Betancourt v. P&V S8 Company, LLC

Filing 18

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________

GUADALUPE BETANCOURT,
Plaintiff,
v.

Case No. 1:11-CV-977

NRPV INC. and NAVIN PATEL,

HON. GORDON J. QUIST

Defendants.
____________________________/

OPINION
Background
Plaintiff filed her Complaint in this case on September 14, 2011, against P&V S8 Company,
LLC. On November 7, 2011, Plaintiff filed an Amended Complaint substituting NRPV Inc. for
P&V S8 Company, LLC as the defendant. On November 21, 2011, the Court entered an Order to
Show Cause why the case should not be dismissed for lack of prosecution. The following day,
November 22, 2011, Plaintiff responded to the Order to Show Cause, stating that her delay in
prosecuting the case was due to confusion over the proper defendant. (Dkt. # 8, ¶ 3.) Plaintiff also
explained that attorney David Geocaris had accepted service on behalf of NRPV Inc. and that
Plaintiff would be filing an affidavit of service. (Id. ¶¶ 7, 9.) Plaintiff filed an affidavit of service
the same day. (Dkt. # 9.) On December 1, 2011, Plaintiff filed a Second Amended Complaint,
which added Navin Patel as a defendant, and an affidavit of service stating that attorney David
Geocaris had accepted service on behalf of Navin Patel on December 1, 2011. (Dkt. ## 13 and 14.)
On March 16, 2012, the Clerk entered defaults against NRPV Inc. and Navin Patel. Plaintiff has
now filed a motion for entry of a default judgment against NRPV Inc. and Navin Patel.

Standard
Because Navin Patel is an individual, the Servicemembers Civil Relief Act (SCRA) requires
an affidavit “stating whether or not the defendant is in military service and showing necessary facts
to support the affidavit.” 50 U.S.C. App. § 521. “The non-military affidavit must be based not only
on an investigation conducted after the commencement of an action or proceeding but also after a
default in appearance by the party against whom the default judgment is to be entered.” Apex Mar.
Co. v. Furniture, Inc., No. 11-cv-5365 (ENV) (RER), 2012 WL 1901266, at *1 (E.D.N.Y. May 18,
2012); see also Merrill v. Beard, No. 5:05CV768, 2007 WL 461469, at *3 (N.D. Ohio Feb. 7, 2001)
(“The affidavit is a prerequisite before default judgment may be awarded.”). Plaintiff has failed to
comply with the SCRA by filing the required non-military affidavit for Defendant Patel. For this
reason, the Court will deny Plaintiff’s motion with regard to Defendant Patel.
Defendant NRPV Inc. is a corporation and therefore is not a minor, an incompetent person,
or a current member of the military service. See Fed. R. Civ. P. 55(b)(2); 50 App. U.S.C. § 521; Bd.
of Trs. of the Sign Pictorial & Display v. Preferred Exhibitor Serv., No. C-04-2826 MJJ, 2005 WL
43958, at *1 (N.D. Cal. Jan. 10, 2005) (“As a corporation, Defendant is not a unrepresented minor,
an incompetent person, or a person in military service.”). It is well-established that once a default
is entered against a defendant, that party is deemed to have admitted all of the well-pleaded
allegations in the complaint pertaining to liability. Antoine v. Atlas Turner, Inc., 66 F.3d 105,
110–11 (6th Cir. 1995); Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993). Therefore, by its default,
NRPV Inc. has admitted all facts to establish its liability, and Plaintiff is entitled to a default
judgment pursuant to Fed. R. Civ. P. 55(b)(2).
Relief
In her Second Amended Complaint, Plaintiff seeks injunctive relief to enforce the Americans
with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and the Michigan Persons with Disabilities
2

