Betancourt-Colon v. Supermercados Maximo, Inc. et al

Filing 95

OPINION AND ORDER granting in part 86 Plaintiff's Brief Regarding Attorney's Fees. See attached. Signed by Judge Gina R. Mendez-Miro on 8/29/2024. (GMN)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

Faustino Xavier Betancourt-Colon,
Civil No. 3:22-01274 (GMM)

Plaintiff,
V.
Supermercados Máximo, Inc.
Defendant.

OPINION AND ORDER
Before
(hereinafter,

the

Court

is

“Plaintiff”

Faustino
or

Xavier

“Betancourt”)1

Betancourt-Colón’s
Plaintiff’s

Brief

Regarding Attorney’s Fees. (Docket No. 86). For the following
reasons, the Court GRANTS IN PART Plaintiff’s motion.
I.

BACKGROUND

On May 23, 2024, the Court entered an Opinion and Order,
granting in part and denying in part both Betancourt’s Motion for
Partial

Summary

Supermercados

Judgment

Máximo,

(Docket

Inc.’s

No.

45)

(hereinafter,

and

Defendant

“Defendant”

or

“SuperMax”) Motion for Summary Judgment and Memorandum of Law in
Support (Docket No. 42). See (Docket No. 74). Therein, the Court
granted Betancourt summary judgment on the issue of whether the

The Court notes that Mr. Betancourt passed away on July 10, 2024. See (Docket
No. 89). As such, the motion for attorney’s fees is being brought by Plaintiff’s
counsel José Carlos Vélez Colón.
1

Civil No. 3:22-01274 (GMM)
Page -2customer service counter at Supermax’s store in Plaza Guaynabo
(“Supermax Store”) complied with the applicable Americans with
Disabilities Act (“ADA”) Accessibility Guidelines’ (“ADAAG”) and
accordingly

ordered

Supermax

to

“bring

the

customer

service

counter into compliance with the 2010 ADAAG” by July 22, 2024.
(Id. at 23-24). Simultaneously, the Court granted Supermax summary
judgment as to the ADA compliance of the Supermax Store’s: (1)
meat market counter; (2) Açaí Shop integrated countertop; (3) Café
Max

integrated

countertop;

(4)

plant

section

integrated

countertop; and (5) checkout aisle countertops. (Id. at 25-31).
The Court also denied without prejudice Betancourt’s request for
attorney’s fees, costs, and litigation expenses pursuant to 42
U.S.C. § 12205 and Section 505 of the Rehabilitation Act and
requested that the Parties brief the matter. (Id. at 33).
On July 10, 2024, while the Court awaited Parties’ briefing
of the issue of attorney’s fees, Betancourt passed away. See
(Docket No. 89). Nevertheless, on August 2, 2024, Plaintiff’s
Counsel José Carlos Vélez Colón (“Plaintiff’s Counsel” or “Vélez”)
filed Plaintiff’s Brief Regarding Attorney’s Fees asking the Court
to award him $28,000 in fees and $170 in costs. (Id. at 1-3).
(Docket No. 86).2 On August 16, 2024, Defendant responded with its

Betancourt’s death does not render the motion for attorney’s fees moot. See
Diffenderfer v. Gomez-Colon, 587 F.3d 445, 453 (1st Cir. 2009) (“When plaintiffs
clearly succeeded in obtaining the relief sought before the district court and
2

Civil No. 3:22-01274 (GMM)
Page -3Opposition to Motion for Attorney’s Fees, Costs and Expenses
(“Opposition”) arguing that the requested attorney’s fees and
costs

were

“grossly

disproportionate”

given

the

commonplace

characteristics of this dispute and Vélez’s filing of hundreds of
ADA complaints including six against Supermax. (Docket No. 90 at
2). On August 29, 2024, Plaintiff’s Counsel filed Plaintiff’s Reply
to Opposition to motion for Attorney’s Fees, Costs and Expenses
(“Reply”). (Docket No. 94).
II.
A.

