Gaylor v. Greenbriar of Dahlonega Shopping Center, Inc.
Filing
72
ORDER granting 56 Motion for Attorney Fees and Related Expenses. Plaintiff attorneys' fees in the amount of $112,499.50 and expenses in the amount of $4,701.73, for a total award of $117,201.23 are AWARDED. Signed by Judge Richard W. Story on 05/27/14. (sk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
GARY GAYLOR,
Plaintiff,
v.
GREENBRIAR OF DAHLONEGA
SHOPPING CENTER, INC.,
Defendant.
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CIVIL ACTION NO.
2:12-CV-00082-RWS
ORDER
This action is before the Court on Plaintiff’s Motion for Reasonable
Attorneys’ Fees and Related Expenses [56]. For the following reasons, the
Court grants the motion.
Background
On April 9, 2012, Plaintiff Gary Gaylor filed this action against
Defendant Greenbriar of Dahlonega Shopping Center, Inc., asserting claims
under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12181 et seq. Plaintiff alleged that certain specified architectural barriers
made it difficult for disabled individuals like him to access the goods and
services at Defendant’s shopping center, and that Defendant either did not
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have a policy to assist people with disabilities or refused to enforce such a
policy if it did exist.
On November 13, 2012, Plaintiff moved for summary judgment. On
December 7, 2012, Defendant filed a cross-motion for summary judgment
arguing that Plaintiff lacked standing and that Plaintiff’s claims regarding
architectural barriers were moot because Defendant had voluntarily
undertaken measures to remedy the alleged violations.
On September 27, 2013, the Court issued an Order granting in part and
denying in part both motions. The Court rejected Defendant’s arguments
that Plaintiff lacked standing and found that Defendant had voluntarily
remedied only one of nine alleged architectural barriers.1 With regard to the
other eight alleged barriers, the Court found that Plaintiff was entitled to
summary judgment as to seven, declared that these barriers violated the
ADA, and ordered Defendant to correct the violations as soon as practicable.2
1
The only barrier Defendant remedied was the absence of above-ground
mounted signage identifying parking spaces designated for the disabled.
2
Plaintiff was granted summary judgment as to the following seven
architectural barriers: (1) inadequate number of compliant parking spaces
designated for disabled, (2) absence of compliant access aisles serving parking
spaces, (3) absence of van-accessible parking spaces, (4) improper distribution of
parking spaces, (5) excessively sloped parking spaces and access aisles, and (6-7)
(continued...)
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The Court found that Defendant was entitled to summary judgment as to the
eighth alleged barrier3 and on Plaintiff’s policy claim. Finally, the Court
stated that it would address Plaintiff’s entitlement to an award of attorneys’
fees in accordance with the procedures set out in Local Rule 54.2.
On October 11, 2013, in accordance with Local Rule 54.2A(2), Plaintiff
filed a preliminary motion for attorneys’ fees and related expenses pursuant
to 42 U.S.C. § 12205 and the equitable powers of the Court. On October 15,
2013, Defendant filed a motion for an evidentiary hearing. In the alternative,
Defendant asked the Court to allow it to submit affidavits in opposition to the
amount of fees and expenses Plaintiff was claiming. On November 14, 2013,
the Court denied Defendant’s motion for an evidentiary hearing and stated
that it would hear Plaintiff’s motion on affidavits and briefs without an oral
hearing.
On November 8, 2013, Plaintiff filed and served a brief in support of his
motion, including a detailed specification and itemization of the requested
2
(...continued)
non-compliant curb ramps at two locations.
3
Defendant was granted summary judgment as to the absence of a marked
accessible pathway between the parking spaces and the curb cuts serving the
sidewalk to store entrances because, although recommended, the pertinent
regulations did not make this an enforceable requirement.
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award with appropriate affidavits and other supporting documentation. On
December 13, 2013, Defendant filed its response in opposition to Plaintiff’s
motion with opposing affidavits. On December 19, 2013, Plaintiff filed his
reply together with an updated itemization of counsel’s time records
reflecting work done through that date.
Plaintiff seeks $131,275.50 in
attorneys’ fees and $7,033.30 in expenses. After careful review of all the
parties’ submissions, the Court enters the following order.
Discussion
I.
Prevailing Party
The ADA authorizes the Court, in its discretion, to “allow the prevailing
party, other than the United States, a reasonable attorney’s fee, including
litigation expenses, and costs . . . .” 42 U.S.C. § 12205. “[A] plaintiff ‘prevails’
when actual relief on the merits of his claim materially alters the legal
relationship between the parties by modifying the defendant’s behavior in a
way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 11112 (1992). In this case, Plaintiff obtained summary judgment in his favor on
nearly all of his claims. As a result, Defendant was ordered to eliminate
architectural barriers at its shopping center that interfered with Plaintiff’s
ability to access the goods and services there. Thus, Plaintiff obtained actual
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relief on the merits of his claims that materially altered the legal relationship
between the parties by modifying Defendant’s behavior in a way that directly
benefitted Plaintiff as well as other disabled individuals. Accordingly, the
Court finds that Plaintiff is the prevailing party in this case and is entitled
to an award of reasonable attorneys’ fees and litigation expenses.