Civil Rights Act (PDCRA), M.C.L. §§ 37.1101 et seq. In particular, Plaintiff requests that NRPV
Inc., which owns the property operated as America’s Best Value Inn (Property) located at 680 East
24th Street, Holland, Michigan, be ordered to remove or remedy the architectural barriers identified
in the Second Amended Complaint, which prevent or hinder Plaintiff from accessing or using the
Property.
In the instant motion, Plaintiff requests injunctive relief, an award of attorney fees, and an
award of the expert witness fees she has incurred. Although Plaintiff requested an award of
damages in her Complaint, she does not request damages in her motion, likely because damages are
not available under Title III of the ADA.1 See Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 293
(6th Cir. 1999) (noting that “the enforcement statute[,] 42 U.S.C. § 12188, . . . incorporates the
remedies of 42 U.S.C. § 2000a-3(a), and that section does not include money damages”). A court
may award injunctive relief requiring compliance with the ADA and the Americans with Disabilities
Act Accessibility Guidelines (ADAAG) by entering a default judgment. See Johnson v. Purser, No.
2:09-cv-03098 JAM DAD, 2012 WL 2401568, at *3 (E.D. Cal. June 25, 2012) (granting the
plaintiff’s motion for default judgment and awarding injunctive relief under Title III of the ADA);
Loskot v. D & K Spirits, LLC, No. 2:10-cv-684 WBS DAD, 2011 WL 567364, at *3 (E.D. Cal. Feb.
15, 2011) (same).
The Court concludes that Plaintiff is entitled to the requested injunctive relief against
Defendant NRPV Inc., pursuant to 42 U.S.C. § 12188. In support of her motion, Plaintiff has
attached an expert report by A.D.A. Compliance Team, Inc., which identifies the specific
architectural barriers in violation of the ADA and the ADAAG. Accordingly, the Court will order
injunctive relief consistent with that report.

1

Damages are available under the PDCRA, see Kiely v. Heartland Rehab. Servs., Inc., 360 F. Supp. 2d 851,
856–58 (E.D. Mich. 2005), but Plaintiff does not request any relief pursuant to the PDCRA, nor does she present any
evidentiary support for such an award.

3

Plaintiff is also entitled to an award of attorney fees as a prevailing party under the ADA.
42 U.S.C. § 12205. “The proper procedure for determining a reasonable attorneys’ fee is to arrive
at a lodestar figure by multiplying the hours plaintiff’s counsel spent on the litigation by a
reasonable hourly rate.” Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir. 2005). “‘The
primary concern in an attorney fee case is that the fee awarded be reasonable,’ that is, one that is
adequately compensatory to attract competent counsel yet which avoids producing a windfall for
lawyers.” Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (quoting Reed v.
Rhodes, 179 F.3d 453, 471 (6th Cir. 1999)). The starting point in the analysis is the “lodestar
figure,” which is the product of the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate. See Wayne v. Vill. of Sebring, 36 F.3d 517, 531 (6th Cir.
1994) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983)). Wasteful or
duplicative hours should be excluded from the total number of reasonable hours. See D’Orazio v.
Washington Twp., No. 07-5097-JEI-KMW, 2011 WL 6715635, at *7 (D. N.J. Oct. 18, 2011).
The Court first considers the issue of a reasonable hourly rate. With regard to the hourly
rate, the Supreme Court has held that the rates to be used in calculating the lodestar are those rates
“prevailing in the community for similar services by lawyers of reasonably comparable skill,
experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 896 & n.11, 104 S. Ct. 1541, 1547 &
n.11 (1984). The reasonable hourly rate in the community may be established through proof of rates
charged in the community under similar circumstances as well as opinion evidence of reasonable
rates. See United States ex rel. Educ. Career Dev., Inc. v. Cent. Fla. Reg’l Workforce Dev. Bd., Inc.,
No. 6:04-CV-93-ORL-19DABC , 2007 WL 1601747, at *3 (M.D. Fla. June 1, 2007). Other relevant
sources include the attorney’s actual billing rate and fee awards from prior cases. See Payton v.
New Century Mortgage Corp., Nos. 03 C 333, 03 C 703, 2004 WL 524693, at *2 (N.D. Ill. Mar. 11,
4

