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Hernandez v. Berlin Newington Associates, LLC

United States District Court, D. Connecticut

September 22, 2016




         Before the Court is Plaintiff Modesto Hernandez's motion for attorneys' fees and costs in connection with his successful action under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., against Defendant Berlin Newington Associates, LLC (“BNA”). Hernandez seeks $229, 405 in attorneys' fees-calculated using the lodestar method of multiplying the reasonable hourly rates of his legal representatives by the number of hours reasonably expended. BNA challenges the reasonableness of the hourly rates and the hours expended. The Court awards $214, 169.75 in attorneys' fees, ruling that requested hourly rates are reasonable, that an across-the-board reduction is not appropriate, and that some of BNA's objections have merit while others do not and thus. Hernandez also requests $8, 685.50 in costs.[1] BNA raises three objections, but none have merit. The Court nonetheless reduces the costs to $8, 610.50. Accordingly, for the reasons explained below, the Court grants in part and denies in part the motion for attorneys' fees and costs and overrules in part and sustains in part BNA's opposition.

         Factual and Procedural Background

         In August 2010, Hernandez, who suffers from Polio and requires the use a wheelchair to ambulate, brought this ADA action alleging that he encountered numerous architectural barriers on BNA's property. ECF No. 5 (Compl.). Over the next five years, the parties litigated whether BNA had violated the ADA, and after it recognized that it had, the parties engaged in largely unnecessarily protracted litigation over whether BNA had removed the impermissible architectural barriers.[2]ECF No. 117-3 (Counsel Decl.) at ¶¶ 17-72. Of particular relevance, BNA rebuffed Hernandez's numerous good-faith efforts to achieve an earlier and equitable settlement. Id. at ¶¶ 17-51. In November 2015, on the eve of trial, the parties reached a settlement after Court intervention on all substantive issues in dispute but failed to reach an agreement regarding attorneys' fees and costs. ECF No. 114 (Notice of Settlement).

         Hernandez now moves for attorneys' fees in the amount of $229, 405.00. ECF Nos. 117 (Mot.); 119 (Reply). He calculates attorneys' fees by multiplying the reasonable hourly rate by the number of hours reasonably expended. ECF No. 117-1 (Mem.) at 13-19. Hernandez seeks an hourly rate of $375 for Attorney Louis Mussman; $375 for Attorney Brian Ku; $325 for Attorney M. Ryan Casey; $300 for Attorney John Kaloidis; and $100 for Paralegal R. Sarmiento. In support, Hernandez details the qualification and experience of his attorneys, see ECF Nos. 117-3 (Decl.) at ¶¶ 83-111, 117-6 (Biographies), 117-7 (Curriculum Vitae); provides declarations from two local attorneys including Kaloidis, ECF No. 117-3 at ¶¶ 144- 150 (Kaloidis Decl.), 117-10 (Smith Decl.); and cites numerous cases from this District, see ECF No. 117-1 at 17-18. He further asserts that Mussman spent 360.45 hours; that Ku spent 81 hours; that Casey spent 137.5 hours; that Kaloidis spent 43.75 hours; and that Sarmiento spent 34.4 hours.[3] ECF No. 119-1 (Second Itemization) at 28. In support, Hernandez submits a detailed itemization of the amount of time spent by each attorney and paralegal on each particular task; the itemization was compiled through the use of contemporaneous billing records. ECF Nos. 117-3 (Decl.) at ¶ 75; 117-5 (First Itemization); 119-1 (Second Itemization). Hernandez does not argue for an upward or downward departure to the presumptively-reasonable-fee calculation; he argues that the calculation is appropriate because he pleaded only one cause of action and was successful on that cause of action. ECF No. 117-1 (Mem.) at 18-19.

