Herbert v. New Orleans City
ORDER AND REASONS Granting in part and Denying in part 27 MOTION for Attorney Fees and Costs. The City of New Orleans is hereby ordered to pay to Plaintiff, Tasha Herbert, $11,399.70 in reasonable attorneys' fees and $3,125.59 in recoverable costs, for a total of $14,525.29. Signed by Magistrate Judge Michael North on 7/28/2017.(clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NEW ORLEANS CITY
ORDER AND REASONS
This is an action brought by Plaintiff, Tasha Herbert (“Herbert”), against the City of
New Orleans (“the City”), asserting claims that the City failed to comply with Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181, et seq., and the Rehabilitation of
1973, 29 U.S.C. § 794, et seq. (“RA”), at its Kenilworth Playground facility. 1 Herbert’s
substantive claims for injunctive relief and damages were resolved by the entry of a consent
judgment and an addendum thereto. (Rec. docs. 21, 24). The issue of recovery of attorneys’
fees and costs was reserved and the Court issued a briefing schedule on the matter. (Rec.
Now before the Court is Herbert’s Motion for Attorneys’ Fees and Costs. (Rec. doc.
27). The City filed an opposition memorandum (rec. doc. 30) and the Plaintiff filed a reply.
(Rec. doc. 31). The Court previously held a lengthy hearing on the motion and took the
matter under advisement. (Rec. docs. 36, 37).
This matter is before the Court on the consent of the parties under 28 U.S.C. § 636(c). (Rec. doc. 19).
Herbert moves as the “prevailing party” under the ADA for an award of attorneys’ fees
totaling $21,420.35 2 and costs of $3,125.59.
In her motion, Herbert argues: (1) that the ADA and cases interpreting it clearly
establish that she is a prevailing party entitled to recover fees and costs; (2) that her
counsel’s hourly rates are consistent with rates recently awarded by this Court in other
cases; and (3) that the attorneys’ claimed hours and the costs sought are reasonable and
were required because the City was intransigent in refusing to negotiate on the issue of fees
The City filed a timely opposition memorandum. It argued first that Herbert is not a
“prevailing party” entitled to recover fees and costs. In support of this argument, the City
claims that the consent judgment in this case is somehow different than a “court-ordered
consent decree.” (Rec. doc. 30 at p. 4). The City also argues that because Herbert is not
expressly denominated as a “prevailing party” in the consent judgment, she cannot be
considered to be one.
The City goes on to argue that counsel’s requested hourly rates are excessive when
compared to recent awards in other ADA cases brought in this District by the lawyers in this
case and to those lawyers’ own earlier demands in this very case. (Id. at p. 9). The City also
claims that the number of hours “billed” and the costs sought by Plaintiff are excessive for a
variety of reasons, including the vagueness of the supporting documentation and the
2 There are two billing statements (“invoices”) presented by Herbert’s counsel, the Bizer & DeReus law firm,
one attached to the original motion and another attached to the reply brief. (Rec. docs. 27-2 and 31-3). In those
briefs, counsel concedes that .10 hours of Bizer’s time and .33 hours of attorney Marc Florman’s time should be
excluded. (Rec. docs. 31-2 at pp. 6, 32).
presence of a great deal of duplicative work by the three attorneys in the case. Finally, the
City argues that “justice considerations weigh against an attorney’s fees award” to Herbert,
an argument based in large part on the notion that this case is an example of “vexatious” ADA
litigation “designed to harass and intimidate business owners into agreeing to cash
settlements,” as evidenced in part by Plaintiffs’ failure to seek any pre-litigation resolution
of her complaints. (Rec. doc. 30).
Herbert filed a reply brief that essentially restates all of her earlier arguments on
“prevailing party” status and the reasonableness of counsel’s rates and the amount of time
and costs expended.
Herbert’s counsel made no real effort in the reply brief to address the City’s argument
that this litigation and much of its costs could have been avoided had she attempted some
sort of pre-litigation resolution, so the Court questioned counsel on this issue at the hearing.
The Court expressed concern that, not only did Herbert decline any such attempt in this case,
but to the Court’s knowledge she had never done so in any of the many cases she has filed
here. 3 The Court asked Herbert’s lead counsel, Andrew Bizer (“Bizer”), of the Bizer & DeReus
law firm, if he possessed any evidence that pre-litigation attempts at resolution had failed in
any case he was aware of or had participated in. He did not. Rather, counsel argued that
“[t]he ADA was passed 26 years ago ... “[t]here’s your grace period” and [i]t’s our belief that
if you just write a letter and complain to your city councilman, nothing is going to get done.”
