled persons in civil rights disability access lawsuits for 38 years, which Rein states is longer than any other attorney in the United States. Id. ¶ 1. He has published many articles on disability access litigation and recently authored "Full and Equal Access: Disabled Rights Litigation in California," which, according to Rein, is the "only book published on this subject." Id. ¶ 28 n.6 (emphasis in original). The defendants assert that Rein has been counsel on 127 ADA cases in the Northern District since 2006, which Rein Law does not dispute. Opp. at 9.
Cabalo charges $425 per hour. According to Rein Law, she was named a Rising Star in 2011, 2012, and 2013 by Northern California Super Lawyers; has "handled . . . multi-million dollar cases . . . through trial and appeal;" has been a civil litigator for 12 years, and has handled ADA cases exclusively for five years. Cabalo Decl. ¶ 3. [Dkt. No. 74].
McGuiness charges $495 per hour. She has been practicing for over 20 years, has tried over 25 cases, and has argued before the California Court of Appeals and the Ninth Circuit. McGuiness Decl. ¶¶ 3-7 [Dkt. No. 75]. She has been a Visiting Clinical Professor at the University of San Francisco Law School and she taught moot court and legal research and writing at Hastings College of Law. Id. McGuinness has practiced disability rights law exclusively for six years. Id.
The defendants do not challenge the individual hourly rates claimed by Rein Law's attorneys and paralegals. I find that the hourly rates are reasonable.
As the Factual Background section above demonstrates, this was a relatively straightforward ADA matter. There was no substantive discovery
The defendants contend that the hours and fees claimed by Rein Law are unreasonable because, among other reasons, Rein Law overstaffed this matter, engaged in excessive conferencing, assigned routine work to senior attorneys, and unreasonably duplicated work. The defendants also argue that Hernandez's expert fees are triple what they should be and that the requested costs are unreasonable. I agree with many of defendants' criticisms. While Rein Law is free to allocate work and to supervise cases as the firm sees fit, it is unreasonable to require defendants to pay for the inefficiencies described below.
Given Rein Law's extensive experience litigating ADA cases, Rein Law is expected to efficiently complete the relevant court filings and other tasks necessary to the litigation of this action. See, e.g., Delson v. CYCT Mgmt. Grp., Inc., 11-cv-03781 MEJ, 2013 WL 1819265 (N.D. Cal. Apr. 30, 2013) (noting, in ADA case litigated by Rein Law, that "[o]ne of the trade offs of being an expert in a specific filed of law is the expectation that tasks will be completed with greater efficiency because the knowledge base and resources have already been well-established"). Instead, a close review of Rein Law's billing records reveals that many of the claimed hours were not reasonably expended and should be excluded from the award. Hensley, 461 U.S. at 434 (district court should exclude hours that were not "reasonably expended").
As an initial matter, given the relatively simple nature of this matter, it was unreasonable to staff the matter with three attorneys (all of whom have considerable experience in ADA litigation) and two paralegals. Judge Zimmerman of this Court previously criticized Rein Law for staffing three lawyers on a routine ADA case, noting:
White v. Ming R. Shen, 09-cv-0989-BZ, 2011 WL 31187, *3 (N.D. Cal. Jan. 5, 2011) vacated, 2011 WL 2790475 (N.D. Cal. July 13, 2011).
As one example of overstaffing, there was no need for Rein and Cabalo to spend 11.5 hours each attending the mediation. This was a simple case and Cabalo, a "Rising Star" with twelve years litigation experience, five of which were exclusively spent on ADA matters, was fully capable of handling it on her own. I strike all of Rein's time for attendance. Overstaffing also led to excessive conferencing between Rein Law attorneys, accounting for 20% of the total claimed by Rein in this matter, excluding the time Rein spent attending the mediation and the site inspections. See, e.g., Cruz v. Starbucks Corp., 10-cv-01868-JCS, 2013 WL 2447862, *8 (N.D. Cal. June 5, 2013) (noting that the Court is "troubled" that "Rein spent over 20% of his time in conferences with co-counsel"). Cabalo, who was the lead attorney in this matter, should reasonably be expected to handle the majority of the tasks without supervision from Rein, with paralegal and clerical support as needed. Recognizing that Rein is the leader of his firm and may have oversight responsibilities with the litigation, I strike 50% of the billing for "conferencing" with Rein.
