Kennedy v. Radio Road Plaza Investments, LLC

Filing 35

ORDER granting in part and denying in part 28 Motion for Attorney Fees, costs, expert fees and litigation expenses as set forth in the Order; striking 32 Reply; denying 33 Supplemental Motion for Attorney Fees. The Clerk shall enter judgment accordingly in favor of plaintiff and against defendant for the amounts listed in paragraph 1. Signed by Judge John E. Steele on 1/10/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICIA
individually,

KENNEDY,

Plaintiff,
v.

Case No: 2:15-cv-630-FtM-29CM

RADIO
ROAD
INVESTMENTS, LLC,

PLAZA

Defendant.
ORDER
This matter comes before the Court on plaintiff's Verified
Application for Attorney's Fees, costs, Expert Witness Fees and
Litigation Expenses (Doc. #28) filed on April 13, 2016.
filed a Response (Doc. #29) on April 27, 2016.

Defendant

Plaintiff filed a

Reply in Support of Her Verified Application (Doc. #32) with leave
of Court.

(Doc. #31.)

On May 24, 2016, plaintiff filed a Verified

Supplemental Application (Doc. #33) seeking additional fees for
the

filing

of

the

reply

and

the

supplemental

application.

Defendant filed a Response (Doc. #34).
I.
As a preliminary matter, plaintiff sought leave to file a 5
page reply to address the defendant’s response, and the e-mails
submitted with defendant’s response, to “furnish the Court with
the legal authorities rejecting the Defendant’s claims”, and to

provide a more complete picture of discussions between counsel.
(Doc.

#30.)

The

Magistrate

Judge

granted

the

motion

and

specifically permitted a reply “of no more than five (5) pages.”
(Doc. #31, p. 2, § 2.)

On May 24, 2016, plaintiff filed a Reply

(Doc. #32) that was in fact 6 pages in length, and also attached
e-mails in support.

The reply will be stricken and the 6 pages

will not be considered based on plaintiff’s failure to comply with
the granted page limit.
As to the e-mails submitted by both counsel, the Court finds
that they neither help nor hinder the decision on what constitutes
a reasonable fee.

Both attorneys engaged in normal tactics in

support of their respective positions to either compel a quicker
settlement or to avoid discovery in hopes of a less expensive
settlement.

In the end, all parties agreed that there were

barriers to access that needed to be addressed, and the only
current issue before the Court is whether the attorney fees, costs,
and expenses sought are reasonable.
On May 24, 2016, plaintiff filed a Verified Supplemental
Application

(Doc.

#33)

seeking

fees

and

expenses

expended

subsequent to the original filing, and specifically related to the
reply.

As the Court finds that the reply should be stricken, the

Court will deny this supplemental application for an extraordinary
$4,704.00 in its entirety.

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II.
Plaintiff initiated her Complaint (Doc. #1) on October 9,
2015, and defendant filed an Answer and Affirmative Defenses (doc.
#10) on November 9, 2015.

On February 29, 2016, plaintiff filed

an Amended Motion for Summary Judgment (Doc. #20), however the
parties reached a settlement before the response was due.
#25.)

(Doc.

On April 1, 2016, the Court issued an Order (Doc. #26)

granting the parties’ Joint Motion for Approval of Consent Decree
and Dismissal of Case With Prejudice (Doc. #25), approving the
parties’ attached proposed Consent Decree, and directing the entry
of judgment.

Judgment (Doc. #27) was entered on April 4, 2016,

and the parties agreed in the approved Consent Decree (Doc. #271) as follows:
Defendant shall pay Plaintiff’s counsel,
Thomas B. Bacon, Plaintiff’s attorneys’ fees,
litigation
expenses,
expert
fees,
reinspection fees and costs incurred in this
matter.
The amounts to be paid shall be
established by the Court.
(Doc. #27-1, p. 2, ¶ 2) (emphasis added).

Plaintiff now seeks

fees, costs, and expenses as the prevailing party 1 under 42 U.S.C.
§

12205,

and

plaintiff’s

entitlement

to

same

is

undisputed.