(Rec. doc. 37 at pp. 6-7). As noted, despite the Court’s invitation to do so, counsel could offer
no evidence in this case or any other to support that “belief.”
Herbert has filed 19 ADA lawsuits in this District since the afternoon of October 11, 2011. That afternoon
alone she filed five lawsuits against five separate defendants.
The Court has now carefully considered the papers, the law, and the argument of the
parties, and is prepared to rule on the motion, which will be GRANTED IN PART AND DENIED
STANDARD OF REVIEW
The ADA “was enacted to assure no person would be discriminated against on the
basis of disability in a number of specified areas.” Brother v. Miami Hotel Inv., Ltd., 341
F.Supp.2d 1230, 1233 (S.D. Fla. 2004)(citing 42 U.S.C. § 12181). “In order to assure the
availability and willingness of lawyers to take on such matters, 42 U.S.C. § 12205 provides
that the court may award the prevailing party a reasonable attorney's fee.” Id. “The key
word here is reasonable[:] . . . [t]he Act was never intended to turn a lofty and salutary
mission into a fee-generating mill for some lawyers to exploit the statutory scheme to see
how many billable hours they could cram into a case before it is either tried or settled.” Id.
The “most useful starting point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation multiplied by a reasonable hourly
rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 (1983). The product of
this calculation is called the “lodestar.” Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319,
324 (5th Cir.), cert. denied sub nom. 516 U.S. 862, 116 S.Ct. 173 (1995). There is a “strong”
presumption that the lodestar calculation produces a reasonable fee. Perdue v. Kenny A. ex
rel. Winn, 559 U.S. 542, 552, 130 S.Ct. 1662, 1673 (2010).
The party seeking attorneys’ fees bears the burden of establishing the reasonableness
of the fees by submitting adequate documentation and time records of the hours reasonably
expended and proving the exercise of “billing judgment.” Wegner v. Standard Ins. Co., 129
F.3d 814, 822 (5th Cir. 1997). Attorneys are required to 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, 103 S.Ct. at 1939-40. Specifically, the party seeking the award must
show all hours actually expended on the case but not included in the fee request. Leroy v.
City of Houston, 831 F.2d 576, 585 n. 15 (5th Cir. 1987). These requirements underlie the
core principle that hours that are not properly billed to one’s client are likewise not properly
billed to one’s adversary. Hensley, 461 U.S. at 434, 103 S.Ct. at 1940.
Once the lodestar has been determined, the Court must then consider the applicability
and relative weight of the 12 factors set forth in Johnson v. Georgia Highway Express, 488 F.2d
714, 717-19 (5th Cir. 1974). 4 While the Court may make upward or downward adjustments
to the lodestar figure if the Johnson factors so warrant, the lodestar is presumptively correct
and should be modified only in exceptional cases. See Watkins v. Fordice, 7 F.3d 453, 459 (5th
After calculation of the lodestar, the burden shifts to the party opposing the
application to contest the reasonableness of the hourly rate requested and/or the
reasonableness of the hours expended “. . . by affidavit or brief with sufficient specificity to
give [the] fee applicants notice . . .” of those objections. Rode v. Dellarciprete, 892 F.2d 1177,
1183 (3rd Cir. 1990).
Under the ADA, an award of attorney’s fees to the prevailing party is directed to the
court’s discretion: “[i]n any action . . . commenced pursuant to this chapter, the court . . . , in
its discretion, may allow the prevailing party, . . . a reasonable attorney’s fee, including
4 The twelve Johnson factors are: (1) the time and labor involved; (2) the novelty and difficulty of the questions;
(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 professional relationship with the client; and, (12)
awards in similar cases. See Johnson, 488 F.2d at 717-719.
litigation expenses, and costs . . . .” 42 U.S.C. § 12205 (emphasis added). A court’s discretion
in this regard must be informed and limited by binding precedent.
“To be entitled to an award of attorney’s fees, Plaintiffs must either receive an
adjudicated judgment on the merits or persuade the defendant to enter into a consent
judgment that provides for some sort of fee award.” Pamela S. Karlan, Disarming the Private
Attorney General, 2003 U. Ill. L. Rev. 183, 207 (2003)(citing Buckhannon Bd. & Care Home,
Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605, 121 S.Ct. 1835, 1841 (2001);
Evans v. Jeff D., 475 U.S. 717, 742-43, 106 S.Ct. 1531, 1545 (1986)). The Fifth Circuit has held
that in civil rights cases (including cases brought under the ADA) “‘a prevailing Plaintiff . . . is
presumptively entitled to reasonable attorney’s fees, unless a showing of ‘special
circumstances’ is made that would deem such an award unjust.’” Deutsh v. Jesus Becerra, Inc.,
