CATHY SEIBEL, District Judge.
Before the Court is Plaintiff's application for attorney's fees and costs totaling $100,411.58 in connection with the above-captioned matter, (Docs. 70-73), and Defendant's request for oral argument regarding the same, (Doc. 78). For reasons set forth below, I find that Plaintiff's counsel, the law firm of Thomas B. Bacon, P.A., is entitled to fees and costs in the amount of $59,493.00, and deny Defendant's request for oral argument.
On May 6, 2013, Plaintiff filed an amended complaint against Defendant under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). (Amended Complaint ("AC"), (Doc. 38).) Plaintiff is paralyzed from the waist down and wheelchair-bound. (AC ¶ 1.) Defendant "owns, leases, leases to, or operates" a Best Western hotel in Nyack, New York, the construction and accommodations of which Plaintiff alleged were not in compliance with the ADA. (Id. ¶¶ 7-10.) Throughout most of the litigation, Plaintiff was represented by John F. Ward of Royersford, Pennsylvania, and Thomas B. Bacon of Cooper City, Florida, both of the law firm Thomas B. Bacon P.A.
The parties reached a settlement before Magistrate Judge Paul E. Davison on April 1, 2014, and Plaintiff's counsel filed their application for attorney's fees in connection with the case on May 1, 2014.
Under the ADA, a court may, in its discretion, award reasonable attorney's fees to the prevailing party in litigation.
Once it is determined that a party is entitled to fees, "[i]t remains for the district court to determine what fee is `reasonable.'" Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In calculating a "presumptively reasonable fee,"
"The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate," Hensley, 461 U.S. at 433, and "the most critical factor in a district court's determination of what constitutes reasonable attorney's fees . . . is the degree of success obtained by the plaintiff," Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008) (internal quotation marks omitted). The court may use its discretion, based on its experience in general and with the particular case at issue, to "trim[ the] fat from a fee application." Kirsch v. Fleet St., Ltd, 148 F.3d 149, 173 (2d Cir. 1998) (internal quotation marks and citation omitted). A court should decrease the number of hours included in the fee calculation if the claimed time is "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434. "If a court finds that the fee applicant's claim is excessive, or that time spent was wasteful or duplicative, it may decrease or disallow certain hours or, where the application for fees is voluminous, order an across-the-board percentage reduction in compensable hours." M. Lady, LLC v. AJI, Inc., No. 06-CV-194, 2009 WL 1150279, at *8 (S.D.N.Y. Apr. 29, 2009) (internal quotation marks and citation omitted).
Plaintiff's posture as the prevailing party is not in dispute and, therefore, the Court will, as is customary, award Plaintiff reasonable attorney's fees under the applicable fee-shifting provision. See Hensley, 461 U.S. at 429 (prevailing party "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust") (internal quotation marks and citations omitted). In doing so I have considered the Johnson factors, to the extent applicable, in order to calculate the "presumptively reasonable fee."
"The fee applicant bears the burden of establishing the reasonableness of the hourly rates requested — in particular, by producing satisfactory evidence that the requested rates are in line with those prevailing in the community." Adams v. N.Y. State Educ. Dep't, 630 F.Supp.2d 333, 348 (S.D.N.Y. 2009) (internal quotation marks omitted). In this case, the relevant community is the Southern District of New York. See Reiter, 457 F.3d at 232.
Starting first with the "most critical factor," Barfield, 537 F.3d at 152, the Court finds that Plaintiff achieved success in this matter, as evidenced by the parties successfully reaching a settlement, and the undisputed fact that Plaintiff is the prevailing party. Without knowing the terms of the settlement agreement, it is impossible to determine a precise degree of success, but the Court can safely assume that this is a positive settlement for Plaintiff, which factors into the Court's consideration in reviewing Plaintiff's counsel's hourly rate.
The Court turns next to counsel's experience and qualifications. Mr. Bacon requests an hourly rate of $425, citing his approximately twenty-five years as a licensed attorney and his experience litigating hundreds of Title III ADA cases throughout the country. (Reply Memorandum of Law in Support of Plaintiff's Application for Fees and Costs ("P's Rep."), (Doc. 77), 3; Bacon Aff. ¶¶ 1-2.) Mr. Ward, too, requests an hourly rate of $425, citing his more than seventeen years as a licensed attorney and his handling of more than sixty Title III ADA cases before "numerous Federal District Courts."