II.
Degree of Success
The starting point for calculating reasonable attorneys’ fees is “the
number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate” for the attorneys’ services. Hensley v. Eckerhart, 461
U.S. 424, 433 (1983); Blum v. Stenson, 465 U.S. 886, 888 (1984). The product
of these two numbers is commonly referred to as the “lodestar.” Pennsylvania
v. Delaware Valley Citizens’ Council, 478 U.S. 546, 563 (1986).
After
calculating the lodestar, the court may adjust the amount upwards or
downwards based on a number of factors, including the degree of the
plaintiff’s success in the suit. Hensley, 461 U.S. at 435-36; Ass’n of Disabled
Americans v. Neptune Designs, Inc., 469 F.3d 1357, 1359 (11th Cir. 2006).
Where a plaintiff has prevailed on some but not all of his claims for
relief, the court should consider whether the claims are (1) “distinctly
different claims for legal relief that are based on different facts and legal
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theories,” Hensley, 461 U.S. at 434; or, rather (2) claims that “involve a
common core of facts” or claims which are based on related legal theories. Id.
at 435. If they are distinctly different claims, then the plaintiff may not
receive a fee award for services on the unsuccessful claims. Id. If, however,
the case involved a common core of facts or the claims are based on related
legal theories, then the court “should focus on the significance of overall relief
obtained by the plaintiff in relation to the hours reasonably expended on the
litigation.” Id. “Where a plaintiff has obtained excellent results, his attorney
should recover a fully compensatory fee.” Id.
In this case, Plaintiff’s claims regarding architectural barriers formed
the heart of his case and were all based on a common core of facts and the
same legal theory. Plaintiff achieved success on seven of nine of these claims.
Plaintiff was unsuccessful on his claim regarding above-ground signage
because Defendant mooted the claim by installing the required signs.
Plaintiff was unsuccessful on his claim regarding marked pathways between
parking spaces and curb cuts because, although the regulations recommended
such pathways, they did not make this an enforceable requirement. Overall,
Plaintiff achieved excellent results on these claims. He obtained summary
judgment declaring the other barriers to be in violation of the ADA and an
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order requiring Defendant (1) to increase the number of compliant parking
spaces for the disabled, (2) provide compliant access aisles serving those
parking spaces, (3) provide van-accessible parking spaces, (4) properly
distribute the parking spaces, (5) eliminate excessive slopes in parking spaces
and access aisles, and (6) provide compliant curb ramps at two locations.
Accordingly, the Court finds that Plaintiff is entitled to recover a fully
compensatory fee for attorney services on his claims regarding architectural
barriers.
Plaintiff’s policy claim, on the other hand, was based on different facts
and a different legal theory.
Plaintiff was unsuccessful on this claim.
Accordingly, the Court finds that the time expended on this claim should be
excluded from the lodestar calculation. The policy claim was a relatively
minor part of this case to which Plaintiff devoted little time. The Court
agrees with Plaintiff’s suggestion regarding the appropriate reduction in
hours needed to eliminate the time spent on this claim. Accordingly, Mr.
Casey’s time will be reduced by 6.3 hours, representing 2.6 hours spent on
research and 3.7 hours spent drafting the portions of the summary judgment
brief and reply brief devoted to this claim. See Pl.’s Br. in Support of Mot. for
Att’ys’ Fees & Related Expenses [61] at 20 n.6.
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Defendant contends that it was successful on one-third of the merits of
the case, and that the lodestar should be adjusted downward accordingly.
See Def.’s Resp. in Opp’n to Pl.’s Mot. for Reasonable Att’ys’ Fees and Related
Expenses [67] at 17-18. The Court finds no support for this calculation. As
discussed above, Plaintiff achieved excellent results on nearly all of the
claims that formed the heart of his case.
Therefore, the Court rejects
Defendant’s request for a one-third downward adjustment in the lodestar.
III.
Calculation of the Lodestar
A.
Reasonable Hours Expended
In determining a reasonable number of hours, the Court must exclude
hours that were not “reasonably expended.” Hensley, 461 U.S. at 434. “Work
performed by multiple attorneys, however, is not subject to reduction where
the attorneys were not unreasonably doing the same work.”
Webster
GreenThumb Co. v. Fulton Cnty., 112 F. Supp. 2d 1339, 1350 (N.D. Ga.
2000)(citations omitted). “Counsel for the prevailing party should make a
good-faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. If counsel
fails to do so, the Court must do it for them. Am. Civil Liberties Union v.
Barnes, 168 F.3d 423, 428 (11th Cir. 1999).
