United States District Court, E.D. Louisiana
ORDER AND REASONS
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.
AND PROCEDURAL HISTORY
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
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.
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. However, it
remains for this Court to determine what fees and costs, if
any, are reasonable.
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
(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
488 F.2d 714, 717-19.
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.
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
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).
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, ...