         BNA challenges the reasonableness of the hourly rates and argues that the hours expended should be reduced by 35% because the detailed billing records are excessive, redundant, and otherwise unnecessary. ECF No. 118 at 4-11. In support of these contentions, BNA argues that: (1) “plaintiff's counsel submitted limited evidence to support the claim that the requested billing rates are reasonable”; (2) “it's unclear from [plaintiff counsel's] submissions how many ADA access cases they have handled over the years and whether any of them have proceeded to trial”'; and (3) one recent District of Massachusetts case awarded Mussman only $300 per hour.[4] BNA also requests an across-the-board reduction of all of the hours expended based on the following individual line-item objections: (a) duplicative review of court orders; (b) unnecessary communication between outside counsel; (c) excessive briefing on mootness, a motion for sanctions, a motion for summary judgment, a motion to set aside, a motion for reconsideration, and a motion for attorneys' fees; (d) unnecessary pro hac vice application; and (e) attorney entries for activities that should have been performed by a paralegal.[5]

         Hernandez also moves for costs in the amount of $8, 685.50.[6] ECF No. 117. He first seeks taxable costs pursuant to 28 U.S.C. § 1920 in the amount of $774.40. ECF No. 117-8. In support, he provides an itemization of costs and receipts for each of those invoices. Id. He next seeks costs pursuant to 28 U.S.C. § 12205 in the amount of $7, 911.10. ECF No. 117-9. In support, he provides an itemization of costs and receipts for each of those invoices. Id.

         BNA does not challenge the calculation of costs pursuant to Section 1920. See ECF No. 118. Instead, it raises the three following challenges to the calculation of costs pursuant to Section 12205: (1) attorney travel expenses because “Plaintiff provides no explanation as to why Attorney Mussman p;Legal Analysis

         A. Attorneys' Fees

         The ADA entitles a prevailing party to recover reasonable attorney's fees. The statute provides in relevant part:

In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs . . . .

42 U.S.C. § 12205. The ADA is a fee-shifting statute, and the Court has discretion to award attorney's fees to a prevailing party in an ADA action. See, e.g., E*Trade Fin. Corp. v. Deutsche Bank AG, 374 F. App'x 119, 124 (2d Cir.2010). If the civil rights plaintiff is the prevailing party, attorney's fees and costs should normally be awarded “unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citation and internal quotation marks omitted); accord Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health & Human Res., 532 U.S. 598, 603 n.4 (2001) (applying Hensley to § 12205 of the ADA).

         Where, as here, the action is founded on federal-question jurisdiction, federal law governs the question of attorney's fees. See Franco v. Better Way Wholesale Autos, Inc., 2016 WL 3064051, at *1 (D. Conn. May 31, 2016) (citing In re Citigroup S'holder Derivative Litig., 2013 WL 4441511, at *3 n.4 (S.D.N.Y. Aug. 19, 2013), aff'd sub nom. Moskal v. Pandit, 576 F. App'x 33 (2d Cir. 2014)). The Second Circuit applies the presumptively-reasonable-fee standard-that is, multiplying the reasonable hourly rate by the hours reasonably expended, commonly referred to as the lodestar method. See McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 417 n.2 (2d Cir. 2010) (observing preference for jettisoning the term “lodestar”). To do so, a district court “engage[s] in a four-step process: (1) determine the reasonable hourly rate; (2) determine the number of hours reasonably expended; (3) multiply the two to calculate the presumptively reasonable fee; and (4) make any appropriate adjustments to arrive at the final fee award.” Silver v. Law Offices Howard Lee Schiff, P.C., 2010 WL 5140851, at *1 (D. Conn. Dec. 16, 2010) (citations omitted)). The prevailing party bears the burden of showing the presumptively reasonable fee. See Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir. 1994). Once established, the opposing party bears the burden of justifying a reduction. See U.S. Football League v. National Football League, 887 F.2d 408, 413 (2d Cir. 1989) (“We note that a party advocating the reduction of the lodestar amount bears the burden of establishing that a reduction is justified.”).

         1. Reasonable Hourly Rate

         A reasonable hourly rate is “the rate prevailing in the relevant community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Farbotko v. Clinton Cnty., 433 F.3d 204, 208 (2d Cir. 2005) (citations and internal quotation marks omitted). The best evidence of the prevailing market rate is local counsel's normal billing rate, but a fee applicant may also demonstrate the prevailing market rate by offering affidavits of counsel with similar experience. See 10 Moore's Federal Practice § 54.190[2][b][i][B], [C] (Matthew Bender 3d ed.). A district court may take judicial notice of the rates awarded in similar cases and may rely on its own familiarity with the rates prevailing in the district. See Farbotko, 433 F.3d at 208. In determining the hourly rates, the district court should also consider the factors from Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717- 19 (5th Cir. 1974).[7] See Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty of Albany, 522 F.3d 184 (2d Cir. 2008). In essence, a court should consider all the case-specific variables to set the reasonable rate. See McDaniel, 595 F.3d at 422.

