Falls et al v. Board of Commissioners of the New Orleans Regional Transit Authority et al

Filing 72

ORDER AND REASONS: IT IS ORDERED that the Plaintiffs' Motion to Determine Damages 57 is GRANTED. IT IS FURTHER ORDERED that Plaintiffs Francis Falls, Mitchell Miraglia, and Thad Tatum are awarded $1,500 each. IT IS FURTHER ORDERED that th e Plaintiffs Motion to Determine Attorneys Fees and Costs 61 is GRANTED. IT IS FURTHER ORDERED that the Plaintiffs are awarded $48,176.75 in attorneys fees and $7,573.96 in costs and expenses for a total of $55,750.71. Signed by Magistrate Judge Karen Wells Roby on 6/21/2017. (tm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FRANCIS FALLS, ET AL

CIVIL ACTION

VERSUS

NO:

BOARD OF COMMISSIONERS OF
THE NEW ORLEANS REGIONAL
TRANSIT AUTHORITY, ET AL

UNITED STATES MAGISTRATE
JUDGE KAREN WELLS ROBY

16-2499

ORDER AND REASONS
Before the Court is a Motion to Determine Damages (R. Doc. 57) and a Motion to
Determine Attorneys’ Fees and Costs (R. Doc. 61) filed by Plaintiffs Francis Falls (“Falls”),
Mitchell Miraglia (“Miraglia”), and Thad Tatum (“Tatum”) (collectively “Plaintiffs”) seeking an
order of the Court awarding each Plaintiff $10,000 in damages as well as $48,430.50 in attorneys’
fees and $7,573.96 in costs for all Plaintiffs. The motions are opposed. R. Doc. 65; R. Doc. 64.
Both motions were submitted on March 22, 2017 and heard without oral argument.
I.

Background
This action was initially filed in the District Court on March 28, 2016 seeking injunctive

and declaratory relief, damages, and attorneys’ fees and costs pursuant to Title II of the Americans
with Disabilities Act, 42 U.S.C. § 12131 et seq. (“ADA”) and the Rehabilitation Act of 1973, 29
U.S.C. § 794 et seq. (“RA”). R. Doc. 1. The Plaintiffs allege that Defendants the City of New
Orleans and the Board of Commissioners of the New Orleans Regional Transit Authority have
violated the ADA in connection with the bus stop system in New Orleans. In particular, the
Plaintiffs allege that nearly 94.3% of all bus stops are non-compliant with ADA requirements. The
Plaintiffs argue that the Defendants have failed to construct or alter bus stops to ensure accessibility
and have failed to provide program access at the existing bus stops. R. Doc. 1. As such, the
Plaintiffs allege that the Defendants have discriminated against them and continue to do so by

excluding/denying the Plaintiffs the full and equal benefits of their services and by failing to have
accessible facilities or taking steps to make them accessible. Id. at p. 16.
On December 23, 2016, the Parties consented to proceed before the undersigned United
States Magistrate Judge under the provisions of 28 U.S.C. § 636(c). Thereafter, on February 10,
2017, the undersigned approved and ratified the Parties’ Settlement Agreement (R. Doc. 55). R.
Doc. 54. The Settlement Agreement provided for the improvement of existing ADA compliance
procedures, a plan for bringing bus stops into ADA compliance, the selection by Plaintiffs of
priority bus stops to be brought into compliance, a time frame for compliance as well as a method
for the monitoring and enforcement of the settlement agreement. R. Doc. 54, p. 3-10. In return, the
Plaintiffs agreed to release their claims for injunctive and declaratory relief against the Defendants.
Id. at p. 10-11. Finally, as part of the Settlement Agreement, the Parties agreed to submit the issues
of Damages and Attorneys’ Fees and Costs for determination by the undersigned. Id. at p. 10.
II.

Motion to Determine Damages
A.

Background

In accordance with the Parties’ Settlement Agreement (R. Doc. 55) and this Court’s order
(R. Doc. 54), the Plaintiffs submitted their Motion to Determine Damages (R. Doc. 57) on February
20, 2017. In total, the Plaintiffs request $10,000 each in damages. R. Doc. 57. The Plaintiffs argue
that they are entitled to damages under Title II of the ADA because they are qualified individuals
that were excluded from participation or denied benefits of services, programs or activities and
that such exclusion or discrimination was because of their disability. R. Doc. 57-1, p. 12. They
argue that they were discriminated against when the Defendants failed to modify/construct bus
stops in compliance with applicable standards and when the Defendants failed to provide program
access.

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In opposition, the Defendants argue that the Plaintiffs are not entitled to damages because:
(i) there is no evidence of intentional discrimination; and (ii) the Plaintiffs have not carried their
burden of proof to lay out a prima facie case of discrimination because Tatum is not a qualified
individual and all defendants have offered no evidence of any alleged discrimination by reason of
their disability. R. Doc. 65.
B.

Standard of Review

The Plaintiffs have brought claims seeking damages under both Title II of the ADA and
the Rehabilitation Act. “The Rehabilitation Act and the ADA both prohibit discrimination against
qualified individuals with disabilities; they employ many of the same legal standards and offer the
same remedies.” Sweeney v. Texas State Univ., No. 14-910, 2016 WL 3829552 at *2 (W.D. Tex.
July 11, 2016) (citing Maples v. Univ. of Texas Med. Branch at Galveston, 901 F. Supp. 2d 874,
878 (S.D. Tex. 2012), aff'd, 524 Fed.Appx. 93 (5th Cir. 2013)); see also Miraglia v. Bd. of
Supervisors of Louisiana State Museum, No. 15-4947, 2016 WL 6215976, at *1 n.1 (E.D. La. Oct.
25, 2016) (citing Frame v. City of Arlington, 657 F.3d 215, 223-24 (5th Cir. 2011)) (“The ADA
and § 504 of the Rehabilitation Act (29 U.S.C. § 794(a)) are generally interpreted in para materia
and employ the same legal standards. Plaintiff's briefing is limited to Title II which is not
problematic under Fifth Circuit precedent.”).
“The ADA is a ‘broad mandate’ of ‘comprehensive character’ and ‘sweeping purpose’
intended ‘to eliminate discrimination against disabled individuals, and to integrate them into the
economic and social mainstream of American life.’” Frame, 657 F.3d at 223 (citing PGA Tour,
Inc. v. Martin, 532 U.S. 661, 675 (2001)). Title II of the ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be excluded from participation in or be denied

