Brown v. McKinley Mall, LLC et al

Filing 57

DECISION AND ORDER. Plaintiff's Request in the amount of $9,720 is GRANTED. Defendant and Defendant's attorney shall tender their respective checks in equal shares of the amount awarded, as determined by the court in accordance with Rule 37(a)(5)(A), see Decision and Order dated August 21, 2017, Dkt. 50, at 7, within 30 days. Signed by Hon. Leslie G. Foschio on 10/5/2017. (SDW)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
CHRISTOPHER E. BROWN,
Plaintiff,
v.
McKINLEY MALL, LLC,

DECISION
and
ORDER
15-CV-1044G(F)

Defendant.
________________________________________
APPEARANCES:

ALAN DONATELLI, ESQ.
Attorney for Plaintiff
Main-Summer Building
11 Summer Street, 3rd Floor
Buffalo, New York 14209
KU & MUSSMAN, P.A.
Attorneys for Plaintiff
LOUIS I. MUSSMAN, of Counsel
18501 Pines Boulevard, Suite 209-A
Pembroke Pines, Florida 33029
COLUCCI & GALLAHER, P.C.
Attorneys for Defendant
PAUL G. JOYCE,
TORREY E. GRENDA, of Counsel
2000 Liberty Building
424 Main Street
Buffalo, New York 14202-3695

Before the court in this American with Disabilities Act case, Plaintiff, in
accordance with this court’s Decision and Order (Dkt. 50) granting Plaintiff’s request for
sanctions in connection with Plaintiff’s prior motion to compel (Dkt. 28) (Plaintiff’s
motion”), requests $14,580 as reasonable attorneys fees incurred in the prosecution of
Plaintiff’s motion based on 48.6 hours of time expended by Plaintiff’s counsel (Plaintiff’s
Request”). Defendant does not object to Plaintiff’s attorney’s hourly rate of $300, rather
Defendant contends that 44.5 hours for Louis I. Mussman, Esq. (“Mussman”), Plaintiff’s

lead counsel, incurred in connection with Plaintiff’s motion is excessive given the
“straight forward” and uncomplicated issues presented by Plaintiff’s motion, see Dkt. 55
¶ 7, and that the 4.1 hours claimed for Brian T. Ku (“Ku”), Mussman’s co-counsel,
should be disallowed as Ku has not formally appeared in the action. Id. ¶ 4. Defendant
also contends that any award be limited to time incurred in preparing Plaintiff’s motion
and objects to any award for Mussman’s time expended in communicating with
Defendant’s attorney pursuant to Fed.R.Civ.P. 37(a). See Dkt. 4 ¶¶ 8-11. Plaintiff’s
Request also includes 1.2 hours for Mussman’s preparation of Plaintiff’s Request to
which Defendant does not object.
It is well-established that in awarding expenses pursuant to Fed.R.Civ.P.
37(a)(5)(C), courts determine a “lodestar amount” which is the product of a reasonable
hourly rate for the attorney who worked on the motion and a reasonable number of . . .
[hours] expended on the litigation of the motion plus reasonable expenses incurred in
producing the motion.” Scott-Iverson v. Independent Health Association, Inc., 2016 WL
1457881, at *2 (W.D.N.Y. Apr. 14, 2016) (citing Robbins & Myers, Inc. v. J.M. Huber
Corp., 2011 WL 5326259, at *2 (W.D.N.Y. Nov. 3, 2011) (citing Millea v. Metro-North R.
Co., 658 F.3d 154, 166 (2d Cir. 2011))). “In calculating the lodestar amount, the initial
burden is on the requesting party to submit evidence supporting the number of hours
worked and the hourly rate claimed.” Robbins & Myers, Inc., 2011 WL 5326259, at *2
(citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The prevailing party’s fees and
expenses incurred in connection with the preparation and defense of its attorney’s fees
award may also be awarded. Id. (citing caselaw). A prevailing party’s reasonable
expenses may also include a reasonable amount of time required to communicate with