668 Fed.Appx. 569, 570-71 (5th Cir. 2016)(quoting Dean v. Riser, 240 F.3d 505, 508 (5th Cir.
A. “Prevailing Party”
The City initially argued in its opposition that Herbert is not entitled to recover fees
and costs in this action because she is not a “prevailing party” under the ADA. This argument,
based primarily upon the idea that the consent judgment entered in the case does not
expressly denominate her as such, was and is misguided and wrong and it was wisely
abandoned by the City’s counsel at the hearing. Because the court-approved consent
judgment in this case effected a material alteration in the legal relationship between the
parties and bears the Court’s judicial imprimatur, Herbert is to be considered the prevailing
party under well-established binding precedent. See, e.g., Buckhannon Bd. & Care Home, Inc.
v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605, 121 S.Ct. 1835, 1840 (2001);
Dearmore v. City of Garland, 519 F.3d 517, 521 (5th Cir. 2008).
B. Reasonable Hourly Rates
Plaintiff seeks recovery of fees for time expended by three different attorneys and a
paralegal. She requests rates of $325 per hour for the work of Bizer, $225 per hour for the
work of attorney Garret DeReus (“DeReus”), $200 per hour for the work of attorney Marc
Florman (“Florman”), and $90 per hour for the work of a paralegal James Daniel. These rates
are all ostensibly supported by affidavits executed by the three attorneys involved. (Rec.
docs. 27-3 through 27-5). Those affidavits are silent, however, as to whether the requested
rates are customarily billed or requested by any of these lawyers. This is a notable omission,
for reasons that will be discussed below.
As the Court noted at the outset of the hearing on Plaintiff’s motion, counsel’s request
for the aforementioned rates seems to ignore the fact that these same lawyers’ rates were
recently the subject of an Order and Reasons issued by District Judge Jay C. Zainey in a
different ADA lawsuit in which Judge Zainey awarded rates substantially lower than those
requested in this case. Rather than look to that decision, Plaintiff urges the Court to rely
upon an earlier, non-ADA case involving other lawyers from Washington D.C. in setting
counsel’s rates here
Judge Zainey issued his Order and Reasons in the matter entitled Mark v. Covington
City, et al., No. 15-CV-5977 “A”(4) on July 8, 2016. (See No. 15-CV-5977, rec. doc. 30). Notably
in that case, Bizer had actually requested a rate for himself of $275 per hour in a brief filed
on June 30, 2016 – while he was actively litigating this case. In 35 pages of briefing in this
matter, Bizer makes no effort to explain or justify his request for a rate that is $50 per hour
higher than the one he requested in a similar case only seven months earlier. Owing to this
omission, the Court questioned Bizer on the matter at the beginning of the hearing:
THE COURT: . . . How do you justify that increase over that
period of time when this case actually began, I believe, before
you filed the fee petition in Ms. Mark's case?
MR. BIZER: Sure, Your Honor. When we do our research as to
what judge we're in front of, we look and see what fees that they
award, what the range is, and we ask for the high end of
whatever range is acceptable to that specific judge.
(Rec. doc. 37 at p. 4).
While the Court appreciates counsel’s candor as to his strategy, the undersigned
believes this approach is unsound and that it fails to justify departure from the reasoning or
result in the Mark case cited above. The outcome of a motion for attorneys’ fees should not
depend upon which judge was randomly allotted the case in which the motion is made and
the calculation of a reasonable hourly rate should not depend on such arguably subjective
criteria. Rather, it should be based upon prevailing rates in this legal community and the
reasonable rates awarded by the judges in this District for lawyers of similar skill and
experience. Here, there is no need to compare lawyers or the type of case before the Court
to other lawyers or cases. We are talking here about rates awarded to the same lawyers in
the same district in the same type of case over a months-long span of time. Indeed, while
this motion was pending, Magistrate Judge Wilkinson ruled on a motion for attorneys’ fees
in a different ADA case brought by the Bizer and DeReus firm in which counsel requested the
same rates they request here. See Rec. doc. 34 in Carrier v. Weber Property Group, L.L.C., No.
16-CV-6648 “N”(2)(June 14, 2017). In that case, Judge Wilkinson correctly determined that
Plaintiff’s counsel had provided no “persuasive reason why their fee application filed less
than eight months after Judge Zainey’s findings [in Mark] should be increased so
dramatically.” (Id. at p. 9). 5
Plaintiff would have this Court ignore the months-old outcomes in Mark and Carrier
and rely instead upon its two-year-old decision in St. Joseph’s Abbey v. Castille, No. 10-CV-
2717, 2015 WL 3444897 (E.D. La. May 27, 2015). The St. Joseph’s Abbey case cannot be
reasonably compared to this one in any meaningful way, which can be discerned on even a
casual reading of the Court’s opinion in that case.
