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Mark v. Sunshine Plaza, Inc.

United States District Court, E.D. Louisiana

March 12, 2018

YADI MARK
v.
SUNSHINE PLAZA, INC.

         SECTION “E” (2)

          FINDINGS AND RECOMMENDATIONS

          JOSEPH C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE

         This is an action by plaintiff, Yadi Mark, against a commercial property owner asserting claims of failure to comply with the building accommodation requirements of the Americans With Disabilities Act (“ADA”). 42 U.S.C. § 12181 et seq. The substantive claims were resolved by the court's entry of a consent decree that was agreed upon by the parties. Record Doc. Nos. 67-2 and 68. The consent decree provides in pertinent part that “the Plaintiff is the prevailing party to this Lawsuit as defined under the [ADA], 42 U.S.C. § 12205.” Record Doc. No. 67-2, at p. 6, ¶ 10.

         As prevailing party, plaintiff filed her motion for an award of attorney's fees and costs, originally seeking $28, 996.75 in attorney's fees and $4, 935.23 in costs. Record Doc. No. 69-3 at p. 1. Defendant, Sunshine Plaza, Inc. (“Sunshine Plaza”), filed a timely memorandum in opposition to the motion, in which it concedes that plaintiff is the prevailing party for purposes of the ADA. Record Doc. No. 71 at p. 22. Defendant argues, however, that the costs and fees sought by plaintiff are “far out of proportion to the relief obtained by plaintiff and are emblematic of the distortion of the original purpose of the [ADA].” Id. at p. 1. The presiding district judge referred plaintiff's motion to me for preparation of findings and recommendations as to the amounts to be awarded. Record Doc. No. 72.

         Having considered the written submissions of the parties, the record and the applicable law, I find and recommend that plaintiff's motion should be GRANTED IN PART AND DENIED IN PART, in that, while an award of attorney's fees and costs should be made, the amount of plaintiff's requested attorney's costs and fees should be reduced.

         I. PROCEDURAL BACKGROUND

         Sunshine Plaza does not dispute plaintiff's entitlement to an award of reasonable attorney's fees; its opposition is based strictly on the amount of her request. Record Doc. No. 71 at pp. 23-24. Defendant's position accurately reflects the applicable law. Plaintiff is indisputably the “prevailing party.” Id. at p. 23. Under the ADA, an award of attorney's fees to the prevailing party is directed to the court's discretion. “In 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). The court's discretion in this regard is substantially circumscribed, however, 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 (2001); Evans v. Jeff D., 475 U.S. 717, 742-43 (1986)).

         The same “‘considerations that govern fee-shifting under . . . 42 U.S.C. § 1988 apply to the ADA's fee-shifting provision, because the almost identical language in each indicates Congress's intent to enforce them similarly.'” Deutsh v. Jesus Becerra, Inc., 668 F. App'x 569, 570-71 (5th Cir. 2016) (quoting No Barriers, Inc. v. Brinker Chili's Tex., Inc., 262 F.3d 496, 498 (5th Cir. 2001)). The Fifth Circuit has “consistently acknowledged in civil rights cases” that “‘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.'” Id. (quoting Dean v. Riser, 240 F.3d 505, 508 (5th Cir. 2001) (emphasis added).

         As plaintiff rightly points out, courts have indicated that such requests “should not spawn major ancillary litigation.” Record Doc. No. 69-3 at p. 7 (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Assoc'd Builders & Contractors of La., Inc. v. Orleans Par. Sch. Bd., 919 F.2d 374, 379 (5th Cir. 1990)). Contrary to this admonition, however, Mark's motion was initially supported by an unnecessarily lengthy 19-page memorandum; the affidavits of three of her attorneys who recorded work on this matter; the affidavits of two expert witnesses who performed inspections and prepared reports in connection with this matter; the contemporaneous time sheets describing the work done by plaintiff's attorneys; the expert report and final violations table prepared by plaintiff's expert engineer Nicholas Heybeck; letters and emails between plaintiff's counsel and defense counsel concerning settlement possibilities; and invoices reflecting the costs expended on this litigation. Record Doc. Nos. 69-1 through 69-24. Defendant's opposition memorandum consisted of twenty-four (24) pages. Record Doc. No. 71.