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an opponent in accordance with Fed.R.Civ.P. 37(a)(1) as a prerequisite to a successful
motion to compel. See Roth v. 2810026 Canada Limited, Ltd., at *1 (W.D.N.Y. Apr. 12,
2017) (time expended by defendant’s attorney communicating with plaintiff’s attorney
preliminary to defendant’s successful motion to compel reimbursable expense under
Rule 37(a)(5)(C)); Scott-Iverson, 2016 WL 1457881, at *3 (time expended by
defendant’s attorney in “series of communications” with plaintiff’s attorney in compliance
with Rule 37(a)(1) may be included in fee award to defendant as prevailing party of
defendant’s motion to compel); Thalheim v. Thalheim, 124 F.R.D. 34, 38 (D.Conn.
1988) (time expended by plaintiff’s attorney in attempting to resolve discovery dispute
including letters, phone calls, and conferences with opposing counsel, drafting motions
to compel, supporting papers, researching and writing supporting memorandum qualify
as reimbursable expenses). Defendant’s contrary assertion is, accordingly, without
merit. In making such awards, courts consider whether a reasonable attorney would in
similar circumstances expend a similar number of hours as requested by the prevailing
party, see Star Direct Telecom, Inc. v. Global Crossing Bundwith, Inc., 2012 WL
2992629, at *4 (W.D.N.Y. July 20, 2012) (court must audit hours claimed to determine
whether “reasonably expended”), and will, in its discretion, reduce the amount
requested by an across-the-board percentage for any time it finds as unnecessary or
redundant given the complexities of the issues raised by the motion and as a means to
“trim fat from a fee application.” Hines v. City of Albany, 613 Fed.Appx. 52, 54 (2d Cir.
2015) (citing caselaw); see Scott-Iverson, 2016 WL 1457881, at *2 (citing caselaw)
(reducing fee application by 15%); Robbins & Myers, Inc., 2011 WL 5326259, at *5
(reducing fee award by 50% where defendant’s motion given low amount of legal

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research involved and routine nature of motion). Here, Plaintiff’s motion raised two
discovery issues relating to Defendant’s financial ability to comply with ADA standards
applicable to Defendant’s shopping mall customer access, and Plaintiff’s Requests for
Admissions seeking information regarding Defendant’s compliance with such standards.
Plaintiff’s motion consisted of a 12 page memorandum of law, an affidavit of
counsel, and nine exhibits (Dkt. 28); and Plaintiff’s reply was a six page brief (Dkt. 32)
together with two exhibits. Plaintiff’s basic legal argument included emphasizing that
the requested information regarding Defendant’s financial capacity was made relevant
by the ADA itself and that Defendant’s argument that Plaintiff was required to establish
the economic feasibility of the alleged required modifications was prerequisite to
Plaintiff’s standing to seek discovery was meritless. Plaintiff also effectively rebutted
Defendant’s asserted objection to Plaintiff’s Requests for Admissions that Plaintiff’s
request sought legal opinions beyond the proper scope of a Request to Admit pursuant
to Fed.R.Civ.P. 36(a)(1)(A). As such, Plaintiff’s motion was fairly uncomplicated and
Plaintiff’s contentions did not require a substantial legal analysis or research. Plaintiff’s
eight page opposition to Defendant’s response to the court’s order to show cause why
sanctions should not be awarded properly explained the criteria upon which a fee award
pursuant to Rule 37 is to be based. See Dkt. 44. Thus, upon this record, the court finds
Plaintiff’s Request, insofar as it requests expenses based on 48.6 hours for two
attorneys, is excessive. Accordingly, the court, in its discretion, reduces Plaintiff’s
Request by one-third or 33⅓% for a total of 32.4 hours (rounded). Multiplied by the
$300 per hour billing rate, to which Defendant does not object, results in a Plaintiff’s
Request award of $9,720.

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CONCLUSION
Based on the foregoing, Plaintiff’s Request in the amount of $9,720 is
GRANTED. Defendant and Defendant’s attorney shall tender their respective checks in
equal shares of the amount awarded, as determined by the court in accordance with
Rule 37(a)(5)(A), see Decision and Order dated August 21, 2017, Dkt. 50, at 7, within
30 days.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: October 5, 2017
Buffalo, New York

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