Mark v. Sunshine Plaza, Inc.

Filing 79

ORDER AND REASONS - The Court, having considered the parties' filings, the applicable law, and the Magistrate Judge's 73 Finding and Recommendations, finds the Magistrate Judge's findings of facts and conclusions of law are correct, and hereby approves and adopts the Finding and Recommendations as its own. Accordingly; IT IS ORDERED that the Defendant, Sunshine Plaza, Inc., pay to the Plaintiff, Yadi Mark, $27,014.23 in reasonable attorneys' fees and costs. Signed by Judge Susie Morgan.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
YADI MARK,
Plaintiff

CIVIL ACTION

VERSUS

NO. 16-455

SUNSHINE PLAZA, INC.
Defendant

SECTION: “E” (2)
ORDER AND REASONS

Following the Court’s entry of a consent decree in this matter,1 Plaintiff Yadi Mark
filed a Motion for Attorney’s Fees, Costs, and Other Litigation Expenses. 2 The motion is
opposed.3 On February 6, 2018, the Court granted Plaintiff’s motion, but referred to
Magistrate Judge Joseph C. Wilkinson, Jr., the determination of the amount of fees and
costs to which Plaintiff is entitled.4 Magistrate Judge Wilkinson issued his Finding and
Recommendations on March 12, 2018.5 Defendant timely filed objections to the Finding
and Recommendations,6 to which Plaintiff responded.7 Pursuant to Rule 72(b) of the
Federal Rules of Civil Procedure, the Court now conducts a de novo review of the issues
to which Defendant specifically objects.8
BACKGROUND
Plaintiff Yadi Mark filed a complaint against Defendant Sunshine Plaza, Inc.,
alleging violations of the building accommodations requirements of the Americans with

R. Doc. 68.
R. Doc. 69.
3 R. Doc. 71.
4 R. Doc. 72.
5 R. Doc. 73.
6 R. Doc. 74.
7 R. Doc. 75.
8 FED. R. CIV. P. 72(b).
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Disabilities Act (“ADA”).9 Specifically, Plaintiff alleged that physical barriers to access
existed at the Sunshine Plaza shopping center in Mandeville, Louisiana, including access
ramps that lacked edge protection or handrails, and accessible-designated parking spaces
that lacked required access aisles, curb cuts, or vertical signage.10 Plaintiff’s substantive
claims were resolved when the Court entered a consent decree to which the parties
agreed.11 The consent decree provides in relevant part that “Plaintiff is the prevailing party
to this Lawsuit as defined under the [ADA].”12
Plaintiff subsequently filed a Motion for Attorney Fees, Costs, and Other Litigation
Expenses.13 Plaintiff initially sought $28,996.75 in attorneys’ fees and $4,935.23 in
costs.14 Defendant timely filed an opposition to the motion. 15 Although Defendant
concedes that Plaintiff is the prevailing party and is thus entitled to an award of
reasonable attorney’s fees, Defendant contends “the fees and costs sought in this motion
are far out of proportion to the relief obtained by plaintiff and are emblematic of the
distortion of the original purposes of the [ADA].”16
The Court granted Plaintiff’s motion, referring the determination of the amount of
recoverable fees and costs to the Magistrate Judge assigned to this matter.17 In his Finding
and Recommendations Magistrate Judge Wilkinson applied the familiar two-step
“lodestar” method:
First the court calculates the “lodestar”, which is equal to the number of
hours reasonably expended multiplied by the prevailing hourly rate in the
community for similar work. The court should exclude all time that is
R. Doc. 1. 42 U.S.C. § 12181 (2012).
R. Doc. 1 at 3-4.
11 R. Doc. 68.
12 R. Doc. 67-2 at 6.
13 R. Doc. 69.
14 R. Doc. 69-3 at 1.
15 R. Doc. 71.
16 R. Doc. 71 at 1.
17 R. Doc. 72.
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excessive, duplicative, or inadequately documented. Once the lodestar
amount is calculated, the court can adjust it based on the twelve factors set
forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19
(5th Cir. 1974).18
Magistrate Judge Wilkinson found that the requested hourly rates for Plaintiff’s
four attorneys were reasonable based on prevailing local market rates, based in part on
the hourly rates awarded to the same attorneys by Judge Zainey in another recent case in
this district.19 Defendant concedes that these hourly rates are reasonable.20
At the next step in the lodestar analysis, Magistrate Judge Wilkinson determined
that while the attorneys’ billed time, as established in the invoices attached to Plaintiff’s
motion,21 was generally well-documented, there were “submitted hours [which] where
vague, redundant or clerical in nature.”22 Magistrate Judge Wilkinson noted that
Plaintiff’s counsel undertakes a great number of ADA cases in this district, and, as a result,
“much of [counsel’s] itemized involvement is either duplicative or unnecessary.”23
Further, “[m]uch of the review performed by [Plaintiff’s counsel] is quite longer than
reasonably expected considering the basic nature of and his familiarity with ADA cases.”24
Magistrate Judge Wilkinson also challenged the entries that Plaintiff’s counsel
redacted as protected by attorney-client privilege. As Magistrate Judge Wilkinson
correctly noted, attorney-client privilege is waived by seeking reimbursement for
attorneys’ fees, because Plaintiff’s request “necessarily requires plaintiff to place the