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the benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. Under Fifth Circuit Precedent,
To establish a prima facie case of discrimination under the ADA, a plaintiff must
demonstrate: (1) that he is a qualified individual within the meaning of the ADA;
(2) that he is being excluded from participation in, or being denied benefits of,
services, programs, or activities for which the public entity is responsible, or is
otherwise being discriminated against by the public entity; and (3) that such
exclusion, denial of benefits, or discrimination is by reason of his disability.
Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir. 2004); Greer v. Richardson
Indep. Sch. Dist., 472 F. App’x 287, 292 (5th Cir. 2012) (unpublished). Moreover, “[a] plaintiff
asserting a private cause of action for violations of the ADA or the RA may only recover
compensatory damages upon a showing of intentional discrimination.” Delano-Pyle v. Victoria
Cty., 302 F.3d 567, 574 (5th Cir. 2002).
C.

Analysis

Here, the Plaintiffs seek damages under Title II of the ADA. The Plaintiffs argue that they
are entitled to damages under Title II of the ADA because they are qualified individuals that were
excluded from participation or denied benefits of services, programs or activities and that such
exclusion or discrimination was because of their disability. R. Doc. 57-1, p. 12. The Defendants
oppose the award of damages arguing that (i) there is no evidence of intentional discrimination;
and (ii) the Plaintiffs have not carried their burden of proof to lay out a prima facie case of
discrimination because Tatum is not a qualified individual and all defendants have offered no
evidence of any alleged discrimination by reason of their disability. R. Doc. 65. In order for the
Plaintiffs to prevail, they must demonstrate that they are qualified individuals that were either

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denied benefits of or otherwise discriminated against by the Defendants by reason of their
disability. See Melton, 391 F.3d at 671-72.
1.

Plaintiffs Are Qualified Individuals Under the ADA

Under 42 U.S.C. § 12102(1)(A), an individual is disabled under the ADA where “a
physical or mental impairment that substantially limits one or more major life activities of such
individual.” A “major life activity” includes, but is not limited to, “caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C.
§ 12102(2)(A). “Additionally, the 2008 Amendments to the ADA stress that the definition of
disability shall be construed in favor of a broad number of individuals under the Act, to the
maximum extent permitted by the Act.” Mitchell v. Universal Health Servs., Inc., No. 15-5963,
2017 WL 993146, at *2 (E.D. La. Mar. 15, 2017) (slip copy) (citing 42 U.S.C. § 12102(4)(A)).
The Parties agree that Miraglia and Falls are qualified individuals under the ADA. R. Doc.
65, p. 14. However, the Defendants argue that that Tatum should not be considered a qualified
individual because the Plaintiffs fail to address or present any analysis or explanation as to whether
Tatum’s physical impairments results in substantial limitation in a major life activity. Id. In turn,
the Plaintiffs argue that Tatum is a qualified individual because he is a C-7 paraplegic as a result
of a puncture wound to the neck in 1988. R. Doc. 57-1, p. 10.
In considering Tatum’s physical impairments as a result of his paraplegia, the Court finds
that Tatum is a qualified individual under the ADA. During his deposition, Tatum explained that
as a result of his paraplegia he suffers limitations to his right side. While Tatum uses a four-legged
walker around his home as a result of physical therapy and can drive, he strictly uses a wheelchair
to get around outside of his house. R. Doc. 57-14, p. 41, Tr. 15-17. When he travels around in his

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car, Tatum relies on others to place and remove his wheelchair from his car. Id. at p. 66, 117-18.
Given his physical limitations as a result of paraplegia, the Court finds that Tatum is certainly
substantially limited in major life activities as contemplated by 42 U.S.C. § 12102, including
walking, standing, and bending.
2.

Being Discriminated Against by a Public Entity

In order to establish discrimination under Title II, the Plaintiffs must also demonstrate that
they were excluded from participation in, or being denied benefits of, services, programs, or
activities for which the public entity is responsible, or is otherwise being discriminated against by
the public entity. When determining if a public entity has discriminated against an individual in
relation to ensuring public facilities and programs are accessible to disabled individuals, “Title II
differentiates between ‘existing structures,’ i.e., structures built prior to the Act taking effect in
January 1992, and facilities built or altered after January 1992.” Miraglia, 2016 WL 6215976, at
*1 (citing Greer, 472 F. App’x at 291).
First, as to facilities modified or constructed after 1992, structures that are not built in
compliance with the applicable Americans with Disabilities Act Accessibility Guidelines
(“ADAAG”) guidelines constitute discrimination. See Greer, 472 F. App’x at 300 (“The parking
lot and ramp have both been modified or constructed after 1992 and thus do not fall within the
more flexible guidelines for existing facilities. Instead the ADAAG guidelines apply”). As the
Fifth Circuit noted in Frame, “when a city decides to build or alter a [structure] but makes that
[structure] inaccessible to individuals with disabilities without adequate justification, the city
discriminates within the meaning of Title II.” 657 F.3d at 230-31.
Here, the record reflects that the City has discriminated in relation to modified or
constructed facilities after 1992. In a report by the Plaintiffs’ expert, the Plaintiffs’ expert reported

