Muehe et al v. Boston, City of

Filing 139

Judge Richard G. Stearns: ORDER entered granting 124 Motion for Attorney Fees (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
November 26, 2024
STEARNS, D.J.
Before the court is plaintiffs’ revised request for attorneys’ fees and
costs incurred in monitoring the City of Boston’s compliance with the
Consent Decree described below. Plaintiffs seek reimbursement of: (1)
$84,299.77 in attorneys’ fees and $20,250 in costs incurred prior to the
Effective Date, pursuant to Section 19 of the Consent Decree; and (2)
$19,282.05 in attorneys’ fees incurred during the first year after the Effective
Date, pursuant to Section 20.1 of the Consent Decree. For the reasons that
follow, the court will allow plaintiffs’ motion for attorneys’ fees and costs,
with a reduction in the requested fees award.
BACKGROUND

The court assumes the reader’s familiarity with the factual and
procedural history of the case. Plaintiffs, a class of Boston residents and
visitors with mobility challenges, entered into a settlement agreement with
the City of Boston (City), after bringing suit against the City in June of 2021
for failing to install curb ramps in compliance 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 terms of the settlement are
memorialized in the Consent Decree, which this court entered on November
2, 2021. The Consent Decree requires the City to install new ADA-compliant
curb ramps, take specific measures to ensure that its existing curb ramps are
ADA-compliant, and report periodically to plaintiffs’ counsel about its
compliance progress. Dkt. # 10-2 (Consent Decree).
The Consent Decree also requires the City to pay plaintiffs’ reasonable
attorneys’ fees, costs, and expenses. Section 19 of the Consent Decree
governs payment of “fees, costs, and expenses incurred for work performed
through the Effective Date” to the extent they are awarded by the court. Id.
¶ 19. Section 20 governs the payment of reasonable attorneys’ fees, costs,
and expenses incurred between the Effective Date and the expiration of the

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Term of the Consent Decree for performing all work reasonably necessary to
monitor, implement, and administer the Decree. Id. ¶ 20.
DISCUSSION
I. Attorneys’ fees and costs incurred prior to the Effective Date
The City contends that plaintiffs cannot recoup any monitoring fees
and costs under Section 19 of the Consent Decree for work conducted prior
to the Effective Date as an award would be contrary to the plain language of
Section 19. Dkt. # 129 at 5. The court’s interpretation of the Consent Decree
is guided by familiar canons of contract interpretation. See Smart v. Gillette
Co. Long-Term 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 court has previously held that

Section 19 of the Consent Decree unambiguously 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; Dkt. # 122 at 5. The court sees no reason to revisit this
holding other than to note that the plain language of Section 19 does not limit

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plaintiffs or the court to one fee award.1 See Dkt. # 122 at 5. Given that this
court previously determined that the Effective Date of the Consent Decree is
February 21, 20232 — the date at which any “appeal is finally adjudicated or
resolved in favor of affirming the approval of the Consent Decree” —
plaintiffs may recover reasonable attorneys’ fees, costs, and expenses from
this court for work conducted prior to that date. Dkt. # 122 at 5; Consent
Decree ¶ 1.10.
Although plaintiffs have reduced their request to $84,299.77 in
monitoring fees and $20,250 in costs in response to the City’s prior round of
objections, the City renews its contentions that plaintiffs’ counsel: (a) billed
for duplicative work; (b) billed for “unreasonable” work that is not

1 Although the City contends that class counsel did not seek in their

motion an award of reasonable attorneys’ fees, costs, and expenses incurred
for work performed as prevailing parties through the Effective Date and
instead seek fees for monitoring the Consent Decree prior to the Effective
Date between November 3, 2021 and February 21, 2023, Dkt. # 129 at 4,
nothing in Section 19 prohibits the court from awarding fees for monitoringrelated work, as opposed to litigation work, prior to the Effective Date.
2 As plaintiffs’ counsel notes, the court awarded post-judgment interest

