Hernandez v. Berlin Newington Associates, LLC

Filing 120

ORDER granting in part and denying in part 117 Motion for Attorneys' Fees and Costs. Please see attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 09/22/2016. (Thomas, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MODESTO HERNANDEZ,
Plaintiff,
v.
BERLIN NEWINGTON ASSOCIATES,
LLC,
Defendant.

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CIVIL ACTION NUMBER:
3:10-cv-01333 (VLB)
September 22, 2016

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR ATTORNEYS’ FEES AND COSTS AND OVERRULING
IN PART AND SUSTAINING IN PART DEFENDANT’S OPPOSITION
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.

Hernandez’s motion and memorandum seek $8,678.00 in costs, but the
Court has reached a different conclusion after adding the itemized expenses
provided by Hernandez. The Court relies on this number, construing the
statements in the motion and memoranda as typographical errors.
1

1

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).

2

BNA disputes this characterization, arguing that the litigation was
“straightforward” and not at all aggressive. ECF No. 118 at (Opp’n) at 2. This
assertion is unsupported and belied by the record. The action was referred for an
early settlement conference, and discovery was stayed until the parties had an
opportunity to do so. ECF Nos. 27, 31. The parties agreed that the law and
regulations were clear and that they could resolve the case by conducting a walk
through with their respective experts. See ECF No. 56 at ¶ 11(e). And based on the
Court’s recollection of a telephonic conference held on November 2, 2015, see ECF
No. 104, the case achieved a settlement only when BNA’s attempts to further stall
were rebuffed.
2

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. 1171 (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

3

The Court subtracted the hours spent on the extension motion from the
second itemization. See ECF No. 119-1 at Lines 356–57, 359–64. Hernandez
concedes that these hours are not compensable, see ECF No. 119 at 8 n.17, but
includes them in the itemization, see ECF No. 119-1 at Lines 356–57, 359–64.
3

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

BNA cites three other cases, but those cases do not support BNA’s request
to reduce the reasonable hourly rate to $300 per hour.
5 As explained in footnote three, Hernandez conceded to one of BNA’s
objection. ECF No. 119 at 8 n.17. Hence, that objection is not addressed.
6 Supra, fn.1.
4

4

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 had to travel to Connecticut,
when Attorney Kaloidis, local counsel, who went to the initial settlement
conference, easily could have performed those functions”; (2) the engineering
expert’s fees of $200 per hour should be reduced to $175 for actual work and $87.50
for travel time; and (3) the financial expert should not be compensable because
BNA “is unaware of the work completed by [the financial expert] because he was
not disclosed as a witness.” Id. at 12–14.
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.”
5

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

6

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

7

The twelve Johnson factors are: (1) the time and labor required; (2) the
novelty and difficulty of the questions; (3) the level of skill required to perform the
legal service properly; (4) the preclusion of employment by the attorney due to
acceptance of the case; (5) the attorney’s customary hourly rate; (6) whether the
fee is fixed or contingent; (7) the time limitations imposed by the client or the
circumstances; (8) the amount involved in the case and the 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) awards in similar cases. Johnson, 488 F.2d at 717–19.
7

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

The Court also rules that the paralegal’s $100 hourly rate is reasonable. See
Franco, 2016 WL 3064051, at *2 (awarding $150 per hours for paralegal services
absent objection).
8

8

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

BNA also states that “the fees sought by plaintiff are excessive and
outrageous given the straightforward nature of this matter.” But this assertion
contained in the procedural background suggesting that attorneys’ fees should be
reduced based on the length of litigation and the novelty and difficulty of the case
is not sufficiently developed. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.
1998) (observing that insufficiently briefed arguments are waived). Even if this
argument were not waived, no reduction is warranted because the other factors
outweigh any reduction based on lack of time and labor or novelty and difficulty.
9

9

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 Reasonably Expended

A fee applicant must also document the number of hours reasonably
expended. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). “Although there is a
preference that documentation be in the form of contemporaneously prepared time
records, the majority rule is that such record are not an absolute prerequisite to a
fee award and that hours may be proved by a reconstruction of time records or by
other evidence adequate under the circumstances.” 10 MOORE’S FEDERAL PRACTICE
§ 54.190[2][a][i] (Matthew Bender 3d ed.). Where, as here, a fee applicant satisfies
his burden by providing detailed itemization of the hours expended reconstructed
through contemporaneous billing records, see ECF Nos. 117-3 (Decl.) at ¶ 75; 1175 (First Itemization); 119-1 (Second Itemization), a district court must conduct “a
conscientious and detailed inquiry into the validity of the representations that a
certain number of hours were usefully and reasonably expended,” Lunday v. City
of Albany, 42 F.3d 131, 134 (2d Cir. 1994). Having conducted such review, the Court