Related to the overstaffing issue, much of the work claimed in this case was routine work that should reasonably have been performed by less senior attorneys, but was instead performed by Rein. With four decades of experience in this area, Rein is an authority on ADA litigation. But in light of that specialized knowledge and his commensurately high billing rate, Rein should reasonably limit his involvement to matters requiring his level of skill. See, e.g., MacDougal, 58 F. Supp. 2d at 1105 (reducing Rein's requested hours and noting that "[a] Michelangelo should not charge Sistine Chapel rates for painting a farmer's barn") (quoting Ursic, 719 F.2d at 677); cf Orantes-Hernandez v. Holder, 713 F.Supp.2d 929, 969-70 (C.D. Cal. 2010) (reducing fees for drafting background section of brief by 70% because "a paying client would not have paid $650 an hour . . . when the task could have been performed by a less senior, less expensive associate"). Yet the 74.1 hours and $47,794.50 claimed by Rein account for practically half of all attorney hours (154.8) and 58% of the fees claimed by the three billing attorneys in this matter ($82,939).
The judges in this District have repeatedly criticized Rein Law for exercising poor billing judgment and requesting an unreasonable amount of fees in connection with ADA cases similar to this one, including:
Rein Law's continued use of billing practices that have been repeatedly criticized is disturbing.
Rein, Cabalo and McGuiness claim fees for 148 .1 hour (six-minute) time entries, totaling 14.8 hours ($7,158), often for multiple .1 hour entries on the same day. Many of these tasks reasonably took a fraction of six minutes and should have been consolidated into one six-minute task. For example, on February 2, 2013 Cabalo billed .1 hours for "Telephone call to client regarding upcoming mediation" and another .1 hours for "Preparation of correspondence to client regarding upcoming mediation." Similarly, on April 22, 2013, Rein billed .1 hours for "Receipt/review court order declining to enter consent decree" and another .1 hours for "Email to mediator Howard Herman w/court order declining to enter consent decree." In addition, several of these entries are for non-attorney work and should not be billed, such as Cabalo's January 4, 2013 entry for "Electronically file stipulation for limited relief from General."
The problems with excessive billing in separate six-minute increments are evident here. By billing every phone call, email, and review of any notice from the Court
As discussed below, the fees requested for conferring with co-counsel are not reasonable given the lack of legal or factual complexity involved and the experience of lead counsel Cabalo. This is doubly true of repeated entries for .1 hours to "strategize" with co-counsel, as it is extremely inefficient to repeatedly confer for only a few minutes at a time.
An in depth written analysis of each of the 148 entries of .1 hour is not practical. Based on my detailed review of Rein Law's records, I find that a 50% reduction in the fees for its .1 hour entries is appropriate.
Rein made three site-inspections before Hernandez's complaint was filed, totaling 7.2 hours ($4,644). See Rein billing records at 1. The defendants argue that "[i]t is inexplicable why Paul Rein would need to go to the property three times personally to `investigate' the property prior to litigation. One site visit is reasonable." Opp. at 14. In response, Rein Law states only that the three inspections included an inspection at an El Grullense at a different address "per Rule 11 obligations to determine if there was a pattern of non-compliance." Reply at 4 n.1. Whether or not Rule 11 obligated Rein Law to inspect other restaurants, I see no reason that the defendants should be saddled with the costs of an inspection that has no bearing on this action. Nor, given the limited ADA issues at the restaurant, were two site visits necessary. One inspection is reasonable. I award Rein 2.5 hours ($1,612.5) for one site inspection, which corresponds with his longest site visit at the premises. I accordingly deduct $3,031.50 from the request. I do not reduce the fees for 3.6 hours ($1,530) requested by Cabalo for her attendance at the Rule 68 joint site inspection. See Cabalo billing records at 2.
According to my review of Rein Law's billing records, Rein requests 2 hours and Clefton requests .3 hours for preparing the initial complaint, totaling $1,342.50.