Plaintiff seeks $13,272.00 for both Mr. Bacon and Mr. Cullen’s
fees based on an hourly rate of $420.00 per hour; paralegal fees

1

Plaintiff also cites to Local Rule 7.3(a)(8), however no
such Local Rule exists in the Middle District of Florida.

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of $149.50 based on an hourly rate of $115; $461.54 for costs and
expenses; $1,300 for expert expenses; and $1,000 for the reinspection

fee

for

a

total

of

$16,183.04,

not

including

the

additional funds requested in the supplemental application.
III.
A reasonable attorney fee is calculated by multiplying the
number of hours reasonably expended by the reasonable hourly rate.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

The party seeking

an award of fees should submit adequate documentation of hours and
rates in support, or the award may be reduced.

Id.

In determining

the reasonable amount of hours, the Court may conduct an hour-byhour analysis or it may reduce the requested hours across the
board, Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir.
2008), and the Court must eliminate excessive, unnecessary, and
redundant hours, Norman v. Housing Auth. Of Montgomery, 836 F.2d
1292, 1301-02 (11th Cir. 1988).
Although defendant does not object to the request for fees by
Mr. Cullen, counsel of record in this case, the Consent Decree
signed by both parties, approved by the Court, and attached to the
judgment only provides for payment of attorney fees to Mr. Bacon.
Therefore, the motion will be denied without prejudice as to all
fees incurred on behalf of Mr. Cullen.

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Hourly Rate
Plaintiff is seeking a rate of $420 per hour for attorney
work, and a rate of $115 per hour for paralegal fees.

Attorney

Thomas B. Bacon was admitted to The Florida Bar in 1998, The
Pennsylvania Bar in 1989, and The Georgia Bar in 2008.

Mr. Bacon

has focused his practice on Title III of the Americans with
Disabilities Act for the last decade.

(Doc. #28-1, Exh. A.)

Although Mr. Bacon spent a few hours working on the case, and
previously represented Patricia Kennedy in at least 9 other prior
cases, Mr. Bacon did not enter a formal appearance in this case
and is not listed counsel of record.

Nonetheless, as counsel who

initially worked on the case and who is to be paid fees under the
Consent Decree, the Court will consider the reasonableness of the
fees.
A “reasonable hourly rate” is “the prevailing market rate in
the relevant legal community for similar services by lawyers of
reasonably

comparable

skills,

Norman, 836 F.2d at 1299.

experience,

and

reputation.”

The burden is on the fee applicant “to

produce satisfactory evidence” that the rate is in line with those
prevailing in the community.
n.11 (1984).

Blum v. Stenson, 465 U.S. 886, 896

Counsel cites to other jurisdictions 2 to demonstrate

2

In the Middle District of Florida case cited, the request
was unopposed. See Access for the Disabled v. EDZ, Inc., 8:12cv-2186-T-EAJ, Doc. #85 (M.D. Fla. Nov. 25, 2014).

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that the rate is reasonable, however the prevailing market is the
Fort Myers Division of the Middle District of Florida.

Olesen-

Frayne v. Olesen, 2:09-CV-49-FTM-29DNF, 2009 WL 3048451, *2 (M.D.
Fla. Sept. 21, 2009).
The Court agrees with defendant that the hourly rates must be
reduced.

The prevailing rates in the Fort Myers Division are

significantly lower than those found in the Tampa or Orlando
Divisions 3, and plaintiff has not met her burden to demonstrate
that $420 is a reasonable hourly rate for counsel, or that $115
per hour is a reasonable rate for the paralegal.

The Court will

permit a reduced hourly rate of $300 for Mr. Bacon based on his
specific experience with Title III cases.
be

reduced

to

$95

an

hour.

See,

The paralegal rate will
e.g.,

Nat'l

All.

for

Accessability, Inc. v. Hull Storey Retail Grp., LLC, No. 3:10-CV778-J-34JBT, 2012 WL 3853520, at *4 (M.D. Fla. June 28, 2012),
report and recommendation adopted, No. 3:10-CV-778-J-34JBT, 2012
WL 3853455 (M.D. Fla. Sept. 4, 2012)(reducing the rates for Mr.
Bacon and the paralegal).