R. Doc. 73 (quoting Jimenez v. Wood County, 621 F.3d 372, 379-80 (5th Cir. 2010)).
Id. at 8-9 (discussing the rates awarded in Mark v. Covington City et al., No. 15-5977, Record Doc. 30 at
3).
20 R. Doc. 71 at 4.
21 R. Doc. 69-4.
22 R. Doc. 73 at 12.
23 R. Doc. 73 at 12 (quoting Herbert v. New Orleans City, 2017 3216583 (E.D. La. 2017) (North, M. J.)).
24 Id.
18
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reasonableness of her attorneys’ work at issue.” 25 As a result, Magistrate Judge Wilkinson
found that the redactions for billed hours for calls and meetings between plaintiff and her
attorneys (e.g. “Call w/client re: REDACTED” or “meeting w/client re: REDACTED”)
precluded any meaningful review of these entries. 26
To remedy these deficiencies, Magistrate Judge Wilkinson applied an overall
percentage reduction of 20% of Plaintiff’s billed hours, in addition to the reductions
already made by Plaintiff’s counsel.27 Judge Wilkinson separately considered the hours
expended after the adoption of the consent decree—that is, hours spent on the motion for
attorneys’ fees—and reduced the reasonably expended hours from 20.69 hours to 4
hours.28 These reductions resulted in a total award of attorneys’ fees in the amount of
$22,079.00.29 Judge Wilkinson also determined that Plaintiff was entitled to recover
$4,935.23 in costs.30
Defendant timely objected to Magistrate Judge Wilkinson’s finding and
recommendations.31 Specifically, Defendant asserts that the Magistrate Judge did not
fully reduce the fees allegedly associated with clerical entries by attorneys, vague or
incomplete entries, and excessive entries.32 Defendant contends Magistrate Judge
Wilkinson erred in applying an across-the-board 20% reduction, arguing that this
reduction “does not adequately reduce the fees sought to address the inappropriately

R. Doc. 73 at 13 (citing Dixie Mill Supply Co. v. Continental Cas. Co., 168 F.R.D. 554, 555-56 (E.D. La.
1996) (quoting Smith v. Kavanaugh, Person & Talley, 513 So.2d 1138, 1145 (La. 1987).
26 Id.
27 R. Doc. 73 at 14.
28 R. Doc. 73 at 16.
29 Id. at 18.
30 Id. at 19-21.
31 R. Doc. 73.
32 R. Doc. 74-2.
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incurred hours.”33 Instead, Defendant asserts that a line-by-line analysis of the fee
application is necessary.34
Defendant also argues Magistrate Judge Wilkinson erred in not reducing the fees
pursuant to Johnson to reflect “the lack of novelty and difficulty of the questions,” “the
amount involved and the results obtained” and “awards in similar cases.”35 In particular,
Defendant argues that the award of attorneys’ fees is disproportionate to the remedy
obtained by Plaintiff, as Defendant contends it was able to remedy the alleged ADA
violations at a cost of only $980.00.36
Finally, Defendant objects to Plaintiff’s $3,006.42 award in connection with expert
fees paid to Nicholas Heybeck.37 Defendant argues multiple inspections of the property at
issue were not reasonable under the circumstances, and the Court should not require it to
pay for those inspections.38
Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, this Court “must
determine de novo any part of the magistrate judge’s disposition that has been properly
objected to.”39 After conducting a de novo review, the Court “may accept, reject, or modify
the recommended disposition.”40
LAW AND ANALYSIS
The ADA was enacted to ensure no person would be discriminated against on the
basis of his or her disability.41 In order to assure the availability and willingness of lawyers

