Muehe et al v. Boston, City of

Filing 122

Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 109 Motion for Attorney Fees. The Clerk will enter an award of attorneys' fees, costs, and expenses in the amount of $88,866.50 and postjudgment interest, applying the federal interest rate to the entire award from November 21, 2022 to the date of this Order. (RGS, law4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 21-11080-RGS
MICHAEL MUEHE, ELAINE HAMILTON,
CRYSTAL EVANS, and COLLEEN FLANAGAN,
on behalf of themselves and all others similarly situated
v.
CITY OF BOSTON
MEMORANDUM AND ORDER ON PLAINTIFFS’
MOTION FOR FEES, COSTS, AND EXPENSES
August 28, 2024
In June of 2021, plaintiffs, a class of Boston residents and visitors
with mobility challenges, sued the City of Boston, claiming that it had failed
to install curb ramps that comply with the Uniform Federal Accessibility
Standards in violation of Title II of the Americans with Disability Act
(ADA), 42 U.S.C. §§ 12101 et seq., and § 504 of the Rehabilitation Act, 29
U.S.C. §§ 794 et seq.

The parties quickly negotiated an impressive

settlement agreement, the terms of which were memorialized in a Consent
Decree. As relevant here, the Consent Decree requires the City to pay
plaintiffs’ counsels’ “fees, costs, and expenses incurred for work performed
through the Effective Date” to the extent they are awarded by the court.
Dkt. # 12-2 (Consent Decree) ¶ 19. The Consent Decree defines “Effective

Date” as “the date upon which the Consent Decree becomes a final
judgment of the District Court presiding over this Action,” meaning, if an
appeal is filed, “when the appeal is finally adjudicated or resolved in favor
of affirming the approval of the Consent Decree.” Id. ¶ 1.10.
Before the court approved the settlement, putative class member
William Norkunas timely filed an objection. See Dkt. # 37. On October 19,
2021, the court approved the settlement over Norkunas’s objection and
awarded plaintiffs’ attorneys’ fees and expenses totaling $680,020.56. See
Dkt. # 68. Norkunas twice unsuccessfully moved to alter the judgment and
thereafter appealed. While the appeal was pending, plaintiffs asked the
court to require Norkunas to post an appeal bond, arguing that although
the appeal “will plainly be baseless,” litigating the appeal would be
expensive. Dkt. # 80 at 2. Plaintiffs sought a bond of $88,866.50, which
they represented to be a “conservative estimate of some of the costs and the
amount of attorneys’ fees that will be collectable by the Plaintiffs upon
defeat of Mr. Norkunas’s appeal.” Id. at 15. Norkunas moved to stay the
bond pending an order of the First Circuit, which the court allowed.
Because the interests of plaintiffs and the City were aligned, they
agreed that plaintiffs’ counsel would take the laboring oar in the litigation.
See Pls.-Appellee’s Mot. for Att’ys’ Fees, Costs, & Expenses Assessed
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Against Def.-Appellee City of Boston (Mot.) (Dkt. # 101-1) at 8. Plaintiffs’
counsel handled all of the briefing on the appeal, including drafting a
summary disposition motion and a merits opposition brief. Id. at 3. The
First Circuit affirmed the court’s approval of the settlement, and plaintiffs
moved for an award of $315,923,43 1 in fees, costs, and expenses for
litigating the appeal, which the First Circuit remitted to this court. See Dkt.
# 101. For the reasons that follow, the court will allow plaintiffs’ motion for
attorneys’ fees, costs, and expenses, although it will significantly trim the
requested award.
DISCUSSION
Plaintiffs have two arguments for why fees should be awarded against
the City: (1) the Consent Decree requires the City to pay fees through the
final adjudication of any appeal, and (2) because plaintiffs are the
prevailing party, they are entitled to compensation pursuant to the fee
shifting provisions of the ADA and Rehabilitation Act. Because the court

When plaintiffs’ counsel initially sought the fee and expense award
before the First Circuit in March of 2023, they requested $303,419.25.
Mot. at 1. They subsequently revised the request to $289,434.64. See Pls.Appellee’s Reply in Supp. of Mot. for Att’ys’ Fees, Costs & Expenses (Dkt.
# 101-3) at 14. Without explanation, they have abandoned this revised
request here and instead seek an award that reflects interest on the
originally requested $303,419.25. See Pls.’ Supp. Br. on Mot. for Appellate
Att’ys’ Fees, Costs, & Expenses (Supp. Mot.) (Dkt. # 109) at 10.
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agrees that the Consent Decree requires the City to pay plaintiffs’ counsels’
fees, it will grant an award without reaching the statutory issue.
The court interprets the Consent Decree in accordance with familiar
Smart v. Gillette Co. Long-Term

canons of contract interpretation.

