United States District Court, E.D. Louisiana
ORDER AND REASONS
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE.
an action brought by Plaintiff, Tasha Herbert
(“Herbert”), against the City of New Orleans
(“the City”), asserting claims that the City
failed to comply with Title II of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12181,
et seq., and the Rehabilitation of 1973, 29 U.S.C.
§ 794, et seq. (“RA”), at its
Kenilworth Playground facility. Herbert's substantive claims
for injunctive relief and damages were resolved by the entry
of a consent judgment and an addendum thereto. (Rec. docs.
21, 24). The issue of recovery of attorneys' fees and
costs was reserved and the Court issued a briefing schedule
on the matter. (Rec. doc. 22).
before the Court is Herbert's Motion for Attorneys'
Fees and Costs. (Rec. doc. 27). The City filed an opposition
memorandum (rec. doc. 30) and the Plaintiff filed a reply.
(Rec. doc. 31). The Court previously held a lengthy hearing
on the motion and took the matter under advisement. (Rec.
docs. 36, 37).
moves as the “prevailing party” under the ADA for
an award of attorneys' fees totaling $21,
420.35 and costs of $3, 125.59.
motion, Herbert argues: (1) that the ADA and cases
interpreting it clearly establish that she is a prevailing
party entitled to recover fees and costs; (2) that her
counsel's hourly rates are consistent with rates recently
awarded by this Court in other cases; and (3) that the
attorneys' claimed hours and the costs sought are
reasonable and were required because the City was
intransigent in refusing to negotiate on the issue of fees
City filed a timely opposition memorandum. It argued first
that Herbert is not a “prevailing party” entitled
to recover fees and costs. In support of this argument, the
City claims that the consent judgment in this case
is somehow different than a “court-ordered consent
decree.” (Rec. doc. 30 at p. 4). The City also
argues that because Herbert is not expressly denominated as a
“prevailing party” in the consent judgment, she
cannot be considered to be one.
City goes on to argue that counsel's requested hourly
rates are excessive when compared to recent awards in other
ADA cases brought in this District by the lawyers in this
case and to those lawyers' own earlier demands
in this very case. (Id. at p. 9). The City also
claims that the number of hours “billed” and the
costs sought by Plaintiff are excessive for a variety of
reasons, including the vagueness of the supporting
documentation and the presence of a great deal of duplicative
work by the three attorneys in the case. Finally, the City
argues that “justice considerations weigh against an
attorney's fees award” to Herbert, an argument
based in large part on the notion that this case is an
example of “vexatious” ADA litigation
“designed to harass and intimidate business owners into
agreeing to cash settlements, ” as evidenced in part by
Plaintiffs' failure to seek any pre-litigation resolution
of her complaints. (Rec. doc. 30).
filed a reply brief that essentially restates all of her
earlier arguments on “prevailing party” status
and the reasonableness of counsel's rates and the amount
of time and costs expended.
counsel made no real effort in the reply brief to address the
City's argument that this litigation and much of its
costs could have been avoided had she attempted some sort of
pre-litigation resolution, so the Court questioned counsel on
this issue at the hearing. The Court expressed concern that,
not only did Herbert decline any such attempt in this case,
but to the Court's knowledge she had never done so in any
of the many cases she has filed here. The Court asked
Herbert's lead counsel, Andrew Bizer
(“Bizer”), of the Bizer & DeReus law firm, if
he possessed any evidence that pre-litigation
attempts at resolution had failed in any case he was aware of
or had participated in. He did not. Rather, counsel argued
that “[t]he ADA was passed 26 years ago ...
“[t]here's your grace period” and [i]t's
our belief that if you just write a letter and complain to
your city councilman, nothing is going to get done.”
(Rec. doc. 37 at pp. 6-7). As noted, despite the Court's
invitation to do so, counsel could offer no evidence in this
case or any other to support that “belief.” The
Court has now carefully considered the papers, the law, and
the argument of the parties, and is prepared to rule on the
motion, which will be GRANTED IN PART AND DENIED IN PART.
