Herbert v. Audubon Commission et al

Filing 49

ORDER AND REASONS: IT IS ORDERED that the 38 Motion to Fix Attorney's Fees and Costs is GRANTED in part and DENIED in part, as set forth in document. Audubon is hereby ordered to pay Plaintiff Herbert $11,258.81 in reasonable fees and $4,510.83 in recoverable costs, for a total of $15,769.64. Signed by Judge Ivan L.R. Lemelle on 11/28/2017. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TASHA HERBERT,

CIVIL ACTION

VERSUS

NO. 15-5425

AUDUBON COMMISSION, ET AL.

SECTION "B"(5)

ORDER AND REASONS
Considering Plaintiff’s Motion to Fix Attorney’s Fees and
Costs (Rec. Doc. 38), and Defendants’, The Audubon Commission and
The

Audubon

Nature

Institute,

Inc.

(collectively

referred

to

herein as “Audubon”), Memorandum in Opposition (Rec. Doc. 46).
Accordingly, for the reasons discussed below,
IT IS ORDERED that the Motion to Fix Attorney’s Fees and Costs
is GRANTED in part and DENIED in part.

FACTS AND PROCEDURAL HISTORY
Tasha

Herbert

(“Herbert”)

filed

suit

against

Audubon

in

October 2015, alleging several architectural barriers located at
Audubon Park and the adjacent Riverview area in contravention of
the ADA. Rec. Doc. 1. Following discovery and extensive settlement
negotiations, the parties reached agreement in a Consent Judgment.
Rec. Doc. 33-2. The Consent Judgment obligates Audubon to make
improvements to Audubon Park in comport with the ADA in exchange
for dismissal of Herbert’s claims with prejudice. Id. The parties

1

also agreed that Audubon compensate Herbert 1,000.00 in damages.
Id.
Herbert files the instant motion pursuant to 42 U.S.C. §
12101,

the

Americans

with

Disabilities

Act

(“ADA”),

as

the

“prevailing party” for an award of attorney’s fees and costs. Rec.
Doc. 38. Counsel requests this Court order Audubon to pay Plaintiff
$16,103.50 in attorneys’ fees and $4,510.83 in costs. Audubon’s
Response

in

Opposition

objects

to:

1)

the

reasonableness

of

Plaintiff counsel’s requested rates, 2) the reasonableness of the
number of hours submitted, and 3) payment of post-settlement hours
submitted by Plaintiff’s counsel. See generally Rec. Doc. 46.

LAW AND ANALYSIS
The ADA was enacted to assure no person would be discriminated
against on the basis of his or her disability. 42 U.S.C. § 12181
et seq. In order to assure the availability and willingness of
lawyers to prosecute its compliance, the ADA allows for court’s to
award the prevailing party “a reasonable attorney’s fee, including
litigation expenses, and cost.” 42 U.S.C. § 12205; Brother v. Miami
Hotel Investments, Ltd., 341 F. Supp. 2d 1230, 1233 (S.D. Fla.
2004). As we have already entered Consent Judgment, it is clear
that Herbert is the prevailing party in this case. 1 However, it

1

See e.g., Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of
Health & Human Res., 532 U.S. 598, 604 (2001) “[E]nforceable judgments
on the merits and court-ordered consent decrees create the “material
alteration of the legal relationship of the parties” necessary to permit
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remains for this Court to determine what fees and costs, if any,
are reasonable.
Determination

of

a

reasonable

attorney’s

fee

involves

calculating the lodestar, which is a two-step process. Louisiana
Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995).
In the first step, this Court is to determine the reasonable number
of hours expended on the litigation and the reasonable hourly rates
for

the

participating

attorneys.

Id.

Next,

this

Court

is

to

multiply the determined hours by the determined rate. Id. This
calculation comprises the lodestar. Id. The lodestar is then either
accepted or adjusted according to the twelve factors delineated in
Johnson v. Georgia Highway Exp., which are:
(1) the time and labor involved; (2) the novelty and
difficulty of the questions involved; (3) the skill
requisite to perform the legal services properly; (4) the
preclusion of other employment by the attorney due to
this case; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) time limitations; (8) the amount
involved and results obtained; (9) the experience,
reputation.
And
ability
of
counsel;
(10)
the
undesirability of the case; (11) the nature and length of
the proceedings; and (12) awards in similar cases.
488 F. 2d 714, 717-19.

an award of attorney's fees.”; see also Hensley v. Eckerhart, 461 U.S.
424, 433 (1983) “[P]laintiffs may be considered ‘prevailing parties' for
attorney's fees purposes if they succeed on any significant issue in
litigation which achieves some of the benefit the parties sought in
bringing suit.”