Disability Plan, 70 F.3d 173, 178 (1st Cir. 1995). Thus, where the terms of
the Consent Decree are unambiguous, they are given their “plain, ordinary,
and natural meaning.” Filiatrault v. Comverse Tech., Inc., 275 F.3d 131,
135 (1st Cir. 2001). The parties both argue that the attorneys’ fees provision
of the Consent Decree is unambiguous, but they press materially different
interpretations.

According to plaintiffs, because the Consent Decree

provides that the City will pay attorneys’ fees “for work performed through
the Effective Date,” and the Effective Date is defined as “when [any] appeal
is finally adjudicated or resolved in favor of affirming the approval of the
Consent Decree,” the City must pay their fees for litigating Norkunas’s
appeal. Mot. at 11. For its part, the City claims that the Consent Decree
permits plaintiffs’ counsel to seek fees only once; because they already
sought and received a fee award, they cannot now get a second bite at the
apple. Alternatively, says the City, if the provision is ambiguous, it should
be interpreted consistent with the entire Consent Decree. As the City was
required to begin installing and updating curb ramps when the court
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approved the Consent Decree, the “Effective Date” for attorneys’ fees
should also be the date of final approval.
The court agrees that the clause is unambiguous, and it finds that
plaintiffs’ reading is the correct one. As noted, the Consent Decree requires
the City to pay “reasonable attorneys’ fees, costs, and expenses awarded by
the District Court in connection with this matter incurred up to the
Effective Date.”

Consent Decree ¶ 19 (emphasis added).

The plain

language of the provision does not limit plaintiffs to one fee award. Nor
does the following sentence – which states that “[n]o additional amounts
shall be owed to Plaintiffs or their Counsel in attorneys’ fees, expenses, or
costs for time or expenses incurred up to the Effective Date,” see id. –
change the meaning. The natural reading of this modifier is that the City
will not owe plaintiffs’ counsel any amount above what the court awards,
not that the court may only award fees once. 2
The court does agree with the City, however, that plaintiffs’ counsels’
hours are unnecessarily inflated.

Plaintiffs’ counsel billed 626.6 hours

(equivalent to over 15-and-a-half 40-hour weeks) litigating an appeal that
Even if the attorneys’ fees provision was ambiguous (and it is not),
the City’s alternative argument is unsuccessful. The City was required to
begin installing and updating curb ramps upon final approval because the
Consent Decree was binding on the City “upon final approval.” Consent
Decree ¶ 14.12. But the attorneys’ fees provision requires payment for work
done through the Effective Date.
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they argued from the beginning was “meritless,” “baseless,” and
“imminently likely to fail.” See Dkt. # 80 at 8, 11, 14. The amount of the bill
is particularly discordant given plaintiffs’ counsels’ preliminary estimate
that the appeal would cost less than one-third of what they now seek. The
issues argued on appeal – waiver, the adequacy of the settlement, and
standing – were not complex given the record, the facial inadequacy of
Norkunas’s objections, and plaintiffs’ counsels’ extensive experience as
ADA attorneys. For example, one need not scour the Federal Reporter to
find ample cases supporting the indubitable proposition that arguments not
raised or raised only in a perfunctory manner before a district court are
waived on appeal. See, e.g., Abdallah v. Bain Cap. LLC, 752 F.3d 114, 120
(1st Cir. 2014); McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir.
1991).
No doubt, plaintiffs’ counsel litigated the appeal well and gave their
best effort to enforce the settlement on appeal. But it is perplexing how the
same counsel who was able to negotiate a significant and complex
settlement in 1,401 hours took 626.6 hours to litigate a “baseless” appeal.
The court will thus award plaintiffs’ counsel their initial estimated fees,
costs, and expenses of $88,866.50, comprised of $86,866.50 in fees and
$2,000.00 in costs.

The majority rule is that interest on a fee award
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accrues “from the date of the judgment that unconditionally entitles the
prevailing party to reasonable attorney fees.” Assoc. Gen. Contractors of
Ohio, Inc. v. Drabik, 250 F.3d 482, 486-487 (6th Cir. 2001); see also Foley
v. City of Lowell, 948 F.2d 10, 21 (1st Cir. 1991). Pursuant to the Consent
Decree, plaintiffs’ counsel was unconditionally entitled to attorneys’ fees
when the First Circuit affirmed the settlement. Thus, the court will award
postjudgment interest on the award calculated from November 21, 2022.
ORDER
For the foregoing reasons, plaintiffs’ motion for attorneys’ fees, costs,
and expenses is ALLOWED. The Clerk will enter an award of attorneys’
fees, costs, and expenses in the amount of $88,866.50 and postjudgment
interest, applying the federal interest rate to the entire judgment from
November 21, 2022 to the date of this Order.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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