The St. Joseph’s Abbey case was
aggressively litigated for almost five years, tried, appealed to the Fifth Circuit and certified
by that Court to the Louisiana Supreme Court. Moreover, as explained by the Court in St.
The constitutional issues that were raised in this litigation were
of first impression in the Fifth Circuit. Moreover, the two
circuits that had addressed the matter had each reached
different conclusions. Plaintiffs sought to have the court find a
state statute unconstitutional using a rational basis test. This
endeavor presented a very high burden for the plaintiff.
2015 WL 3444897 at *2.
By contrast and as stated above, the present case is one of almost 200 similar cases
filed in this District alone by Plaintiff’s counsel. It involved virtually no traditional litigation
activity and almost every hour expended by counsel was done in connection with settling
the case or litigating the issues of costs and fees. The only thing the St. Joseph’s Abbey case
has to offer anyone here is an opportunity for counsel to argue for higher rates. That
argument is unconvincing.
Although Magistrate Judge Wilkinson’s Findings and Recommendations have not yet been acted upon by the
presiding District Judge, the time for filing objections to the Findings and Recommendations has long expired.
There is another troubling anomaly with Plaintiff’s requested hourly rates. As
recently as November 3, 2016, Plaintiffs’ counsel transmitted a half-page “invoice” to the City
for settlement purposes. (Rec. doc. 30-4). While that “invoice” lacked any detail concerning
the hours expended by counsel, it did set forth the rates they were ostensibly charging in this
case: $300 per hour for Bizer, $175 per hour for DeReus, $150 per hour for Florman, and
$75 per hour for the paralegal. (Id.).
Plaintiff’s counsel argues in Herbert’s reply brief that they should not be bound by
these rates because they were transmitted for “settlement purposes only” and the law firm
had reserved its right to adjust the rates upward in a formal request for attorneys’ fees. (Rec.
doc. 31-2 at pp. 5-6). Reserving one’s right to act arbitrarily does not legitimize the
subsequent arbitrary act. Far from demonstrating good billing judgment, counsel’s conduct
in this regard actually reveals a profound lack of understanding of the Court’s function in
determining what is reasonable in awarding attorneys’ fees and costs. Fee litigation should
not be an exercise in throwing everything against the wall to see what sticks. Indeed, this
approach actually prolongs the process of determining a reasonable award, which is clearly
contrary to the well-known admonition of the United States Supreme Court that “[a] request
for attorney's fees should not result in a second major litigation.” Hensley, 461 U.S. at 437,
103 S.Ct. at 1941.
It apparently bears repeating here that rates and hours that are not properly billed to
one’s client are likewise not properly billed to one’s adversary. See id. at 434, 103 S.Ct. at
1940. This Court knows from long experience in private litigation that a manipulation of
hourly rates such as the one executed here by Plaintiff’s counsel would never be tolerated by
an actual client – why then should it be tolerated by the Defendant or embraced by the Court
in this case?
In the final analysis, this Court agrees with Judges Zainey and Wilkinson and finds
that the rates awarded by Judge Zainey in Mark on July 8, 2017 and by Judge Wilkinson in
Carrier on June 14, 2017 are appropriate in this case. (See Mark, No. 15-CV-5977, rec. doc.
30 at pp. 2-3; see also Carrier, No. 16-CV-6648, rec. doc. 34 at pp. 9-10 and cases cited
therein). Those rates are:
$275 per hour
$150 per hour
$125 per hour
$75 per hour
C. Reasonable Hours Expended
The next step in the calculation of the lodestar is the determination by the Court of
the number of hours reasonably expended in the case. As a threshold matter, the Court finds
the time for all attorneys involved is well-documented. The Court also notes that counsel
exercised a level of billing judgment as to many entries by reducing or eliminating certain
entries as unnecessary or duplicative. However, for the reasons set forth below, the Court
finds that counsel did not exercise the level of billing judgment required, particularly with
regard to the motion for attorneys’ fees and the reply brief filed in connection with that
To analyze the reasonableness of Herbert’s fee petition, it is necessary to divide the
time expended by counsel into three categories: time spent on the substantive part of the
case, time spent in drafting and filing the motion for attorney’s fees (including the hearing),
and time spent drafting and filing the reply brief.