STANDARD OF REVIEW
“was enacted to assure no person would be discriminated
against on the basis of disability in a number of specified
areas.” Brother v. Miami Hotel Inv., Ltd., 341
F.Supp.2d 1230, 1233 (S.D. Fla. 2004)(citing 42 U.S.C. §
12181). “In order to assure the availability and
willingness of lawyers to take on such matters, 42 U.S.C.
§ 12205 provides that the court may award the prevailing
party a reasonable attorney's fee.” Id.
“The key word here is reasonable[:] . . . [t]he Act was
never intended to turn a lofty and salutary mission into a
fee-generating mill for some lawyers to exploit the statutory
scheme to see how many billable hours they could cram into a
case before it is either tried or settled.”
“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 v. Eckerhart, 461 U.S. 424,
433, 103 S.Ct. 1933, 1939 (1983). The product of this
calculation is called the “lodestar.”
Louisiana Power & Light Co. v. Kellstrom, 50
F.3d 319, 324 (5th Cir.), cert. denied sub nom. 516
U.S. 862, 116 S.Ct. 173 (1995). There is a
“strong” presumption that the lodestar
calculation produces a reasonable fee. Perdue v. Kenny A.
ex rel. Winn, 559 U.S. 542, 552, 130 S.Ct. 1662, 1673
party seeking attorneys' fees bears the burden of
establishing the reasonableness of the fees by submitting
adequate documentation and time records of the hours
reasonably expended and proving the exercise of
“billing judgment.” Wegner v. Standard Ins.
Co., 129 F.3d 814, 822 (5th Cir. 1997). Attorneys are
required to make a good-faith effort to “... exclude
from a fee request hours that are excessive, redundant, or
otherwise unnecessary. . . .” Hensley, 461
U.S. at 434, 103 S.Ct. at 1939-40. Specifically, the party
seeking the award must show all hours actually expended on
the case but not included in the fee request. Leroy v.
City of Houston, 831 F.2d 576, 585 n. 15 (5th Cir.
1987). These requirements underlie the core principle that
hours that are not properly billed to one's client are
likewise not properly billed to one's adversary.
Hensley, 461 U.S. at 434, 103 S.Ct. at 1940.
the lodestar has been determined, the Court must then
consider the applicability and relative weight of the 12
factors set forth in Johnson v. Georgia Highway
Express, 488 F.2d 714, 717-19 (5th Cir.
1974). While the Court may make upward or
downward adjustments to the lodestar figure if the
Johnson factors so warrant, the lodestar is
presumptively correct and should be modified only in
exceptional cases. See Watkins v. Fordice, 7 F.3d
453, 459 (5th Cir. 1993).
calculation of the lodestar, the burden shifts to the party
opposing the application to contest the reasonableness of the
hourly rate requested and/or the reasonableness of the hours
expended “. . . by affidavit or brief with sufficient
specificity to give [the] fee applicants notice . . .”
of those objections. Rode v. Dellarciprete, 892 F.2d
1177, 1183 (3rd Cir. 1990).
the ADA, an award of attorney's fees to the prevailing
party is directed to the court's discretion: “[i]n
any action . . . commenced pursuant to this chapter, the
court . . ., in its discretion, may allow the prevailing
party, . . . a reasonable attorney's fee, including
litigation expenses, and costs . . . .” 42 U.S.C.
§ 12205 (emphasis added). A court's discretion in
this regard must be informed and limited by binding
be entitled to an award of attorney's fees, Plaintiffs
must either receive an adjudicated judgment on the merits or
persuade the defendant to enter into a consent judgment that
provides for some sort of fee award.” Pamela S. Karlan,
Disarming the Private Attorney General, 2003 U. Ill.
L. Rev. 183, 207 (2003)(citing Buckhannon Bd. & Care
Home, Inc. v. W.Va. Dep't of Health & Human
Res., 532 U.S. 598, 605, 121 S.Ct. 1835, 1841 (2001);
Evans v. Jeff D., 475 U.S. 717, 742-43, 106 S.Ct.
1531, 1545 (1986)). The Fifth Circuit has held that in civil
rights cases (including cases brought under the ADA)
“‘a prevailing Plaintiff . . . is presumptively
entitled to reasonable attorney's fees, unless a showing
of ‘special circumstances' is made that would deem
such an award unjust.'” Deutsh v. Jesus
Becerra, Inc., 668 Fed.Appx. 569, 570-71 (5th
Cir. 2016)(quoting Dean v. Riser, 240 F.3d 505, 508
(5th Cir. 2001).