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that 60 of 69 newly constructed/modified bus stops failed to comply with the applicable
accessibility requirements of the ADA. R. Doc. 57-1, p. 18; see also R. Doc. 57-5. Notably, the
Defendants do not appear to contest these findings nor have they offered an adequate justification
for this failure to comply other than an acknowledgment that they were allegedly in the process of
developing a plan to make modifications. So, as to newly constructed/modified structures, the
Court finds that the Plaintiffs have demonstrated discrimination.
Second, as to existing facilities, courts have applied a “less stringent and more flexible”
standard looking at overall access to the program—“program accessibility”—rather than technical
compliance at each facility. See Greer, 472 F. App’x at 291 (“When considering ADA compliance
for such existing structures, the touchstone is thus not the facility's technical compliance with the
ADAAG, but is instead ‘program accessibility.’”). As the Court has recently explained:
When considering ADA compliance for existing structures, the appropriate
standard is “program accessibility” not facility accessibility. Id. For that standard
the federal regulations provide: “A public entity shall operate each service,
program, or activity so that the service, program, or activity, when viewed in its
entirety, is readily accessible to and usable by individuals with disabilities.” 28
C.F.R. § 35.150(a) (emphasis added). Making a program or activity accessible
under this standard does not require a public entity to make all of its existing
facilities accessible to disabled individuals nor does it require a public entity to take
an action that would place an undue burden on the entity. Id. § 35.150(a)(1), (3).
Furthermore, the regulations do not provide objective criteria for evaluating
program accessibility. Greer, 472 Fed. Appx. at 291. While an existing structure's
compliance with ADAAG regulations may be informative, program accessibility is
ultimately a subjective determination by viewing the program or activity at issue in
its entirety and not solely by evaluating individual elements of the facility where
the program is held. Id.
Miraglia, 2016 WL 6215976, at *2 (citing Greer, 472 Fed. Appx. at 291).
Here, the Court finds that the Defendants have discriminated under the ADA in regards to
existing bus stops. The Manning Report—a report commissioned by the Defendants prior to the
instant litigation to evaluate the accessibility of every single bus stop within the New Orleans bus

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system (R. Doc. 65, p. 11)—determined that 94.3% of the bus stops do not comply with
accessibility requirements of the ADA. R. Doc. 57-1, p. 20. Moreover, each of the Plaintiffs gave
anecdotal evidence of difficulties accessing the bus stops—and the bus system as a result—given
the non-compliance and inaccessibility including: having to make risky maneuvers and risking
flipping over; having to avoid certain non-compliant bus stops; getting stuck because a lack of
concrete at certain stops; and having to miss certain buses because drivers did not want to be liable
for having Tatum enter the bus on the street. Id. at p. 6-11; see, e.g., 57-14, p. 6-7 (Miraglia), 4446 (Tatum), 74-77 (Falls). Given the pervasive non-compliance and the Plaintiffs’ difficulties in
accessing the bus stops, the Court finds that in its entirety the Plaintiffs were denied access and
thus discriminated against.
3.

Plaintiffs Were Discriminated Against By Reason of Their Disabilities

In order to establish a prima facie case of discrimination, the Plaintiffs must also establish
that they were discriminated by basis of their disability. Melton, 391 F.3d at 671-72. The Plaintiffs
argue that but for the discrimination caused by the system-wide barriers they would have enjoyed
the bus stops fully and fairly. R. Doc. 57-1, p. 21-22. In opposition, the Defendants argue that the
Plaintiffs demonstrated use of the bus stops despite any accessibility problems demonstrates that
they were not denied use of the systems. R. Doc. 65, p. 14.
The Court finds that the discrimination detailed above—the denial of safe use of or
accessible bus stops—was caused solely by the fact that the Plaintiffs are disabled. The problems
they encountered using the stops held their origin in the fact that they were confined to wheelchairs while attempting to use the bus stops. As such, given the above, the Court finds that the
Plaintiffs have established a prima facie case of discrimination under the ADA.

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4.

Plaintiffs Have Demonstrated Intentional Discrimination

Finally, the Defendants contend that the Plaintiffs cannot demonstrate discrimination
because they have not shown that they were intentionally discriminated against and therefore are
not entitled to compensatory damages. R. Doc. 65, p. 9. The Defendants argue that because the
Plaintiffs have not shown intentional discrimination, or personal ill will or malice towards the
disabled person, they have not demonstrated discrimination such that they are entitled to damages.
In turn, the Plaintiffs argue that the failure to provide accessible bus stops does constitute
intentional discrimination because they did not comply with their affirmative duty to
accommodate. R. Doc. 71, p. 2-3.
Indeed, “[a] plaintiff asserting a private cause of action for violations of the ADA or the
RA may only recover compensatory damages upon a showing of intentional discrimination.”
Delano-Pyle, 302 F.3d at 574. However, what constitutes intentional discrimination appears to be
an open-question of law in the Fifth Circuit. In Perez v. Doctors Hosp. at Renaissance, Ltd., 624
F. App’x 180 (5th Cir. 2015), the Fifth Circuit has recently noted that: “We did not define what
we meant by intent in Delano–Pyle. Some circuits have held that deliberate indifference
suffices. . . .[However] [t]he parties have not briefed the issue in any depth, and we decline to
make new law on the nature of intent at this time.” 624 F. App’x at 182; see also McCollum v.
Livingston, no. 14-3253, 2017 WL 2215627, at *2 (S.D. Tex. May 19, 2017) (“The Fifth Circuit
has not yet decided whether deliberate indifference or something more, is necessary to show
intentional discrimination.”).
In defining what constitutes intentional discrimination, two approaches have developed.
First, the “deliberate indifference” standard appears to require a finding that “the defendant knew
that harm to a federally protected right was substantially likely and ... failed to act on that

9

likelihood.” T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cty., Fla., 610 F.3d 588, 604 (11th Cir.
2010). Second, a stricter standard requires a finding of “[d]iscriminatory animus…. [that is]
prejudice, spite, or ill will.” Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 344 (11th Cir.
2012).
While the Court agrees with the Defendants that there is nothing in the record to
demonstrate prejudice, ill-will, or malice directed at the Plaintiffs in this case, the Court does
believe that the Defendants’ conduct rises to the level of deliberate indifference as discussed
below. Given then that the two approaches to intentional discrimination would dictate different
results, the undersigned cannot forgo grappling with what it is meant by “intentional
determination” under this statutory scheme.
As an initial matter, the Court rejects the Plaintiffs’ argument that intentional
discrimination can be found because the Defendants have failed to comply with an affirmative
obligation to accommodate. R. Doc. 71, p. 2. In support of this argument, the Plaintiffs cite to
Delano-Pyle, Bennett-Nelson v. Louisiana Bd. of Regents, and Perez. Id. at p. 2-3. However, the
Plaintiffs’ reliance on these cases strike the Court as misplaced and demonstrate a certain level of
liberty taken with the case law. First, the Fifth Circuit has rejected an argument that Bennett-Nelson
somehow weighed in on the import of animus in connection with intentional discrimination, and
the undersigned agrees with this reading. Estate of A.R. v. Myzyka, 543 F. App’x 363, 301 Ed. Law
Rep. 113, at n.2 (5th Cir. Oct. 16, 2013) (unpublished) (citing Bennett-Nelson v. Louisiana Bd. of
Regents, 431 F.3d 448 (5th Cir.2005)) (“A.R. points to our decision in Bennett–Nelson v.
Louisiana Board of Regents to support the proposition that proof of animus is not required. That
decision, however, concerned ‘the sole issue ... [of] whether Louisiana's Eleventh Amendment
sovereign immunity’ barred claims under the ADA and Section 504.”).

