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Herbert v. Audubon Commission

United States District Court, E.D. Louisiana

November 28, 2017

TASHA HERBERT,
v.
AUDUBON COMMISSION, ET AL.

         SECTION "B"(5)

          ORDER AND REASONS

         Considering Plaintiff's Motion to Fix Attorney's Fees and Costs (Rec. Doc. 38), and Defendants', The Audubon Commission and The Audubon Nature Institute, Inc. (collectively referred to herein as “Audubon”), Memorandum in Opposition (Rec. Doc. 46). Accordingly, for the reasons discussed below, IT IS ORDERED that the Motion to Fix Attorney's Fees and Costs is GRANTED in part and DENIED in part.

         FACTS AND PROCEDURAL HISTORY

         Tasha Herbert (“Herbert”) filed suit against Audubon in October 2015, alleging several architectural barriers located at Audubon Park and the adjacent Riverview area in contravention of the ADA. Rec. Doc. 1. Following discovery and extensive settlement negotiations, the parties reached agreement in a Consent Judgment. Rec. Doc. 33-2. The Consent Judgment obligates Audubon to make improvements to Audubon Park in comport with the ADA in exchange for dismissal of Herbert's claims with prejudice. Id. The parties also agreed that Audubon compensate Herbert 1, 000.00 in damages. Id.

         Herbert files the instant motion pursuant to 42 U.S.C. § 12101, the Americans with Disabilities Act (“ADA”), as the “prevailing party” for an award of attorney's fees and costs. Rec. Doc. 38. Counsel requests this Court order Audubon to pay Plaintiff $16, 103.50 in attorneys' fees and $4, 510.83 in costs. Audubon's Response in Opposition objects to: 1) the reasonableness of Plaintiff counsel's requested rates, 2) the reasonableness of the number of hours submitted, and 3) payment of post-settlement hours submitted by Plaintiff's counsel. See generally Rec. Doc. 46.

         LAW AND ANALYSIS

         The ADA was enacted to assure no person would be discriminated against on the basis of his or her disability. 42 U.S.C. § 12181 et seq. In order to assure the availability and willingness of lawyers to prosecute its compliance, the ADA allows for court's to award the prevailing party “a reasonable attorney's fee, including litigation expenses, and cost.” 42 U.S.C. § 12205; Brother v. Miami Hotel Investments, Ltd., 341 F.Supp.2d 1230, 1233 (S.D. Fla. 2004). As we have already entered Consent Judgment, it is clear that Herbert is the prevailing party in this case.[1] However, it remains for this Court to determine what fees and costs, if any, are reasonable.

         Determination of a reasonable attorney's fee involves calculating the lodestar, which is a two-step process. Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). In the first step, this Court is to determine the reasonable number of hours expended on the litigation and the reasonable hourly rates for the participating attorneys. Id. Next, this Court is to multiply the determined hours by the determined rate. Id. This calculation comprises the lodestar. Id. The lodestar is then either accepted or adjusted according to the twelve factors delineated in Johnson v. Georgia Highway Exp., which are:

(1) the time and labor involved; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by the attorney due to this case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations; (8) the amount involved and results obtained; (9) the experience, reputation. And ability of counsel; (10) the undesirability of the case; (11) the nature and length of the proceedings; and (12) awards in similar cases.

488 F.2d 714, 717-19.

         Calculation of Lodestar

         The first step involved is determination of a reasonable hourly rate by counsel involved in the litigation. “Reasonable fees” are calculated based from prevailing market rates in the relevant community. Blum v. Stetson, 465 U.S. 886, 895 (1984). “Determination of the reasonable hourly rate for a particular community is generally established through affidavits of other attorneys practicing there.” Chisholm v. Hood, 90 Fed.Appx. 709, 710 (5th Cir. 2004). These determinations of rates are performed on case-by-case basis. Id.

         From the attached affidavit, Plaintiff's counsel Andrew Bizer is a 14-year practicing attorney and has been involved in over 250 ADA cases. Garret DeReus, also a partner at Bizer & DeReus, has been practicing 4 years and has been involved in over 200 cases involving public entities under Title II of the ADA. Amanda Klevorn, former associate at Bizer & DeReus, was a 3rd year associate; and James Daniel is a first year associate at the firm. Rec. Docs. 38-4 and 38-5.

         However, other than personal testimony, Plaintiff's counsel fails to provide sufficient evidence that its requested rates are in comport with prevailing market rates in New Orleans for ADA litigation. Rec. Docs. 38 through 38-12. Plaintiff's counsel is reminded that as the applicants, they bear the burden of producing satisfactory evidence, in addition to the their own affidavits, “that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” N.A.A.C.P. v. City of Evergreen, Ala., 812 F.2d 1332, 1338 (11th Cir. 1987).

         “Nevertheless, the ultimate goal of the trial court in considering a fee application is reasonable compensation.” Id. From the record, it may be fairly discerned that Plaintiff's counsel is quite familiar with the ADA litigation process. In fact, Plaintiff's counsel in the instant case has already been awarded attorney's fees by multiple judgments in this District, including by Judge Zainey, Judge Wilkinson, Judge Engelhardt, and Judge North. See generally, Mark v. Covington City, et al., No. 15-05977 (E.D. La. July 8, 2016); Carrier v. 3841 Veterans Boulevard Partnership, No. 16-06648 (E.D. La. Sept. 21, ...


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