beginning on November 21, 2022 for plaintiffs’ counsel’s fees for litigating
the appeal. However, that does not imply the Effective Date was November
21, 2022 – 28 U.S.C. § 1961(a) provides that post-judgment interest “shall be
calculated from the date of the entry of the judgment.” This district has
adopted the majority rule that post judgment interest begins to accrue when
the plaintiffs are entitled to the award, not necessarily when the award is
quantified. Edge v. Norfolk Fin. Corp., 2005 WL 2323193, at *9 (D. Mass.
Aug. 29, 2005).
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compensable under the terms of the Consent Decree; (c) billed core rates for
non-core work; and (d) unreasonably expended expert costs. Dkt. # 138 at
2.
a. Duplicative work
The City argues that plaintiffs’ counsel repeatedly billed for the same
work performed by different attorneys. Dkt. # 129 at 14. Courts may exclude
hours spent on tasks that are “duplicative, unproductive, excessive, or
otherwise unnecessary.” Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950
(1st Cir. 1984); see also Gay Officers Action League v. P.R., 247 F.3d 288,
295-296 (1st Cir. 2001) (“[I]t is the court’s prerogative (indeed, its duty) to
winnow out excessive hours, time spent tilting at windmills, and the like.”).
Hours expended on research or drafts of the same content by two or more
lawyers, or attendance of two or more lawyers at a court hearing or
conference when one attorney would have sufficed, may be deducted from
the hours claimed. See Hart v. Bourque, 798 F.2d 519, 523 (1st Cir. 1986).
The burden of proving that the hours claimed were reasonably expended lies
with the fee petitioner. Torres-Rivera v. O’Neill-Cancel, 524 F.3d 331, 340
(1st Cir. 2008).
Many of Attorney Murphy’s entries related to phone calls and meetings
with the City or with plaintiffs’ expert, Eric McSwain, are duplicative of
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Attorney Fox’s entries. For example, entry 50 of Attorney Murphy’s, “mtg
with City (Law Dep’t, DPW) to discuss our questions about Year 1 annual
report” (1.0), mirrors that of entry 49 of Attorney Fox’s, “[p]repare for call
with City to discuss annual report and 2022 curb ramp list (3.1); participate
in that call (1)”. Dkt. # 134 at 8; see e.g., Dkt. # 134 at 16, Entry 59, 146-147,
Entry 158-159, Entry 184-185, Entry 191-192. The court will consequently
reduce Attorney Murphy’s billing by 6.2 hours and deduct $2,539 from the
fee request.3 See Hart, 798 F.2d at 522-523 (1st Cir. 1986); McMillan, 140
F.3d 288, 311 n.18 (affirming district court’s total elimination of hours spent
by one attorney “consulting with” the trial attorney about the case).
b. Non-compensable work
The City contends that plaintiffs’ counsel’s work on client
communications and fee requests are not compensable under the terms of
the Consent Decree. Section 19 provides that such fees must be “reasonable.”
Consent Decree ¶ 19. While plaintiffs’ counsel has a client duty to keep the
class representatives informed, it is not the City’s obligation under the
Consent Decree to pay for such communications. Nor is it reasonable for the
City to pay for plaintiffs’ counsel’s time spent producing fee requests for the

3 To the extent that the City challenges other billed time as duplicative,

the City has not adequately identified these instances or explained why such
time should be discounted.
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City. The court will disallow entries 29-36, 41, 91, 97, 164, 166-167, 173, 176,
and 178, thus deducting $2,579.23 from the requested fee.
c. Non-core work
Although plaintiffs corrected many of their prior entries, the City has
flagged various entries that still include non-core work. Plaintiffs’ counsel
seek reimbursement for fees at an hourly rate of $725 for Attorney Fox, $500
for Attorney Murphy, and $221 for their paralegal – the same billable rates
that this court awarded them in 2021 for negotiating the settlement.4 Dkt. #
125 at 5. However, “clerical or secretarial tasks ought not to be billed at
lawyers’ rates, even if a lawyer performs them.” Lipsett v. Blanco, 975 F.2d
934, 940 (1st Cir. 1992) (finding that hours involved in merely translating
documents and court filings should be compensated at a rate “less
extravagant” than the attorney’s regular rate).

Courts have generally

regarded the following activities as administrative or clerical functions for
which proportionate fee deductions ought to be imposed: document
preparation, organization, distribution, and copying; drafting emails and
other correspondence; data collection; legal cite-checking; scheduling and

4 Plaintiffs do not seek CPI adjustments to their attorneys’ hourly rates

for work performed prior to the Effective Date because Section 19 of the
Consent Decree, unlike Section 20, does not include a CPI-enhancement.
Dkt. # 124 at 8.
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logistical planning; filing court documents; factual research; and docket
review and management.

See, e.g., Conservation Law Found. Inc. v.

