VANESSA L. BRYANT, District Judge.
Before the Court is Plaintiff Modesto Hernandez's motion for attorneys' fees and costs in connection with his successful action under Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq., against Defendant Berlin Newington Associates, LLC ("BNA"). Hernandez seeks $229,405 in attorneys' fees—calculated using the lodestar method of multiplying the reasonable hourly rates of his legal representatives by the number of hours reasonably expended. BNA challenges the reasonableness of the hourly rates and the hours expended. The Court awards $214,169.75 in attorneys' fees, ruling that requested hourly rates are reasonable, that an across-the-board reduction is not appropriate, and that some of BNA's objections have merit while others do not and thus. Hernandez also requests $8,685.50 in costs.
In August 2010, Hernandez, who suffers from Polio and requires the use a wheelchair to ambulate, brought this ADA action alleging that he encountered numerous architectural barriers on BNA's property. ECF No. 5 (Compl.). Over the next five years, the parties litigated whether BNA had violated the ADA, and after it recognized that it had, the parties engaged in largely unnecessarily protracted litigation over whether BNA had removed the impermissible architectural barriers.
Hernandez now moves for attorneys' fees in the amount of $229,405.00. ECF Nos. 117 (Mot.); 119 (Reply). He calculates attorneys' fees by multiplying the reasonable hourly rate by the number of hours reasonably expended. ECF No. 117-1 (Mem.) at 13-19. Hernandez seeks an hourly rate of $375 for Attorney Louis Mussman; $375 for Attorney Brian Ku; $325 for Attorney M. Ryan Casey; $300 for Attorney John Kaloidis; and $100 for Paralegal R. Sarmiento. In support, Hernandez details the qualification and experience of his attorneys, see ECF Nos. 117-3 (Decl.) at ¶¶ 83-111, 117-6 (Biographies), 117-7 (Curriculum Vitae); provides declarations from two local attorneys including Kaloidis, ECF No. 117-3 at ¶¶ 144-150 (Kaloidis Decl.), 117-10 (Smith Decl.); and cites numerous cases from this District, see ECF No. 117-1 at 17-18. He further asserts that Mussman spent 360.45 hours; that Ku spent 81 hours; that Casey spent 137.5 hours; that Kaloidis spent 43.75 hours; and that Sarmiento spent 34.4 hours.
BNA challenges the reasonableness of the hourly rates and argues that the hours expended should be reduced by 35% because the detailed billing records are excessive, redundant, and otherwise unnecessary. ECF No. 118 at 4-11. In support of these contentions, BNA argues that: (1) "plaintiff's counsel submitted limited evidence to support the claim that the requested billing rates are reasonable"; (2) "it's unclear from [plaintiff counsel's] submissions how many ADA access cases they have handled over the years and whether any of them have proceeded to trial'"; and (3) one recent District of Massachusetts case awarded Mussman only $300 per hour.
Hernandez also moves for costs in the amount of $8,685.50.
BNA does not challenge the calculation of costs pursuant to Section 1920. See ECF No. 118. Instead, it raises the three following challenges to the calculation of costs pursuant to Section 12205: (1) attorney travel expenses because "Plaintiff provides no explanation as to why Attorney Mussman had to travel to Connecticut, when Attorney Kaloidis, local counsel, who went to the initial settlement conference, easily could have performed those functions"; (2) the engineering expert's fees of $200 per hour should be reduced to $175 for actual work and $87.50 for travel time; and (3) the financial expert should not be compensable because BNA "is unaware of the work completed by [the financial expert] because he was not disclosed as a witness." Id. at 12-14.
The ADA entitles a prevailing party to recover reasonable attorney's fees.
The statute provides in relevant part:
42 U.S.C. § 12205. The ADA is a fee-shifting statute, and the Court has discretion to award attorney's fees to a prevailing party in an ADA action. See, e.g., E*Trade Fin. Corp. v. Deutsche Bank AG, 374 F. App'x 119, 124 (2d Cir.2010). If the civil rights plaintiff is the prevailing party, attorney's fees and costs should normally be awarded "unless special circumstances would render such an award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citation and internal quotation marks omitted); accord Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health & Human Res., 532 U.S. 598, 603 n.4 (2001) (applying Hensley to § 12205 of the ADA).