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Second, as noted above, Perez explicitly refused to determine what intentional
discrimination meant. 624 F. App’x at 182. Indeed, the Fifth Circuit in Perez only determined that
there was “a genuine dispute of material fact as to whether [the defendant] intentionally
discriminated against the plaintiffs” and invited the district court to “if necessary to resolve the
case, make the initial effort to define intent under this statutory scheme.” Id. at 186.
Finally, in regards to Delano-Pyle, the Court did not define intentional discrimination.
While the Plaintiff cites language from the Court’s discussion of “whether a policy of
discrimination must be identified to sustain a claim under the ADA or the RA,” the Court’s
discussion of intentional discrimination does not appear to place the emphasis on affirmative
obligations that the Plaintiffs wish the Court to read. 302 F.3d at 575. Rather, in finding intentional
discrimination, the Court appears to place greater weight on the Police Officer’s failure to adapt
or provide an accommodation to a hearing-impaired individual despite obvious signs that the
disabled individual was not understanding. Id. at 575-76. There, the Fifth Circuit appears to find
intentional discrimination in the Officer’s decision to knowingly ignore the needs of a disabled
individual.
Nor is the Court convinced by the Defendants’ argument that there must be some finding
of ill-will or malice directed at the Plaintiffs. Certainly, in Delano-Pyle, the Fifth Circuit appears
to suggest that “[t]here is no ‘deliberate indifference’ standard applicable to public entities for
purposes of the ADA or the RA.” Id. at 575. However, whatever significance this statement carries
in the current discussion is undercut by the Fifth Circuit’s later statement that “intentional
discrimination” was not defined while noting explicitly that other circuits had adopted the
deliberate indifference standard. Perez, 624 F. App’x at 182.

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Moreover, the Defendants also cite the Fifth Circuit in Campbell v. Lamar Inst. of Tech.,
842 F.3d 375 (5th Cir. 2016), wherein the court suggested that summary judgment in terms of
intentional discrimination should be granted “[w]hen the record is ‘devoid of evidence of malice,
ill-will, or efforts ... to impede’ a disabled student's progress.” 842 F.3d at 380. However, the
Campbell decision appears distinguishable in two important aspects. First, Campbell analyzed
intentional discrimination in relation to request for reasonable accommodation the defendant
allegedly denied the plaintiff—which in general will involve a more personal dichotomy—rather
than a more generalized accessibility claim leveled against a public entity. To this Court, while
evidence of personal malice might be required in the more personal request for an accommodation
and makes sense given the level of interaction between the qualified individual and the
discriminating entity, such a requirement would be difficult if not impossible to meet in
discrimination claims connected to more generalized accessibility claims wherein the
discriminatory denial of an individuals’ right to access likely occurs without any personal
interaction between the qualified individual and the discriminating entity. Second, the Court also
notes that the Campbell decision is also influenced by and involves the deference considerations
given to institutions in connection with education. Id.
Rather, based on its review of the defining characteristics of the ADA and the trend in this
country, the undersigned finds that the deliberate indifference standard should apply, especially in
connection with the type of accessibility claim sub judice. Certainly, when faced with this same
question of defining “intentional discrimination,” a number of other Circuits have adopted the
deliberate indifference standard. Freydel v. New York Hosp., 242 F.3d 365, 2000 WL 1836755 (2d
Cir. 2000) (table opinion) (quoting Bartlett v. New York State Bd. of Law Examiners, 156 F.3d
321, 331 (2d Cir. 1998) , vacated on other grounds by 527 U.S. 1031 (1999)) (“‘In the context of

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the Rehabilitation Act, intentional discrimination against the disabled does not require personal
animosity or ill will. [citations omitted]. Rather, intentional discrimination may be inferred when
a ‘policymaker acted with at least deliberate indifference to the strong likelihood that a violation
of federally protected rights will result from the implementation of the [challenged] policy ... [or]
custom.’’”); S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 263-65 (3d Cir. 2013);
Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th Cir. 2011) (“The district court decided that
deliberate indifference was the appropriate standard for showing intentional discrimination in this
type of case. A number of other circuits have so ruled, and we agree.”); Duvall v. Cty. of Kitsap,
260 F.3d 1124, 1138 (9th Cir.2001) (citations and footnote omitted) (“To recover monetary
damages under Title II of the ADA or the Rehabilitation Act, a plaintiff must prove intentional
discrimination on the part of the defendant.... We now determine that the deliberate indifference
standard applies.”); Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999)
(“[I]ntentional discrimination can be inferred from a defendant's deliberate indifference to the
strong likelihood that pursuit of its questioned policies will likely result in a violation of federally
protected rights.”); Liese v. Indian River Cty. Hops. Dist., 701 F.3d 334, 345 (11th Cir. 2012) (“We
agree with the parties and hold that a plaintiff may demonstrate discriminatory intent through a
showing of deliberate indifference.”).
In particular, the Court finds that the Third Circuit’s explanation for the adoption of
deliberate indifference standard to be particular compelling. Lower Merion Sch. Dist., 729 F.3d at
264. Of note, the Third Circuit explains:
As an initial matter, the deliberate indifference standard is better suited to the
remedial goals of the RA and the ADA than is the discriminatory animus
alternative. In discussing the enactment of the RA and the ADA, the Supreme Court
observed that “[d]iscrimination against the handicapped was perceived by Congress
to be most often the product, not of invidious animus, but rather of thoughtlessness

