Swartz v. HCIN Water Street Associates, LLC
Filing
32
OPINION AND ORDER re: 25 MOTION for Attorney Fees - PLAINTIFF'S VERIFIED APPLICATION FOR ATTORNEY'S FEES, etc. filed by Helen Swartz. For the reasons set forth above, the Court awards Plaintiff $27,252 in fees and 36;9,285 in costs, for a total award of $36,537. The Clerk of Court is respectfully directed to enter judgment accordingly, terminate the motion, Doc. 25, and close this case. It is SO ORDERED. (Signed by Judge Edgardo Ramos on 10/31/2018) (ne) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HELEN SWARTZ, individually,
Plaintiff,
OPINION AND ORDER
17 Civ. 4187 (ER)
- against HCIN WATER STREET ASSOCIATES, LLC,
a Delaware Limited Liability Company,
Defendant.
Ramos, D.J.
Pending before the Court is Plaintiff’s motion for an award of reasonable attorney’s fees
and costs pursuant to 42 U.S.C.A. § 12205. For the reasons discussed below, the Court awards
Plaintiff’s counsel a total of $36,537.
I.
Background
Helen Swartz (“Plaintiff”) brought this action pursuant to the Americans with Disabilities
Act, 42 U.S.C. § 12181 et seq. (“ADA”), alleging, inter alia, that HCIN Water Street Associates,
LLC (“Defendant”), discriminated against her by failing to comply with the obligations of the
ADA with respect to Defendant’s hotel, Holiday Inn Express. Swartz alleged that she
encountered a series of architectural barriers at the hotel that deprived her of full access to the
hotel’s facilities and amenities, in violation of the mandates of the ADA. The parties entered into
a confidential settlement agreement resolving these claims, but left it to the Court to determine
the appropriate award of attorney’s fees and costs.
Plaintiff is represented in this matter by Lawrence A. Fuller. Mr. Fuller is a graduate of
the University of Miami School of Law. Pl.’s Mem. Ex. 1. After graduating, he worked as clerk
on the Florida Supreme Court. Id. Mr. Fuller has been a practicing attorney for more than 43
years and has specialized in civil rights litigation for more than 18 years, litigating many ADA
Title III cases. Pl.’s Mem. ¶ 5; Def.’s Opp’n at 2; see also, Access 4 All, Inc. v. Hi 57 Hotel,
LLC, No. 04CIV.6620 (GBD)(FM), 2006 WL 196969, at *3 (S.D.N.Y. Jan. 26, 2006) (noting
that Mr. Fuller’s firm, Fuller, Fuller & Associates, represented the plaintiff in that case in at least
92 ADA actions within the prior two years).
On April 16, 2018, Plaintiff filed the instant motion for an award of attorney’s fees and
costs, totaling $45,309.50. Pl.’s Reply Ex. 1. Plaintiff seeks compensation for 79.9 hours of
attorney work at a rate of $425 per hour and 0.8 hours of paralegal work at a rate of $115 per
hour. Id. Plaintiff also seeks compensation for expenses incurred, including expert fees,
amounting to $11,260. Id. Defendants object to Plaintiff’s motion on the grounds that (1)
Plaintiff failed to support Mr. Fuller’s requested hourly rate, (2) the number of hours expended in
the litigation is unreasonable, (3) Plaintiff failed to support the award of paralegal fees, and (4)
several of the expenses Plaintiff seeks to recover are unreasonable and/or insufficiently
supported.
II.
Legal Standards
Pursuant to 42 U.S.C.A § 12205, a court may award the prevailing party in an ADA
action a reasonable attorney's fee, including litigation expenses, and costs. 42 U.S.C.A. § 12205.
“A party prevails when actual relief on the merits of his [or her] claim materially alters the legal
relationship between the parties by modifying the defendant's behavior in a way that directly
benefits the plaintiff.” Lazarus v. Cty. of Sullivan, 269 F. Supp. 2d 419, 421 (S.D.N.Y. 2003)
(quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992) (citations omitted)) (quotation marks
omitted). “Under the ADA, consent decrees may serve as the basis for an award of attorney's
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fees . . . Although consent decrees do not always contain an admission of liability, they
nonetheless effectuate a change in the legal relationship of the parties . . . [and therefore] create
the material alteration of the legal relationship of the parties necessary to permit an award of
attorney's fees.” Id. (citing Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t. of Health and
Human Res., 532 U.S. 598, 604 (2001)) (internal citations and quotation marks omitted).