Id. at 6.
Id.
35 R. Doc. 74-2 at 2 (discussing the Johnson factors)
36 R. Doc. 74-2 at 7.
37 Id.
38 Id.
39 FED. R. CIV. P. 72(b)(3).
40 Id.
41 42 U.S.C. § 12181 et seq. (2012).
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to prosecute violations of the ADA, the statute allows for courts to award the prevailing
party “a reasonable attorney’s fee, including litigation expenses, and costs.”42 The consent
decree entered in this matter makes clear that Plaintiff is the prevailing party.43 As a
result, she is entitled to reasonable attorneys’ fees and costs.
As noted above, determination of reasonable attorneys’ fees involves calculating
the lodestar.44 In this process, the Court first determines the reasonable number of hours
expended on the litigation and the reasonable hourly rates for the participating attorneys,
and then multiplies the determined hours by the determined rate. 45 The Court may then
adjust the lodestar based on the twelve factors established in Johnson v. Georgia
Highway Express:
(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.46
To the extent that any of these factors is subsumed in the lodestar, however, they should
not be reconsidered when determining whether an adjustment is appropriate.47 Such
reconsideration constitutes impermissible double-counting.48

42 U.S.C. § 12205 (2012).
R. Doc. 67-2. See also Buckhannon Bd. & Care Home, Inc. v. West 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 an award
of attorney’s fees.”).
44 See Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995).
45 Id.
46 Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir. 1974).
47 See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998).
48 See Shipes v. Trinity Industries, 987 F.2d 311, 319-20 (5th Cir. 1993).
42
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The burden of proving the reasonableness of the hours expended is on the fee
applicant.49 Attorneys must exercise “billing judgment” by “writing off unproductive,
excessive, or redundant hours” when seeking fee awards.50 When billing judgment is
lacking, the court must exclude from the lodestar calculation the hours that were not
reasonably expended.51
Defendant makes three specific objections to the Magistrate Judge’s Finding and
Recommendations: (1) the court erred in applying a 20% reduction of Plaintiff’s counsel’s
hours, rather than conducting a line-by-line analysis; (2) the court failed to properly
reduce hours based on three Johnson factors; and (3) Plaintiff’s expert fees were not
reasonable. The Court will address each in turn.
A.

Twenty Percent Reduction
Magistrate Judge Wilkinson, finding that Plaintiff’s counsel failed to exercise

“billing judgment” with respect to certain entries in the submitted invoices, reduced the
hours recoverable by Plaintiff’s counsel by 20%. Defendant objects, arguing that “the rote
nature of the litigation calls for a reduction in the fees, either through a line by line
analysis . . . or by a larger than twenty (20%) percent reduction.”
The Fifth Circuit has held that “the proper remedy when there is no evidence of
billing judgment is to reduce the hours awarded by a percentage intended to substitute
for the exercise of billing judgment.”52 In the alternative, the court can conduct a line-byline analysis.53 In this case, Magistrate Judge Wilkinson declined to conduct such a

Mota v. Univ. of Tex. Houston Health Sc. Ctr., 261 F.3d 512, 528 (5th Cir. 2001).
Walker v. U.S. Dep’t of Hous. & Urban Dev., 99 F.3d 761, 769 (5th Cir. 1996).
51 See Miller v. Braud, 2013 WL 6666832 at *6 (E.D. La. 2013).
52 Walker, 99 F.3d at 770.
53 Creecy v. Metropolitan Property and Cas. Ins. Co., 548 F.Supp. 2d 279, 286 (citing Green v.
Administrators of the Tulane Educational Fund, 284 F.3d 642 (5th Cir. 2002).
49

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review.54 Defendant cites no legal authority for the proposition that Magistrate Judge
Wilkinson was required to conduct a line-by-line analysis in this case. Rather, Defendant
asserts only that the 20% reduction does not sufficiently reflect the hours it believes are
vague, redundant, or clerical in nature. For example, Defendant asserts the 20% reduction
of lead counsel Andrew Bizer’s hours “nearly equals” the number of hours in which the
entry was redacted to protect attorney/client privilege, leaving unaddressed any
additional entries that were vague or duplicative.55
Defendant misinterprets the Magistrate Judge’s determination. Although the 20%
reduction of Bizer’s hours, in practical terms, roughly covers the hours spent in redacted
conversations with the client, the Magistrate Judge reduced by 20% the hours billed by
all Plaintiff’s attorneys, not only the hours billed by Bizer. Accordingly, the 20% reduction
does not result merely in a reduction of 9.47 hours, but rather a total reduction of 31.38
hours.
Bearing in mind the Supreme Court’s guidance trial courts “need not, and indeed
should not, become green-eyeshade accountants,”56 the Court finds that Defendant has
failed to explain why a reduction of greater than 20% is warranted, and that the
Magistrate Judge correctly determined that the 20% across-the-board reduction
adequately takes into account the entries which may be vague, redundant, or clerical in
nature.
B.