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and indifference—of benign neglect.” Alexander v. Choate, 469 U.S. 287, 295, 105
S.Ct. 712, 83 L.Ed.2d 661 (1985); see also Chapman v. Pier 1 Imports (U.S.) Inc.,
631 F.3d 939, 944–45 (9th Cir.2011) (applying Choate's discussion of the
enactment of the RA to the ADA). Moreover, “[f]ederal agencies and commentators
on the plight of the handicapped similarly have found that discrimination against
the handicapped is primarily the result of apathetic attitudes rather than affirmative
animus.” Alexander, 469 U.S. at 296, 105 S.Ct. 712. Consistent with these
motivations, the RA and the ADA are targeted to address “more subtle forms of
discrimination” than merely “obviously exclusionary conduct.” Chapman, 631
F.3d at 945. Thus, a standard of deliberate indifference, rather than one that targets
animus, will give meaning to the RA's and the ADA's purpose to end systematic
neglect. See Choate, 469 U.S. at 295, 105 S.Ct. 712 (noting that Senator Humphrey,
who introduced the measure, stated that “we can no longer tolerate the invisibility
of the handicapped in America” (quoting 118 Cong. Rec. 525–26 (1972))).
Moreover, the standard of deliberate indifference, while accommodating the RA's
and the ADA's function in protecting the disabled, is also consistent with contract
principles at play when legislation is passed via the Spending Clause. See Liese,
701 F.3d at 347. The RA and the ADA were enacted under Congress's Spending
Clause power; legislation that is enacted under this power “is much in the nature of
a contract” between the federal government and recipients of federal funds.
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67
L.Ed.2d 694 (1981). “Just as a valid contract requires offer and acceptance of its
terms, the legitimacy of Congress' power to legislate under the spending power rests
on whether the recipient voluntarily and knowingly accepts the terms of the
contract.' ” Barnes, 536 U.S. at 186, 122 S.Ct. 2097 (alterations omitted) (quoting
Pennhurst, 451 U.S. at 17, 101 S.Ct. 1531). The Supreme Court has thus reasoned
that a recipient of federal funding, such as the School District here, may be held
liable for money damages only when it is on notice by statute that it has violated
the law. Id. (discussing monetary damages under Title VI); Gebser, 524 U.S. at
287, 118 S.Ct. 1989 (discussing monetary damages under Title IX).
Id.; see also Liese, 701 F.3d at 348 (“The deliberate indifference standard best reflects the purposes
of § 504 while unambiguously providing the notice-and-opportunity requirements of Spending
Clause legislation. A lower standard would fail to provide the notice-and-opportunity requirements
to RA defendants, while a higher standard—requiring discriminatory animus—would run counter
to congressional intent as it would inhibit § 504's ability to reach knowing discrimination in the
absence of animus.”). The undersigned agrees with this analysis and finds that the deliberate
indifferent is the appropriate standard to take in regards to intentional discrimination and more

14

suited to “giv[ing] meaning to the RA's and the ADA's purpose to end systematic neglect.” Lower
Merion Sch. Dist., 729 F.3d at 264.
As noted above, to show deliberate indifference, the Plaintiffs must show “(1) knowledge
that a federally protected right is substantially likely to be violated…and (2) failure to act despite
that knowledge.” Id. First, in regards to the knowledge requirement, “[w]hen the plaintiff has
alerted the public entity to his need for accommodation (or where the need for accommodation is
obvious, or required by statute or regulation), the public entity is on notice that an accommodation
is required, and the plaintiff has satisfied the first element of the deliberate indifference test.”
Duvall, 260 F.3d at 1124 (emphasis added). Second, in regards to the requirement to act, the Ninth
Circuit has explained:
Because in some instances events may be attributable to bureaucratic slippage that
constitutes negligence rather than deliberate action or inaction, we have stated that
deliberate indifference does not occur where a duty to act may simply have been
overlooked, or a complaint may reasonably have been deemed to result from events
taking their normal course. Rather, in order to meet the second element of the
deliberate indifference test, a failure to act must be a result of conduct that is more
than negligent, and involves an element of deliberateness.
Id. (citations omitted).
Finally, turning to the case at present, the Court finds that the Defendants have acted with
deliberate indifference. As discussed above, the Defendants’ bus stops were non-compliant and
inaccessible. Moreover, it has been twenty-six years since the passage of the ADA, and the
Defendants have failed to correct the barriers that exist throughout nearly 94 percent of the bus
stops. Moreover, the Defendants have newly constructed or modified at least 60 bus stops since
the passage of the ADA that were not compliant despite the federal requirements putting them on
notice to do so. R. Doc. 57-1, p. 18; see also R. Doc. 57-5. Plaintiff Miraglia also states that he
brought these complaints to light in a meeting with a city councilman in 2008. R. Doc. 57-1, p. 9.

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Moreover, the Manning Report issued in September 2015 detailing the extreme
pervasiveness of the non-compliant bus stops further put the Defendants on notice. R. Doc. 1-7.
Between that time and the filing of the complaint six months later, the Defendants have not pointed
to any steps taken to correct those deficiencies since the issuance of that report because—in their
words— they “have never had a meaningful opportunity to digest the findings of the Manning
Report, enlist key players, or…implement any of the recommendations therein.” R. Doc. 64, p. 8.
Additionally, the Defendants also did not answer when the Plaintiffs requested information as to
what plan the Defendants were implementing or attempting to create/implement prior to the instant
lawsuit in January 2016 (R. Doc. 1-9). R. Doc. 57-1, p. 21. Given the foregoing, the Court finds
that the Defendants were not only aware of their obligations and failure to provide accessible bus
stops for the City’s handicapped individuals but also that the refusal to correct barriers and the
decision to construct/modify bus stops in a non-compliant fashion demonstrate deliberate
indifference such that the Plaintiffs are entitled to compensatory damages.
5.

Amount of Damages

Certainly, both the Plaintiffs and the Defendants seem to acknowledge the dearth of
information available to the Court in deciding the appropriate amount of damages to be awarded
here. While the Plaintiffs note that their counsel has recovered damages ranging from $500 to
$5,000 in other Title II cases, the Plaintiffs have not pointed to a comparable case for the Court to
compare. As such, the Court must make a determination looking at the totality of the record. In so
doing, the Court determines that that the Plaintiffs should be awarded $1,500 each. As such, the
Motion to Determine Damages (R. Doc. 57) is GRANTED.

16

III.

Motion to Determine Attorneys’ Fees and Costs
In accordance with the Parties’ Settlement Agreement (R. Doc. 55) and this Court’s order

(R. Doc. 54), the Plaintiffs submitted their Motion to Determine Attorneys’ Fees and Costs on
February 20, 2017. The Plaintiffs seek $50,840.50 in attorneys’ fees (R. Doc. 61; 69) and
$7,573.96 in expenses and costs (R. Doc. 61-5, p. 35; 61-20). The Defendants have opposed this
motion. R. Doc. 64. In addition to challenging the hourly rates, the hours expended, and the costs,
the Defendants also argue that the Plaintiffs are not a prevailing party and therefore are not entitled
to attorneys’ fees and costs. R. Doc. 64, p. 5.
A.