LEGAL STANDARD AND ANALYSIS

Prevailing Party
Plaintiff’s Counsel requests attorney’s fees, costs, and

litigation expenses, under to 42 U.S.C. § 12205 and Section 505 of
the Rehabilitation Act. Supermax, in its Opposition, does not
directly dispute that Plaintiff qualifies as a prevailing party,
nevertheless, the Court reviews this point.
Pursuant to 42 U.S.C. § 12205, a court “in its discretion,
may allow the prevailing party. . .a reasonable attorney's fee,
including litigation expenses, and costs.” 42 U.S.C. § 12205
(emphasis added); see also Martinez v. Nat’l Univ. Coll., No. CV
18-1975

(DRD),

2020

WL

1933646,

at

*7

(D.P.R.

Apr.

21,

an intervening event rendered the case moot on appeal, plaintiffs are still
‘prevailing parties’ for the purposes of attorney’s fees for the district court
litigation.”).

Civil No. 3:22-01274 (GMM)
Page -42020)(stating that a court “has discretion to allow for reasonable
attorney's fees to the prevailing party in an action under Title
III.”).
“To qualify as a prevailing party, a litigant must show that
a material alteration of the parties’ legal relationship has taken
place as a result of the litigation.” Hutchinson ex rel. Julien v.
Patrick, 636 F.3d 1, 8 (1st Cir. 2011) (quoting Tex. State Teachers
Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792–93 (1989));
see also CRST Van Expedited, Inc. v. E.E.O.C., 578 U.S. 419, 422
(2016) (“[the] touchstone of the prevailing party inquiry must be
the material alteration of the legal relationship of the parties.”)
(internal citations and quotations omitted);

Suarez-Torres v.

Panaderia Y Reposteria Espana, Inc., 988 F.3d 542, 554 (1st Cir.
2021) (“[T]he Supreme Court ha[s] not awarded attorney's fees where
the

plaintiff.

.

.acquired

a

judicial

pronouncement.

.

.

unaccompanied by judicial relief.”) (emphasis added).
If a material alteration in parties’ legal relationship is
substantiated, a moving party seeking attorney’s fees must then
demonstrate that the relationship change possesses the requisite
judicial imprimatur. See 42 U.S.C.A. § 12205; Tex. State Teachers
Ass’n., 489 U.S. at 792-93; Suárez-Torres, 988 F.3d at 551;
Buckhannon, 532 U.S. 598, 604-605 (2001). A plaintiff might satisfy
the judicial imprimatur requirement by obtaining a judgement on

Civil No. 3:22-01274 (GMM)
Page -5the merits or a court-ordered decree. See Hutchinson, 636 F.3d at
9 (citing Buckhannon Bd. And Care Home, Inc., 532 U.S. at 605);
see also Race v. Toledo-Davila, 291 F.3d 857 (1st Cir. 2002).
Moreover, an individual may be entitled to attorney’s fees
if he or she obtains relief “on the merits of at least some of his
[or her] claims.” Race, 291 F.3d 857 (quoting Hanrahan v. Hampton,
446 U.S. 754, 758 (1980) (per curiam)); see also Buckhannon, 532
U.S. at 605. In Hutchinson, the First Circuit instructed courts to
consider

the

following

factors

when

determining

whether

the

requisite judicial imprimatur exists: (1) whether a court ordered
the change in the parties’ legal relationship; (2) whether a court
approved the granted relief based on the merits of the case; and
(3) whether a court maintains judicial oversight regarding the
enforcement

of

obligations

imposed

upon

the

parties.

See

Hutchinson, 636 F.3d at 9.
As a preliminary matter, the Court finds that Plaintiff
qualifies as a prevailing party under 42 U.S.C. § 12205 given that
he obtained relief on one of his claims, to wit a Court order
demanding that the Supermax Store’s customer service counter be
brought into ADA compliance. This relief constitutes a material
change in the Parties’ relationship given that Plaintiff succeeded
on a “significant issue in litigation which achieve[d] some of the
benefit the [plaintiff] sought in bringing the suit.” Betancourt-

Civil No. 3:22-01274 (GMM)
Page -6Colon v. Acoba Realty Dev., Inc., No. CV 20-1424 (CVR), 2024 WL
3063391, at *2 (D.P.R. June 18, 2024) (internal citations and
quotations omitted); see also Tex. State Tchrs. Ass’n, 489 U.S. at
789; Race, 291 F.3d at 859 (noting that an individual may be
entitled to attorney’s fees if he or she obtains relief on the
merits on some of his or her claims). Moreover, Plaintiff’s claim
as to the customer service counter possesses requisite judicial
imprimatur given that the relief sought: (1) was granted by Court
order; (2) was made in a response to the Court’s analysis of the
Parties’ arguments on the merits; and (3) remained within the
Court’s

jurisdiction.