Swartz, having entered into a settlement agreement with Defendant, may therefore be awarded
reasonable attorney’s fees and costs as the prevailing party in this action.
As outlined by the Second Circuit, calculating a reasonable fee requires an inquiry into
the reasonable hourly rate and multiplying that figure by the reasonable number of hours worked.
Millea v. Metro-North Railroad Co., 658 F.3d 154, 166–67 (2d Cir. 2011) (stating that this figure
is known as the “lodestar” amount). In determining the reasonable hourly rate, “courts must look
to the market rates ‘prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience, and reputation.’” Ognibene v. Parkes, No. 08 Civ. 1335 (LTS),
2014 WL 3610947, at *2 (S.D.N.Y. July 22, 2014) (quoting Gierlinger v. Gleason, 160 F.3d
858, 882 (2d Cir. 1998)). This determination should take into account “all of the case-specific
variables that [the Second Circuit] and other courts have identified as relevant to the
reasonableness of attorney's fees in setting a reasonable hourly rate, including the so-called
Johnson factors, while also bear[ing] in mind that a reasonable, paying client wishes to spend the
minimum necessary to litigate the case effectively.” Harty v. Par Builders, Inc., No. 12-CV2246 (CS), 2016 WL 616397, at *2 (S.D.N.Y. Feb. 16, 2016) (quotation marks omitted)
(footnote omitted).
In determining the reasonable number of hours worked, “the court takes account of
claimed hours that it views as ‘excessive, redundant, or otherwise unnecessary.’” Bliven v. Hunt,
3
579 F.3d 204, 213 (2d Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). A
court may discount a fee award when, for example, attorneys seek compensation for less-skilled
work or furnish time entries that lack “sufficient specificity for the Court to assess the
reasonableness of the amount charged in relation to the work performed.” Mautner v. Hirsch,
831 F. Supp. 1058, 1077–78 (S.D.N.Y. 1993), aff’d in relevant part, 32 F.3d 37 (2d Cir. 1994).
Ultimately, a district court has broad discretion in setting fee awards. In re Agent Orange
Prod. Liab. Litig., 818 F.2d 226, 237 (2d Cir. 1987). “In reviewing the submitted timesheets for
reasonableness, the Court relies on its own familiarity with the case, as well as on its experience
with the parties’ evidentiary submissions and arguments.” Ruiz v. Maidenbaum & Assocs.
P.L.L.C., No. 12 Civ. 5044 (RJS), 2013 WL 3957742, at *4 (S.D.N.Y. Aug. 1, 2013) (citation
omitted).
III.
Discussion
A. Attorney’s Fees
i. Mr. Fuller’s Reasonable Hourly Rate
Plaintiff asserts that a reasonable hourly rate for Mr. Fullers work on this case is $425,
while Defendant argues that $375 is appropriate. Defendant cites cases in this District awarding
attorney’s fees at rates between $240 and $400 per hour, concluding that $375 per hour is in line
with the prevailing market rates in the Southern District of New York for similar services by
similarly situated lawyers. Def.’s Opp’n at 5. Plaintiff cites cases within the same range, but
argues that a higher hourly rate of $425 is reasonable when the rates awarded in these cases are
adjusted for inflation. Pl.’s Mem. ¶ 6.
The reasonable hourly rate should be “based on market rates in line with those [rates]
prevailing in the community for similar services by lawyers of reasonably comparable skill,
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experience, and reputation.” Harty v. Par Builders, Inc., No. 12-CV-2246 (CS), 2016 WL
616397, at *2 (S.D.N.Y. Feb. 16, 2016). “It is well-established that the prevailing community a
district court should consider ... is normally the district in which the court sits.” Id. (quoting
Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006)). Precedent in the
Southern District of New York suggests that “the customary rate for experienced litigators
representing clients in ADA matters ranges from $350 to $375 per hour.” Kreisler v. Second Ave.