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Plaintiff claims that four attorneys – John Moore, Brian Ku, Louis
Mussman, and Ryan Casey – and two paralegals spent a total of 504.7 hours
working on this case. Ku Decl. [70] ¶ 9. The lion’s share of this time was
spent by Mr. Ku and Mr. Casey, who devoted 233 and 219.6 hours to the case,
respectively. Id. The number of hours claimed is supported by a detailed
itemization prepared from contemporaneous time records regularly prepared
and maintained by Plaintiff’s counsel, which indicates the amount of time
spent by each attorney and paralegal on each particular task and assigns
each task to a specific category of work. Ku Decl. [70] ¶ 3 & Ex. 7 [70-1].4
Plaintiff’s counsel assert that there has been “no unnecessary
duplication of services” for which they now seek compensation, that they
“worked hard to coordinate efforts early in the case and clearly delineated
project assignments at every stage to prevent the duplication of work that
might have resulted from multiple attorneys working on the case,” and that
tasks were “delegated appropriately among attorneys and paralegals
according to their complexity.” Joint Decl. of Pl.’s Counsel [62] ¶¶ 72 & 74.
4
This updated itemization includes all time through the filing of Plaintiff’s
reply brief and excludes future estimates that were included in Plaintiff’s initial
itemization. Id. Accordingly, Defendant’s objections to such future estimates are
moot.
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In further support of the reasonableness of the hours expended, Plaintiff has
submitted the declarations of three attorneys: Louis R. Cohan, Lawrence A.
Fuller, and C. Andrew Head.
Mr. Cohan is an Atlanta attorney with more than 20 years of
experience in a number of litigation areas, including extensive experience
litigating cases under federal statutes that provide for the award of attorneys’
fees to the prevailing party. Cohan Decl. [63] ¶ 6. After reviewing the
relevant pleadings, orders, and docket sheet in this case, as well as Plaintiff’s
counsel’s Joint Declaration and itemized time entries, it is Mr. Cohan’s
opinion that “the number of hours expended in this case were reasonable and
necessary (especially in light of Defendant’s conduct), and that there was no
duplication of effort warranting a reduction of fees.” Id. ¶ 29. Mr. Cohan
found “no unnecessary duplication of services,” that “assignments were
clearly and distinctly divided between Mr. Ku and Mr. Casey,” that “[a]ny
overlap . . . was minimal” and justified, and that tasks were “delegated
appropriately among attorneys and paralegals according to their complexity.”
Id. ¶¶ 22-25. With regard to Defendant’s conduct, Mr. Cohan notes that “this
case was heavily litigated and that discovery was quite contentious,” that
“Plaintiff tried time and time again to settle the case,” but “Defendant refused
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to negotiate” and “instead chose to employ a scorched-earth tactic whereby it
sought to attack the character of the Plaintiff while simultaneously rushing
modifications to the property (in an attempt to moot the Plaintiff).” Id. ¶¶ 19,
21, 27-28. As a result, in Mr. Cohan’s opinion, “[i]nsofar as the number of
hours in this case were unnecessary, that is clearly the fault of Defendant,
not Plaintiff.” Id. ¶ 28.
Mr. Fuller is a Miami attorney with over 35 years of experience who
has litigated hundreds of actions under Title III of the ADA, including over
twenty such cases in the Northern District of Georgia over a span of nine
years. Fuller Decl. [64] ¶ 8. After reviewing Plaintiff’s counsel’s itemized
time records and Joint Declaration, it is Mr. Fuller’s opinion that the case
“involved significant litigation,” that “[t]he attorney time relegated to each
task was appropriate,” and that “the total hours expended in this case were
reasonable.” Id. ¶¶ 13-18.
Mr. Head is an Atlanta attorney with over 18 years of experience
primarily in the area of employment law, which typically involves federal feeshifting statutes. Head Decl. [65] ¶ 6. After reviewing relevant pleadings,
orders, and the docket sheet, it is Mr. Head’s opinion that Defendant’s
rejection of “numerous early attempts to resolve the case,” and its effort
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instead “to ‘moot’ Plaintiff’s claims by unsuccessfully attempting to remediate
those barriers that were the basis of Plaintiff’s early settlement offers,” drove
“up the cost of litigation, increasing the amount of attorney’s fees necessarily
incurred by plaintiff’s counsel.” Id. ¶ 16.
Defendant contends that the time expended by Plaintiff’s counsel on
this case far exceeds what would be reasonable. In support of its argument,
Defendant relies on the declaration of Christopher E. Parker, as well as the
declaration of its own attorney, G. Lee Welborn. Mr. Parker is an Atlanta
attorney with 25 years of experience focused primarily on litigation,
alternative dispute resolution, and civil rights issues. Parker Decl. [68] ¶ 2.
After reviewing relevant documents relating to this case, it is Mr. Parker’s
opinion that Plaintiff’s counsel spent an excessive amount of time
(1) conducting research, (2) consulting with the client, (3) preparing for and
taking depositions, (4) preparing motions and responses, and (5) preparing
the fee request. Id. ¶¶ 23-36. Mr. Parker also believes that time attributed
to “communications between counsel” is not properly identified as to the
timekeepers involved and the necessity of the stated activities and should
therefore be excluded. Id. ¶ 37. Mr. Welborn asserts many of the same
claims in his declaration. Welborn Decl. [68] ¶¶ 19-32, 35, 38-39, 49.