The defendants filed a two-paragraph motion to dismiss on September 5, 2013, arguing that the Court lacked jurisdiction over defendants Oscar Pang Cheng Liu and Chu Ching Liu in the their capacity as trustees of the Oscar Pang Cheng Liu and Chu Ching Liu Trust because there is no such trust. Dkt. No. 14. The motion to dismiss stated that the correct trust is Liu Family Trust. Hernandez did not oppose the motion to dismiss. Instead, Hernandez filed a motion for leave to file a first amended complaint naming the correct trust. Dkt. No. 20. The motion for leave to amend was not opposed. On October 19, 2013, the Court granted Hernandez's motion for leave to file an amended complaint and denied the motion to dismiss as moot. Dkt. No. 28.
By my calculation, Rein Law requests $3,461.50 in fees in connection with the defendants' motion to dismiss, which Hernandez did not oppose, and Hernandez's motion for leave to file an amended complaint, which the defendants did not oppose.
An obvious consequence of overstaffing this matter is that Rein Law spent an unreasonable amount of time spent conferencing between counsel. Rein requests 11.4 hours and Cabalo requests 6.4 hours (totaling $10,073) for various meetings with co-counsel to discuss the case, excluding time billed for meeting with co-counsel in preparation for the mediation and in connection with the fees motion and time billed in .1 hour entries addressed above.
The Ninth Circuit has approved of reductions in fees for unnecessary and duplicative intra-office conferences. See, e.g., Welch v. Metro. Life Ins. Co., 480 F.3d 942, 949 (9th Cir. 2007) ("Given her substantial experience and Welch's failure to provide a persuasive justification for the intra-office meetings, the district court did not err in finding the intra-office conferences to be unnecessary and duplicative."). Moreover, this Court has previously been critical of excessive conferencing by Rein Law. See, e.g., Starbucks, 2013 WL 2447862, *8 (noting that the Court is "troubled" that "Rein spent over 20% of his time in conferences with co-counsel"); White, 2011 WL 31187 ("Given the straightforward nature of this case, I find it unreasonable for Rein to consult with co-counsel over 20 times.").
Hernandez's reply brief does not explain why the hours billed for conferences were necessary or reasonable. Hernandez cites Chabner v. United of Omaha Life Ins. Co., 95-cv-0447-MHP, 1999 WL 33227443 (N.D. Cal. Oct. 12, 1999), where Judge Patel rejected the defendants' argument that plaintiff's counsel (not Rein Law) spent an excessive amount conferencing. Hernandez quotes Chabner's statement that "It is certainly valid that the members of plaintiff's legal team met regularly to fashion strategy, update one another on developments, and give and receive instructions regarding work assignments." Reply at 7 (quoting Chabner, 1999 WL 33227443, *4). But immediately preceding the portion of Chabner quoted by Hernandez, Judge Patel "acknowledge[d] the factual and legal complexity and unprecedented nature of this action." Chabner, 1999 WL 33227443, *4.
Like Judge Patel, I believe that attorney conferencing time can be quite valuable. But unlike Chabner, this matter is neither factually nor legally complex, nor unprecedented. On the contrary, it involved routine legal and factual issues and involved no substantive discovery or motion practice. Cabalo, the lead attorney in this matter, has 12 years of experience and should reasonably be expected to handle the majority of the tasks without supervision from Rein, with paralegal and clerical support as appropriate. The trade-off for the higher billing rate that greater experience and specialized knowledge justifies is that more senior attorneys are expected to delegate routine tasks to others with lower billing rates. See, e.g., MacDougal, 58 F. Supp. 2d at 1105 (reducing Rein's requested hours and noting that "[a] Michelangelo should not charge Sistine Chapel rates for painting a farmer's barn") (quoting Ursic, 719 F.2d at 677). Many of Rein's entries do not describe the substance of his meetings, including entries such as "Meeting w/ co-co re further action," "Meet w/co-co," "Meet w/co-co re multiple case issues." While other entries provide more description of the substance of meetings, none of them suggest the presence of complex legal or factual issue necessitating Rein's input at $645 an hour.