Diner Corp., No. 10 CIV. 7592 RJS, 2013 WL 3965247, at *2 (S.D.N.Y. July, 31 2013)
(collecting cases) (awarding a higher rate of $400 per hour due to inflation); E.g. Harty, 2016
WL 616397, at *4 (awarding $375 per hour).
Given that Mr. Fuller has litigated several ADA cases in this district, the rates courts have
awarded him in such cases are particularly instructive. In a number of similar ADA cases
decided in this district between 2005 and 2014, Mr. Fuller has requested fees at an hourly rate of
$425, but been awarded rates of either $350 or $375. See Access 4 All, Inc. v. Park Lane Hotel,
No. 04 CIV. 7174 SASJCF, 2005 WL 3338555, at *5 (S.D.N.Y. Dec. 7, 2005) (awarding $350
per hour); Access 4 All, Inc. v. Hi 57 Hotel, LLC, No. 04CIV.6620 (GBD)(FM), 2006 WL
196969, at *3 (S.D.N.Y. Jan. 26, 2006) (awarding $350 per hour); Spalluto v. Trump Int'l Hotel
& Tower, No. 04CIV.7497(RJS) (HBP), 2008 WL 4525372, at *13 (S.D.N.Y. Oct. 2, 2008)
(awarding $375 per hour); Access 4 All, Inc. v. Mid-Manhattan Hotel Assocs. LLC, No. 13-CV7995 JMF, 2014 WL 3767009, at *3 (S.D.N.Y. July 31, 2014) (awarding $375 per hour).
Taking into consideration the foregoing authority awarding to Mr. Fuller and other
similarly situated practitioners hourly rates between $350 and $400, and adjusting for inflation,
the Court finds that the hourly rates proposed by both parties of $375 and $425 fall within the
range of reasonable hourly rates prevailing in the Southern District of New York.
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Swartz relies heavily on Mr. Fuller’s significant experience, in particular with civil rights
law and ADA cases, to justify her request for the higher rate of $425. Pl.’s Mem. ¶ 5; Pl.’s
Reply at 2. She further explains that this matter required a substantial amount of time and labor
on Mr. Fuller’s part and that, as a result of his efforts, the parties entered into a confidential
settlement agreement requiring Defendant to undertake substantial corrective action. Pl.’s Mem.
¶¶ 11, 12. Defendant does not dispute Plaintiff’s assertions about Mr. Fuller’s qualifications,
that he expended substantial efforts, nor that he obtained results requiring substantial corrective
action. Defendant instead argues that the fact that this was a straightforward ADA case without
any complex or novel issues justifies a downward adjustment to the requested hourly rate from
$425 to $375. Def.’s Opp’n at 5.
In setting the reasonable hourly rate the Court must consider all of the “case-specific
variables that . . . courts have identified as relevant to the reasonableness of attorney’s fees”, as
well as the notion that “a reasonable, paying client wishes to spend the minimum necessary to
litigate the case effectively.” Harty, 2016 WL 616397, at *2 (internal citations and quotation
marks omitted) (footnote omitted). The court in Margolies v. Cty. of Putnam N.Y., No. 09 CIV.
2061 RKE GAY, 2011 WL 721698, at *2 (S.D.N.Y. Feb. 23, 2011) outlined the factors to
consider:
[T]he district court should consider the following factors enumerated in
the case of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th
Cir.1974: (1) the time and labor required; (2) the novelty and difficulty of
the questions; (3) the level of skill required to perform the legal service
properly; (4) the preclusion of employment by the attorney due to
acceptance of the case; (5) the attorney's customary hourly rate; (6)
whether the fee is fixed or contingent; (7) the time limitations imposed by
the client or the circumstances; (8) the amount involved in the case and
the results obtained; (9) the experience, reputation, and ability of the
attorneys; (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 Arbor Hill, 522 F.3d at 186 n. 3 (citing Johnson, 488 F.2d at
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717–19). In addition to the Johnson factors, the district court should also
consider: the complexity and difficulty of the case, the available expertise
and capacity of the client's other counsel (if any), the resources required to
prosecute the case effectively (taking account of the resources being
marshaled on the other side but not endorsing scorched earth tactics), the
timing demands of the case, whether an attorney might have an interest
(independent of that of his client) in achieving the ends of the litigation or
might initiate the representation himself, whether an attorney might have
initially acted pro bono (such that a client might be aware that the attorney
expected low or non-existent remuneration), and other returns (such as
reputation, etc.) that an attorney might expect from the representation. See
id. at 184.
