United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
an Americans with Disabilities Act ("ADA") action
by plaintiff, Wayne Gilmore ("plaintiff"), against
defendant, the Audubon Nature Institute, Inc.
("Audubon"). Plaintiff asserted claims against
Audubon for its failure to comply with the building
requirements of Title III of the ADA, 42 U.S.C. § 12181
et seq, at the facility known as Audubon Zoo. Record
Doc. No. 1. Plaintiff sought injunctive and declaratory
relief, attorney's fees, costs and expenses. Record Doc.
No. 1, p. 6. The substantive claims were resolved by the
court's entry of a consent decree that was agreed upon by
the parties. Record Doc. Nos. 29; 31. The consent decree
provides in pertinent part that “[p]laintiff is the
prevailing party to this action.” Record Doc. No. 31,
at p. 9, ¶ 1.
prevailing party, plaintiff filed his motion for
attorney's fees and costs, seeking $70, 380.00 in
attorney's fees and $9, 104.57 in costs. Record Doc. Nos.
39; 42-3; 45. Defendant filed a timely opposition memorandum,
in which it concedes that plaintiff is entitled to an award
of reasonable attorney's fees. Record Doc. 40, at p. 3.
Defendant argues, however, that the amount of costs and fees
sought by plaintiff is unreasonable.
Doc. No. 40, at p. 3. Plaintiff was permitted to file a reply
memorandum, in which he attempted to explain in greater
detail the reasons for the amount of hours billed and fees
and costs sought, while supplementing his motion for
attorney's fees with contemporaneous time sheets. Record
Doc. No. 42-3; 45. Defendant then submitted a six-page
sur-reply memorandum. Record Doc. No. 51.
considered the written submissions of the parties, the
record, and the applicable law, I find that plaintiff's
motion should be GRANTED IN PART AND DENIED IN PART. While an
award of attorney's fees and costs is warranted, the
amount of plaintiff's requested attorney's fees and
costs must be reduced.
“does not dispute the fact that Plaintiff is entitled
to an award of reasonable attorney's fees; its opposition
is instead based on the truly exorbitant amount of the
request.” Record Doc. No. 40, at p. 3. As noted above,
the consent decree, to which defendant agreed, expressly
identifies plaintiff as the "prevailing party."
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 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, 742-43
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 Fed.Appx. 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
have indicated that such requests “should not result in
a second major litigation.” Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983); Assoc'd
Builders & Contractors of La., Inc. v. Orleans Parish
Sch. Bd., 919 F.2d 374, 379 (5th Cir. 1990). Contrary to
this admonition, plaintiff's motion was initially
supported by a lengthy 23-page memorandum; the joint
declaration of his two attorneys who recorded work on this
matter; expert reports with their resumes and qualifications;
an affidavit of attorney William Most attesting to what
constitutes a reasonable hourly rate in New Orleans;
contemporaneous time sheets describing the work done by
plaintiff's attorneys; interrogatories and requests for
production of documents from plaintiff's counsel to
defendant's counsel; emails between plaintiff's
counsel and defendant's counsel concerning settlement;
resumes of plaintiff's attorneys; travel receipts of
plaintiff's counsel and experts; and invoices reflecting
the costs expended on this litigation. Record Doc. Nos. 39-1
through 39-18. Defendant's opposition memorandum
consisted of 17 pages, with attached suggested reductions to
plaintiff's counsel's computation of billed time.
Record Doc. Nos. 40 through 40-2. Plaintiff subsequently
submitted a 10-page reply memorandum, to which he again
attached a joint declaration of plaintiff's attorneys and
contemporaneous time sheets describing the work done by
plaintiff's attorneys. Record Doc. Nos. 42-2; 42-3; 45.
Defendant then submitted a six-page sur-reply memorandum.
Record Doc. No. 51.
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. Plaintiff seeks to recover $70, 380.00 in fees,
including 203.9 hours for one attorney billing at $300 per
hour, and 30.7 hours for a second attorney billing at $300
per hour. Record Doc. No. 42-3.
argues that the requested time should be reduced because
plaintiff's counsel spent excessive time on the matter.
Record Doc. No. 40, at pp. 6-9. It also contends that
plaintiff unreasonably incurred the higher billing rate of
two senior attorneys, when the lower rate of a more junior
attorney or paralegal was sufficient to handle such a
routine, largely uncontested lawsuit. Id. at pp.
5-6. It also notes that a substantial sum of what is sought
relates to the drafting of a motion for summary judgment,
when the motion was never ruled on by the court and became
unnecessary after the substantive claims were resolved by
consent decree. Id. at pp. 9-10. Audubon also filed
a sur-reply memorandum in opposition, Record Doc. No. 51,
quoting Gilmore v. Elmwood South, L.L.C., 2015 WL
1245770 (E.D. La. Mar. 18, 2015) (hereinafter
"Elmwood"), in which Magistrate Judge
Knowles stated as to these same plaintiff's attorneys:
This Court has searched the nation-wide Pacer internet
website and Westlaw and has discovered that-as defendant puts
it-"[t]his is not Plaintiff's counsel's first
rodeo." This law firm has acted as lead counsel in
hundreds of ADA cases throughout the country. As defendant
notes, Mussman has represented Christopher E. Brown in
approximately 111 Title III ADA actions against
public accommodations in New York, Pennsylvania, Connecticut,
and New Jersey since 2006. Gilmore himself has filed 13
lawsuits in Louisiana federal courts and has retained Mussman
& Ku, PA [sic] to represent him in the majority of
This Court has reviewed the complaints and the pleadings in a
majority of the other lawsuits and finds them to be
nearly identical to the ones filed here. For
example, while the alleged violations may be slightly
different in each case, the complaints are essentially-as
defendant notes-"cut and paste" complaints. In
addition, these are all Title III claims, and the law in each
is the same. Moreover, the Court has reviewed several motions
for attorneys' fees, and while there are difference s,
the majority of the law in each motion is identical, thus
rendering much of the legal research largely unnecessary
. . .
