Soriano v. C&N Management, Inc. et al
Filing
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ORDER: Plaintiff's Verified Application for Attorney's Fees, Litigation Expenses, and Costs 25 is granted to the extent described herein. Plaintiff is entitled to recover $3,815 in attorney's fees, $825 in expert fees, and $614.05 in costs. The Clerk is directed to enter judgment in favor of Plaintiff against Defendants C&N Management, Inc. and Acapulco Mexican Grocery, Inc. in the amount of $5,254.05. Signed by Judge James S. Moody, Jr. on 5/19/2017. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KATHY SORIANO,
Plaintiff,
v.
Case No: 8:16-cv-1351-T-30AEP
C&N MANAGEMENT, INC. and
ACAPULCO MEXICAN GROCERY,
INC.,
Defendants.
ORDER
THIS CAUSE comes before the Court upon Plaintiff's Verified Application for
Attorney's Fees, Litigation Expenses, and Costs (Doc. 25). Defendants C&N Management,
Inc. and Acapulco Mexican Grocery, Inc. have failed to respond to Plaintiff’s motion
within the allowed timeframe. Upon review, the Court concludes Plaintiff’s motion should
be granted in part.
Plaintiff filed this action under Title III of the Americans with Disabilities Act
(“ADA”). She sought injunctive relief because Defendants’ store, Acapulco Mexican
Grocery, failed to comply with the ADA’s accessibility standards. On April 3, 2017, the
Court entered a final default judgment against Defendants, requiring them to remediate
their facility to remove the barriers to access.
The ADA provides that “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. Plaintiff is the prevailing
party. As such, she now seeks an award of her attorney’s fees, expert fees, and costs.
I.
Reasonable Attorney’s Fees
Calculating an appropriate fee award under federal law involves a two-step process.
Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299-1302 (11th Cir. 1988).
The court first calculates the “lodestar” by taking the number of hours reasonably expended
on the litigation and multiplying it by a reasonable hourly rate. Id. The court may then
adjust the lodestar upward or downward based on an evaluation of additional factors.
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); see also Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) (enumerating factors to be
considered).1
The Eleventh Circuit has recognized that, “[u]ltimately, the computation of a fee
award is necessarily an exercise of judgment[] because ‘there is no precise rule or formula
for making these determinations.’” Villano v. City of Boynton Beach, 254 F.3d 1302, 1305
(11th Cir. 2001). The “fee applicant bears the burden of establishing entitlement and
documenting the appropriate hours and hourly rates.” Norman, 836 F.2d at 1303. The
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The twelve factors to be considered in determining the reasonableness of attorney’s fees
are: (1) the time and labored required; (2) the novelty and difficulty of the question involved; (3)
the skill required to perform the legal services properly; (4) the preclusion of other employment
due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7)
the time limitations imposed by the client or other circumstances; (8) the amount involved and the
results obtained; (9) the experience, reputation, and ability of the attorney; (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.
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applicant must produce satisfactory evidence that the requested rate is within the prevailing
market rates and support the number of hours worked. Hensley, 461 U.S. at 433.
Plaintiff seeks an award of attorney’s fees for the services provided by Todd W.
Shulby in this case. In support of her request for fees, Plaintiff filed an affidavit by Mr.
Shulby and an itemized log of the hours he billed in this case. According to Plaintiff’s
records, Mr. Shulby worked 11.4 hours at a rate of $350 per hour for a total of $3,990.
The Court finds that $350 is a reasonable hourly rate based on Mr. Shulby’s
experience and the current market rate in Tampa. Mr. Shulby has been practicing law since
1995. He has concentrated his practice on civil rights litigation since 1996 and reports that
he has litigated thousands of ADA cases. As Plaintiff noted in her briefing, courts in this
Circuit have approved hourly rates ranging from $325 to $420 in other Title III cases. Thus,
the Court will award the hourly rate requested.
Likewise, the Court finds that the hours Mr. Shulby spent litigating this case were
reasonable, with one exception. On December 6, 2016, the Court issued an Order to Show
Cause (“OSC”) because Plaintiff had not served Defendant C&N Management, Inc.,
despite the fact that the Court had provided Plaintiff two extensions of time in which to do
so. Plaintiff did not request an additional extension, prompting the Court to issue the OSC.
Mr. Shulby billed 0.5 hours in relation to the OSC—0.1 hours reviewing the OSC, 0.3
hours drafting a response, and 0.1 hours reviewing the Court’s subsequent order. Plaintiff
should not be awarded fees for this time, which would not have been necessary had Plaintiff
complied with the Federal and Local Rules. Thus, the Court finds that only 10.9 of the 11.4
hours billed by Mr. Shulby were reasonable.