City initially argued in its opposition that Herbert is not
entitled to recover fees and costs in this action because she
is not a “prevailing party” under the ADA. This
argument, based primarily upon the idea that the consent
judgment entered in the case does not expressly denominate
her as such, was and is misguided and wrong and it was wisely
abandoned by the City's counsel at the hearing. Because
the court-approved consent judgment in this case effected a
material alteration in the legal relationship between the
parties and bears the Court's judicial imprimatur,
Herbert is to be considered the prevailing party under
well-established binding precedent. See, e.g.,
Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't
of Health & Human Res., 532 U.S. 598, 605, 121 S.Ct.
1835, 1840 (2001); Dearmore v. City of Garland, 519
F.3d 517, 521 (5th Cir. 2008).
Reasonable Hourly Rates
seeks recovery of fees for time expended by three different
attorneys and a paralegal. She requests rates of $325 per
hour for the work of Bizer, $225 per hour for the work of
attorney Garret DeReus (“DeReus”), $200 per hour
for the work of attorney Marc Florman
(“Florman”), and $90 per hour for the work of a
paralegal James Daniel. These rates are all ostensibly
supported by affidavits executed by the three attorneys
involved. (Rec. docs. 27-3 through 27-5). Those affidavits
are silent, however, as to whether the requested rates are
customarily billed or requested by any of these
lawyers. This is a notable omission, for reasons that will be
Court noted at the outset of the hearing on Plaintiff's
motion, counsel's request for the aforementioned rates
seems to ignore the fact that these same lawyers' rates
were recently the subject of an Order and Reasons issued by
District Judge Jay C. Zainey in a different ADA lawsuit in
which Judge Zainey awarded rates substantially lower than
those requested in this case. Rather than look to that
decision, Plaintiff urges the Court to rely upon an earlier,
non-ADA case involving other lawyers from Washington D.C. in
setting counsel's rates here
Zainey issued his Order and Reasons in the matter entitled
Mark v. Covington City, et al., No. 15-CV-5977
“A” (4) on July 8, 2016. (See No.
15-CV-5977, rec. doc. 30). Notably in that case, Bizer had
actually requested a rate for himself of $275 per
hour in a brief filed on June 30, 2016 - while he was
actively litigating this case. In 35 pages of
briefing in this matter, Bizer makes no effort to explain or
justify his request for a rate that is $50 per hour higher
than the one he requested in a similar case only seven months
earlier. Owing to this omission, the Court questioned Bizer
on the matter at the beginning of the hearing:
THE COURT: . . . How do you justify that increase over that
period of time when this case actually began, I believe,
before you filed the fee petition in Ms. Mark's case?
MR. BIZER: Sure, Your Honor. When we do our research as to
what judge we're in front of, we look and see what fees
that they award, what the range is, and we ask for the high
end of whatever range is acceptable to that specific judge.
(Rec. doc. 37 at p. 4).
the Court appreciates counsel's candor as to his
strategy, the undersigned believes this approach is unsound
and that it fails to justify departure from the reasoning or
result in the Mark case cited above. The outcome of
a motion for attorneys' fees should not depend upon which
judge was randomly allotted the case in which the motion is
made and the calculation of a reasonable hourly rate should
not depend on such arguably subjective criteria. Rather, it
should be based upon prevailing rates in this legal community
and the reasonable rates awarded by the judges in this
District for lawyers of similar skill and experience. Here,
there is no need to compare lawyers or the type of case
before the Court to other lawyers or cases. We are talking
here about rates awarded to the same lawyers in the same
district in the same type of case over a months-long span of
time. Indeed, while this motion was pending, Magistrate Judge
Wilkinson ruled on a motion for attorneys' fees in a
different ADA case brought by the Bizer and DeReus firm in
which counsel requested the same rates they request here.
See Rec. doc. 34 in Carrier v. Weber Property
Group, L.L.C., No. 16-CV-6648 ...