The Court first addresses the “results obtained” in this case as this has been said to be the
most important factor. Harty, 2016 WL 616397, at *2 (“[T]he most critical factor in a district
court's determination of what constitutes reasonable attorney's fees . . . is the degree of success
obtained by the plaintiff”) (quoting Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 152
(2d Cir. 2008)) (quotation marks omitted). The Court finds that Plaintiff achieved success in
light of parties reaching a settlement and the undisputed fact that Defendant undertook
“substantial corrective action.” E.g., id. at *3 (“[T]he Court finds that [p]laintiff achieved
success in this matter, as evidenced by the parties successfully reaching a settlement, and the
undisputed fact that [p]laintiff is the prevailing party.”)
Next, the Court considers the experience, reputation, and ability of Mr. Fuller. Pl.’s
Mem. Ex. 1. Mr. Fuller’s vast experience a civil rights attorney is clearly demonstrated by his
resume and is undisputed by Defendant. The Court finds that Mr. Fuller’s qualifications support
an hourly rate near the top of the range.
Finally, the Court addresses Defendant’s argument that the relative simplicity of the case
and the lack of novel or complex issues in the case justify a downward reduction in Plaintiff’s
requested rate. Def.’s Opp’n at 5. Notably, for civil rights cases in the Southern District of New
York, some courts have found that “awards exceeding $400 per hour are only warranted in
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unusually difficult and complex cases.” Bowman v. Realty, No. 14-CV-5423 (JMF), 2016 WL
3676669, at *4 (S.D.N.Y. July 6, 2016) (quoting Dancy v. McGinley, 141 F. Supp. 3d 231, 238
(S.D.N.Y. 2015)) (quotation marks omitted). The simplicity of a case may be enhanced, and the
fee properly reduced, when the case is litigated by an attorney who has substantial experience in
litigating similar cases. See, e.g., Spalluto, 2008 WL 4525372, at *13 (“I agree that the issues in
this case were rather simple, especially in light of the Fuller firm's experience in ADA cases . . .
[and] the similarity between the facts and legal issues in this case and others handled by the
Fuller attorneys.”); id. (observing that the Fuller firm has “pursued dozens of [ADA] actions
against various hotels in federal courts . . . These cases involve identical legal issues and similar
factual issues. The duplicitous nature of the litigation warrants a reduction in the law firm's fee
award”). Swartz provides no argument, nor is there anything in the record that suggests that this
case was anything but a garden-variety ADA case. The Court finds that the lack of complexity or
novel issues justifies a downward reduction in Plaintiff’s requested rate.
The Court takes into account all of the considerations relevant to a determination of the
reasonable hourly rate, and awards Plaintiff attorney’s fees for Mr. Fuller’s work on this case at
the reasonable hourly rate of $400.
ii. Number of Hours Reasonably Expended
Defendant asserts that a number of Mr. Fuller’s recorded time expenditures are excessive,
redundant, or otherwise unnecessary. Def.’s Opp’n at 9. Defendant requests that, at minimum,
the Court deduct 10.6 hours of time it deems excessive or insufficiently documented, 4.7 hours
of allegedly duplicative time, and 4 hours of time described in an overly vague manner. Id. at 910.
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The fee applicant bears the burden of demonstrating the number of hours expended and
the type of work performed through contemporaneous time records that “specify, for each
attorney, the date, the hours expended, and the nature of the work done.” New York State
Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147–48 (2d Cir. 1983). The
records, however, need not specify “the exact number of minutes spent nor the precise activity to
which each hour was devoted nor the specific attainments of each attorney.” U.S. Football
League v. Nat’l Football League, 704 F. Supp. 474, 477 (S.D.N.Y. 1989) (internal quotation
marks and citations omitted). The court has an obligation to exclude hours that are “excessive,
redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). “In
determining whether hours should be excluded, the inquiry is not based on what effort appears
necessary in hindsight, but rather on whether ‘at the time the work was performed, a reasonable
attorney would have engaged in similar time expenditures.’” Harrell v. Van der Plas, 2009 WL
3756327, at *6 (S.D.N.Y. Nov. 9, 2009) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.