2004). Finally, a court may determine a reasonable rate based upon its own expertise and judgment.
See Educ. Career Dev., Inc., 2007 WL 1601747, at *6.
Plaintiff seeks an award based on an hourly rate of $425 for her counsel, Pete Monismith,
and an hourly rate of $115 for paralegal services. Plaintiff notes that “the fee customarily charged
and awarded by courts in civil rights cases is $350 to $430 per hour,” (Pl.’s Br. Supp. Mot. at 11),
but Plaintiff fails to cite any evidence as to the prevailing rate in this community, or district, for such
work. One source of such information is the State Bar of Michigan’s 2010 “Economics of Law
Practice Survey,” which was released in early 2011.2 The State Bar of Michigan survey lists the
median hourly rates of lawyers by size of firm, years of practice, area of practice, legal classification
(i.e., sole practitioner, equity partner, senior associate, etc.), and office location. Because Mr.
Monismith is a sole practitioner who practices civil rights law, the Court finds pertinent to the
instant fee request hourly rates for sole practitioners practicing civil rights law in the Grand Rapids
area. For sole practitioners practicing outside of the home, the median hourly rate is $214, the rate
for attorneys in the75th percentile is $250, and the rate for attorneys in the 95th percentile is $350.
Id. at 7. As for practice area, the median rate for civil rights attorneys is $230, the rate for attorneys
in the 75th percentile is $325, and the rate for attorneys in the 95th percentile is $450. Id. at 10.
Finally, for attorneys practicing in the Grand Rapids area, the median rate is $225, the rate for
attorneys in the 75th percentile is $300, and the rate for attorneys in the 95th percentile is $420. Id.
at 9.
The Court has also searched for but has found no ADA cases from this district addressing
the issue of a reasonable hourly rate for an award of attorney fees. In a recent consumer law case,
this Court found an hourly rate of $250 reasonable. See Williams v. Delamar Car Co., No. 1:11-CV-

2

Available at http://www.michbar.org/pmrc/articles/0000146.pdf (last visited Nov. 1, 2012).

5

26, 2011 WL 1811061, at *4 (W.D. Mich. May 12, 2011). The Court also notes that in an ADA case
similar to the instant case, the Eastern District of Michigan found that an hourly rate of $325 per
hour was reasonable for “experienced ADA attorneys in the Eastern District of Michigan.” Disabled
Patriots of Am. v. Romulus Nights, Inc., No. Civ. A. 04CV60258DT, 2005 WL 3132206, at *2 (E.D.
Mich. Nov. 22, 2005).
Based on the foregoing information, the Court concludes that $325 per hourly is a reasonable
hourly rate for an experienced ADA attorney practicing in the Grand Rapids area. This rate is
commensurate with rates for attorneys in the Grand Rapids area practicing civil rights law in
general, is sufficient to attract competent counsel, and will not result in a windfall to Plaintiff’s
counsel. As for the paralegal rate, the Court concludes, based on its own experience in other cases,
that the requested rate of $115 per hour is reasonable.
Turning to the reasonableness of hours, Mr. Monismith spent 23.5 hours on this matter, while
the paralegal spent 2.6 hours. Having reviewed the time entries from the Mr. Monismith’s billing
statements, the Court finds that hours incurred were reasonable and necessary. Therefore, the Court
will award Plaintiff $7,637.50 for Mr. Monismith’s fees and $299.00 for the paralegal’s fees, for a
total of $7,836.50.
Plaintiff also seeks an award of costs in the amount of $483.12, for the filing fee, postage,
and service fees. Such costs are authorized by both 28 U.S.C. § 1920 and 42 U.S.C. § 12205. See
LaMark v. Hicks, No. 2:11-cv-1098, 2012 WL 3292398, at *1 (E.D. Cal. Aug. 13, 2012) (noting that
although § 1920 allows for only specified costs, “the ADA appears to allow for a somewhat broader
award of costs”). Therefore, the Court will award Plaintiff her requested costs.
Finally, Plaintiff requests reimbursement in the amount of $1,700.00 for expert witness
services. Reasonable expert witness fees may be recovered pursuant to 42 U.S.C. § 12205. See

6

Disabled Patriots of Am., 2005 WL 3132206, at *3. Based on its review of the expert report, the
Court concludes that the $1,700.00 incurred for the expert’s work is reasonable.
Conclusion
In conclusion, the Court will grant Plaintiff’s motion with regard to Defendant NRPV Inc.
but deny it with regard to Defendant Navin Patel. The Court will grant Plaintiff injunctive relief and
award her $7,836.50 in attorney fees, $438.12 in costs, and $1,700.00 in expert fees.
An Order and Judgment consistent with this Opinion will enter.

Dated: November 15, 2012

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

7