Thus,

Plaintiff’s

Counsel

sufficiently

demonstrated that Plaintiff was the prevailing party on his claim
regarding one of the six counters that he alleged violated the
ADA. See (Docket No. 74 at 34-35).
B.

Reasonable Attorney’s Fees for Vélez’s work in this case
Once an individual is found to qualify as a prevailing party

under 42 U.S.C. § 12205, a Court considers the reasonableness of
the requested attorney’s fees. To determine reasonable attorney’s
fees, a court first computes the lodestar figure for an attorney’s
work by “calculate[ing] the time counsel spent on the case,
subtract[ing] duplicative, unproductive, or excessive hours, and.
. .apply[ing] prevailing rates in the community (taking into
account the qualifications, experience, and specialized competence

Civil No. 3:22-01274 (GMM)
Page -7of the attorneys involved).”

Gonzalez-Nieves v. Municipality of

Aguadilla, Civil No. 3:13 -01132 (JAF), 2016 WL 297432, at *2
(D.P.R. Jan. 22, 2016) (citing Hutchinson, 636 F.3d at 13); see
also Cameron v. GMD Airline Servs., Inc., Civil No. 07-1669 (DRD),
2010 WL 11545534, at *3 (D.P.R. June 22, 2010). In doing this
exercise, a court may adjust the applied hourly rate by considering
“the type of work performed, who performed it, the expertise that
it required, and when it was undertaken.” Libertad v. Sanchez, 134
F.Supp.2d 218, 231 (D.P.R. 2001) (quoting Grendel's Den, Inc. v.
Larkin, 749 F.2d 945, 950–51 (1st Cir. 1984)).
After calculating the lodestar value, which is “presumptively
reasonable. . .the court may adjust it up or down for other
factors, say, a significant gap between the relief requested and
the result obtained.” Spooner v. EEN, Inc., 644 F.3d 62, 68 (1st
Cir. 2011) (internal citations omitted); see also De Jesús Nazario
v. Morris Rodríguez, 554 F.3d 196, 207 (1st Cir.2009). A Court may
also factor in the circumstances of the case and adjust the
lodestar value so that it reflects “the time and labor actually
required for the efficacious handling of the matter.” TorresRivera

v.

O’Neill-Cancel,

524

F.3d

331,

336

(1st

Cir.

2008) (citing Hensley v. Eckerhart, 461 U.S. 424, 430 (1983)).
Ultimately,
judgment”

reasonableness

and

a

court

“is

should

largely
consider

a

matter

issues

of

of

informed

equity

in

Civil No. 3:22-01274 (GMM)
Page -8determining “the most fair and sensible solution for apportioning
the

fee

award.”

Torres-Rivera,

524

F.3d

at

336-337

(quoting

Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 960 (1st Cir. 1984))
(internal quotation omitted).
In the instant case, Vélez contends that an hourly rate of
$350, which reflects his typical hourly rate of $300 plus an upward
adjustment of $50 per hour, is reasonable as it reflects his
expertise in ADA litigation and this case’s complexity. See (Docket
Nos. 86 at 4-8; 94 at 2-3). Furthermore, Plaintiff’s Counsel “seeks
compensation for 80 hours, which have already been reduced based
on

careful

billing

judgment

to

remove

any

inefficient,

duplicative, or excessive time.” (Id. at 9). Thus, Vélez’s own
estimated loadstar value of his work in this case amounts to
$28,000. In his Reply, Plaintiff’s Counsel made concessions on his
hours

billed

and

agreed

to

reduce

his

requested

fee

by

an

additional $542.50, resulting in a final fee request of $27,457.50.
(Docket No. 94 at 6-8). The Court disagrees with this calculation
and thus recalculates the lodestar value for work performed by
Plaintiff’s Counsel in this case.
This Court previously found that “experienced attorneys in
Puerto Rico earn $250.00 to $300.00 per hour, associates earn
$150.00 to $200.00 per hour, and paralegals earn $50.00 to $100.00
per hour.” Betancourt-Colon v. Acoba Realty Dev., Inc., Civil No.