1992)); see also Lunday v. City of Albany, 42 F.3d 131, 133 (2d Cir. 1994) (finding that
“[c]ounsel for the prevailing party must exercise ‘billing judgment;’ that is, he must act as he
would under the ethical and market restraints that constrain a private sector attorney’s behavior
in billing his own clients”) (citation omitted).
Defendant argues that certain time expenditures by Mr. Fuller are excessive because
either Mr. Fuller “routinely overstates or exaggerates the time spent on activities and bills more
time than is reasonable for the work conducted by an experienced litigator,” or he did not keep
contemporaneous records of his time expenditures and inaccurately reconstructed them after the
fact. Def.’s Opp’n at 9. First, Defendant identifies a series of telephone calls that it claims are
either mistakenly or intentionally excessive because Defendant’s counsel’s corresponding time
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entries reflect less time billed for the same calls. Rodriguez Decl. ¶ 12.
The Court finds that the amount of time that Mr. Fuller billed for these telephone calls is
reasonable, and that the discrepancies between the parties’ billing records do not suggest that Mr.
Fuller billed excessively or that he failed to keep contemporaneous records. Mr. Fuller’s records
for these phone calls include the date, the amount of time expended, the nature of the work
performed, and are sufficient for the Court to conclude that a reasonable attorney would have
engaged in similar time expenditures for these phone calls. Moreover, even if these entries were
slightly inaccurate, they do not indicate that Mr. Fuller generally failed to keep accurate,
contemporaneous timesheets. See Castillo v. Time Warner Cable of New York City, No. 09 CIV.
7644 PAC, 2013 WL 1759558, at *2 (S.D.N.Y. Apr. 24, 2013) (“[A] limited inaccuracy in the
entries . . . did not suggest that counsel's transcriptions were not based on actual
contemporaneous timesheets . . . Time records should be accurate, but limited or overlooked
errors do not compel the conclusion that there was a complete failure to keep any records”)
(citing David v. Sullivan, 777 F.Supp. 212, 223 (E.D.N.Y.1991)).
Defendant further identifies several additional entries for time Mr. Fuller spent reviewing
and drafting documents that it deems excessive or duplicative. Rodriguez Decl. ¶¶ 13, 15, 16.
The Court finds that both the alleged “excessive” and “duplicative” time entries, are, to the
contrary, consistent with the amount of time a reasonable attorney would spend reviewing and
drafting documents for this case. 1
Lastly, Defendant also identifies two entries that it contends are too vague to be
compensable. Id. ¶ 17. The entries describe time spent “[r]eviewing Defendant’s procedures in
1
The Court notes that Swartz removed three of the “duplicative” entries, dated November 6, 2017, from its
revised bill attached as an exhibit to her reply memorandum.
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discovery responses” and “further work on responses to discovery from Defendant.” Pl.’s Mem.
Ex. 5 at 3. These entries are not specific enough to allow the Court to determine their
reasonableness. Coakley v. Webb, No. 14 CIV. 8438 (ER), 2016 WL 1047079, at *7 (S.D.N.Y.
Mar. 10, 2016). The Court finds that these time entries are indeed overly vague and deducts the
full 4 hours of time spent on these tasks.
iii. Paralegal Fees
In addition to attorney’s fees, Plaintiff seeks compensation for 0.8 hours of paralegal
work at a rate of $115 per hour for time spent “[t]asking dates set by Court in Scheduling Order.”
Pl.’s Mem. Ex. 5 at 4. Defendant argues that the Court should deduct the paralegal fees because
Plaintiff failed to provide information about the paralegal’s qualifications and experience. Def.’s
Opp’n at 10. The appropriate paralegal rate is determined by the prevailing market rate in the
District. Spalluto v. Trump Int'l Hotel & Tower, No. 04CIV.7497 (RJS) (HBP), 2008 WL
4525372, at *14 (S.D.N.Y. Oct. 2, 2008). The Court finds that $115 per hour is a reasonable
hourly rate for the paralegal services provided in this case. See id. (collecting cases reflecting a
range of market rates for paralegals between $50 and $150 per hour). Although Plaintiff did not
provide information about the paralegal’s qualifications, “given the type of work to which
paralegals are limited, [the paralegal’s] credentials would have no impact on the compensability
of their time.” Access 4 All, Inc. v. Park Lane Hotel, Inc., No. 04 CIV. 7174 SASJCF, 2005 WL
3338555, at *4 (S.D.N.Y. Dec. 7, 2005). The Court also finds that 0.8 hours is a reasonable
11
amount of time to spend for the described activity, and therefore declines to make any reductions
to the paralegal’s billed time.