10

identifies no hours to be redundant, unnecessary, or excessive other than those
addressed below.
Rather than undertaking a comprehensive hour-by-hour critique of the bill at
issue, BNA seeks an across-the-board reduction of 35% because it has identified a
dozen or so line-item objections. ECF No. 118 at 10. But “the preferred method is
for the court to conduct an hour-by-hour review of all the time claimed and to
disallow those hours not reasonably expended on the litigation.” 10 MOORE’S
FEDERAL PRACTICE § 54.190[2][a][i] (Matthew Bender 3d ed.). The Second Circuit has
approved across-the-board reductions only where the fee motion is so voluminous
as to make an hour-by-hour review impractical. See New York State Ass’n for
Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983) (“In similar
cases with voluminous fee applications, courts have recognized that it is
unrealistic to expect a trial judge to evaluate and rule on every entry in an
application.”). Other courts have approved of this method when the documentary
support is so vague and ambiguous to make line-item deductions impossible. In
re North, 12 F.3d 252, 257 (D.C. Cir. 1994) (“In other cases in which we were not
provided appropriate contemporaneous time records, we have imposed a ten
percent reduction on the final fee award.”). Neither of these circumstances apply
here, so the Court adopts the preferred method of calculation and addresses each
of BNA’s objections below.
Finally, to the extent BNA seeks an across-the-board reduction because it
believes the total fee is disproportionate, the Court notes that BNA undertook a
litigation strategy unnecessarily delaying case resolution, thereby increasing the

11

time Hernandez’s attorneys needed to spend and the total fee charged. Despite
BNA’s strategy, Hernandez successfully settled the action on the eve of trial, but
only after Court intervention. Thus, to the extent BNA's objection is founded in
sticker shock, it is at least in part a consequence of its own litigation strategy.
a.

Duplicative Review of Court Orders

BNA has raised five specific objections, and the Court happily addresses
those objections. BNA first argues that “[b]y way of example, plaintiff’s 20 page
billing entry submission reflects standard Court orders reviewed each by Attorneys
Mussman, Ku, and Casey.” ECF No. 188 at 8. BNA identifies only one instance in
which this occurred. Id. Hernandez replies that only 1.1 hours are attributable to
a second or third attorney’s review of a court order. ECF No. 119 at 4 n.9, 5–6.
Essentially, BNA objects to the fact that more than one of Hernandez’s
attorneys who entered an appearance reviewed the Court's orders. The Court
declines to strike the 1.1 hours billed. The filing of an appearance is not a mere
formality: all attorneys who have filed an appearance as officers of the court and
representatives of a litigant have a duty to be at least aware of the case status and
review court orders, even where those orders are perfunctory. Cf. Hilmon Co. (V.I.)
Inc. v. Hyatt Int'l, 899 F.2d 250 (3d Cir. 1990) (“[A]ttorneys have an affirmative
obligation to research the law and to determine if a claim on appeal is utterly
without merit and may be deemed frivolous.”).

The duties that an appearing

attorney owes to their client and to the court cannot be discharged by agreement
with another attorney. In re Mitchell, 901 F.2d 1179, 1188 (3d Cir. 1990) (citing
Matter of Withey, 537 F.2d 324 (9th Cir.1976)). In any event, some of the orders

12

reviewed by more than one attorney were complex orders. See, e.g., ECF No. 1191 at Lines 377, 398, 402. BNA’s objection to duplicative reviews of court orders is
overruled.
b.

Unnecessary Communication between Outside Counsel

BNA next objects to the “approximately 32.5 hours of correspondence
between Attorneys Mussman, Ku, and Casey” as “excessive” given their combined
experience.10 ECF No. 118 at 8. The Court agrees. While some communication
between co-counsel is understandable, Hernendez bears the burden of proving
that these hours were reasonably expended. The majority of the entries fail to
detail the content of the interoffice communications. ECF No. 119-1. Without this
information, the Court has no basis for determining whether these hours were
reasonable. See Kelly v. U.S. Bank, 2011 WL 2934023, at *2 (D. Or. June 21, 2011),
report and recommendation adopted, 2011 WL 2911902 (D. Or. July 14, 2011)
(striking communications between counsel “[f]or lack of any basis upon which to
conclude that the communications in question were reasonably incurred”). The
Court strikes the 32.3 hours for internal communications between outside counsel
(13.7 hours for Mussman; 6.8 hours for Ku, and 11.8 hours for Casey).11
c.