         Both sides agree that calculation of recoverable attorney's fees begins with the familiar lodestar evaluation, which involves multiplying the reasonable hourly rates of plaintiff's lawyers by the reasonable number of hours expended. Mark seeks to recover $28, 996.75, including 53.5 hours for her more senior attorney at $275.00 per hour ($14, 718.00);12.6 hours for one of her junior attorneys at $150.00 per hour ($1, 884.00); 77.5 hours for one and 7.4 hours for another junior attorney, both at $125.00 per hour ($9, 687.50 and $927.50); and 23.7 hours for a paralegal at $75.00 per hour ($1, 779.75).

         Sunshine Plaza argues that the requested time should be reduced because plaintiff failed to exercise billing judgment on multiple clerical tasks, vague entries and vague interoffice conferences. Defendant also contends that excessive time was spent on the matter by plaintiff's higher billing, more senior attorney, when the lower rate of the more junior attorney or paralegal was sufficient to handle such a routine, largely uncontested lawsuit.

         II. STANDARDS FOR AN AWARD OF ATTORNEY'S FEES

         As the parties agree in this case, the lodestar method is routinely used to determine attorney's fee awards in federal civil actions and applies in this case brought under a federal statute. Under the lodestar method,

[t]he determination of a fees award is a two-step process. First the court calculates the “lodestar[, ]” which is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work. The court should exclude all time that is excessive, duplicative, or inadequately documented. Once the lodestar amount is calculated, the court can adjust it based on the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)[, abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989)].

Jimenez v. Wood Cnty., 621 F.3d 372, 379-80 (5th Cir. 2010) (citations omitted).

         “The lodestar may not be adjusted due to a Johnson factor, however, if the creation of the lodestar award already took that factor into account. Such reconsideration is impermissible double-counting.” Heidtman v. Cnty. of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999) (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992); Shipes v. Trinity Indus., 987 F.2d 311, 319-20 (5th Cir. 1993)); accord Perdue v. Kenny A., 559 U.S. 542, 546 (2010).

         The Johnson factors are:

(1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or circumstances; (8) the amount involved and results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) the award in similar cases.

Johnson, 488 F.2d at 717-19.

         “[O]f the Johnson factors, the court should give special heed to the time and labor involved, the customary fee, the amount involved and the result obtained, and the experience, reputation and ability of counsel.” Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998) (citation omitted). Three of the Johnson factors, complexity of the issues, results obtained and preclusion of other employment, are presumably fully reflected and subsumed in the lodestar amount. Heidtman, 171 F.3d at 1043 (quoting Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986); Shipes, 987 F.2d at 319-22 & n.9). After Johnson was decided, the “Supreme Court has barred any use of the sixth factor, ” whether the fee is fixed or contingent. The Johnson factors are taken into account after the court has determined the lodestar amount. Walker v. U.S. Dep't of Housing & Urban Dev., 99 F.3d 761, 772 (5th Cir. 1996) (citing City of Burlington, 505 U.S. at 567).

         The lodestar “is presumptively reasonable and should be modified only in exceptional cases.” Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993) (citing City of Burlington, 505 U.S. at 562); accord Perdue, 559 U.S. at 546, 552; Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490 (5th Cir. 2012); Jimenez, 621 F.3d at 380. Although the party seeking attorney's fees bears the initial burden of submitting adequate documentation of the hours reasonably expended and of the attorneys' qualifications and skill, the party seeking reduction of the lodestar bears the burden of showing that a reduction is warranted. Hensley, 461 U.S. at 433; Wegner v. Std. Ins. Co., 129 F.3d 814, 822 (5th Cir. 1997); La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 329 (5th Cir. 1995) (hereinafter “LP&L”). As a general proposition, all time that is excessive, duplicative or inadequately documented should be excluded. Watkins, 7 F.3d at 457.

         “Moreover, the court need not explicitly calculate the lodestar to make a reasonable award.” No Barriers, Inc., 262 F.3d at 500-01 (citing Von Clark v. Butler, 916 F.2d ...


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