Civil No. 3:22-01274 (GMM)
Page -920-1424

(CVR),

2024

WL

3063391,

at

*3–4

(D.P.R.

June

18,

2024)(citing Hermandad Independiente de Empleados Telefónicos v.
P.R. Tel. Co., Civil No. 18-1220 (BJM), 2019 WL 13200065, at *2
(D.P.R. Aug. 12, 2019) (collecting cases) and Bd. of Trustees v.
ILA Loc. 1740, AFL-CIO, Civil No. 18-1598 (SCC), 2022 WL 4591843,
at *3 (D.P.R. Sept. 30, 2022)). As such, Vélez’s requested hourly
rate of $350 clearly exceeds the prevailing market rate.
Furthermore, the Court agrees with Supermax’s contention
that this case was not particularly challenging or unique. See
(Docket No. 90 at 5-6). Critically, the Court notes that Vélez has
considerable ADA litigation experience3 and has brought no less
than seven (7) ADA cases4 against other Supermax stores alleging
similar claims. Thus, Vélez’s requested hourly rate is excessive.
In line with this District’s determination in an analogous case,
the Court finds that an hourly rate of $200 is more appropriate.
See Betancourt-Colon, 2024 WL 3063391, at *3–4.
Having determined the appropriate hourly rate to be used in
calculating this case’s lodestar value, the Court next considers

Plaintiff’s Counsel himself states that he has handled “over 400 disability
access cases.” (Docket No. 94 at 2).
4 Betancourt-Colon v. Acoba Realty Development Inc. et al., Civil No. 20-1424
(CVR); Betancourt-Colon v. Plaza Caparra, LLC et al., Civil No. 21-1342
(ADA); Betancourt-Colon v. B.V. Properties Inc., Civil No. 21-1293 (PAD;
Betancourt-Colon v. Seritage KMT Finance, LLC et al., Civil No. 22-1360 (WGY);
Betancourt-Colon v. Supermercados Maximo, Inc., Civil No. 22-1548 (BJM);
Betancourt-Colon v. Supermercados Maximo, Inc., Civil No. 23-1378 (CVR);
Betancourt-Colon v. Supermercados Maximo, Inc. et al, Civil No. 24-1075 (GMM).
3

Civil No. 3:22-01274 (GMM)
Page -10the timesheets submitted by Plaintiff’s Counsel that document the
hours that he worked in these proceedings. The Court disregarded
some

hours

of

work

for

tasks

it

found

to

be

unnecessary,

duplicative, and/or excessive. These were:
•
The Court excluded 2.7 billed hours that related
to motions practice regarding the two withdrawn
partial motions for summary judgment (Docket Nos.
34, 38) which the Court deemed to be excessive and/or
duplicative. (Docket No. 86-1 at 22-26).
•
The Court also eliminated the 0.9 hours Vélez
billed on December 23, 2022 regarding a collateral
conflict
between
Parties
regarding
Plaintiff
visiting the Supermax store during the course of
proceedings. (Docket No. 86-1 at 13-14).
•
The Court, in accord with Vélez’s Reply (see
Docket No. 94 at 7), reduced Plaintiff’s Counsel’s
billing entries for service of process by half and
thus eliminates another 0.4 hours. (Docket No. 86-1
at 3).
•
The Court, in accord with Vélez’s Reply (see
Docket No. 94 at 7), reduced Plaintiff’s Counsel’s
billing entries by half for sending plaintiff a copy
of the filed Complaint (see Docket No. 86-1 at 3);
for sending plaintiff a PandaDoc link for the
electronic signature of the responses to the First
Set of Interrogatories (see Docket No. 86-1 at 12);
and drafting a motion requesting issuance of summons
(see Docket No. 86-1 at 2). This eliminated another
0.15 hours.
•
The Court, in response to concessions made in
Plaintiff’s Counsel’s reply, also eliminates 0.65
hours that Vélez billed for filing motions.5
The Court notes that Vélez conceded to some reduction in fees billed associated
with filing activities, reducing the $595 dollars billed for filing activities
to $290. The Court finds that Plaintiff’s Counsel was based on a calculation of
1.7 hours billed for filing at an hourly rate of $350. However, reviewing the
timesheets submitted by Vélez, the Court finds that he actually billed 1.8 hours
for filing activities on May 19, 2022, June 6, 2022, October 7, 2022, January
24, 2023, April 24, 2023, April 28, 2023, July 27, 2023, September 25, 2023,
two filings on September 26, 2023, December 15, 2023, December 20, 2023,
December 27, 2023, two filings on December 29, 2023, January 11, 2024, January
5