3

Calculation of Lodestar
The first step involved is determination of a reasonable
hourly rate by counsel involved in the litigation. “Reasonable
fees” are calculated based from prevailing market rates in the
relevant community. Blum v. Stetson, 465 U.S. 886, 895 (1984).
“Determination of the reasonable hourly rate for a particular
community is generally established through affidavits of other
attorneys practicing there.” Chisholm v. Hood, 90 F. App'x 709,
710 (5th Cir. 2004). These determinations of rates are performed
on case-by-case basis. Id.
From the attached affidavit, Plaintiff’s counsel Andrew Bizer
is a 14-year practicing attorney and has been involved in over 250
ADA cases. Garret DeReus, also a partner at Bizer & DeReus, has
been practicing 4 years and has been involved in over 200 cases
involving

public

entities

under

Title

II

of

the

ADA.

Amanda

Klevorn, former associate at Bizer & DeReus, was a 3rd year
associate; and James Daniel is a first year associate at the firm.
Rec. Docs. 38-4 and 38-5.
However, other than personal testimony, Plaintiff’s counsel
fails to provide sufficient evidence that its requested rates are
in comport with prevailing market rates in New Orleans for ADA
litigation. Rec. Docs. 38 through 38-12. Plaintiff’s counsel is
reminded that as the applicants, they bear the burden of producing
satisfactory evidence, in addition to the their own affidavits,
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“that the requested rates are in line with those prevailing in the
community for similar services by lawyers of reasonably comparable
skill,

experience,

and

reputation.”

N.A.A.C.P.

v.

City

of

court

in

Evergreen, Ala., 812 F.2d 1332, 1338 (11th Cir. 1987).
“Nevertheless,

the

ultimate

goal

of

the

trial

considering a fee application is reasonable compensation.” Id.
From the record, it may be fairly discerned that Plaintiff’s
counsel is quite familiar with the ADA litigation process. In fact,
Plaintiff’s counsel in the instant case has already been awarded
attorney’s fees by multiple judgments in this District, including
by Judge Zainey, Judge Wilkinson, Judge Engelhardt, and Judge
North. See generally, Mark v. Covington City, et al., No. 15-05977
(E.D.

La.

July

8,

2016);

Carrier

v.

3841

Veterans

Boulevard

Partnership, No. 16-06648 (E.D. La. Sept. 21, 2017); Herbert v.
City of New Orleans, No. 16-02870, 2017 WL 3216583 (E.D. La. July
28, 2017). The facts here are substantially similar to those
presented in those cited above.
Accordingly, we determine the following rates acceptable for
Plaintiff’s counsel in this case:
Andrew Bizer
Garret DeReus
Amanda Klevorn
James Daniel
Paralegal

$275 per hour
$150 per hour
$125 per hour
$100 per hour
$75 per hour

5

It is to be noted that this Court has taken into consideration
Audubon’s argument regarding the administrative and routine nature
of Plaintiff counsels’ role in this ADA litigation, which is to be
discussed infra.
The second requisite variable necessary for calculation of
the lodestar is a determination of the number of hours reasonably
expended in the case. Louisiana Power & Light Co., 50 F.3d at 324
(5th

Cir.

establishing

1995).

“The

fee

entitlement

to

applicant
an

award

bears
and

the

burden

documenting

of
the

appropriate hours expended and hourly rates.” Hensley, 461 U.S. at
437.

Plaintiff’s

counsel

submits

the

following

hours

for

calculation of the lodestar:
Andrew Bizer
Garret DeReus
Amanda Klevorn
James Daniel
Paralegal
Total:

23.86
41.38
09.63
09.00
01.85
83.87

hours
hours
hours
hours
hours
hours

We commend Plaintiff’s counsel on the sufficiency of documentation
provided, as well as efforts to exercise billing judgment and
thereby

reduce

hours

counsel

deemed

unreasonable

for

various

reasons. Attorneys must “exercise billing judgment by excluding
time that is unproductive, excessive, duplicative, or inadequately
documented when seeking fee awards.” Creecy v. Metro. Prop. & Cas.
Ins. Co., 548 F. Supp. 2d 279, 286 (E.D. La. 2008).

