United States District Court, E.D. Louisiana
FINDINGS AND RECOMMENDATIONS
C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE
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,
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.
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.
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.
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,
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
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.
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).
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.
STANDARDS FOR AN AWARD OF ATTORNEY'S FEES
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).
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).
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.
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).
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.
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