1. The Time Expended on the Merits
The Court’s careful review of the evidence submitted in support of Plaintiff’s motion
establishes that the time billed up to and including January 26, 2017 can be attributed to the
substantive part of the case. In this particular case, that substantive work is almost entirely
concerned with negotiating the terms of the consent judgment. The overwhelming majority
of entries on this part of the case concern “settlement,” “consent judgment,” “settlement
conferences,” or similar matters. There was virtually no traditional litigation activity beyond
this, i.e., exchange of written discovery and responses thereto, exchange of expert reports,
depositions, confection of pretrial order, etc.
The time requested by Plaintiff for this part of the case totals 58.87 hours, broken
down as follows:
As noted, for the most part, the Court finds that counsel exercised reasonable billing
judgment on this part of the case, with the following exception: there is far too much time
spent on interoffice conferences and emails between the three lawyers working on the case.
While there is no rule that prohibits the use of multiple attorneys in a matter such as this
one, the Court must nonetheless determine whether the time billed by each attorney was
This takes into account .10 hours Bizer later agreed should be stricken.
reasonably expended in this case. And while a party is free to employ multiple attorneys,
that party's opponent is not required to pay for duplicative work by those attorneys – it
remains the burden of the party seeking fees to demonstrate the reasonableness of all the
fees it seeks. Jolie Design & Décor, Inc. v. Gogh, No. 15-CV-0740, 2016 WL 4708210 at *4 (E.D.
La. Aug. 11, 2016), adopted, 2016 WL 4718186 (E.D. La. Sept. 7, 2016)(citing Riley v. City of
Jackson, 99 F.3d 757, 760 (5th Cir. 1996)).
In analyzing the extent to which interoffice communication was reasonable and
necessary in this case, a few observations are appropriate. According to their affidavits
attached to the motion for attorneys’ fees, the three lawyers in this case have collectively
been involved in over 500 ADA cases. (Rec. docs. 27-3 through 27-5). Lead counsel, Mr.
Bizer, has himself filed 196 separate actions in this District in the last nine years, the
overwhelming majority of which have been ADA cases. 7 This was a straightforward,
uncomplicated ADA case. While the defendant is a public entity, which may have made
resolution somewhat more time consuming, that fact did not unreasonably complicate the
case. As such, the Court finds that the level of interoffice communication reflected in
counsel’s submission was not commensurate with the needs of this case and that the hours
awarded should be reduced somewhat for failing to exercise billing judgment.
“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. Alternatively, th[e]
Court can conduct a line-by-line analysis of the time report.” Creecy v. Metropolitan Property
In addition, the Court’s own research reveals that in the past five years, Bizer has filed 47 ADA lawsuits in the
Middle District of Louisiana and that he has filed 31 ADA lawsuits in the Western District of Louisiana in the
past two years.
and Casualty Insurance Company, 548 F. Supp.2d 279, 285-86 (E.D. La. 2008)(citations
omitted). In this vein, however,
trial courts need not, and indeed should not, become greeneyeshade accountants. The essential goal in shifting fees (to
either party) is to do rough justice, not to achieve auditing
perfection. So trial courts may take into account their overall
sense of a suit, and may use estimates in calculating and
allocating an attorney’s time.
Fox v. Vice, 563 U.S.
826, 838, 131 S.Ct. 2205, 2216 (2011). 8
So, rather than go through each and every entry in detail, the Court will apply a
percentage reduction. Because counsel has already reduced or eliminated certain entries as
unnecessary or redundant, the Court finds the remaining time expended on the substantive
portion of the case need only be reduced by 15%. When this reduction is applied at the rates
found above to be appropriate, the totals for this part of the case are as follows:
$275 per hour = $6,008.75
$150 per hour = $1,489.50
$125 per hour = $3,130.00
$ 75 per hour =
Reduced by 15%
This amount will be awarded for counsel’s work on the substantive portion of the
See also Goodyear Tire & Rubber Co. v. Haeger, ___ U.S. ___, ___, 137 S. Ct. 1178, 1187 (2017)(quoting Fox, 563
U.S. at 838, 131 S.Ct. at 2216)(Trial courts “‘need not, and indeed should not, become green-eyeshade
accountants’ (or whatever the contemporary equivalent is).”).
2. The Motion for Attorneys’ Fees
“A request for attorney's fees should not result in a second major litigation.” 9
While Plaintiff’s counsel acknowledged this well-established rule in brief, they
otherwise ignored it. The Court’s review of the materials submitted in support of Herbert’s
motion indicates that counsel devoted a total of 30.02 hours solely to the recovery of costs
and fees in this case (as compared to the 58.87 hours devoted to the substantive portion). In
a case of this type, in which counsel has such extensive experience, the time expended on the
recovery of fees and costs is wholly out of proportion to what was necessary and reasonable.