Excessive Briefing

BNA objects to the hours expended briefing the following issues: mootness

10

Hernandez replies that the objection is moot because this time was
reduced by 50%. ECF No. 119 at 7. But it’s unclear how anything other than a 100%
reduction moots the issue.
11 BNA raised two objections to lines 360 and 362. ECF No. 119-1. Because
the Court already credited one of these objections, it does not subtract out those
lines again.
13

(30.2 hours), motion for sanctions (26.5 hours), motion for summary judgment (52.2
hours12), motion to set aside (7.4 hours13), motion for reconsideration (16.1 hours),
motion for attorneys’ fees (58.9 hours). ECF No. 118 at 9–10. The basis for each of
these objections appears to be the same: an experienced attorney should not have
taken this long on briefing any of these issues. Id. After reviewing the court filings
relevant to each of the issues, the Court disagrees and believes the hours
expended are reasonable. BNA provides no specific reason (and offers no support
for its conclusory assertion) why, in this particular instance, an experienced
litigator should have spent less time briefing these issues. See Blum v. Stenson,
465 U.S. 886, 892 n.5 (1984) (“We decline to consider petitioner’s further argument
that the hours charged by respondents’ counsel were unreasonable. As noted
above, petitioner failed to submit to the District Court any evidence challenging the
accuracy and reasonableness of the hours charged, . . . or the facts asserted in the
affidavits submitted by respondents’ counsel. It therefore waived its right to an
evidentiary hearing in the District Court.” (internal citation omitted)). The Court
declines to reduce the number of hours expended on briefing.
d.

Drafting Pro Hac Vice Motion

BNA moves to strike the 1.7 hours spent on drafting and filing a pro hac vice
motion because having an out-of-state attorney file a notice of appearance was

12

The parties disagree about whether the time amounts to 52.3 or 52.2 hours.
The Court need not resolve this discrepancy because it finds that either amount of
time is reasonable.
13 The parties disagree about whether the time amounts to 7.4 or 7.2 hours.
The Court need not resolve this discrepancy because it finds that either amount of
time is reasonable.
14

unnecessary and because this motion should not have taken so long to prepare.
ECF No. 118 at 11. Hernandez replies that “[t]he 1.7 hours expended on the pro
hac vice application pales in comparison to time that would have been incurred by
adding an addition law firm.” ECF No. 119 at 10.
Hernandez’s argument misses the point. Adding outside counsel in this
instance may have been more efficient in the event a fourth attorney appearance
was necessary, but Hernandez fails to show that why a fourth attorney (local or
outside) needed to file an appearance. In any event, the Court agrees that amount
of time spent on the motion was excessive. See Bull’s Head, 2015 WL 1064630, at
*10 (“Furthermore, 1.5 hours is an excessive amount of time to spend on such a
boilerplate motion.”). The Court strikes the 1.7 hours (.6 hours for Mussman, .1
hours for Ku, and 1 hour for Casey). The Court also strikes the .3 hours the
paralegal spent paralegal’s work on the pro hac vice motion. See ECF No. 119-1 at
Lines 578–79.
e.

Activities for Paralegal

BNA argues that “Plaintiff’s billing submission is also scattered with entries
performed by experienced litigators with years of experience, which could have
and should have been handled by a paralegal.” ECF No. 118 at 9. Specifically, BNA
objects to .7 hours for a PACER search, 2.7 hours for organizing a trial notebook,
1.2 hours for outlining and adding documents to a trial notebook, 3.9 hours for
drafting an opposition to a motion for extension, .3 hours for case assignment
correspondence, 1.2 hours for reviewing and organizing file for entry into the case.
The Court declines to strike the PACER search, trial preparation, and drafting the

15

opposition to the motion for an extension of time because these activities are
properly handled by an attorney, not a paralegal.

The Court, however, strikes

“corrsp re: case assignment” and “reviewed and organized file for entry into case”
because those entries are too vague and do not appear to be compensable
(whether or not an attorney or paralegal should be performing those activities).
The Court this strikes 1.5 hours from Casey’s hours. See ECF No. 119-1 at Lines
321, 323.
3.

Multiplication

As explained in the following chart, the presumptively-reasonable-fee award
amounts to $214,169.75.
Attorney

Rate

Claimed

Conceded

Communications

PHV

Paralegal

Subtractions

Total

Rate x Hours

Mussman

$375

361.4

.2

13.7

0.6

0

14.5

346.9

$130,088.50

Ku

$375

81.2

.95

6.8

0.1

0

7.85

73.35

$27,506.25

Casey

$325

144.2

6.7

11.8

1

1.5

21

123.2

$40,040.00

Kalodidis

$300

43.75

0

0

0

0

0

43.75

$13,125.00

Sarmiento

$100

34.4

0

0

0.3

0

0.3

34.1

$3,410.00
$214,169.75

4.