Notably, Rein Law requests significantly fewer hours for conferring for Cabalo than for Rein. Rein Law apparently exercised billing judgment in not billing for all the attorneys' participations in the meetings. While the exercise of billing judgment is generally a good thing, the benefits are not realized in cases like this where Rein Law evidently exercised billing judgment in favor of its most expensive attorney. In light of the lack of complexity in this case and Rein Law's failure to explain the need for Rein's meetings with co-counsel, let alone in the amount for which it seeks payment, Rein Law's request is unreasonable.
By my count, excluding the considerable amount of time billed in six-minute increments addressed above, Rein Law claims approximately $19,000 in attorneys' fees in connection with preparing for and attending the mediation.
Given the relatively simple nature of ADA cases like the present matter, other judges in this District have criticized Rein Law for requesting fees for two attorneys' preparation for and participation in mediation and have substantially reduced fees accordingly. For example, in Delson, 2013 WL 1819265, *7, Judge James stated that Rein Law "failed to articulate why it was necessary for two attorneys to attend the mediation or why that amount of preparation was necessary for a case that was not complicated, especially for attorneys with extensive experience handling such cases." As a result, Judge James deducted the 16 hours Rein billed for preparing for and attending the mediation. Similarly, in Saldana-Neily, 2008 WL 793872, *10, Judge Jenkins stated that "given Mr. Rein's experience, it is not clear why both he and Ms. Ostil needed to attend the settlement conference on July 12, 2005."
Unbowed by these criticisms, Rein Law has requested fees for both Rein's and Cabalo's preparation for and attendance at the mediation. Like other judges in this District, I question the need for both Rein and Cabalo to prepare for and attend the mediation. Given Cabalo's qualifications and experience,
I deduct 14.5 hours ($9,352.50) of the hours which Rein billed for preparing for and attending the mediation. Compare Delson, 2013 WL 1819265, *7 (deducting 16 hours ($10,320) that Rein billed for preparing for and attending the mediation). By my count, this awards Rein one hour for preparing for the mediation.
I also find that Cabalo spent an unreasonable amount of time preparing for the mediation. According to Cabalo's billing records, 2.7 hours of that time was spent preparing the mediation statement, which is reasonable. Cabalo billing records at 7. But an additional 6.6 hours on various poorly defined tasks whose value is not evident is not reasonable.
Cabalo billed 2.7 hours ($1,147.50) to attend—not to prepare for—a case management conference on August 6, 2013 which lasted six minutes. Dkt. No. 62 (civil minutes of case management conference); Cabalo billing records. The matter was called at 2:08 pm, so Cabalo had to wait in the courtroom for eight minutes before the matter was called. Tellingly, ten months earlier, before the mediation, McGuiness billed 1.7 hours ($841.50) to attend an 11-minute case management conference in October 2012. Dkt. No. 44 (civil minutes of case management conference); McGuinness billing records at 3. I deduct 1 hour ($425) from Cabalo's request to allow for reasonable travel time to and from Rein Law's office.
On top of the fees for attending the case management conferences, Rein Law requests fees for approximately 5.8 hours
Rein Law requests approximately $16,474 for preparing its motion for attorneys' fees, comprising 19 hours for Rein, 8.2 hours for Cabalo, 1.2 hours McGuiness, and .8 hour for Clefton.
Judges in this District have, on several occasions, criticized the fees sought by Rein Law for work on re-purposed fees motions. See, e.g., White, 2011 WL 249459, *1 (N.D. Cal. Jan. 25, 2011) ("I see no reason why Mr. Rein had to spend so much time preparing this fee motion; it could have been done by a more junior attorney. I note that much of the moving papers is substantially similar to papers filed by Mr. Rein in support of motions for attorney's fees in his other ADA access cases."); Overbo, 07-cv-05368 MHP (LB) (N.D. Cal. August 17, 2010) ("the only parts of [Rein Law's] 21-page motion that are case-specific are the factual and procedural history section and the sections itemizing Plaintiffs' fees and litigation expenses"), Report and Recommendation adopted September 7, 2010); George v. Bay Area Rapid Transit Dist., 00-cv-2206 CW, 2007 WL 2778784 (N.D. Cal. Sept. 21, 2007) (awarding counsel, including Rein Law, 15 hours for fees motion instead of 65 hours requested because issues in fees motion "substantially overlap with those in the previous motion"). In this case, Rein Law's opening brief on the fees motion is virtually identical to a brief filed by Rein Law in this Court in March 2013 in Cruz v. Starbucks Corp., 10-cv-01868-JCS (Dkt. No. 72). The only differences between the briefs are the identities of the parties and property at issue and a brief recitation of the settlement negotiations. The legal arguments and authorities cited in Starbucks are repeated word-for-word in this brief.