Plaintiff’s bloated submission in support of her motion runs to 98 pages. In her
memorandum in support, Herbert’s counsel used every line of the 25-page limit allowed
under Local Rule 7.7, and then some. That memorandum spends the better part of five pages
arguing why this Court’s decision in the St. Joseph’s Abbey case is more persuasive in setting
a reasonable hourly rate in this ADA case than myriad ADA cases from this District setting
such rates, including Judge Zainey’s decision in Mark. That argument is supported by four
separate affidavits, including one executed by a mystery lawyer unassociated with this case
whose affidavit is apparently supposed to carry the imprimatur of an “expert,” despite the
fact that he has only practiced law for five years and, according to his affidavit, is not licensed
in this District. (Rec. doc. 27-14). 10 This was all less than helpful to the Court.
Hensley, 461 U.S. at 437, 103 S.Ct. at 1941.
It is worth noting that the affidavit of this lawyer, William Most, does contain one thing that is missing from
the affidavits of the lawyers in this case – a statement that his “full hourly rate is $325.00” (Rec. doc. 27-14).
Inexplicably, the Bizer, DeReus and Florman affidavits are completely silent on their customary rates. The
Court’s review of the record also indicates that, while Mr. Most may charge others an hourly rate of $325, he
apparently didn’t do so here, as there is no indication anywhere that he was paid for executing the affidavit
attached to the Plaintiff’s motion.
Likewise, considering that this is one of hundreds of similar cases in which these
attorneys have been involved, including at least four in which motions for attorneys’ fees
have been filed in the past year in this District alone, the Court finds that billing time for such
tasks as “conduct[ing] simple lodestar analysis,” discussing “strategy and content” and the
“structure and tone” of Plaintiffs’ memoranda, and researching “recent Judge North cases
[with] lodestar analysis and fee awards” is simply unnecessary and that it unreasonably
escalated the fee demand.
Considerable space and time has been devoted by Plaintiffs’ counsel in the briefs and
at the hearing to complaining that the City was uncooperative in trying to resolve the
attorneys’ fee claim and that it “never once made a good faith attempt to resolve Ms.
Herbert’s claims for attorneys’ fees.” (Rec. doc. 31-2 at p. 1). Counsel goes so far as to argue
that as recently as seven months ago, Plaintiff offered to settle the fee claim for $4,374.41.
(Id.). This statement troubles the Court for a number of reasons.
First, there is no evidence – only rhetoric – to support the argument that the City was
intransigent in the litigation and settlement discussions and that its intransigence somehow
is to blame for a fivefold increase in the amount of fees reasonably expended in a seven-month
period. While the Court does note that the City advanced a specious argument concerning
whether Plaintiff was a “prevailing party,” the Court fully intends to allow for recovery of the
time counsel devoted to responding to that argument. Beyond that, however, the Court,
which was closely involved in assisting the parties in settling the matter, simply does not
agree that any conduct on the part of the City could justify the accrual of $17,126 in fees in
the last seven months of the case when only $4,374.41 accrued in the first six months and
the only real litigation that occurred in the latter period was the filing of the instant motion
for attorneys’ fees.
Second, the Court notes that the invoice submitted in support of Plaintiff’s fee
application bears an entry for February 6, 2017 for attorney, Marc Florman, that states
“Begin Preparing Invoice for Fee Brief.” (Rec. doc. 27-2 at p. 17). As there is only one
“invoice” that the Court is aware of that contains an actual breakdown of hours expended by
each attorney (for present purposes the invoice attached to the reply is not germane), one
can only conclude that it was not until February 6, 2017 that it began to come into
existence. 11 While Plaintiffs’ counsel takes umbrage at the City’s failure to negotiate their fee
demand in “good faith,” the Court can hardly fault the City for refusing to accede to Plaintiff’s
attorneys’ fee demand when there was apparently no documentation to support that
demand until February of this year. 12
Finally, the Court notes five separate entries for various interactions with Plaintiff’s
expert, Gordon Sauer, related to an affidavit submitted in support of a claim for recoverable
costs for his services in the amount of $2,650.59. The Court wishes that in one of those
interactions, someone would have advised Mr. Sauer that something more than a statement
that he was paid that amount would be required for the Court to assess the reasonableness
of that claim. Lacking that information, the Sauer affidavit is of virtually no help to the Court.
As it did with the fee request for the substantive portion of the case, the Court declines
to undertake a detailed adjustment of counsel’s invoice, particularly considering the
11 Indeed, the “invoice” transmitted to the City by Plaintiffs’ counsel on November 3, 2016 (the one with lower
hourly rates) is a half-page document with no detail concerning hours expended. (Rec. doc. 30-4).