Plaintiffs Are Prevailing Parties and Entitled to Attorneys’ Fees

The ADA states that “[i]n any action or administrative proceeding commenced pursuant
to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorneys’ fee, including litigation expense and costs.” 42 U.S.C. §
12205. “The touchstone of the prevailing party analysis is whether there has been a material
alteration of the legal relationship….Such a change in the parties' relationship can be effectuated
through an enforceable judgment or, as in this case, a consent decree or settlement.” Grisham v.
City of Fort Worth Texas, 837 F.3d 564, 568 (5th Cir. 2016).
Here, the Defendants argue that under Buckhannon on Bd. & Care Home, Inc. v. West
Virginia Department of Health & Human Resources, 532 U.S. 598 (2001) the Plaintiffs are not
prevailing parties because they did not receive a judgment on the merits or a consent decree. R.
Doc. 64, p. 4-8. See also Mark v. New Orleans City, No. 15-7103, 2017 WL 2374392, at *1 (E.D.
La. May 4, 2017) (presenting similar arguments), report and recommendation adopted by 2017
WL 2364228 (E.D. La. May 30, 2017).

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However, this argument is without merit. The Parties entered into a voluntary settlement
agreement that has been approved by this Court (R. Doc. 54), and the Court has retained the
Jurisdiction to enforce that settlement agreement (Id.). This clearly creates the kind of material
alteration in the legal relationship. While it may be called a “settlement agreement,” the agreement
is enforceable by this Court’s order and retention of jurisdiction to enforce its terms. This satisfies
the test under Buckhannon, 532 U.S. 604 (internal citations and quotations omitted) (“we have
held that settlement agreements enforced through a consent decree may serve as the basis for an
award of attorney's fees. Although a consent decree does not always include an admission of
liability by the defendant, it nonetheless is a court-ordered chang[e][in] the legal relationship
between [the plaintiff] and the defendant.”).
B.

Standard of Review

The Supreme Court has specified that the “lodestar” calculation is the “most useful starting
point” for determining the award for attorney’s fees. Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). Lodestar is computed by “… the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Id. The lodestar calculation, “...provides an objective basis
on which to make an initial estimate of the value of a lawyer’s services.” Id. Once the lodestar has
been determined, the district court must consider the weight and applicability of the twelve factors
delineated in Johnson. See Watkins v. Forcide, 7 F.3d 453, 457 (5th Cir. 1993).1 Subsequently, if
the Johnson factors warrant an adjustment, the court may make modifications upward or
downward to the lodestar. Id. However, the lodestar is presumed to be a reasonable calculation
1

The twelve Johnson factors are (1) the time and labor involved; (2) the novelty and difficulty of the
questions; (3) the skill required 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 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 professional relationship with the client; and (12) awards in similar cases.
See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974).

18

and should be modified only in exceptional circumstances. Id. (citing City of Burlington v. Dague,
505 U.S. 557, 562 (1992)).
The party seeking attorney’s fees bears the burden of establishing the reasonableness of the
fees by submitting “adequate documentation of the hours reasonably expended”, and
demonstrating the use of billing judgement. Creecy v. Metro. Prop. & Cas. Ins. Co., 548 F. Supp.
2d 279, 286 (E.D. La. 2008) (citing Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th
Cir.1997)).
C.

Reasonable Hourly Rate

The “appropriate hourly rate. . .is the market rate in the community for this work.” Black
v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013) (citing Smith & Fuller, P.A. v. Cooper Tire
& Rubber Co., 685 F.3d 486, 490 (5th Cir.2012)). Moreover, the rate must be calculated “at the
‘prevailing market rates in the relevant community for similar services by attorneys of reasonably
comparable skills, experience, and reputation.’” Int’l Transp. Workers Fed’n v. Mi-Das Line, SA,
13–00454, 2013 WL 5329873, at *3 (E.D. La. Sept. 20, 2013) (quoting Blum v. Stenson, 465 U.S.
886, 895 (1984)). Satisfactory evidence of the reasonableness of the rate necessarily includes an
affidavit of the attorney performing the work and information of rates actually billed and paid in
similar lawsuits. Blum, 465 U.S. at 896 n.11. Finally, if the hourly rate is not opposed, then it is
prima facie reasonable. Powell v. C.I.R., 891 F.2d 1167, 1173 (5th Cir. 1990) (quoting Islamic Ctr.
of Mississippi v. City of Starkville, 876 F.2d 468, 469 (5th Cir. 1989)).
The Plaintiffs have stated that the hourly rates for their attorneys are: $300 for Andrew
Bizer; $175 for Garret DeReus; $150 for Marc Florman; and $100 for paralegal and law clerks. R.
Doc. 61-1, p. 13. For the attorneys, Bizer has roughly 14 years of experience, and DeReus and
Florman each have 4 years of experience. As such, the Court finds these rates to be reasonable.