Where, as here, the action is founded on federal-question jurisdiction, federal law governs the question of attorney's fees. See Franco v. Better Way Wholesale Autos, Inc., 2016 WL 3064051, at *1 (D. Conn. May 31, 2016) (citing In re Citigroup S'holder Derivative Litig., 2013 WL 4441511, at *3 n.4 (S.D.N.Y. Aug. 19, 2013), aff'd sub nom. Moskal v. Pandit, 576 F. App'x 33 (2d Cir. 2014)). The Second Circuit applies the presumptively-reasonable-fee standard—that is, multiplying the reasonable hourly rate by the hours reasonably expended, commonly referred to as the lodestar method. See McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 417 n.2 (2d Cir. 2010) (observing preference for jettisoning the term "lodestar"). To do so, a district court "engage[s] in a four-step process: (1) determine the reasonable hourly rate; (2) determine the number of hours reasonably expended; (3) multiply the two to calculate the presumptively reasonable fee; and (4) make any appropriate adjustments to arrive at the final fee award." Silver v. Law Offices Howard Lee Schiff, P.C., 2010 WL 5140851, at *1 (D. Conn. Dec. 16, 2010) (citations omitted)). The prevailing party bears the burden of showing the presumptively reasonable fee. See Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir. 1994). Once established, the opposing party bears the burden of justifying a reduction. See U.S. Football League v. National Football League, 887 F.2d 408, 413 (2d Cir. 1989) ("We note that a party advocating the reduction of the lodestar amount bears the burden of establishing that a reduction is justified.").
A reasonable hourly rate is "the rate prevailing in the relevant community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Farbotko v. Clinton Cnty., 433 F.3d 204, 208 (2d Cir. 2005) (citations and internal quotation marks omitted). The best evidence of the prevailing market rate is local counsel's normal billing rate, but a fee applicant may also demonstrate the prevailing market rate by offering affidavits of counsel with similar experience. See 10 MOORE'S FEDERAL PRACTICE § 54.190[2][b][i][B], [C] (Matthew Bender 3d ed.). A district court may take judicial notice of the rates awarded in similar cases and may rely on its own familiarity with the rates prevailing in the district. See Farbotko, 433 F.3d at 208. In determining the hourly rates, the district court should also consider the factors from Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
The Court rules that the requested hourly rates are reasonable in light of the following findings of fact.
Beyond that, the requested rate is on par with the prevailing rate in this District for attorneys with similar experience in similar types of cases. See Harty v. Bull's Head Realty, 2015 WL 1064630, at *9 (D. Conn. Mar. 11, 2015) ("[T]he Court has conducted a review of recent attorney's fee awards for private counsel who prosecute plaintiff's rights cases in this District and has determined that $375 is a more appropriate hourly rate."); see also ECF No. 117-3 at ¶¶ 144-150 (Kaloidis Decl.), 117-10 (Smith Decl.). Mussman and Ku have sought hourly rates less than those normally charged. ECF No. 117-3 at ¶ 150. Title III cases are viewed as undesirable because monetary awards are unavailable, see Powell v. Nat'l Bd. of Med. Examiners, 364 F.3d 79, 86 (2d Cir.) (observing that monetary damages not available), opinion corrected, 511 F.3d 238 (2d Cir. 2004), and because the opportunity for attorney's fees are limited, see Buckhannon, 532 U.S. at 602 (rejecting the "catalyst theory").
BNA raises three objections to the hourly rates requested by Mussman, Ku, and Casey.
A fee applicant must also document the number of hours reasonably expended. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). "Although there is a preference that documentation be in the form of contemporaneously prepared time records, the majority rule is that such record are not an absolute prerequisite to a fee award and that hours may be proved by a reconstruction of time records or by other evidence adequate under the circumstances." 10 MOORE'S FEDERAL PRACTICE § 54.190[2][a][i] (Matthew Bender 3d ed.). Where, as here, a fee applicant satisfies his burden by providing detailed itemization of the hours expended reconstructed through contemporaneous billing records, see ECF Nos. 117-3 (Decl.) at ¶ 75; 117-5 (First Itemization); 119-1 (Second Itemization), a district court must conduct "a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended," Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994). Having conducted such review, the Court identifies no hours to be redundant, unnecessary, or excessive other than those addressed below.