12 A “fee applicant has the burden to submit adequate documentation of the hours reasonably expended” in
order to recover attorneys’ fees. Louisiana Power & Light Co., 50 F.3d at 324.
numerous deficiencies it has identified. Rather, it will allow recovery of the following
amounts: one (1) hour of paralegal time to assemble and organize the records necessary to
support the attorneys’ fee claim; six (6) hours of time by Florman to draft the motion; one
(1) hour by Bizer to review and edit the motion and exhibits; and .75 hours each for Bizer
and Florman to prepare for and attend the hearing. 13 The totals for this part of the case are
$275 per hour =
$125 per hour =
$ 75 per hour =
3. The Reply Brief
As noted above, Plaintiff filed a 10-page reply brief that largely re-hashed the earlier
arguments made in the motion. That brief was accompanied by a request (and four new
exhibits, including another invoice) seeking an additional $3,017.25, all but $135.00 of which
is associated with the filing of said reply. (Rec. doc. 35). 14 This amount is said to have been
accrued in a six-day period, from February 28 to March 6, 2017. (Id.). This amount of time,
expended in six days, can be compared (quite unfavorably in the Court’s view) to the
$4,374.41 Plaintiff’s counsel claimed to have expended in the first six months of the case, as
stated on the first page of the reply brief. (Id.). This comparison alone would lead one to
13 The Court will allow recovery of this time because it understands that Florman was prepared to handle the
oral argument but the Court questioned both Florman and Bizer about numerous issues at the hearing.
14 This amount was billed for clerical tasks that are not recoverable, such as preparing a binder for the Court
and delivering it to chambers. See Vela v. City of Houston, 276 F.3d 659, 681 (5th Cir. 2001)(“[p]aralegal work
can only be recovered as attorney's fees if the work is legal rather than clerical”); see also Prime Ins. Syndicate,
Inc. v. Jefferson, 547 F.Supp.2d 568, 575 (E.D. La. 2008).
conclude that the amount claimed in connection with the reply brief is inflated. The Court’s
review of the invoice and the reply brief itself confirms this view.
Most of the reply brief was a re-hashing of arguments already advanced in Plaintiff’s
original motion. This was wasteful of both counsel’s and this Court’s time, especially when
Plaintiff’s counsel knew the matter was set for oral argument. The one area in which the
Court finds counsel’s time was not wasted was in answering the City’s unfounded “prevailing
party” argument, which was lacking enough in merit that counsel for the City abandoned it
at the hearing. (Rec. doc. 37 at pp. 2-3). Accordingly, the Court finds that all time allotted to
the filing of the reply brief should be disallowed, save the following, which will be awarded:
March 1, 2017 entry of Florman for meeting with DeReus to
discuss the City’s opposition memorandum (.15 hours);
March 3, 2017 entries of Florman for discussing the opposition
memorandum with Bizer, reviewing the City’s opposition
memorandum, and researching new case law cited in the City’s
brief (2.90 hours);
March 4, 2017 entry of Florman for reviewing the City‘s exhibits
and detailed comments on Plaintiff’s counsel’s entries (.50
March 6, 2017 entries of Florman for drafting the introduction
and argument concerning prevailing party status; incorporating
co-counsel’s edits into the reply brief; and preparing the motion
and order for leave (3.13 hours).
Florman’s allowable hours of 6.68 at his hourly rate of $125 per hour totals $835.00.
D. Recoverable Costs
Herbert seeks a total of $3,125.59 in recoverable costs. (Rec. doc. 27-2 at p. 20). The
Court finds that the filing fee ($400) and service costs ($75) are reasonable and appropriate
and will award those amounts.
The remainder of the claim consists of $2,650.59 in “expert fees” paid to Gordon Sauer
(“Sauer”), Herbert’s expert. Plaintiff’s motion is accompanied by an affidavit executed by
Sauer, (rec. doc. 27-9); an agreement between Sauer and Plaintiff’s counsel executed in June
2016 (rec. doc. 27-10); and copies of invoices and checks written from the “Bizer Law Firm”
to Sauer. (Rec. doc. 27-11 through 27-13). These documents together establish that Sauer
completed a Rule 34 inspection of Kenilworth Playground and drafted a lengthy expert
report and violations table, which was used in settlement negotiations. (Rec. doc. 27-9). For
these services, Sauer billed and was paid for 29.50 hours at $75 per hour and 11.75 hours at
$30 per hour (for clerical work). (Rec. docs. 27-9, 27-12, 27-13). He also charged back
$70.59 in reimbursable costs. (Rec. doc. 27-12). Bizer attested under oath that all of the fees
expended, including the amounts paid to Sauer, were necessary for the prosecution of the
case. (Rec. doc. 27-3).