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See, e.g., EnVen Energy Ventures, LLC v. Black Elk Energy Offshore Operations, LLC, No. 14424, 2015 WL 3505099, at *2 (E.D. La. June 2, 2015) (awarding $300 for an attorney with 10
years of experience); Cameron v. Greater New Orelans Fed. Credit Union, No. 16-8514, 2017
WL 1426970, (E.D. La. Apr. 21, 2017) (approving $300 hourly rate for partner with 9 years’
experience and $190 for associate with roughly four years of experience); see also Calix v. Marine,
LLC, No. 14-2430, 2016 WL 4194119, at *6 (E.D. La. July 14, 2016) report and recommendation
adopted, 2016 WL 4180977 (approving $180 for first year associate); Atel Mar. Investors, LP v.
Sea Mar Mgmt., LLC, No: 08–1700, 2011 U.S. Dist. LEXIS 68436, 2011 WL 2550505 (E.D. La.
June 27, 2011) (Roby, M.J.) (awarding $175 for an associate with two (2) years of
experience);Construction South, Inc. v. Jenkins, No. 11–1201, 2011 U.S. Dist. LEXIS 99254, 2011
WL 3882271 (E.D.La. July 29, 2011) (Knowles, M.J.) (awarding $180/hour for an associate with
two (2) years of experience).
The $100 per hour for the paralegal and law clerk work is also reasonable. See, e.g.,
Loiacano v. DISA Global Sols., Civ. A. No. 14-1750, 2016 WL2926679, at *2 (E.D. La. May 19,
2016) (awarding $150.00/hour for a paralegal); Norris, 2016 WL 1046101, at *10 (awarding
$80.00/hour for a paralegal); United States v. Russel Grillot, Grillot Constr., L.L.C., Civ. A. No.
14-2539, 2015 WL 9672688, at *5 (E.D. La. Dec. 14, 2015) (awarding $125.00/hour for a
paralegal); Offshore Marine Contractors, Inc. v. Palm Energy Offshore, L.L.C., Civ. A. No. 104151, 2015 WL 5306229, at *3 (E.D. La. Sept. 10, 2015) (awarding $100.00/hour for a paralegal);
In re Hollander, Case No. 04-14550, 2015 WL 4456070, at *7-7 (Bankr. E.D. La. July 20, 2015)
(awarding $90.00/hour for a paralegal).

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D.

Hours Reasonably Spent on Litigation

Next, the court must determine what hours of time were reasonably expended on the
litigation. The party seeking the fee bears the burden of documenting and supporting the
reasonableness of all time expenditures that compensation is sought. Hensley, 461 U.S. at 437. The
“[c]ounsel for the prevailing party should make a good faith effort to exclude from fee request
hours that are excessive, redundant, and otherwise unnecessary…” Id. at 434. Hours that are not
properly billed to one’s client also are not properly billed to one’s adversary. Id. The Supreme
Court calls on fee applicants to make request that demonstrate “billing judgement”. Id. The
remedy for failing to exercise “billing judgment” is to exclude hours that were not reasonably
expended. See Hensley, 461 U.S. at 434; Walker v. City of Mesquite, 313 F.2d 246, 251 (5th Cir.
2002) (quoting Walker v. HUD, 99 F.3d 761, 770 (5th Cir.1996)) (“If there is no evidence of billing
judgment, however, then the proper remedy is not a denial of fees, but a reduction of ‘the hours
awarded by a percentage intended to substitute for the exercise of billing judgment.’”).
Here, the Plaintiffs have provided billing statements showing that: Bizer billed 68.73 hours;
DeReus billed 121.94 hours; Florman billed 19.06 hours; and that the law clerks/paralegals billed
a total of 60.23. R. Doc.61-5, p. 35; 69-1, p. 4. In billing these hours, the Court notes that the
attorneys appear to have exercised billing judgment. Moreover, the Court finds that the hours billed
are largely reasonable except as noted below.
The Defendants object to hours billed on a total of eight separate bases. R. Doc. 64. The
Court finds that a few of these arguments should be addressed. First, in regards to the Defendants’
complaint that a number of hours are duplicative given the interoffice communications and
conferences. R. Doc. 64, p. 16. In total, the Defendants have identified entries totaling 45.09 hours
allegedly connected to these interoffice communications. R. Doc. 64-4. As the Defendants

21

acknowledge, the Plaintiffs have already reduced those hours to 38.60 hours, or a 14 percent
reduction. R. Doc. R. Doc. 64, p. 17. After reviewing those entries, the Court is satisfied with that
reduction and demonstration of billing judgment.
Second, the Defendants also complain about the hours billed in regards to filing of the
instant motion as well as in general in this case are excess, unproductive, redundant, or some
combination of those because of the Plaintiffs’ counsel prior experiences as ADA attorneys.
However, in looking at the filings in this proceeding, the amount of legal research involved, and
the complexity of the issues, the Court is satisfied that the hours expended were reasonable in this
regard. As another judge has recently noted, the Defendants’ complaints about the hours expended
on the Motion for Fees are belied by the exacting and detailed nature of the opposition. See Mark,
2017 WL 2374392, at *3 (“Yet the Court notes that defendants filed a 25-page opposition,
litigating everything from whether Mark is a prevailing party to whether they—who are not
prevailing parties—are entitled to their own attorneys' fees….A defendant ‘cannot litigate
tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in
response.’”) (quoting Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980)).
Third, the Defendants complain about a number of block-billed or vague entries. See R.
Doc. 64-6. However, on its review, the only entries that the Court has concerns about block-billing2
are those entries billed by the Law Clerk. However, the Plaintiffs have already reduce those hours
from the billing statement. R. Doc. 64-6.

2

Block Billing is “time-keeping method by which an attorney lumps together the total daily time spent
working on a case, rather than itemizing the time expended on specific tasks.” Canon U.S.A., Inc. v. S.A.M., Inc., No.
07–1201, 2009 WL 35334, at *4 (E.D. La. Jan. 6, 2009) (citing Robinson v. City of Edmond, 160 F.3d 1275, 1283, n.
9 (10th Cir.1998)). “This practice makes it impossible for the Court to determine the reasonableness of the hours spent
on each task.” Id.

22

Fourth, the Defendants complain that the fee agreement has not been produced and that the
Plaintiffs’ attorneys have billed for a number of pre-suit hours. R. Doc. 64, p. 12-13. As for the fee
agreement, the Court is unaware of any requirement that such an agreement be produced before it
can award attorneys’ fees—nor have the Defendants pointed to any applicable case law. As for the
pre-suit activity, prior to the first entry indicating client communication on January 28, 2016, there
appears to be a number of entries suggesting that the Plaintiffs’ attorneys began developing the
case with certain clients in mind. However, it is unclear if the clients had been contacted at that
point or this was client development work. Generally, hours expended prior to client recruitment
are not awarded. Here, the Plaintiffs’ attorney appear to have billed for 5.7 hours for work done
from January 24, 2016 to January 28, 2016 prior to the first entry of “Call three clients and discuss
case.” R. Doc. 61-5, p. 1. Finding these hours are not necessarily or reasonably expended, the
Court will reduce the total reasonable hours expended for Bizer by .5 hours and DeReus by 5.2
hours.
The Defendants also complain that a number of hours represented clerical work that was
not properly billed. R. Doc. 64-5, p. 1. In reviewing the entries identified by the Defendants, the
Court agrees that .1 hours billed by Florman (the October 20, 2016 entry for simply emailing
documents to expert) and .1 hours billed by DeReus (the January 28, 2016 entry for taking call
about availability of documents for pick up) are improperly billed. As such, the Court will reduce
those hours.
Finally, the Defendant has identified a total of 2.6 hours that should have been reduced but
were not due to clerical error. R. Doc. 64, p. 13-14. The Court will reduce those hours. The
Defendants have also identified another 2.8 billed in connection with the motion for damages—
which the Parties agreed would not be billed. Id. at p. 14. As such, the Court will reduce those