In support of their requested hourly rates, Plaintiff's counsel cites cases from 2007 to 2014 in which experienced civil rights attorneys were awarded rates ranging from $375 to $450 per hour, (P's Rep. 2-3), including a 2010 Report and Recommendation by Magistrate Judge Lisa Smith adopted by the District Court in its entirety, Manson v. Friedberg, No. 08-CV-3890, 2013 WL 2896971 (S.D.N.Y. June 13, 2013). Manson catalogues court-approved attorney rates for experienced civil rights attorneys that "ranged from $250 to $600" between 2000 and 2010. Id. at *10.
Defendant, basing its argument on cases awarding rates ranging from $250 to $390 per hour, submits that the rate awarded here should not exceed $300 per hour. (D's Mem. 7-8.) Many of the cases cited by Defendant, however, are from 2000 and 2001. Adjusting for inflation, $300 in 2001 is equivalent to $401.02 in 2014.
After carefully considering the Parties' arguments and the case-specific factors set forth above, the Court finds that Mr. Bacon and Mr. Ward, two attorneys with comparable experience (25 and 17 years, respectively, specializing in civil rights litigation), should receive attorney's fees for this case at the reasonable hourly rate of $375.00. The factors considered included, among others, Plaintiff's success in this litigation, the hourly rates received by other attorneys in this district bringing comparable claims with comparable experience and qualifications, see Kreisler v. Second Ave. Diner Corp., No. 10-CV-7592, 2013 WL 3965247, at *2 (S.D.N.Y. July 31, 2013) ("In the Southern District of New York, the customary rate for experienced litigators representing clients in ADA matters ranges from $350 to $375 per hour."); Margolies v. Cty. of Putnum N.Y., No. 09-CV-2061, 2011 WL 721698, at *3 (S.D.N.Y. Feb. 23, 2011) (award of $250 per hour where civil rights case was "not unusually complex"); Manson, 2013 WL 2896971, at *10 (collecting cases awarding $250 to $600 per hour for experienced civil rights attorneys, and awarding $375 per hour), counsel's expertise in this area, and the case's want of novel and/or complex issues, see Disabled Patriots of Am., Inc. v. Niagara Grp. Hotels, LLC, 688 F.Supp.2d 216, 226 (W.D.N.Y. 2010) (declining to go above standard hourly rate in that district where "subject matter of [the] case [was] not particularly novel or complex").
Plaintiff bears "the burden of establishing entitlement to an award and documenting the appropriate hours expended. . . . The applicant should exercise `billing judgment' with respect to hours worked and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims." Hensley, 461 U.S. at 437 (internal citations omitted). "The critical inquiry is whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures." Flores v. J & B Club House Tavern, Inc., No. 10-CV-4332, 2012 WL 4891888, at *5 (S.D.N.Y. Oct. 16, 2012) (internal quotation marks and citation omitted). Hours not "reasonably expended" are excluded from the fee calculation. See Hensley, 461 U.S. at 434.
First, Defendant argues that Plaintiff's counsel's timesheet entries are excessively vague. (D's Mem. 8-12.) I disagree that the records provide insufficient information as to the work performed. Although the individual entries Defendant highlights may appear vague when taken out of context, (see D's Mem. 10-11), I find many of them sufficiently descriptive when viewed alongside other entries from the same day or time period. For example, "review partial case file" from June 19, 2012, may seem vague by itself, but it is sufficiently clear in the context of the entire invoice that Mr. Ward had just been assigned to the matter and, thus, would have been reviewing the file to familiarize himself with the facts of the case. (Ward Decl. Ex. 1, at 1.) Counsel's contemporaneous records "specify, for each attorney, the date, the hours expended, and the nature of the work done." Kirsh, 148 F.3d at 173. Accordingly, I will not reduce the number of hours billed on account of vagueness alone.
Second, Defendant argues that Plaintiff's counsel's time entries are excessive given the tasks performed. (D's Mem. 12-14.) In particular, Defendant argues that the 25 hours billed by Mr. Ward for drafting and researching Plaintiff's memorandum of law in support of his motion for summary judgment ("MSJ"), (Doc. 55), is excessive given its "carbon copy" resemblance to three previously filed MSJs in unrelated cases,
Mr. Ward also billed 25.3 hours for researching and drafting Plaintiff's reply memorandum in support of his MSJ, (Doc. 56).