Even though the opening brief is in large part a copy of a prior brief, Rein billed 11.6 hours, Cabalo billed 2.6 hours, McGuiness billed 1.2 hours, and Clefton billed .8 hours (totaling 16.2 hours and $9,321) in connection with the opening brief. 4 hours at Cabalo's rate, one hour at Rein's rate and 4 hours for Clefton's rate (totaling $3,045) is more than reasonable for this work. Accordingly, I deduct $6,276 from the lodestar in connection with the opening brief on the fees motion.
Rein Law claims fees for 7.4 hours for Rein and 5.6 hours for Cabalo (totaling $7,153) to work on its 12-page reply brief in support of the fees motion. Although filed in response to the defendants' opposition, many of the arguments in Rein Law's reply brief retread territory covered in prior reply briefs filed by Rein Law, including, predictably, responses to defendants' allegations of excessive conferencing, overstaffing, and duplication of work. For example, reply briefs submitted by Rein Law in Starbucks, Delson, Overbo, and White each address some or all of these issues. In short, while the defendants' opposition raised issues to which Rein Law's reply brief properly responded, the reply brief did not involve complex or novel legal or factual issues. As such, there was no need for Rein to handle most of the brief; Cabalo should have led the effort with minimal support from Rein. See, e.g., Starbucks, 2013 WL 2447862, *9 ("[T]he time spent by Rein [on the fees motion] is unreasonable in light of his extensive experience and the fact that the fee motion does not present any legal or factual issues that are particularly new or complicated."); Delson, 2013 WL 1819265, *8 ("Had Ms. Cabalo, whose billing rate is $250 less per hour [than Mr. Rein's], handled the fees aspect of the case, this would have significantly reduced the amount of fees Plaintiff's counsel billed."). 8 hours for Cabalo and one hour for Rein, totaling $4,045, is sufficient. I therefore deduct $3,108 from the lodestar in connection with the fees motion reply brief.
Fifteen years ago, Rein Law apparently completed a fees motion in an ADA case in a fraction of the time it takes now. In MacDougal, Rein Law requested 8.4 hours for preparing a fees motion, with all 8.4 hours billed by Rein. 58 F. Supp. 2d at 1101. Judge Jenkins found the number of hours reasonable, but found that the work should have been performed by a more junior attorney because the "motion and its supporting declarations were mainly reproductions of documents filed and utilized in Rein's other cases" and therefore "the 8.4 hours billed did not warrant any specialized legal expertise." Id. at 1106. Judge Jenkins therefore awarded Rein Law 8.4 hours for the fees motion at reduced rate of $195 an hour instead of $325—Rein's rate at the time. Id.
In the fifteen years since MacDougal, Rein's hourly rate has nearly doubled to $645 an hour, reflecting his depth of experience and specialized knowledge. But Rein's increased rate has apparently not resulted in increased efficiencies, as would be expected to justify the increased rate. Rein Law spent nearly four times the amount of time preparing the fees motion in this case than it did in MacDougal.
The defendants assert that $917 requested by Rein Law for researching the correct identity of the owners of the subject property (3.4 hours for Clefton and .5 hours by Rein) should be deducted because Hernandez ultimately improperly named Oscar Pang Cheng Liu and Chu Ching Liu Trust instead of the proper trust, Liu Family Trust. I am not persuaded that Rein Law did not exercise due diligence in researching the owners of the property. While they turned out to be incorrect, the records relied on by Rein Law, including the California Secured Assessment System and real property tax assessor records from Westlaw, identified the owner as the Oscar Pang Cheng Liu and Chu Ching Liu Trust.