iv. Travel Fees and Expenses
Swartz requests that the Court award attorney’s fees for 50% of the 8 hours Mr. Fuller
spent travelling. Pl.’s Mem ¶ 10. Plaintiff also requests reimbursement of $1000 of travel
expenses incurred by Mr. Fuller and Plaintiff’s expert, Ms. Durbin. Id. Ex. 5 at 3, 5. Defendant
argues that Swartz is not entitled to any amount of attorney’s fees for travel because a reasonable
client would not pay for an out-of-state attorney when equally competent local counsel is
available. Def.’s Opp’n at 8. Defendant also argues that Swartz is not entitled to reimbursement
of travel expenses because she failed to provide documentary evidence of these expenses. Id. at
11.
It is true that “courts in the Second Circuit often reduce attorneys' fees for travel time by
50 percent.” Mister Sprout, Inc. v. Williams Farms Produce Sales, Inc., 881 F. Supp. 2d 482, 490
(S.D.N.Y. 2012). However, “[e]xpenses and fees related to travel must be excluded from an
award of attorneys' fees if the hypothetical reasonable client who wishes to spend the least
amount necessary to litigate the matter . . . would have retained local counsel.” U.S. ex rel.
Feldman v. Van Gorp, No. 03 CIV. 8135 WHP, 2011 WL 651829, at *3 (S.D.N.Y. Feb. 9, 2011)
(citing Imbeault v. Rick's Cabaret Int'l, Inc., 08 Civ. 5458(GEL), 2009 WL 2482134, at *8
(S.D.N.Y. Aug. 13, 2009)) (quotation marks omitted).
The cases Swartz relies upon to justify an award of attorney’s fees and expenses for travel
are mostly inapposite. First, Kreisler v. Second Ave. Diner Corp. No. 10 CIV. 7592 RJS, 2013
WL 3965247, at *2 (S.D.N.Y. July 31, 2013) is distinguishable because it awarded attorney’s
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fees at a 50% reduced rate for local rather than out-of-state travel. Next, Mister Sprout, 881 F.
Supp. 2d 482, 491 contradicts Plaintiff’s argument because it declined to award the type of fees
she requests, stating that “in light of the Second Circuit's emphasis that a reasonable client
usually hires counsel from within his district, see Arbor Hill, 522 F.3d at 191, fees associated
solely with respondent's attorney's round trip travel from Ohio are not compensable.” Swartz is
correct that in Access 4 All, 2006 WL 196969 the Court awarded the plaintiff expenses for nonlocal travel, but it did not award attorney’s fees. This ruling is also distinguishable from the
instant case because the defendant in Access 4 All, 2006 WL 196969 did not argue that expenses
for non-local travel were unreasonable or insufficiently documented. Id. at *4 (granting nonlocal travel expenses because “plaintiffs are, within reason, entitled to select the professionals
they believe are best suited for the work that they anticipate.”)
To the extent Access 4 All, 2006 WL 196969 supports Plaintiff’s request for travel fees
and expenses, the Court disagrees with its reasoning. An award of attorney’s fees and expenses
for travel must be based on evidence of reasonableness sufficient to meet the standards set out
for awarding attorney’s fees and costs in general; a plaintiff must prove the reasonableness of
fees and expenses incurred due to its decision to hire out-of-state professionals. See Harty v. Par
Builders, Inc., No. 12-CV-2246 (CS), 2016 WL 616397, at *6 (S.D.N.Y. Feb. 16, 2016)
(declining to award travel fees and expenses to non-local counsel because the “[p]laintiff [did]
not argue that equally qualified local counsel was unavailable, and offer[ed] no legitimate reason
why he declined to hire local counsel as opposed to counsel based in Florida and Pennsylvania”);
see also Feldman, 2011 WL 651829, at *3 n.2 (“[H]ours spent travelling by out-of-district
attorneys are not hours ‘reasonably expended’ where competent counsel is available within the
district.”) The Court deducts the requested 8 hours of fees and $1000 in expenses incurred for
13
non-local travel because it finds it was not reasonable for Swartz to incur the additional expenses
of hiring a non-local attorney and expert.