         The Court rules that the requested hourly rates are reasonable in light of the following findings of fact.[8] ECF No. 117-3 at ¶¶ 17-72. BNA's litigation strategy required Hernandez to invest significant time and energy into this case, and despite BNA's strategy, Hernandez successfully settled the action. ECF No. 117-3 at ¶¶ 17- 72. Hernandez's counsel has extensive experience in successfully litigating civil rights cases. ECF Nos. 117-3 (Decl.) at ¶¶ 83-111, 117-6 (Biographies), 117-7 (Curriculum Vitae). Moreover, Hernandez Plaintiff is no novice to the ADA litigation arena. Indeed, he has brought numerous ADA cases in this district in which he was represented by Attorney Kaloidis, as he is in this case. See Hernandez v. W2007 Equity Inns Realty, LLC, 10-cv-1334-SRU; Hernandez v. Plaza at Buckland Hills, LLC, 10-cv-1336-JBA; Hernandez v. FW CT-Corbins Corner Shopping Center, LLC, 10-cv-01337-RNC; Hernandez v. AFP 100 Corp., 3:10-cv-01338-JCH; Hernandez v. Pavilions At Buckland Hills, L.L.C., 10-cv-01339-MRK. Thus, the Plaintiff has extensive knowledge of the experience, reputation, and ability of his attorneys. He also has a longstanding professional relationship with Attorney Kloidis, the law firm of Ku & Mussman, and other attorneys and law firms practicing ADA law.

         Beyond that, the requested rate is on par with the prevailing rate in this District for attorneys with similar experience in similar types of cases. See Harty v. Bull's Head Realty, 2015 WL 1064630, at *9 (D. Conn. Mar. 11, 2015) (“[T]he Court has conducted a review of recent attorney's fee awards for private counsel who prosecute plaintiff's rights cases in this District and has determined that $375 is a more appropriate hourly rate.”); see also ECF No. 117-3 at ¶¶ 144-150 (Kaloidis Decl.), 117-10 (Smith Decl.). Mussman and Ku have sought hourly rates less than those normally charged. ECF No. 117-3 at ¶ 150. Title III cases are viewed as undesirable because monetary awards are unavailable, see Powell v. Nat'l Bd. of Med. Examiners, 364 F.3d 79, 86 (2d Cir.) (observing that monetary damages not available), opinion corrected, 511 F.3d 238 (2d Cir. 2004), and because the opportunity for attorney's fees are limited, see Buckhannon, 532 U.S. at 602 (rejecting the “catalyst theory”).

         BNA raises three objections to the hourly rates requested by Mussman, Ku, and Casey.[9] These objections lack merit. BNA first argues that “plaintiff's counsel submitted limited evidence to support the claim that the requested billing rates are reasonable.” ECF No. 118 at 5. The Court disagrees. Affidavits from attorneys practicing in this District are one of the most effective ways to demonstrate the prevailing market rate, and this evidence is further supported by the Court's familiarity and experience, including its prior review conducted in Bull's Head. BNA next argues that “it's unclear from [plaintiff counsel's] submissions how many ADA access cases they have handled over the years and whether any of them have proceeded to trial.” Id. But there's no requirement that fee applicant provide the exact number of prior cases. A district court need only have a general understanding of a fee applicant's experience to compare that experience with other practitioners in the District. In any event, BNA's implication that counsel here lacks experience is belied by BNA's assertion to the contrary. See, e.g., id. at 7 (“Thus, the time spent by plaintiff's four attorneys, with a combined 52 years of experience, primarily with ADA matters, is excessive, redundant[, ] and unnecessary.” (emphasis added)). BNA lastly relies on a District of Massachusetts case, but a single case from outside this District does not persuade the Court that its own experience and familiarity with the rates in this District is erroneous.

         2. Hours ...

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