Civil No. 3:22-01274 (GMM)
Page -11Thus, the Court finds that Plaintiff’s Counsel reasonably billed
a total of 75.2 hours. Multiplying reasonable hours worked with
the reasonable hourly rate of $200 yields a lodestar value of
$15,040.00.
The Court now considers whether the calculated lodestar value
truly

reflects

the

reasonable

value

of

work

performed

by

Plaintiff’s Counsel in this case. Critically here, while Plaintiff
partially prevailed to the extent that the Court ordered Defendant
to

bring

its

customer

service

counter

into

ADA

compliance,

Plaintiff’s success only pertained to one of his claims and was
not a result of Vélez’s own legal arguments, but due to the Court’s
own legal analysis.6 Thus, weighing “the significant gap between
the relief requested and the result obtained,” Spooner, 644 F.3d
at 68, and the efficacy of Vélez’s own work, the Court concludes
that

awarding

the

lodestar

value

of

$15,040.00

would

be

unreasonable and contrary to principles of equity. In light of the
circumstances of this case, the Court finds that an attorney’s

12, 2024, and July 29, 2024. The Court already eliminated 0.5 hours billed for
filing related to the two withdrawn motions for summary judgement. Thus, 1.3
hours billed for filing remain. Considering Vélez’s reply, the Court halves
these hours and thus eliminates an additional 0.65 hours.
6 See (Docket No. 74 at 23) (In its Opinion and Order, the Court noted that
“both Betancourt and SuperMax erred in applying section 7.2(2) [of the ADAAG]
to the customer service counter” since the counter possessed a cash register
which is evaluated differently than a counter that does not possess a cash
register. The Court, applying the correct section of the ADAAG, that is section
7.2(1), found that the customer service counter nevertheless did not comply
with ADA standards and thus granted Plaintiff summary judgment on this alleged
structural barrier.

Civil No. 3:22-01274 (GMM)
Page -12fees award of $7,520.00 is appropriate to compensate Plaintiff’s
Counsel for bringing an action that compelled Defendant to bring
its store into ADA compliance, even if that result was not directly
achieved by Vélez’s own legal arguments.

III. CONCLUSION
For

the

reasons

set

forth,

the

Court

GRANTS

IN

PART

Plaintiff’s Brief Regarding Attorney’s Fees (Docket No. 86). The
Court awards Plaintiff’s request for attorney’s fees in the amount
of

$7,520.00

with

the

additional

requested

reimbursement

of

$170.00 for costs and expenses.7
IT IS SO ORDERED.
In San Juan, Puerto Rico, this August 29, 2024.

s/Gina R. Méndez-Miró
GINA R. MÉNDEZ-MIRÓ
UNITED STATES DISTRICT JUDGE

The Court awards Plaintiff’s Counsel’s requested costs pursuant to Federal
Rule of Civil Procedure Rule 54 (“Rule 54”). Rule 54 provides that “costs
‘should be allowed to the prevailing party’ unless a federal statute provides
otherwise. . .[t]hus, Rule 54(d) generally creates a presumption in favor of
awarding costs to the prevailing party.” Conde Vidal v. Lakeshore Condo. Owners
Ass'n, Civil No. 18-1042 (DRD), 2019 WL 13261059, at *1 (D.P.R. Nov. 1, 2019)
(citing Fed. R. Civ. P. 54(d)(1) and Delta Air Lines, Inc. v. August, 450 U.S.
346, 352 (1981)).
7