In its opposition memorandum, the City points out that Sauer’s invoices are “vague
and ambiguous” and that he should have been required to appear at the hearing and testify
to the reasonableness of his charges. (Rec. doc. 30 at p. 21). While the Court agrees that
Sauer’s documentation is lacking in terms of the level of specificity that the Court would like
to see, i.e., time sheets or another type of breakdown demonstrating exactly how he spent
the time he billed for, the amount claimed for his work will not be reduced.
The Court is familiar with Sauer’s work product in this case, having spent
considerable time with the parties attempting to resolve the substantive issues. Indeed,
Sauer’s violations table was incorporated into the consent judgment and is in the record of
the case as such. (Rec. doc. 20-2). Because the Court can easily correlate the time charged
to counsel by Sauer with his work product, it sees no need to reduce that amount. In the
future, however, the Court strongly recommends that counsel ensure that their experts
better document their time, lest the recovery for costs paid to those experts be reduced for
inadequately proving up the reasonableness of those costs.
E. Adjustment Pursuant to Johnson
While the Court may make upward or downward adjustments to the lodestar figure
if the Johnson factors so warrant, the lodestar is presumptively correct and should be
modified only in exceptional cases. See Watkins, 7 F.3d at 459. This is not such a case. Having
reviewed the lodestar against the various Johnson factors that could arguably apply in this
case, the Court determines that no adjustments are warranted.
There has been much debate and discussion nationwide about the proliferation of
ADA enforcement actions like this one and the “problem” of disproportionate fee demands
associated with many of those cases. A quotation often repeated by courts in these cases is
that the ADA “… was never intended to turn a lofty and salutary mission into a fee generating
mill for some lawyers to exploit the statutory scheme to see how many billable hours they
could cram into a case.” Brother, 341 F. Supp. 2d at 1233. In this case, it is hard to avoid the
conclusion that some of that warned-against exploitation is taking place, despite counsel’s
protestations that their cause is noble. Of course the cause is noble. But that doesn’t give
counsel free rein to weaponize the attorneys’ fees provision of the Act in the hope of scoring
an outsized fee award. This case bears many earmarks of that kind of opportunism.
If, in the scores of ADA cases they will inevitably file in the future, counsel in this case
wish to disabuse the Court of any notions that they are engaging in such opportunism, they
would be well-advised to heed the admonitions of the various judges in this District who
have criticized their submissions for reasons similar or identical to those set forth above.
They would think twice about putting multiple lawyers on every case and then conversing
with and emailing each other about mundane issues, expecting their opponents to pay for
that inefficient use of time. They would reconsider filing briefs that exceed the page
limitations of this Court when half as many would easily suffice. They would honestly weigh
the necessity of submitting full-page-limit reply memoranda to every motion for attorneys’
fees they file – even when oral argument has been scheduled. They would abandon the
strategy of asking for the moon and settling for a slice. And they would refrain from conduct
that results in a 500% increase in their fee demand over a seven-month period.
As the Court noted earlier, fee litigation should not be an exercise in throwing
everything against the wall to see what sticks, yet that is clearly the strategy being employed
by counsel in this case.
All three attorneys on this case are able, professional advocates for their clients. They
routinely obtain excellent results for those clients and this Court regularly welcomes them
to settlement conferences to resolve the cases they bring here. They also often settle the
attorneys’-fee claims in these cases on what the Court assumes are terms acceptable to their
clients’ opponents. However, in this case at least, when they were required to move to
recover fees and costs, their request was entirely out of proportion to what was reasonable
or necessary in the case (the accrual of $17,126 in time in the seven months following their
$4,374 demand for six months of work is indefensible). The Court sincerely hopes that
counsel stop swinging for the fences every time they move to recover fees and costs – simply
because they can – and instead submit reasonable requests that are supported by the law
and the facts. Their current approach requires the Court (whose time is also valuable, by the
way) to devote a disproportionate amount of its time and effort to wading through
unnecessarily bloated submissions. A new approach is warranted.
Based upon the foregoing, the Court GRANTS IN PART AND DENIES IN PART
Plaintiff’s Motion for Attorneys’ Fees and Costs. The City of New Orleans is hereby ordered
to pay to Plaintiff, Tasha Herbert, $11,399.70 in reasonable attorneys’ fees and $3,125.59
in recoverable costs, for a total of $14,525.29.
New Orleans, Louisiana, this 28th day of
MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?