B. Costs
Plaintiff requests reimbursement of a total of $10,260 in non-travel related litigation
expenses, including expert fees totaling $8,500. Pl.’s Reply Ex. 1. Defendant argues that it
should not be required to pay for these expenses, except for a filing fee and a portion of the
expert fees, because the expenses are either non-compensable or insufficiently documented.
Def.’s Opp’n at 12-14.
“The court in its discretion may award a prevailing party its reasonable costs pursuant to
the ADA. [A]wards of attorney's fees in civil rights suits under fee-shifting statutes . . . normally
include those reasonable out-of-pocket expenses incurred by the attorney and which are normally
charged fee-paying clients.” Spalluto v. Trump Int'l Hotel & Tower, No. 04CIV.7497 (RJS)
(HBP), 2008 WL 4525372, at *18 (S.D.N.Y. Oct. 2, 2008) (internal citations and quotation marks
omitted). It is well-established that “[u]nder the ADA, a court may award a plaintiff its expert
witnesses' reasonable fees as a litigation expense.” Access 4 All, Inc. v. Hi 57 Hotel, LLC, No.
04CIV.6620 (GBD)(FM), 2006 WL 196969, at *4 (S.D.N.Y. Jan. 26, 2006) (internal citations
and quotation marks omitted). The plaintiff bears the burden of proving its reasonable costs,
which a court may reduce if the plaintiff fails to submit adequate supporting documentation.
Spalluto, 2008 WL 4525372, at *19 (collecting cases) (reducing the plaintiff’s costs by 25% for
lack of supporting documentation).
Swartz seeks a total of $8,500 in fees for work performed by its expert, Ms. Durbin. Pl.’s
Mem. Ex. 5 at 5. Defendant argues that the expert fees should be reduced to $3,750 because
14
Defendant allegedly has not had the opportunity to review the full extent of Ms. Durbin’s work
product reflected in charges totaling $4,750. Def.’s Opp’n at 13. Swartz provides Ms. Durbin’s
resume, her two expert reports, and three bills containing the dates, time expenditures, and
sufficient descriptions of the work performed. Pl.’s Mem. Exs. 2-4. The Court awards the full
amount of requested expert witness fees because the documentation was sufficient to determine
that Ms. Durbin produced reports that Swartz relied on to obtain the settlement, and that the costs
were reasonable. See Access 4 All, 2006 WL 196969, at *4 (granting expert’s fees when there
was no doubt the expert conducted two inspections of the premises and that plaintiffs relied on
the inspections and reports in prosecuting the case).
Defendant also challenges a request for $200 for a title search, $135 for service of
process, and $50 in photocopying costs due to Plaintiff’s failure to provide supporting
documentation for these expenses. Def.’s Opp’n at 12. It is true that Plaintiff does not provide
any information about these expenses besides the dates and the claimed dollar amounts.
However, the Court finds that this is sufficient to determine that the expenses are reasonable in
this litigation and awards the full amount for each of these charges.
Additionally, Defendant challenges the $225 amount requested for “Open/Close File
Charge” on grounds that it is a clerical, non-compensable cost. Id. The Court deducts this
charge because Swartz fails to support it, and it appears to be “part of general office overhead
that is compensated through attorneys' fees.” Disabled Patriots of Am., Inc. v. Niagara Grp.
Hotels, LLC, 688 F. Supp. 2d 216, 228 (W.D.N.Y. 2010) (citing LeBlanc–Sternberg v. Fletcher,
143 F.3d 748, 763 (2d Cir.1998)) (rejecting the same charge).
Lastly, the Court will not award a requested $750 re-inspection fee. Again, Swartz fails
to provide any supporting documentation for this expense, which is not on its face reasonable.
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