The fees discussed above account for $66,983.50 of the $87,730 in fees claimed by Rein Law, leaving $20,746.50 in fees not addressed. It is not practical for me to discuss each of the remaining fee entries in the detail I have addressed the fees discussed above. However, the Ninth Circuit has stated that a "district court can impose a small reduction, no greater than 10 percent—a `haircut'—based on its exercise of discretion and without a more specific explanation." Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). See also Gonzalez v. City of Maywood, 729 F.3d 1196, 1200 (9th Cir. 2013) ("when a district court reduces either the number of hours or the lodestar by a certain percentage greater than 10%, it must provide a clear and concise explanation for why it chose the specific percentage to apply").
Based on my detailed review of Rein Law's billing records, I find that a 5% reduction of the remaining fees is appropriate to account for overstaffing, assigning routine work to senior attorneys, excessive billing for duplicative work,
Hernandez's request includes $14,283 in costs, $12,100 of which are fees for access consultant Jonathan Adler (billed at $240 per hour). The defendants argue that Adler's fees are "grossly overinflated" compared to what Adler has requested in other cases. The defendants note that Adler requested $5,401 in fees in Hernandez v. Dehoff Enterprises, Inc., 12-cv-01467-NC in December 2012, another ADA case brought by Hernandez and litigated by Rein Law, even though Adler's expert reports in that case and this case are substantially similar in length and substance. The defendants identify three other ADA actions prosecuted by Rein Law where access consultants were awarded between $3,313.05, $3,698.70 and $5,999.90. Opp. at 15.
I agree that Adler's requested fees are unreasonable. I am skeptical that the hours he expended on substantive work were necessary, given the much lower amounts in other cases. Moreover, his requested fees include 10 hours ($2,400) for travel to and from two site inspections and the mediation. The defendants should not be responsible for Hernandez's choice to employ an access consultant requiring extensive travel time that would be compensated at his regular expert fee rate. Accordingly, I deduct 8 hours ($1,920) from Adler's fee request.
The defendants assert that Hernandez was required to file a Bill of Costs under Local Rule 54-1. Hernandez responds that "Local Rule 54 does not apply to ADA cases, where, as here, no judgement [sic] was entered." Reply at 12. The matter is moot as Hernandez has submitted all relevant invoices, billings, and receipts, enabling the Court to determine the reasonableness of the claimed costs.
Rein Law seeks $1,063 in copying costs. See Rein Decl. ¶ 32. Even at the rate of $.25 per page, $1,063 amounts to 4,252 pages. See Clefton Decl. ¶ 18 (stating that Rein Law bills $.25 per page for black and white copies). Hernandez does not explain why this case required Rein Law to make 4,252 copies. For a case of this scope, the Court estimates that 1,000 copies is more than sufficient, totaling $250. I therefore deduct $813 from the claimed costs.
For the reasons detailed above, I find that $50,453.68 of the fees and $11,550 of the costs (totaling $62,003.68) requested by Rein Law in this matter were reasonable. Adjustment to this figure based on the Kerr factors is not necessary because my consideration of the Kerr factors was subsumed in the preceding analysis. See, e.g., Secalt, 668 F.3d at 689 (where appropriate, district court may adjust the lodestar based on the Kerr factors "that have not been subsumed in the lodestar calculation") (emphasis added).
The award to Rein Law of $62,003.68 is much higher than defendants urge is fair. If I find that Hernandez unreasonably protracted the litigation, I would have the discretion to further reduce Rein's fees. Notably, the General Order 56 statement of fees and costs which Rein Law provided to the defendants after the merits were resolved included over $20,000 in unreasonable fees and costs, which arguably protracted the litigation. But the defendants chose to contest liability instead of promptly conceding that their premises violated the ADA. If they felt Hernandez's settlement position was unreasonable, they could have made a Rule 68 offer much earlier than they did to cut off the inevitable growth of plaintiff's fees and costs. I will not protect defendants from the consequences of their litigation decisions. I will not speculate that the parties would have settled at the mediation if Rein had quoted an amount of fees and costs commensurate with this Order's analysis.
In sum, I make the following adjustments to Hernandez's requested fees and costs:
Hernandez's motion for attorneys' fees and costs is GRANTED in part and DENIED in part. The defendants shall pay Hernandez $50,453.68 in fees and $11,550 in costs (totaling $62,003.68).