Elmwood, 2015 WL 1245770, at *5-6 (emphasis added).
Defendant argues that Magistrate Judge Knowles's analysis
is equally applicable to the instant matter. Finally, in
response to plaintiff's assertion that defendant's
opposition was "riddled with math errors," Record
Doc. No. 45, at pp. 8-9, defendant revised its total
reasonable amount of expenses calculation to $6, 920.00 and
total reasonable attorney's fees calculation to $13,
242.50, arguing that the total reasonable amount should be
$20, 162.50. Record Doc. No. 51, at p. 5.
STANDARDS FOR AN AWARD OF ATTORNEY'S FEES
parties agree, 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) (emphasis added).
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. As a
general proposition, all time that is excessive, duplicative
or inadequately documented should be excluded.
Watkins, 7 F.3d at 457. Attorneys must exercise
“billing judgment” by “writing off
unproductive, excessive, or redundant hours” when
seeking fee awards. Green v. Admin'rs of Tulane Educ.
Fund, 284 F.3d 642, 662 (5th Cir. 2002), abrogated
in part on other grounds by Burlington N. & Santa Fe Ry.
v. White, 548 U.S. 53, 63-64 (2006) (citing Walker
v. U.S. Dep't of Hous. & Urban Dev., 99 F.3d
761, 769 (5th Cir. 1996); accord Hensley v.
Eckerhart, 461 U.S. 424, 433-34 (1983). The fee
seeker's attorneys are “charged with the burden of
showing the reasonableness of the hours they bill and,
accordingly, are charged with proving that they exercised
billing judgment.” Walker, 99 F.3d at 770.
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
255, 259 (5th Cir. 1990); Wegner, 129 F.3d at
The fee applicant . . . must, of course, submit appropriate
documentation to meet the burden of establishing entitlement
to an award. But trial courts need not, and indeed should
not, become green-eyeshade accountants. The essential goal in
shifting fees (to either party) is to do rough justice, not
to achieve auditing perfection. So trial courts may take into
account their overall sense of a suit, and may use estimates
in calculating and allocating an attorney's time.
Fox v. Vice, 563 U.S. 826, 838 (2011); see also
Goodyear Tire & Rubber Co. v. Haeger, 137 S.Ct.
1178, 1187 (2017). “If the district court has
articulated and clearly applied the correct criteria, [the
appeals court] will not require the trial court's
findings to be so excruciatingly explicit in this area of
minutiae that decisions of fee awards consume more paper than
did the cases from which they arose.” In re High
Sulfur Content Gas. Prods. Liab. Litig., 517 F.3d 220,
228-29 (5th Cir. 2008) (quotations and citations omitted).
attorneys exercise inadequate billing judgment, an award may
be reduced by a percentage intended to substitute for the
exercise of proper billing judgment. SeeBanegas
v. Calmar Corp., 2016 WL 6276779, at *1-2 (E.D. La. Oct.
27, 2016) (citing Fralick v. Plumbers and Pipefitters
Nat. Pension Fund, 2011 WL 487754, at *3-4 (N.D. Tex.
Feb. 11, 2011)); Smith v. Manhattan Mgmt. Co., 2016
WL 915272, at *4 (E.D. La. Mar. 10, 2016) (finding a 10%
reduction for counsel's lack of billing judgment).
See alsoWalker, 99 F.3d at 770 (reducing
fee award by 15% for lack of billing judgment) (citing
Leroy v. City of Houston, 831 F.2d 576, 586 (5th
Cir. 1987) (reducing award by 13%)); see also Saizan v.
Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir.
2006) (10% reduction for vagueness, duplicative work and lack
of billing judgment); Hopwood v. Texas, 236 F.3d
256, 279 (5th Cir. 2000) (25% reduction based on inadequate
time entries, duplicative work product and lack of billing
judgment); Coulter v. State of Tenn., 805 F.2d 146,
151 (6th Cir. 1986) (50% reduction for duplication of
effort); Preston Expl. Co., LP v. GSP, LLC, 2013 WL
3229678, at *9 (S.D. Tex. June 25, 2013) (“Courts have
reduced fees up to 50% for billing judgment in light of
factors such as nature and extent of the work involved, the
issues involved, and the complexity of the work;”
reducing hours by 20% because (1) partners performed tasks
more suited to associates or paralegals; (2) attorneys and
paralegals billed for clerical tasks; (3) attorneys billed
regular rates for unproductive travel time; (4) many billing
entries are vague; and (5) case was overstaffed with partners
who often duplicated each other's efforts) (citing
Saizan, 448 F.3d at 800; La. Power & Light
Co. v. Kellstrom, 50 F.3d 319, 336 (5th Cir. 1995)
(hereinafter “LP&L”); Peak Tech.
Servs., Inc. v. ...