Defendant also disputes 16.7 hours billed by Mr. Ward for conferencing with his cocounsel Mr. Bacon, and 7.8 hours billed by Mr. Ward for completion of ministerial tasks. (D's Mem. 4.) Defendant does not provide the specific dates and hours it used to arrive at these totals. Mr. Ward filed his initial notice to appear pro hac vice on July 2, 2012, (Doc. 17), and his reply memorandum in support of the present fee application on May 29, 2014, (Doc. 77), and has therefore been counsel of record for Plaintiff for nearly two years. After my own review of Mr. Ward's invoice, and taking into account the case-specific factors discussed above, and I find that 16.7 hours billed for conferring with co-counsel is reasonable over the course of a nearly two-year litigation, and will therefore not deduct those hours billed.
With respect to the 7.8 hours billed by Mr. Ward for ministerial tasks, I agree that Mr. Ward billed for non-legal or ministerial tasks that need not be performed by — or billed at the rate of — a lawyer with Mr. Ward's experience. See Osterweil v. Bartlett, No. 09-CV-825, 2015 WL 1066404, at *16 (N.D.N.Y. Mar. 11, 2015) (reducing hourly rate for non-legal clerical tasks). For example, the two hours billed on October 15, 2013, for "[a]ssemble motion, briefs and exhibits for filing" and "[f]ile MSJ, supporting exhibits, memorandum of law, reply memorandum of law"; the one hour billed on August 29, 2013, for "[p]repare & mail MSJ packages to OC, Court"; and various other time entries for "make calendar entries," (Ward Decl. Ex. 1), all reflect clerical and non-legal tasks. I further agree, after my review of Mr. Ward's invoice, that Defendant's 7.8-hour approximation is a reasonable hourly assessment of the nonlegal, clerical tasks performed by Plaintiff's counsel. Accordingly, I will apply a reasonable paralegal rate of $100 per hour to the 7.8 hours spent making calendar entries, preparing mailings, and completing other such tasks. See Spalluto, 2008 WL 4525372, at *14 (collecting cases and finding the "market value for paralegals' time ranges from $50 to $150 per hour" in the Southern District of New York).
Further, it appears Mr. Ward billed approximately 13.7 hours for preparation of his and Mr. Bacon's pro hac vice motions and Plaintiff's request to vacate the August 2012 dismissal of this case.
Finally, Defendant argues that Plaintiff's counsel are not entitled to reimbursement for travel time and expenses given that Plaintiff could have obtained New York-based representation. (D's Mem. 14-15.) "[E]xpenses and fees related to travel must be excluded from an award of attorneys' fees if `the hypothetical reasonable client who wishes to spend the least amount necessary to litigate the matter . . . would have retained local counsel.'" U.S. ex rel. Feldman v. Van Gorp, No. 03-CV-8135, 2011 WL 651829, at *3 (S.D.N.Y. Feb. 9, 2011) (quoting Imbeault v. Rick's Cabaret Int'l Inc., No. 08-CV-5458, 2009 WL 2482134, at *8 (S.D.N.Y. Aug. 13, 2009)). This is a corollary to the "forum rule" that the reasonable hourly rate is derived from the forum in which the Court sits. Harty v. Bull's Head Realty, No. 11-CV-1760, 2015 WL 1064630, at *12 (D. Conn. Mar. 11, 2015) (order for attorney's fees involving the same plaintiff and attorneys as the instant case).
Defendant argues that it should not have to pay for Plaintiff's requested 28.9 total hours of travel time. (D's Mem. 4.) Defendant bases this number on Mr. Ward's time entries for travel on February 21, 2014 and April 1, 2014, (Ward Decl. Ex. 1, at 9), totaling 15.3 hours, and Mr. Bacon's time entries for travel on September 3 and 8, 2013, (Bacon Aff., Ex. 1, at 2), totaling 13.6 hours. Plaintiff does not argue that equally qualified local counsel was unavailable, and offers no legitimate reason why he declined to hire local counsel as opposed to counsel based in Florida and Pennsylvania. A reasonable client would not choose to pay travel fees and expenses for an out-of-state attorney while still paying a presumably higher hourly rate based on the Southern District of New York market, with equally competent local counsel available. Plaintiff's counsel should therefore not be compensated for their travel time and expenses in litigating this case.
Accordingly, assuming a six-hour round trip from Royersford, Pennsylvania to the federal courthouse in White Plains, New York,
Thus, for reasons stated above, Thomas B. Bacon, P.A. is entitled to fees and costs in the amount of $59,493.00 for its work on this case. Defendant's request for oral argument, (Doc. 78), is denied. The Clerk of Court is respectfully directed to close the case.