Patrick, 767 F. Supp. 2d 244, 254-255 (D. Mass. 2011).
Upon careful review of the entries flagged by the City, the court agrees
that such work should not be billed at a core rate. Entries such as “[d]raft
memo summarizing call with Boston,” “[b]egin reviewing survey results,”
and “[d]raft memo to team summarizing my review of the annual report”
predominantly involve drafting emails and preparing documents. Dkt. #
134-1 at 4, Entry 1, Entry 7, Entry 52; see Bogan v. City of Bos., 432 F. Supp.
2d 222, 231 (D. Mass. 2006), aff’d, 489 F.3d 417 (1st Cir. 2007). Applying
the two-thirds non-core rate requested by the City to the flagged entries, the
court will deduct $9,402.50 from plaintiffs’ fee request.5 See Sys. Mgmt.,
Inc. v. Loiselle, 154 F. Supp. 2d 195, 201 (D. Mass. 2001) (compensating the
“‘non-core’ (i.e., less lawyerly) work” at two-thirds the reasonable hourly rate
for core work), citing Brewster v. Dukakis, 3 F.3d 488, 492 n.4 (1st Cir.
1993).
A fee amount also may be reduced in cases where the dispute or task is
noncomplex. See Foley v. City of Lowell, 948 F.2d 10, 19 (1st Cir. 1991).

5 These include entries 1-3, 5-9, 17, 18, 52-54, 60-62, 65, 68, 69, 87,

109, 124, 128, 129, 132, 135, 136, 139, 144, 174, 175, 179, 181, 184, 189, 192,
195, 198, 199, and 201. See Dkt. # 134-1 at 4-22.
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Unlike litigation of the appeal, which took plaintiffs’ counsel 626.6 hours, or
the protracted negotiation of the settlement agreement, which took 1,401
hours, here, all of the 177.6 hours that plaintiffs initially submitted occurred
out of court and mostly involved review of factual information. Much of the
work included communication with the City regarding noncompliant curb
ramps and review of photos and data of remediated ramps. Dkt. # 124 at 56. Given the less-complex nature of this task (particularly for attorneys
historically versed in the ins and outs of the litigation), as compared to the
initial litigating of an appeal or the negotiation of a settlement, the court will
impose a 40 percent across-the-board deduction to plaintiffs’ requested fees,
resulting in an award of $41,867.42. See Miles v. Sampson, 675 F.2d 5, 9 (1st
Cir. 1982) (holding if the issue involves far less difficulty and complexity than
would justify the hours spent, the claimed compensation should be
discounted); United States v. Metro. Dist. Comm’n, 847 F.2d 12, 16 (1st Cir.
1988) (noting that across-the-board reduction of fees, when sufficiently
explicit, is permissible); Heath v. Silvia & Silvia Assocs., Inc., 2007 WL
3259150, at *3 (Mass. Super. Oct. 5, 2007) (a task’s lack of complexity
constitutes an acceptable reason to reduce the award by an-across-the-board
amount).
d. Expert costs
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The City challenges the reasonableness of the $19,530 in costs
attributable to expert Eric McSwain, who assisted plaintiffs’ counsel in
monitoring the City’s compliance efforts.

Dkt. # 138 at 5.

Given the

extensive experience gained by McSwain through his employment at Access
Compliance Consultants, Inc., in the interpretation and application of ADA
accessibility requirements and his detailed invoices, which include specific
entries identifying his work, such as reviewing the City’s photos of
remediated curbs, analyzing curb ramp examples, editing draft letters, and
reconciling the City’s Excel reports, the court finds McSwain’s billing of 93
hours of work at an hourly rate of $210 reasonable.6
II. Attorneys’ fees incurred for the first year of monitoring after the
Effective Date
Plaintiffs seek recovery of $19,282.05 in monitoring fees under Section
20.1 of the Consent Decree for work performed from February 22, 2023,
through February 21, 2024. Dkt. # 133 at 3. The City renews its objections
that plaintiffs’ counsel: (a) billed for duplicative work; (b) billed core rates
for non-core work; (c) billed for an ongoing dispute; (d) billed excessively for
preparation of the Joint Status Report; (e) billed for “unreasonable” work