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After careful review, the Court finds that the time spent by Plaintiff’s
counsel on this case was reasonable and is fully compensable with only two
minor exceptions.5 The Court notes that the number of hours expended by
Plaintiff’s counsel was largely due to Defendant’s own litigious conduct. The
record shows that Plaintiff attempted repeatedly to settle this case before
significant litigation occurred. Joint Decl. of Pl.’s Counsel [62] ¶¶ 16-18, 2123, 25-31 & Ex. 1 [62-1] at 1-48. Although Defendant expressed a willingness
to correct the alleged architectural barriers, it balked at Plaintiff’s demand
for payment of $6,700 in attorneys’ fees. Id., Ex. 1 [62-1] at 18. Plaintiff
offered to settle the remainder of the case and either negotiate the attorneys’
fees or have the Court resolve the issue. Id. at 17-18. Plaintiff also provided
Defendant an itemization of his attorneys’ fees and continued to offer to settle
for the original demand even after those fees had increased significantly. Id.
5
As noted above, time spent on Plaintiff’s policy claim will be excluded. In
addition, Defendant objects to 16.2 hours of time spent by Mr. Casey traveling to
and from Dahlonega to defend Plaintiff’s deposition and take Defendant’s deposition
on the ground that local counsel could have performed these tasks instead without
incurring significant travel time. Parker Decl. [68] ¶ 30. The Court believes it was
reasonable for lead counsel, with whom Plaintiff was familiar, rather than local
counsel, to handle these important tasks. However, the Court also believes that
travel time should be compensated at only one-half of an attorney’s normal hourly
rate. Therefore, Mr. Casey’s travel time will be compensated, but only at one-half
of his approved hourly rate.
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at 17. Defendant did not respond to these proposals. Instead, Defendant
chose to pursue a no-holds-barred litigation strategy.
First, Defendant refused to produce relevant financial information,
requiring Plaintiff to file a motion to compel, which the Court granted. See
Order of Oct. 23, 2012 [19]. Then, after Plaintiff had already filed a motion
for summary judgment and in an effort to gain time to moot Plaintiff’s claims,
Defendant sought a last-minute extension of discovery to which Plaintiff was
required to respond. See Tr. of Telephone Conference held Nov. 16, 2012 [40].
After the Court denied the motion, Defendant filed a cross-motion for
summary judgment. In that motion, Defendant relied on a surreptitiously
recorded video to argue that Plaintiff was not really disabled. Defendant also
sought to impugn Plaintiff’s credibility because he had filed a large number
of ADA lawsuits. Finally, Defendant argued that it had corrected all of the
ADA violations at its shopping center. The Court later found that these
arguments were almost entirely without merit.6 Nevertheless, Plaintiff was
required to respond to them.
6
The Court found that Defendant had corrected only one of nine alleged
architectural barriers. It rejected all of Defendants’ other arguments. Order of
Sept. 27, 2013 [54], at 10-30.
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Defendant’s refusal even to attempt to negotiate a reasonable
settlement and choosing instead to assert a number of meritless defenses to
which Plaintiff was then required to respond are factors the Court may
properly take into account in assessing the reasonableness of the hours
expended by Plaintiff’s counsel. Defendant “cannot litigate tenaciously and
then be heard to complain about the time necessarily spent by the plaintiff
in response.” City of Riverside v. Rivera, 477 U.S. 561, 580 n.11 (1986)
(plurality opinion) (quoting Copeland v. Marshall, 641 F.2d 880, 904 (D.C.
Cir. 1980) (en banc)).
Defendant’s argument that the number of hours is excessive is based
principally on the fact that Plaintiff’s counsel have filed a large number of
ADA suits. Defendant contends that this experience warrants a massive
reduction in the number of hours in this case. Specifically, according to Mr.
Parker, time spent by Plaintiff’s counsel conducting research should be
reduced by 85%, time consulting with the client by 79%, time preparing for
and conducting discovery by 75%, and time preparing and responding to
motions by 71%. Parker Decl. [68] ¶¶ 23-35. The Court finds this argument
without merit for the following reasons.
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First, as Plaintiff’s counsel point out, the large majority of cases they
handle settle early and do not involve significant litigation. Ku Decl. [70] ¶¶
5-6. Thus, counsel’s prior experience in ADA cases does not support a finding
that the amount of time they spent in this case on tasks that they are not
generally called upon to perform was unnecessary or unreasonable. Second,
Mr. Parker’s proposed reductions in the hours claimed are essentially
arbitrary and based solely on his subjective assessment of the amount of time
the tasks should have required. But, as Plaintiff notes, Mr. Parker has no
experience prosecuting ADA cases and has only defended a few such cases,
none of which, unlike this case, was seriously litigated. Pl.’s Reply in Support
of Mot. for Att’ys’ Fees and Related Expenses [69] at 7-8. Mr. Fuller, on the
other hand, who has litigated hundreds of cases under Title III of the ADA
and is far more qualified to testify on this subject, attests that the number of
hours expended on this litigation was reasonable. Fuller Decl. [64] ¶¶13-18.
The Court finds Mr. Fuller’s opinion more persuasive.
