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Herbert v. New Orleans City

United States District Court, E.D. Louisiana

July 28, 2017

TASHA HERBERT
v.
NEW ORLEANS CITY

         SECTION: “B” (5)

          ORDER AND REASONS

          MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE.

         This is 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.[1] 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).

         Now 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).

         I. PROCEDURAL BACKGROUND

         Herbert moves as the “prevailing party” under the ADA for an award of attorneys' fees totaling $21, 420.35[2] and costs of $3, 125.59.

         In her 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 and costs.

         The 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.

         The 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).

         Herbert 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.

         Herbert's 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.[3] 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.

         II. STANDARD OF REVIEW

         The ADA “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.” Id.

         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 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 (2010).

         The 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.

         Once 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).[4] 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).

         After 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).

         Under 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 precedent.

         “To 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).

         III. ANALYSIS

         A. “Prevailing Party”

         The 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).

         B. Reasonable Hourly Rates

         Plaintiff 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 discussed below.

         As the 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

         Judge 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).

         While 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 ...


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