After plaintiffs’ counsel shared GIS consultant Meghan Bogaerts’
qualifications with the court and the City, the City withdrew its objection to
the $720 in costs attributable to her. Dkt. # 138 at 4.
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that is not compensable; and (f) erroneously billed Consumer Price Index
(CPI) adjustments. Dkt. # 138 at 6.
a. Duplicative work
Based on the same reasons set forth in the corresponding section, the
court finds that both Attorneys Fox and Murphy billed their time discussing
with each other Boston’s draft consent implementation plan. See Dkt. # 1342 at 28, Entry 51-52. $147.96 will be deducted from the requested fee award.
b. Non-core work
For the same reasons explained in the above section, plaintiffs’ counsel
has inaccurately billed many entries, such as reviewing drafts, preparing
emails, and inserting edits into a letter, as core work. The court will apply
the non-core two-thirds rate to entries 2-5, 7-9, 46, 53, 54, 62, and 67,
deducting $2,228.74 from the fee request. Dkt. # 134-2 at 23, 28-29.
c. Ongoing disputes
Plaintiffs’ counsel has withdrawn over $26,000 in requested fees
because those entries involve ongoing discussions about the City’s
compliance with the Consent Decree. While plaintiffs’ counsel intends to
include those entries in their renewed motion to enforce the Consent Decree,
Dkt. # 133 at 1, they still seek fees for “[t]he GIS and photo/data dispute . . .
[that] has been resolved,” Dkt. # 134-2 at 26, Entries 28-30. Because
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plaintiffs have not adequately documented these fees under Section 20.3,
which governs the recoverability of dispute resolution fees, nor conveyed to
the City that the dispute is resolved,7 the court will omit entries 28-30 and
$731.39 from the requested award. See Consent Decree ¶ 20.3.
d. Excessive fees
The City next contends that plaintiffs’ attorneys excessively spent time,
7.2 hours across three attorneys and one paralegal for a total fee of
$5,596.82, preparing their three-page portion of the Parties’ Joint Status
Report. Dkt. # 95; Dkt. # 129 at 19; Dkt. # 138 at 7. After carefully reviewing
the revised time entries and plaintiffs’ attorneys’ emails, the court finds that
counsel’s effort and time was reasonable – although the City drafted the first
version of the status report, the parties debated whether to include a section
about the GIS mapping request, went through at least four separate drafts of
the report, and exchanged a myriad of communications. Dkt. # 133 at 9.
e. Non-compensable work

7 It is unclear to the City whether the dispute is resolved.

Plaintiffs
advanced those disputes for review in their July of 2024 contempt filing, see
Dkt. # 111 at 2, and may intend to rely on allegations about the City failing to
provide GIS photos or other data in a future contempt filing, see Dkt. # 129
at 17; Dkt. # 138 at 7.
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For the same reasons stated above, the court will disallow the $1,179.99
in requested fees for work calculating the CPI to update timekeeper rates.8
e. Consumer Price Index rate calculation
Lastly, the City contends that the CPI adjustment to plaintiffs’
timekeepers’ hourly rates should be based on the date that the monitoring
work was completed. Dkt. # 133 at 9. The Consent Decree provides that class
counsel will submit to the City their statement of attorney fees using the
hourly rates that the court approved as reasonable, “adjusted annually based
on the Consumer Price Index for the Boston Area as calculated by the United
States Bureau of Labor Statistics.” Consent Decree ¶ 20.1. There is no
mention that plaintiffs’ counsel should adjust their rates to the current CPI
at the date of payment. Plaintiffs’ counsel had increased their rates by
12.09%, based on the CPI between November of 2021 and August of 2024,
when, in fact, they completed the monitoring work nearly six months prior
to August of 2024. Thus, the court will apply the 10.35% CPI adjustment that

8 The fee-related requests under entry 1, “[a]t Boston’s request, review

CPI increase for purposes of monitoring, and draft email concerning the
same,” entry 95, “[r]esearch and find CPI data for Boston, and use that data
to calculate revised hourly rate November 1, 2022 through February 21,
2023,” and entry 96, “[r]esearch most recent CPI figures for Boston, and put
together revised fee rates for monitoring from February 2023 through
February 2024” are not “reasonably necessary to monitor” the Consent
Decree. Dkt. # 134-2 at 24, 32-33.
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plaintiffs’ counsel included for the City in their March 4, 2024 monitoring
fees request. Dkt. # 129 at 19; Dkt. # 125-1 at 210. After including the above
revisions, the court will reduce the second fees award by 1.74% to $14,733.52.
ORDER
For the foregoing reasons, plaintiffs’ motion for attorneys’ fees and
costs is GRANTED in part, but the court reduces the award to $56,600.94 in
attorneys’ fees and $20,250 in costs.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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