Rather than undertaking a comprehensive hour-by-hour critique of the bill at issue, BNA seeks an across-the-board reduction of 35% because it has identified a dozen or so line-item objections. ECF No. 118 at 10. But "the preferred method is for the court to conduct an hour-by-hour review of all the time claimed and to disallow those hours not reasonably expended on the litigation." 10 MOORE'S FEDERAL PRACTICE § 54.190[2][a][i] (Matthew Bender 3d ed.). The Second Circuit has approved across-the-board reductions only where the fee motion is so voluminous as to make an hour-by-hour review impractical. See New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983) ("In similar cases with voluminous fee applications, courts have recognized that it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application."). Other courts have approved of this method when the documentary support is so vague and ambiguous to make line-item deductions impossible. In re North, 12 F.3d 252, 257 (D.C. Cir. 1994) ("In other cases in which we were not provided appropriate contemporaneous time records, we have imposed a ten percent reduction on the final fee award."). Neither of these circumstances apply here, so the Court adopts the preferred method of calculation and addresses each of BNA's objections below.
Finally, to the extent BNA seeks an across-the-board reduction because it believes the total fee is disproportionate, the Court notes that BNA undertook a litigation strategy unnecessarily delaying case resolution, thereby increasing the time Hernandez's attorneys needed to spend and the total fee charged. Despite BNA's strategy, Hernandez successfully settled the action on the eve of trial, but only after Court intervention. Thus, to the extent BNA's objection is founded in sticker shock, it is at least in part a consequence of its own litigation strategy.
BNA has raised five specific objections, and the Court happily addresses those objections. BNA first argues that "[b]y way of example, plaintiff's 20 page billing entry submission reflects standard Court orders reviewed
Essentially, BNA objects to the fact that more than one of Hernandez's attorneys who entered an appearance reviewed the Court's orders. The Court declines to strike the 1.1 hours billed. The filing of an appearance is not a mere formality: all attorneys who have filed an appearance as officers of the court and representatives of a litigant have a duty to be at least aware of the case status and review court orders, even where those orders are perfunctory. Cf. Hilmon Co. (V.I.) Inc. v. Hyatt Int'l, 899 F.2d 250 (3d Cir. 1990) ("[A]ttorneys have an affirmative obligation to research the law and to determine if a claim on appeal is utterly without merit and may be deemed frivolous."). The duties that an appearing attorney owes to their client and to the court cannot be discharged by agreement with another attorney. In re Mitchell, 901 F.2d 1179, 1188 (3d Cir. 1990) (citing Matter of Withey, 537 F.2d 324 (9th Cir.1976)). In any event, some of the orders reviewed by more than one attorney were complex orders. See, e.g., ECF No. 119-1 at Lines 377, 398, 402. BNA's objection to duplicative reviews of court orders is overruled.
BNA next objects to the "approximately 32.5 hours of correspondence between Attorneys Mussman, Ku, and Casey" as "excessive" given their combined experience.
BNA objects to the hours expended briefing the following issues: mootness (30.2 hours), motion for sanctions (26.5 hours), motion for summary judgment (52.2 hours
BNA moves to strike the 1.7 hours spent on drafting and filing a pro hac vice motion because having an out-of-state attorney file a notice of appearance was unnecessary and because this motion should not have taken so long to prepare. ECF No. 118 at 11. Hernandez replies that "[t]he 1.7 hours expended on the pro hac vice application pales in comparison to time that would have been incurred by adding an addition law firm." ECF No. 119 at 10.
Hernandez's argument misses the point. Adding outside counsel in this instance may have been more efficient in the event a fourth attorney appearance was necessary, but Hernandez fails to show that why a fourth attorney (local or outside) needed to file an appearance. In any event, the Court agrees that amount of time spent on the motion was excessive. See Bull's Head, 2015 WL 1064630, at *10 ("Furthermore, 1.5 hours is an excessive amount of time to spend on such a boilerplate motion."). The Court strikes the 1.7 hours (.6 hours for Mussman, .1 hours for Ku, and 1 hour for Casey). The Court also strikes the .3 hours the paralegal spent paralegal's work on the pro hac vice motion. See ECF No. 119-1 at Lines 578-79.
BNA argues that "Plaintiff's billing submission is also scattered with entries performed by experienced litigators with years of experience, which could have and should have been handled by a paralegal." ECF No. 118 at 9. Specifically, BNA objects to .7 hours for a PACER search, 2.7 hours for organizing a trial notebook, 1.2 hours for outlining and adding documents to a trial notebook, 3.9 hours for drafting an opposition to a motion for extension, .3 hours for case assignment correspondence, 1.2 hours for reviewing and organizing file for entry into the case. The Court declines to strike the PACER search, trial preparation, and drafting the opposition to the motion for an extension of time because these activities are properly handled by an attorney, not a paralegal. The Court, however, strikes "corrsp re: case assignment" and "reviewed and organized file for entry into case" because those entries are too vague and do not appear to be compensable (whether or not an attorney or paralegal should be performing those activities). The Court this strikes 1.5 hours from Casey's hours. See ECF No. 119-1 at Lines 321, 323.