In addition, many of Defendant’s specific objections to the time
expended by Plaintiff’s counsel are unfounded. For example, Mr. Parker
contends that researching Daubert issues was unnecessary because no
Daubert motion was ever filed. Parker Decl. [68] ¶ 23. However, it was not
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unreasonable for Plaintiff’s counsel to anticipate a potential Daubert
challenge by Defendant and to conduct research (totaling just 4.3 hours) so
that their expert’s inspection and report could be structured accordingly. Mr.
Parker also argues that all the time spent by Plaintiff’s counsel on two
motions to strike should be excluded because the Court denied the motions.
Id. ¶ 33. However, although the Court denied the motions on procedural
grounds, it sustained objections raised in those motions to the affidavit of
Diane Moore and the second affidavit of Roberta Sims, which Defendant had
submitted in support of its motion for summary judgment and in opposition
to Plaintiff’s motion for summary judgment. As a result, the Court excluded
from evidence Ms. Moore’s affidavit and the attached video recording of
plaintiff, as well as Ms. Sims’ second affidavit. Therefore, the time expended
by Plaintiff’s counsel on these motions was not unnecessary or unreasonable,
but the Court finds that it was excessive and will reduce the hours as follows:
Mr. Ku - 15.6 hours.
Other objections raised by Defendant are not supported by the record.
For example, contrary to Mr. Parker’s claim that time entries reflecting
communications between counsel do not identify the timekeepers involved or
the need for the communication, Parker Decl. [68] ¶ 37, the detailed
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itemization submitted by Plaintiff’s counsel clearly indicates who was party
to each such communication and the subject of the communication. See
Category D, Joint Decl. of Pl.’s Counsel, Ex. 3 [62-3]; Ku Decl., Ex. 7 [70-1].
Similarly, Mr. Parker claims that Mr. Ku and Mr. Casey engaged in
duplicative research on the concept of “mootness” as it pertained to discovery
deadlines and the use of fee affidavits. Parker Decl. [68] ¶ 24. However, a
review of the actual time entries in the categories cited reveals no duplication
of effort. See Categories J10 & J11, Joint Decl. of Pl.’s Counsel [62] ¶ 76 &
Ex. 3 [62-3]; Ku Decl., Ex. 7 [70-1]. Likewise, Mr. Welborn contends that time
spent by Plaintiff’s counsel researching default procedures was unnecessary
because Defendant filed a timely answer. Welborn Decl. [68] ¶ 19. The
record, however, shows that Defendant was served on April 24, 2012, and did
not file its answer until June 15, 2012, a full month after it was due. See
Return of Service [4] & Answer [5]. It was not unreasonable for Plaintiff’s
counsel to begin researching default procedures after Defendant went into
default and before it filed an untimely answer.
Defendant also repeatedly mischaracterizes the nature of the work
performed by Plaintiff’s counsel.
For example, Defendant claims that
“Plaintiff’s attorneys have demanded that the Court order Defendant to
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reimburse them for billing 4 hours at $245 an hour so as to provide the Court
with a comparison between the prices in Washington, D.C. and Atlanta for
chunk light tuna, facial tissues, tire balancing, Lipitor, boy jeans, washer
repair and beer.” Def.’s Resp. in Opp’n to Pl.’s Mot. for Reasonable Att’ys’
Fees & Related Expenses [67] at 4-5; Welborn Decl. [68] ¶ 18. In support of
this claim, Defendant cites a single page from one of the exhibits to Mr.
Cohan’s declaration, which is part of a cost-of-living comparison between
Washington, D.C., and Atlanta that Mr. Cohan uses to adjust the hourly
rates contained in the Laffey matrix.7 Id.; Cohan Decl. [63] ¶ 15 & Ex. B [632] at 2. A review of the relevant time entries reveals that the four hours
billed by Mr. Casey were spent corresponding and speaking on the telephone
with Mr. Cohan and assisting with drafting and editing the Cohan
declaration, which addressed the amount of time expended in the litigation
as well as appropriate hourly rates, including a scientific analysis of hourly
rates based on the Laffey matrix and cost-of-living statistics. Joint Decl. of
Pl.’s Counsel, Ex. 3 [62-3]; Ku Decl., Ex. 7 [70-1]; Cohan Decl. [63] ¶¶ 8-29.
As Mr. Cohan explains, the Laffey matrix, approved in Laffey v. Northwest
Airlines, Inc., 572 F. Supp. 354, 371 (D.D.C. 1983), sets hourly rates for attorneys
engaged in civil work in the Washington, D.C., metropolitan area based on years
of experience. Cohan Decl. [63] ¶ 13.
7
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This amount of time spent on a lengthy and detailed declaration was clearly
reasonable.
In another mischaracterization, Defendant contends that Plaintiff’s
counsel are seeking to recover for 105.6 hours of time “to write their summary
judgment motion and reply brief.” Def.’s Resp. in Opp’n to Pl.’s Mot. for
Reasonable Att’ys’ Fees & Related Expenses [67] at 9; Welborn Decl. [68]
¶ 39. In fact, Plaintiff’s counsel claim 90.2 hours for this work. Joint Decl.
of Pl.’s Counsel [62] ¶ 76. Most of this time (53 hours) was spent by Mr.