23

hours as well such that DeReus’s hours are further reduced by .15 hours; Bizer’s hours by 5.05
hours; and Florman by .2 hours.
The Court therefore finds that the reasonable hours expended by the Plaintiffs’ attorneys
are: 63.18 hours, 116.49 hours, 18.76 hours, and 60.23 hours for Bizer, DeReus, Florman, and the
Paralegal/Law Clerk, respectively.
E.

Lodestar Calculation

Given the foregoing reasonable rates and hours, the Court calculates the following Lodestar
amount for each firm as:

Attorney
Andrew Bizer
Garrett DeReus
Marc Florman
Law Clerk/Paralegal

Reasonable Hourly
Reasonable Hours
Lodestar
Rate
Expended
Amount
$300.00
63.18
$18,954.00
$175.00
116.49
$20,385.75
$150.00
18.76
$2,814.00
$100.00
60.23
$6,023.00
Subtotal:
$48,176.75

The total Lodestar amount then is $48,176.75.
F.

Adjusting the Lodestar

After the lodestar is determined, the Court may then adjust the lodestar upward or
downward depending on the twelve factors set forth in Johnson, 488 F.2d at 717-19. However,
“the Supreme Court has limited greatly the use of the second, third, eighth, and ninth factors for
enhancement purposes, and accordingly, the Fifth Circuit has held that ‘[e]nhancements based
upon these factors are only appropriate in rare cases supported by specific evidence in the record
and detailed findings by the courts.’” Wells Fargo Equip. Fin., Inc. v. Beaver Const., LLC, No.
CIV. 6:10-0386, 2011 WL 5525999, at *3 (W.D. La. Oct. 18, 2011) (citing Walker v. U.S.
Department of Housing and Urban Development, 99 F.3d 761, 771–72 (5th Cir. 1996)). Finally,

24

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). The Court has carefully evaluated the Johnson factors and
finds no adjustment of the lodestar is warranted.
G.

Expenses and Costs

Under Federal Rule of Civil Procedure 54(d), the Plaintiff may be awarded costs. ““The
Supreme Court has indicated that federal courts may only award those costs articulated in [28
U.S.C. § 1920] absent explicit statutory or contractual authorization to the contrary.” Gagnon v.
United Technisource, Inc., 607 F.3d 1036, 1045 (5th Cir.2010) (quoting Cook Children's Med.
Ctr. v. The New England PPO Plan of Gen. Consolidation Mgmt., Inc., 491 F.3d 266, 274 (5th
Cir.2007)). Under § 1920, the following are allowed as costs:
(1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded
transcripts necessarily obtained for use in the case; (3) Fees and disbursements for
printing and witnesses; (4) Fees for exemplification and the costs of making copies
of any materials where the copies are necessarily obtained for use in the case; (5)
Docket fees under section 1923 of this title; (6) Compensation of court appointed
experts, compensation of interpreters, and salaries, fees, expenses, and costs of
special interpretation services under section 1828 of this title.
28 U.S.C. § 1920. “[U]nder 42 U.S.C. § 12205, the prevailing party in an action brought pursuant
to the ADA may additionally recover litigation expenses and costs, which are defined in the
preamble of the ADA as including ‘items such as expert witness fees, travel expenses, etc.’” Mark,
2017 WL 2374392, at *4 (quoting Gilmore v. Elmwood South, L.L.C., Civ. A. No. 13-37, 2015
WL 1245770 at *7 (E.D. La. Mar. 18, 2015) (citing 28 C.F.R. Pt. 35, App. A)).
Here, the Plaintiffs have requested the following costs: $400 for filing fees; $262.50 for
Service Fees; $4,300 for Expert Heybeck’s Report; $485.96 for Expert’s travel; $150 for Service
of Subpoenas; $1,100 for Expert Maffey’s Report; $114.00 for copies of necessary documents in

25

previous NORTA case; $25.00 in other copying costs; and $736.50 for deposition transcripts.3 In
total then, the Plaintiffs seek $7,573.96. The Court finds these costs to be appropriate and properly
awarded under 28 U.S.C. § 1920 and/or 42 U.S.C. § 12205.
H.

Defendants’ Complaints Concerning Pre-Suit Notice

Here, the Defendants argue that the lack of pre-suit notice or efforts to resolve these issues
identified in this litigation are just considerations that weigh against the award of fees in this case.
R. Doc. 64, p. 18-21. As United States Magistrate Judge Daniel Knowles, III recently noted, there
appears to be no case law requiring pre-suit notice required under the ADA. Mark, 2017 WL
2374392, at *5. Nor is there any court policy in this District at this this time requiring pre-suit
notice. As such, the Court will not “den[y] fees by subjecting [Plaintiffs] to a requirement not
found in the ADA or the case law.” Doran v. Del Taco, Inc., 237 F. App’x 148, 2007 WL 1492921
at *1 (9th Cir. May 21, 2007) (unpublished).
IV.

Conclusion
Accordingly,
IT IS ORDERED that the Plaintiffs' Motion to Determine Damages (R. Doc. 57) is

GRANTED.
IT IS FURTHER ORDERED that Plaintiffs Francis Falls, Mitchell Miraglia, and Thad
Tatum are awarded $1,500 each.
IT IS FURTHER ORDERED that the Plaintiffs’ Motion to Determine Attorneys’ Fees
and Costs (R. Doc. 61) is GRANTED.

3

The Plaintiffs only seek 50 percent of the cost of these deposition because the depositions were used in two
separate litigations.

26

IT IS FURTHER ORDERED that the Plaintiffs’ are awarded $48,176.75 in attorneys’
fees and $7,573.96 in costs and expenses for a total of $55,750.71.
New Orleans, Louisiana, this 21st day of June 2017.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

27