Johnson Factors

Defendant argues the award of fees should be reduced based on the “awards in
similar cases,” “the novelty and difficulty of the questions,” and “the amount involved and
R. Doc. 73 at 14.
R. Doc. 74-2 at 6.
56 Fox v. Vice, 563 U.S. 826, 838 (2011).
54
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the results obtained.” According to Defendant, “given the lack of novelty/difficulties of
the issues involved in this matter, and the relatively small success that plaintiff achieved,
the Court should substantially reduce the attorney’s fees awarded.” 57
First, as noted by Magistrate Judge Wilkinson, “the complexity of the issues” and
“the results obtained” are “presumably reflected and subsumed in the lodestar amount.”58
In this case, Magistrate Judge Wilkinson’s recommended 20% reduction takes into
account the issues presented in Defendant’s “complexity of the issues” argument, and so
a further reduction would constitute double recovery. As to the “results obtained,”
Defendants has not explained why this case presents the “rare and exceptional
circumstances” in which the lodestar should be adjusted based on this factor.59
Second, with regard to “awards in similar cases,” Plaintiff correctly notes that
Magistrate Judge Wilkinson referenced similar cases throughout his Finding and
Recommendation. For example, the hourly rates in this case were justified in large part
by Judge Zainey’s opinion in Mark v. Covington City et al.60 Further, in determining what
percentage reduction would be appropriate, Magistrate Judge Wilkinson relied on
Herbert v. New Orleans City.61 That case involved the same attorneys at issue in this case,
and, as in this matter, the Magistrate Judge determined that the lodestar should be
reduced to account for the serial nature of plaintiff’s counsel’s litigation strategy, but that
no adjustment pursuant to Johnson was appropriate.62 The Court also notes that in
Herbert, the court applied a 15% reduction, significantly less than that recommended by

R. Doc. 74-2 at 7.
R. Doc. 73 at 6 (citing Heidtman v. City of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999)).
59 Heidtman, 171 F.3d at 1043.
60 R. Doc. 73 at 9-10 (listing relevant cases).
61 2017 WL 3216583 (E.D. La. 2017).
62 Id. at *7, *10.
57

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Magistrate Judge Wilkinson in this case. Accordingly, the Court finds that a reduction
pursuant to the twelfth Johnson factor, “awards in similar cases,” is inappropriate.
C.

Expert Costs

Defendant objects to the award of $3,006.24 in connection with expert fees paid
to Nicholas Haybeck, on the grounds that the costs of the multiple inspections conducted
by Mr. Heybeck were not reasonable.63 Defendant asserts that “there is absolutely no
suggestion in the documentary submissions by plaintiff that either the Heybeck or Maffey
expert fees are reasonable for the work performed, considering the market rates in the
Eastern District of Louisiana.”64
In his Finding and Recommendation, Magistrate Judge Wilkinson analyzed the
recent case Gilmore v. Elmwood South, LLC, in which Magistrate Judge Knowles found
that the plaintiff’s retention of Mr. Heybeck was not unreasonable, and that plaintiff was
entitled to recover costs for travel and expert fees. Accordingly, Magistrate Judge
Wilkinson found that the costs in this case, which are substantially similar to those upheld
in Gilmore, were reasonable. The Court sees no reason to depart from the Magistrate
Judge’s determination, and finds that Plaintiff is entitled to recover costs for expert fees.
CONCLUSION
The Court, having considered the parties’ filings, the applicable law, and the
Magistrate Judge’s Finding and Recommendations, finds the Magistrate Judge’s findings
of facts and conclusions of law are correct, and hereby approves and adopts the Finding
and Recommendations as its own.
Accordingly;

63
64

R. Doc. 74-2 at 7.
R. Doc. 71 at 22.

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IT IS ORDERED that the Defendant, Sunshine Plaza, Inc., pay to the Plaintiff,
Yadi Mark, $27,014.23 in reasonable attorneys’ fees and costs.
New Orleans, Louisiana, this 26th day of April, 2018.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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