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Gilmore v. Audubon Nature Institute, Inc.

United States District Court, E.D. Louisiana

November 5, 2018

WAYNE GILMORE
v.
AUDUBON NATURE INSTITUTE, INC. Professional Reasonable Hours (Minus Reduction) Reasonable Hourly Rate Total: Time (x) Rate Total Lodestar for Substantive Case: $27, 307.50 Professional Reasonable Hours (Minus Reduction) Reasonable Hourly Rate Total: Time (x) Rate Total Lodestar for Fee Application: $6, 650.87

          ORDER AND REASONS ON MOTION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE

         This is 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.

         As 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.

         Record 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.

         Having 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.

         I. PROCEDURAL BACKGROUND

         Audubon “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.

         “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 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 added).

         Courts 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.

         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. 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.[1]

         Audubon 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 them.
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.

         II. STANDARDS FOR AN AWARD OF ATTORNEY'S FEES

         As the 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).

         “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. 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.

         “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 255, 259 (5th Cir. 1990); Wegner, 129 F.3d at 822-23).

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).

         When 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. ...


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