6

Nevertheless,

after

review

of

the

hours

submitted

by

Plaintiff’s counsel, we find remaining entries are subject to
further reduction. “The remedy for failing to exercise billing
judgment is to reduce the hours awarded as a percentage and exclude
hours that were not reasonably expended.” Id. The high volume of
litigation and ADA cases undertaken by Plaintiff’s counsel, which
supplemented counsels requested rate as reasonable, works as a
proverbial double-edged sword in the analysis of reasonable hours
expended in this case. We are inclined to agree with Defendants
that Plaintiff counsel’s voluminous accrual of ADA filings, in
this District alone calls for a reduction in many of the hours
counsel submitted as “reasonably expended” in this matter. In
particular, much of Andrew Bizer’s itemized involvement is either
duplicative or unnecessary. Much of the review performed by Bizer
is quite longer than reasonably expected considering the basic
nature of and his familiarity with ADA cases. This case exhibited
a fairly straightforward litigation process. Most of Plaintiff
counsels’ work consisted of drafting the original complaint and
early pleadings, supervision and review of experts’ reports, and
settlement negotiations. In addition, as this case settled as early
as January 2017, the 12.93 hours jointly accrued and billed by
Bizer and DeReus is also largely unnecessary.

7

Accordingly,

we

will

apply

a

twenty-five

percent

(25%)

reduction to the hours expended in the case. The calculation of
the lodestar is as follows:
Attorney

Hours

Andrew Bizer
Garret DeReus
Amanda Klevorn
James Daniel
Paralegal

(23.86
(41.38
(09.63
(09.00
(01.85

Rate
@25%)
@25%)
@25%)
@25%)
@25%)

x
x
x
x
x

$275 per hour
$150 per hour
$125 per hour
$100 per hour
$75 per hour

Total:

$11,258.81

Johnson Factors
As indicated above, after the lodestar is determined, the
Court may then adjust the lodestar upward or downward depending on
the twelve Johnson factors. However, “to the extent that any
Johnson factors are subsumed in the lodestar, they should not be
reconsidered

when

determining

whether

an

adjustment

to

the

lodestar is required.” Migis v. Pearle Vision, Inc., 135 F.3d 1041,
1047 (5th Cir.1998). Here, we already considered the Johnson
factors above, which resulted in a reduction of the reasonable
expended hours in this matter.

Costs
Plaintiff

counsel

also

seeks

payment

for

its

costs

and

expenses incurred throughout this litigation, totaling $4,510.83.
28 U.S.C. § 1920 provides that a court may tax the following costs:
[F]ees of the clerk and marshal; fees of the court
reporter for all or any part of the stenographic
8

transcript necessarily obtained for use in the case;
fees and disbursements for printing and witnesses; fees
for exemplification and copies of papers necessarily
obtained for use in the case; docket fees; compensation
of court-appointed experts, interpreters, and special
interpretation services.
Mota v. Univ. of Texas Houston Health Sci. Ctr., 261 F.3d 512, 529
(5th Cir. 2001). Plaintiff is seeking payment for the following
costs:
Filing Fee
Services Fee
Heybeck Report
Heybeck Expenses
Maffey Report
Total:

$400.00
$225.00
$2,500.00
$85.83
$1,300.00
$4,510.83

The above costs are recoverable and will be awarded. Review of
attached

documentation

and

testimony

reveals

that

Heybeck

Engineering agreed to a flat fee for the production of a Rule 34
Inspection

of

Audubon

Park

and

a

subsequent

expert

report.

Plaintiff also retained Charles, who produced an expert report
regarding

the

modifications.
financial

financial
While

feasibility

$1,300.00

feasibility

for

borders

6.5

the

of
hours

ADA
of

precipice,

compliant

work

on

the

it

is

not

Motion

to

Fix

unreasonable on the present record.
Considering

the

foregoing,

Plaintiff’s

Attorney’s Fees and Costs is GRANTED in Part and DENIED in Part.
Audubon is hereby ordered to pay Plaintiff Herbert $11,258.81 in

9

reasonable fees and $4,510.83 in recoverable costs, for a total of
$15,769.64.

New Orleans, Louisiana, this 28th day of November, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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