As explained in the following chart, the presumptively-reasonable-fee award amounts to $214,169.75.
Once the district court has calculated the presumptively reasonable fee, the Court may properly depart upwards or downwards. See Blanchard v. Bergeron, 489 U.S. 87, 94 (1989) ("The courts may then adjust this lodestar calculation by other factors."). Any adjustment must be based on reasons not already considered in arriving at the presumptively-reasonable-fee calculation. See 10 MOORE'S FEDERAL PRACTICE § 54.190[3][a] (Matthew Bender 3d ed.). "[A] party advocating the reduction of the lodestar amount bears the burden of establishing that a reduction is justified." See U.S. Football League v. National Football League, 887 F.2d 408, 413 (2d Cir. 1989). In this case, no party seeks a reduction from the above-calculated fee for a reason not already taken into consideration, so the Court makes no adjustment.
The ADA permits a prevailing party to recover costs. 42 U.S.C. § 12205. "The award of costs [under Section 12205] may include taxable costs pursuant to 28 U.S.C. § 1920." Spalluto v. Trump Int'l Hotel & Tower, 2008 WL 4525372, at *17 (S.D.N.Y. Oct. 2, 2008). In addition to those expenses traditionally awarded under Section 1920, Section 12205 also permits the recovery for mailing, copies, and attorney travel, Haynes v. City of Montgomery, 2008 WL 4495711, at *13 (M.D. Ala. Oct. 6, 2008), as well as expert fees and travel, Spalluto, 2008 WL 4525372, at *17. "The fee applicant bears the burden of adequately documenting and itemizing the costs requested." Spence v. Ellis, 2012 WL 7660124, at *8 (E.D.N.Y. Dec.19, 2012) (quoting Pennacchio v. Powers, 2011 WL 2945825, at *3 (E.D.N.Y. July 1, 2011).
Defendant does not object to the costs typically subsumed by Section 1920 (but which the Court awards pursuant to Section 12205). After independently examining those costs, the Court awards them with the exception of the pro hac vice fees. As explained in LaBombard v. Winterbottom, 2015 WL 9450838, at *2 (N.D.N.Y. Dec. 23, 2015), the Second Circuit has not determined whether these fees are compensable and other circuits are split on the issue. But this Court need not resolve the issue because pro hac vice fees, whether awarded pursuant to Sections 1920 or 12205, are not compensable in this specific instance because, as already discussed, Hernandez has not explained why a fourth attorney (local or outside) needed to file an appearance. The Court strikes that $75.00 fee and awards $699.40 for the costs typically subsumed by Section 1920 pursuant to Section 12205.
The Court has also examined the additional costs sought pursuant to Section 12205 and awards them in full after independently reviewing the submissions. BNA raises three objections, but none hold water. First, BNA argues that attorney travel should not be awarded because local counsel would have been adequate. ECF No. 118 at 12. The Court disagrees because the expenses pertained to travel incurred for the purpose of making essential court appearances, and given Mussman's experience, the choice of outside counsel was reasonable. The failure to reimburse outside counsel for these trips would deprive a litigant from seeking outside counsel when necessary. See Disabled Patriots of Am., Inc. v. Reserve Hotel, Ltd., 659 F.Supp.2d 877, 890 & n.5 (N.D. Ohio 2009) (awarding travel expenses in calculating hours expended because "[p]laintiffs are generally entitled to counsel of their choice" but observing the some courts apportion under costs). Second, BNA contends that the engineering expert's fee was inflated. ECF No. 13. In light of the engineering expert's credentials and experience, see ECF No. 58-10, the Court finds the fee to be reasonable, and one case from another district does not convince the Court otherwise. The Court also declines to reduce the engineering expert's fee for travel because his travel time was too short (a flight from BWI to BDL) to expect him to bill for other work. ECF No. 117-9 at 2. Finally, Hernandez relied on the financial expert in support of his motion for summary judgment. ECF No. 58-17.
The following chart explains the Court's calculations of costs.
For the foregoing reasons, the Court awards attorneys' fees in the amount of $214,169.75 and costs in the amount of $8,610.50.
IT IS SO ORDERED.