Casey drafting the brief and tables, identifying and locating factual
information for exhibits, and drafting the reply brief. Id. Mr. Ku spent 19.8
hours drafting the motion, statement of facts, motion for excess pages,
affidavit, and proposed order, as well as revising and editing the brief; and
Mr. Moore spent 1.4 hours reviewing the initial brief and the reply. Id. An
additional 16 hours (3.1 by Mr. Ku and 12.9 by Mr. Casey) were spent on
legal research and an internal memoranda.
Id. The Court finds this
additional time is not justified and will exclude it from the award. The other
31.4 hours cited by Defendant were spent responding to Defendant’s motion
for summary judgment, which raised a number of distinct issues regarding
standing and mootness. Id. The lion’s share of this time (28.5 hours) was
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spent by Mr. Casey pulling and reading the cases cited by Defendant,
outlining and drafting the opposition brief and tables, drafting a response to
Defendant’s statement of facts, and locating and preparing exhibits. Id. Mr.
Ku spent 2.2 hours editing and revising the opposition brief and Mr. Moore
spent 0.7 hour reviewing the brief before filing. Id. When the actual time
entries are thus properly analyzed, it is clear that the amount time spent by
Plaintiff’s counsel on these tasks was reasonable, with the exception of the 16
hours that the Court will exclude.
Finally, Defendant also contends that Plaintiff’s counsel spent an
excessive amount of time on the fee petition itself, and that the voluminous
exhibits attached to the petition were excessive and unnecessary to
substantiate the fee request. Parker Decl. [68] ¶ 36. Plaintiff’s final itemized
time records show a total of 18.1 hours of attorney time spent on research and
42.3 hours spent drafting the fee petition, plus 5.6 hours of paralegal time
spent preparing exhibits. Ku Decl., Ex. 7 [70-1], Categories C9 & J11.8 The
Court does not find this expenditure of time on a substantial fee petition to
be unreasonable. Nor were the exhibits submitted in support of the fee
8
This does not include time in these categories spent researching and
preparing the bill of costs or the reply brief.
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petition excessive or unnecessary. Given Defendant’s litigiousness and the
likelihood of an appeal of any fee award, Plaintiff’s counsel were fully justified
in preparing a detailed factual summary of the case to support the fee
request. It was also entirely appropriate for counsel to prepare a detailed
itemization summarizing their time records and categorizing each task
performed. Indeed, such a “summary, grouping the time entries by the
nature of the activity or stage of the case” is essential to “[a] well-prepared fee
petition.” Barnes, 168 F.3d at 427 (quoting Norman v. Housing Auth. of City
of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988)). For the most part, the
Court finds the time expended on this task is appropriate, but makes the
following reductions based on excessive time: Mr. Ku - 17.1, Mr. Casey - 5.5.
In sum, after carefully reviewing Plaintiff’s motion and supporting
documentation and considering all of Defendant’s objections, the Court finds
that the hours claimed in Plaintiff’s final itemized time records were
reasonably expended in the prosecution of this case and are fully
compensable, with the exception of 6.3 hours of Mr. Casey’s time spent on
Plaintiff’s policy claim, which shall be excluded; 16.2 hours of Mr. Casey’s
time spent traveling to and from Dahlonega for Plaintiff’s and Defendant’s
depositions, which shall be compensated at one-half of his approved hourly
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rate; 15.6 hours of Mr. Ku’s time spent on the motions to strike which shall
be excluded; 3.1 hours of Mr. Ku’s time and 12.9 hours of Mr. Casey’s time
spent on the motion for summary judgment which shall be excluded; and 17.1
hours of Mr. Ku’s time and 5.5 hours of Mr. Casey’s time spent on the fee
application which shall be excluded.
B. Reasonable Hourly Rates
The next step in the lodestar calculation is the determination of “a
reasonable hourly rate” for the attorneys’ services. Hensley, 461 U.S. at 433.
A reasonable hourly rate is “the prevailing market rate in the relevant legal
community for similar services by lawyers of reasonably comparable skills,
experience, and reputation.” Barnes, 168 F.3d at 436 (quoting Norman, 836
F.2d at 1299). The applicant attorney’s customary billing rate for fee-paying
clients ordinarily is the best evidence of his market rate, although that
information is not necessarily conclusive. Dillard v. City of Greensboro, 213
F.3d 1347, 1354-55 (11th Cir. 2000). A fee applicant may also provide opinion
evidence of reasonable rates, which is usually done by submitting affidavits
of other attorneys in the relevant legal community. Duckworth v. Whisenant,
97 F.3d 1393, 1396-97 (11th Cir. 1996). Finally, the Court may use its own
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personal experience and expertise to assess the lawyering skills exhibited in
the case. Id. at 1397.
Plaintiff’s counsel have requested reimbursement at the rate of $300
per hour for Mr. Moore, Mr. Mussman, and Mr. Ku; $245 per hour for Mr.
Casey; and $95 per hour for paralegals Tara Rose and Reyna Sarmiento. Mr.