Appropriate Adjustments

Once the district court has calculated the presumptively reasonable fee, the
Court may properly depart upwards or downwards. See Blanchard v. Bergeron,
489 U.S. 87, 94 (1989) (“The courts may then adjust this lodestar calculation by
other factors.”). Any adjustment must be based on reasons not already considered
in arriving at the presumptively-reasonable-fee calculation.

See 10 MOORE’S

FEDERAL PRACTICE § 54.190[3][a] (Matthew Bender 3d ed.). “[A] party advocating the
reduction of the lodestar amount bears the burden of establishing that a reduction
is justified.” See U.S. Football League v. National Football League, 887 F.2d 408,
16

413 (2d Cir. 1989).

In this case, no party seeks a reduction from the above-

calculated fee for a reason not already taken into consideration, so the Court makes
no adjustment.
B.

Costs
The ADA permits a prevailing party to recover costs. 42 U.S.C. § 12205.

“The award of costs [under Section 12205] may include taxable costs pursuant to
28 U.S.C. § 1920.” Spalluto v. Trump Int’l Hotel & Tower, 2008 WL 4525372, at *17
(S.D.N.Y. Oct. 2, 2008). In addition to those expenses traditionally awarded under
Section 1920, Section 12205 also permits the recovery for mailing, copies, and
attorney travel, Haynes v. City of Montgomery, 2008 WL 4495711, at *13 (M.D. Ala.
Oct. 6, 2008), as well as expert fees and travel, Spalluto, 2008 WL 4525372, at *17.
“The fee applicant bears the burden of adequately documenting and itemizing the
costs requested.” Spence v. Ellis, 2012 WL 7660124, at *8 (E.D.N.Y. Dec.19, 2012)
(quoting Pennacchio v. Powers, 2011 WL 2945825, at *3 (E.D.N.Y. July 1, 2011).
Defendant does not object to the costs typically subsumed by Section 1920
(but which the Court awards pursuant to Section 12205). After independently
examining those costs, the Court awards them with the exception of the pro hac
vice fees. As explained in LaBombard v. Winterbottom, 2015 WL 9450838, at *2
(N.D.N.Y. Dec. 23, 2015), the Second Circuit has not determined whether these fees
are compensable and other circuits are split on the issue. But this Court need not
resolve the issue because pro hac vice fees, whether awarded pursuant to Sections
1920 or 12205, are not compensable in this specific instance because, as already
discussed, Hernandez has not explained why a fourth attorney (local or outside)

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needed to file an appearance. The Court strikes that $75.00 fee and awards $699.40
for the costs typically subsumed by Section 1920 pursuant to Section 12205.
The Court has also examined the additional costs sought pursuant to
Section 12205 and awards them in full after independently reviewing the
submissions. BNA raises three objections, but none hold water. First, BNA argues
that attorney travel should not be awarded because local counsel would have been
adequate. ECF No. 118 at 12. The Court disagrees because the expenses pertained
to travel incurred for the purpose of making essential court appearances, and given
Mussman’s experience, the choice of outside counsel was reasonable. The failure
to reimburse outside counsel for these trips would deprive a litigant from seeking
outside counsel when necessary. See Disabled Patriots of Am., Inc. v. Reserve
Hotel, Ltd., 659 F.Supp.2d 877, 890 & n.5 (N.D. Ohio 2009)

(awarding travel

expenses in calculating hours expended because “[p]laintiffs are generally entitled
to counsel of their choice” but observing the some courts apportion under costs).
Second, BNA contends that the engineering expert’s fee was inflated. ECF No. 13.
In light of the engineering expert’s credentials and experience, see ECF No. 58-10,
the Court finds the fee to be reasonable, and one case from another district does
not convince the Court otherwise.

The Court also declines to reduce the

engineering expert’s fee for travel because his travel time was too short (a flight
from BWI to BDL) to expect him to bill for other work. ECF No. 117- 9 at 2. Finally,
Hernandez relied on the financial expert in support of his motion for summary
judgment. ECF No. 58-17.

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The following chart explains the Court’s calculations of costs.

Section 1920
Section
12205
Total

Sought
$774.40

Detailed
$774.40

Subtractions
$75

Total
$699.40

0

$7,911.10

$7,903.60 $7,911.10

$8,610.50

Conclusion
For the foregoing reasons, the Court awards attorneys’ fees in the amount
of $214,169.75 and costs in the amount of $8,610.50.

IT IS SO ORDERED.
________/s______________
Hon. Vanessa L. Bryant
United States District Judge

Order dated in Hartford, Connecticut on September 22, 2016.

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