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Mr. Shulby reasonably incurred $3,815 in attorney’s fees (i.e., 10.9 hours at $350
per hour), and the Court will award Plaintiff fees in that amount. The Court sees no reason
to adjust this figure upward or downward based on the facts of this case.
II.
Expert Fees
Plaintiff seeks compensation for the services of David Pedraza, an expert witness
Plaintiff retained to evaluate Acapulco Mexican Grocery, the property believed to have
barriers to access. Plaintiff seeks $2,800 in expert fees, encompassing 14 hours of work
billed at a rate of $200 per hour. In support of her request for fees, Plaintiff filed an affidavit
by Mr. Pedraza and an itemized log of the hours he billed. She also cited to a few cases in
which courts in this District approved ADA experts’ hourly rates of $150 and documents
indicating that two ADA defense consultants in this Circuit charge an hourly rate of $200
to $300.
Although the Court can award expert fees as a litigation expense under the ADA, it
will not award the full amount requested. For the reasons discussed herein, it will award
Plaintiff only $825 in expert fees.
First, the requested hourly rate of $200 is high. Plaintiff has not satisfactorily
demonstrated why Mr. Pedraza should be compensated at this rate, particularly given the
existing precedent in this District to award an hourly rate of $150 (which Plaintiff
acknowledged in her motion). The Court will award an hourly rate of $150.
Second, the number of hours billed by Mr. Pedraza was unreasonable. Mr. Pedraza
billed more time on this case than Mr. Shulby spent litigating it. In addition, he billed all
of his time before Plaintiff initiated this action. While some kind of pre-suit investigation
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of a plaintiff’s claims may be necessary, the 14 hours spent here were excessive. There was
no need for Plaintiff to retain an expert to research and draft a comprehensive investigative
report with photographs before she knew whether there would be any dispute about the
existence of ADA violations in this case. Or, at least, there is no reason Defendants should
have to pay for such extensive services.
The Court will award fees for only 6.5 of the 14 hours billed, as described below:
Travel: Mr. Pedraza billed 2.5 hours traveling from Fort Lauderdale to Tampa to
visit Acapulco Mexican Grocery. Plaintiff made no showing that she could not
retain an expert in or near Tampa. Accordingly, the Court will award only 1 hour
for Mr. Pedraza’s travel time.
On-site verification of ADA violations: Mr. Pedraza billed 0.5 hours on this task;
the Court will award the 0.5 hours.
Online research of property information: Mr. Pedraza billed 1 hour on this task.
However, Mr. Shulby also billed time for researching the property. (Doc. 25-1, pg.
2.) The Court will not double-bill Defendants for this research.
“Depict[ing] violations”: Mr. Pedraza billed 4 hours on this task; the Court will
award the 4 hours.
Preparation of investigative report: Mr. Pedraza billed 5 hours on this task. As
discussed above, Plaintiff had no need to obtain this report prior to initiating her
litigation. The Court will not award fees for this time.
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“Review of complete file to sen[d] to attorney”: Mr. Pedraza billed 1 hour on this
task. The Court will award fees for this time, but only at an hourly rate of $75. A
reduced rate is appropriate given that this task did not require any expertise and was
essentially administrative.
III.
Costs
Plaintiff seeks $640.72 in litigation costs. She submitted records indicating that she
incurred the following costs: (1) $26.97 to FedEx her summons and complaint to the
courthouse for filing, (2) $400 for the filing fee, (3) $55 to serve Defendant Acapulco
Mexican Grocery, Inc., and (4) $158.75 to serve Defendant C&N Management, Inc.
The Court can award litigation costs pursuant to the ADA as “determined by the
necessities of the case.” See Dowdell v. City of Apopka, 698 F.2d 1181, 1188 (11th Cir.
1983) (analyzing an analogous federal fee-shifting provision). Plaintiff’s filing and service
fees were reasonably incurred in litigating this case. The $26.97 spent to FedEx the
pleadings to the courthouse for filing was not, given that Plaintiff could easily have filed
these documents electronically. Accordingly, the Court will award Plaintiff only $614.05
of the costs requested.
It is therefore ORDERED AND ADJUDGED that:
1. Plaintiff’s Verified Application for Attorney’s Fees, Litigation Expenses, and
Costs (Dkt. 25) is granted to the extent described herein. Plaintiff is entitled to
recover $3,815 in attorney’s fees, $825 in expert fees, and $614.05 in costs.
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2. The Clerk is directed to enter judgment in favor of Plaintiff against Defendants
C&N Management, Inc. and Acapulco Mexican Grocery, Inc. in the amount of
$5,254.05.
DONE and ORDERED in Tampa, Florida on May 19th, 2017.
Copies furnished to:
Counsel/Parties of Record
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