Ku and Mr. Mussman are founding partners of Ku & Mussman in Miami,
Florida, and are both in their twelfth year of practice. Mr. Casey is a partner
in his eighth year of practice. Mr. Moore is the founding partner of The
Moore Law Group in Atlanta and has over thirteen years of litigation
experience in the Northern District of Georgia. According to Plaintiff’s
counsel, Mr. Moore’s customary 2013 billing rate is $300 per hour while the
rates sought by the Ku & Mussman attorneys are actually less than the firm’s
customary billing rates. Joint Decl. of Pl.’s Counsel [62] ¶¶ 98-99. Mr.
Moore, Mr. Cohan, Mr. Fuller, and Mr. Head each attest that the rates
requested are reasonable and customary in this district and division for
similarly experienced attorneys in similar matters. Id. ¶ 101; Cohan Decl.
[63] ¶¶ 8-12, 17; Fuller Decl. [64] ¶¶ 10-12; Head Decl. [65] ¶¶ 8-15. In
addition, Mr. Cohan attests that the rates sought are reasonable given the
ranges provided by a cost-of-living adjusted Laffey matrix for similarly
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experienced attorneys. Cohan Decl. [63] ¶¶ 13-16. Mr. Head also cites the
Fulton County Daily Report’s 2013 “Going Rate” survey for employment and
employment litigation attorneys and paralegals, which indicates that since
2011 partners in the Atlanta area have charged between $335 and $730 per
hour, associates between $235 and $470 per hour, and paralegals between
$100 and $250 per hour. Head Decl. [65] ¶¶ 9-10 & Exs. 1 & 2 [65-1, 65-2].
Defendant does not dispute that the hourly rates requested for Mr.
Moore and the two paralegals are reasonable. However, Defendant contends
that the rates requested for Mr. Mussman, Mr. Ku, and Mr. Casey are
excessive and should be reduced. In support of this contention, Defendant
relies on the declaration of Mr. Parker. Using Mr. Moore’s $300 hourly rate
as a benchmark, Mr. Parker contends that a reasonable rate for Mr.
Mussman and Mr. Ku, who each have two years less experience than Mr.
Moore, would be no more than $275.
Parker Decl. [68] ¶¶ 14, 18-20.
Similarly, Mr. Parker contends that a reasonable rate for Mr. Casey, who has
six years less experience than Mr. Moore, would be no more than $200. Id.
¶ 21. Mr. Parker does not believe that either the cost-of-living adjusted
Laffey matrix or the Fulton County Daily Report’s “Going Rate” survey is a
reliable basis for determining reasonable hourly rates. Id. ¶¶ 16-17. He
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notes that the adjusted Laffey matrix suggests that attorneys in Marietta
charge more, and attorneys in Dalton only slightly less, than attorneys in
Atlanta, which is contrary to his experience. Id. ¶ 16. He also argues that
the cost-of-living adjustment fails to account for overhead and market factors
that have a major impact on rates charged for legal services. Id. As for the
“Going Rate” survey, Mr. Parker points out that it relies primarily on fee
petitions submitted in bankruptcy matters, is dominated by lawyers from
large firms who typically enjoy a higher rate structure than the market
average, and does not indicate whether the rates sought were actually
awarded or whether the services provided were similar to the services
provided in this case. Id. ¶ 17.
Based on the evidence submitted and the Court’s own personal
experience and expertise, the Court finds that the hourly rates requested are
reasonable. In addition to the declarations of Mr. Cohan, Mr. Fuller, and Mr.
Head, Plaintiff cites several cases from this district awarding comparable
rates. See Disabled Patriots of Am., Inc. v. Regency Centers, L.P., No. 1:04CV-0419-RWS, 2005 U.S. Dist. LEXIS 44851 (N.D. Ga. Feb. 3, 2005) (in Title
III ADA case in 2005, awarding $300/hour for attorneys with 26 and 30 years’
experience and $250/hour for attorney with 12 years’ experience); Disabled
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Patriots of Am., Inc. v. HT West End, LLC, No. 1:04-CV-3216-JEC, 2007 WL
789014, at *2-*3 (N.D. Ga. Mar. 14, 2007) (in Title III ADA case in 2007,
awarding $250/hour to attorneys with 25 years’ experience and $200/hour to
attorney with 15 years’ experience where “attorneys’ work . . . was limited to
drafting a complaint, preparing routine discovery requests, and drafting a
settlement agreement”); Stewart v. Regent Asset Mgmt. Solutions, Inc., No.
1:10-CV-2552-CC-JFK, 2011 WL 1766018, at *9 (N.D. Ga. May 4, 2011)
(report and recommendation) (approving $325/hour for attorney with 19
years’ experience and $205/hour for attorney with only two years’ experience);
Moore ex rel. Moore v. Cook, No. 1:07-CV-631-TWT, 2012 WL 5362892, at *4
(N.D. Ga. Oct. 31, 2012) (awarding $475/hour for attorney with 23 years’
experience, $400/hour for attorney with 26 years’ experience, and $330/hour
for attorney with 10 years’ experience). Plaintiff also cites cases from other
jurisdictions granting fee requests by Plaintiff’s counsel based on rates
comparable to or higher than the rates they are requesting in this case. See
Smith v. Intuit, No. 5:12-cv-00222-EJD, slip op. at 2 (N.D. Cal. Oct. 1, 2013)
(unpublished) (approving fee request calculated using 2013 hourly rate of
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$500 for Mr. Ku and $400 for Mr. Casey);9 Martinez v. Public Storage, No. 0921488-CIV, 2010 WL 2219712, at *5 (S.D. Fla. Apr. 27, 2010) (report and
recommendation) (approving hourly rate of $300 for Mr. Ku and Mr.