3

The Declaration of Adam S. Chotiner (Doc. #29-1), submitted
by defendant, was not considered as Mr. Chotiner is a shareholder
in a Boca Raton law firm and in the Southern District of Florida
where hourly rates for counsel are also higher. The Court notes
that none of the attorneys in this case are local to the Fort Myers
Division.

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Number of Hours
The Court has reviewed the time sheet for Mr. Bacon and the
paralegal.

The Court finds that some of the hours for the

paralegal are excessive and are due to be reduced as indicated
below.

The Court finds that the hours billed by Mr. Bacon are

reasonable and that a total of 3.3 hours at a reduced rate of $300
an hour results in a total of $990.00 in attorney fees.

The

paralegal’s hours were reduced for time spend on the preparation
of package for clerk (0.4 to 0.2), and to file the certificate of
interested

persons

&

related

case

notice

(from

0.3

to

0.2),

resulting in a total of 1.0 hour and fees totaling $95.00.

Costs and Expenses
Plaintiff

also

seeks

$461.54

in

costs

and

expenses

for

database searches, the filing fee, service of process, and postage
pursuant to Fed. R. Civ. P. 54(d)(1) and 28 U.S.C. § 1920.

Under

42 U.S.C. § 12205, a prevailing party may recover “a reasonable
attorney's fee, including litigation expenses, and costs”.

The

filing fee and cost of service are statutory costs permitted by
Section 1920, while the other expenses are permitted under the ADA
and the Consent Decree.

Finding no objection to the costs and

expenses, the Court will grant the motion for the full amount.

Expert Inspections
Plaintiff seeks $1,300.00 for the inspection invoiced and
conducted.

Plaintiff failed to provide the curriculum vitae for

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the expert, or the hourly rate charged, however defendant does not
object to this expense and inspection fees were included in the
Consent Decree.

The motion will be granted as to the $1,300.00.

Plaintiff also seeks an additional $1,000 as a re-inspection
fee to be incurred in the future.

Plaintiff does not provide any

documentation or estimate from the expert as to whether this amount
is

justified

for

inspection

of

the

paragraph 13 of the Consent Decree.

limited

areas

listed

in

Plaintiff cites to several

cases where a re-inspection fee was permitted, but disingenuously
fails

to

note

$1,000.00.

that

the

amount

approved

was

not

as

high

as

In fact, plaintiff cites generally to Access for Am.,

Inc. v. Oakwood Ctr., L.C., 8:02-cv-464-T-30MSS, Doc. #38 (M.D.
Fla.

July

22,

authorized.

2003)

without

noting

that

only

$250.00

was

See also Hoewischer v. T.F. Cowart, Tr., 3:11-cv-365-

J-34MCR, Doc. #33 (M.D. Fla. June 8, 2012) (collecting cases where
only $350 was authorized after counsel “has repeatedly requested
a steep re-inspection).

The Court will grant the request for

$300.00 only.
Accordingly, it is hereby
ORDERED:
1. Plaintiff's

Verified

Application

for

Attorney's

Fees,

costs, Expert Witness Fees and Litigation Expenses (Doc.
#28) is GRANTED in part and DENIED in part as follows:

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A. Plaintiff is awarded attorney’s fees in the amount of
$990.00 for Thomas Bacon;
B. Plaintiff is awarded paralegal fees in the amount of
$95.00;
C. Plaintiff is awarded costs in the amount of $461.54;
D. Plaintiff is awarded inspection costs in the amount of
$1,300; and
E. Plaintiff is awarded re-inspection costs in the amount
of $300.
2. Plaintiff’s Reply in Support of Her Verified Application
(Doc. #32) is stricken for failure to comply with the
Magistrate Judge’s Order.
3. Plaintiff’s Verified Supplemental Application (Doc. #33)
is DENIED.
4. The Clerk shall enter judgment accordingly in favor of
plaintiff and against defendant for the amounts listed in
paragraph 1.
DONE and ORDERED at Fort Myers, Florida, this
of January, 2017.

Copies:
Counsel of Record

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10th

day