Mussman and $250 for Mr. Casey). Defendant does not cite any contrary
authority.
The Court recognizes that the Laffey matrix and the “Going Rate”
survey are imperfect tools for determining reasonable hourly rates.
Nevertheless, the fact that the rates requested by Plaintiff’s counsel in this
case fall within the range for similarly experienced attorneys in the cost-ofliving adjusted Laffey matrix and at the lower end of the range for similarly
experienced attorneys included in the 2013 “Going Rate” survey serves to
corroborate the opinions of Mr. Cohan, Mr. Fuller, and Mr. Head that the
requested rates are reasonable. The Court is not persuaded by Mr. Parker’s
opinion that the rates for Mr. Ku, Mr. Mussman, and Mr. Casey should be
reduced based solely on the fact that they have somewhat less experience
than Mr. Moore.
IV.
Litigation Expenses
9
The court used these rates in calculating a lodestar multiplier for
comparison to a fee award based on a percentage of a common fund.
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Plaintiff’s counsel claim that they incurred a total of $7,033.30 in
litigation expenses and costs in connection with the prosecution of this action.
Joint Decl. of Pl.’s Counsel [62] ¶ 102. On October 24, 2013, Plaintiff filed a
Bill of Costs seeking taxation of $2,331.57 in costs pursuant to Fed. R. Civ.
P. 54(d)(1) and LR 54.1. Bill of Costs [59]. On November 4, 2013, costs in the
amount requested were taxed by the Clerk and included in the judgment.
Taxation of Costs [60]. Defendant did not file a timely motion asking the
Court to review the Clerk’s action. See Fed. R. Civ. P. 54(d)(1) (“On motion
served within the next 7 days, the court may review the clerk’s action.”).
However, in its response to Plaintiff’s Motion for Reasonable Attorneys’ Fees
and Related Expenses, Defendant objects to two items of these taxable costs:
(1) $433.25 in printing fees, and (2) $743 in court reporter fees. Def.’s Resp.
in Opp’n to Pl.’s Mot. for Reasonable Att’ys’ Fees and Related Expenses [67]
at 5-6; Welborn Decl. [68] ¶¶ 47-48. Due to Defendant’s failure to file a
timely motion seeking review of the Clerk’s taxation of these cost items, the
Court declines to consider these objections. See Corwin v. Walt Disney Co.,
475 F.3d 1239, 1254 (11th Cir. 2007) (“[I]t is fully within the discretion of the
district court to decline to review an untimely objection to costs.”) (citation
omitted).
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Defendant also objects to travel expenses incurred by Mr. Casey in
connection with his attendance at Plaintiff’s and Defendant’s depositions in
Dahlonega on the ground that local counsel should have handled these
depositions. These expenses included airfare ($265.60), hotel ($97.33), rental
car ($156.64), meals ($77.12), parking ($46.95), and internet service ($20.50),
totaling $664.14. Joint Decl. of Pl.’s Counsel, Ex. 4 at 1 & Attach. K [62-4].
The Court has already found that Mr. Casey’s attending these depositions
instead of local counsel was reasonable. The foregoing expenses incurred by
Mr. Casey to travel from Denver, Colorado, to Dahlonega, Georgia, for the
depositions and then return are not unreasonable. Therefore, the Court
overrules Defendant’s objection to these expenses.
No other objections having been raised by Defendant, the Court finds
that Plaintiff is entitled to recover the full amount of litigation expenses
claimed ($7,033.30), less the costs already taxed by the Clerk ($2,331.57), for
a total award of $4,701.73.
IV.
Conclusion
Based on the foregoing analysis, the Court concludes that Plaintiff is
entitled to an award of attorneys’ fees and related expenses as follows:
Professional
Hours
Rate
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Total
Moore
Ku
Mussman
Casey
Casey (Travel)
Sarmiento
Rose
6.1
197.2
6.7
178,7
16.2
16.5
22.8
x
x
x
x
x
x
x
$300
$300
$300
$245
$122.50
$95
$95
=
=
=
=
=
=
=
Expenses
$1,830.00
$59,160.00
$2,010.00
$43,781.50
$1,984.50
$1,567.50
$2,166.00
$112,499.50
$4,701.73
TOTAL
$117,201.23
Summary
For the foregoing reasons, the Court GRANTS Plaintiff’s Motion for
Reasonable Attorneys’ Fees and Related Expenses [56] and AWARDS
Plaintiff attorneys’ fees in the amount of $112,499.50 and expenses in the
amount of $4,701.73, for a total award of $117,201.23.
IT IS SO ORDERED, this 27th day of May, 2014.
________________________________
RICHARD W. STORY
United States District Judge
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