Berthiaume v. Doremus
Filing
23
MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 6/12/2014. (lab)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION
ERIC BERTHIAUME,
CASE NO. 6-13-cv-00037
Plaintiff,
v.
MEMORANDUM OPINION
TODD DOUGLAS DOREMUS, DBA YELLOW
SUBMARINE
JUDGE NORMAN K. MOON
Defendant.
This matter is before the court on Plaintiff Eric Berthiaume’s Motion for Attorneys’ Fees
and Costs (“Motion for Fees”). Plaintiff filed his Complaint in this Americans with Disabilities
Act case on July 3, 2013. Plaintiff claimed Todd Douglas Doremus (“Defendant”), owner of the
Yellow Submarine restaurant in Lynchburg, Virginia, discriminated against Plaintiff, who has
cerebral palsy and uses a walker to move, through barriers to access the restaurant and its
restrooms.
I granted Plaintiff’s Motion for Default Judgment on February 11, 2014 and ordered
Defendant to comply with several permanent injunctions regarding the accessibility of his
restaurant under the ADA. See Feb. 11, 2014 Mem. Op. and Order (docket nos. 17, 18).
Plaintiff now seeks the $9,550 in attorneys’ fees and the $450 in court costs he incurred while
pursuing this case. Since I find that Plaintiff was the prevailing party in this case and that
Plaintiff requests a reasonable amount of fees and costs, I will grant Plaintiff’s Motion for Fees
and award Plaintiff’s counsel attorneys’ fees and costs in the amount of $10,000.
II. BACKGROUND 1
Defendant owns the Yellow Submarine restaurant in Lynchburg, Virginia, located at
3313 Old Forest Road. In his complaint, Plaintiff alleged that Defendant discriminated against
1
I deemed all of Plaintiff’s factual allegations admitted by this defaulting defendant. Fed. R. Civ. P. 8(b)(6).
1
him under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181, et seq.
Plaintiff has cerebral palsy and uses a walker to move. He claimed Yellow Submarine is a place
of public accommodation that violated the ADA by failing to remove architectural barriers to
accessibility, including steps between the sidewalk and Yellow Submarine’s front and side
entrances. Plaintiff attempted to access the restaurant on May 8, 2013, but could not because of
steps leading to its entrance and a lack of other accessible entrance options.
Plaintiff also pleaded, on information and belief, that he would not be able to access
Yellow Submarine’s restroom because of “[an] improper door handle, no grab bars, improper
sink controls,” and inadequate space around the toilet. Id. at ¶¶ 15, 45. Plaintiff did not visit the
restrooms, but his counsel conducted an investigation there.
Plaintiff attempted to negotiate with Defendant to solve the accessibility issues without
resorting to litigation, but those efforts failed. Thereafter, Plaintiff filed a complaint in this Court
on July 3, 2013, alleging ADA violations and seeking permanent injunctions to bring
Defendant’s restaurant into compliance. On October 1, 2013, Plaintiff provided personal service
of his complaint and a “Summons in a Civil Action” on Defendant at Yellow Submarine.
Defendant did not respond to the complaint or summons, and did not file an answer or other
documentation in this Court. On October 31, 2013, Plaintiff filed for an entry of default with the
Clerk of this Court, and received one on November 1, 2013. On December 30, 2013, Plaintiff
filed a Motion for Default Judgment under Federal Rule of Civil Procedure 55(b)(2). As part of
that judgment, Plaintiff sought certain permanent injunctions requiring Defendant’s compliance
with the ADA so that Plaintiff could access his restaurant. 2
2
The injunctions sought in Plaintiff’s Motion for Default Judgment are as follows:
1. Issue a permanent injunction prohibiting Defendant from discriminating against Mr.
Berthiaume and others similarly situated by preventing them from entering Yellow Submarine
Restaurant;
2
On January 8, 2014, I ordered the parties to schedule a hearing so that I could further
explore Plaintiff’s allegations and other matters. Defendant received notice of the hearing by
certified mail on January 22, 2014. On February 7, 2014, all parties appeared at the hearing,
where the parties argued the merits of Plaintiff’s Motion for Default Judgment and I discussed
the possibility of an award of attorneys’ fees. 3 On February 11, 2014, I granted Plaintiff’s
Motion for Default Judgment, finding that Plaintiff sufficiently alleged a prima facie case of
discrimination under the ADA.
In granting the motion, I issued the following permanent
injunctions:
* * *
2. Defendant is hereby permanently enjoined from discriminating against
Plaintiff under the ADA by not removing or otherwise circumventing barriers
to Plaintiff’s access to Yellow Submarine and its restrooms;
3. Within 90 days of receiving notice of this order, Defendant shall install an
appropriate ramp, either temporary or permanent and to the specifications of
the ADA and its regulations, or offer other appropriate accommodations under
the ADA so that Plaintiff can enter Yellow Submarine;
4. Within 90 days of receiving notice of this order, Defendant shall modify
Yellow Submarine’s restroom so that it is accessible to Plaintiff by ADA
standards, including any necessary installation of door hardware, grab bars in
toilet stalls, removal of toilet partitions, and repositioning of the paper towel
dispenser.
See Feb. 11, 2014 Order at 1–2 (footnote omitted) (docket no. 18).
2. Issue a permanent injunction requiring that Defendant comply with the ADA, ADA
Regulations and ADAAG and ensure that Plaintiff and others similarly situated can enter Yellow
Submarine restaurant;
3. Issue a permanent injunction requiring that Defendant install an appropriate ramp, and proper
threshold, or offer other appropriate accommodations, at Defendant’s Restaurant so that Plaintiff
and others similarly situated can enter Defendant’s Restaurant;
4. Issue a permanent injunction requiring that Defendant install an accessible restroom, including
door, hardware, water closet, sink, and other components, that meets the ADA standards, ADA
Regulations, and ADAAG requirements;
5. Order Defendant to pay the reasonable attorney’s fees, costs and interest incurred by Plaintiff in
an amount to be determined; and
6. Award Plaintiff such other and further relief that this Court deems just and proper.
Mot. for Default J. at 4–5.
3
Defendant did not respond to this Court’s order to schedule a hearing, but attended the hearing.
3
Plaintiff filed this Motion for Fees on March 6, 2014, seeking the $9,550 in attorneys’
fees and $450 in costs associated with pursuing this action. On March 13, 2014, Plaintiff
supplemented his Motion for Fees with a Declaration in Support by Jonathan G. Martinis, in
which Mr. Martinis stated his opinion that the hourly rates Plaintiff requested were “eminently
reasonable,” and likely even “lower than prevailing rates for similarly experienced counsel and
staff.” See Decl. in Supp. of Mot. for Fees at 1–2 (docket no. 21). On April 28, 2014, this Court
issued a notice, similar to that issued in Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
informing Defendant of Plaintiff’s request for fees and that this Court would dispose of it even if
Defendant failed to respond. See Apr. 28, 2014 Order (docket no. 22). I gave Defendant twentyone days to respond to the Motion for Fees, a deadline that has passed with no response.
III. LEGAL STANDARD
The ADA allows a court, in its discretion, to award a prevailing party “a reasonable
attorney’s fee, including litigation expenses, and costs.” 42 U.S.C. § 12205. A civil rights
plaintiff is a prevailing party if he “obtain[s] at least some relief on the merits of his claim.”
Farrar v. Hobby, 506 U.S. 103, 111 (1992). “Federal courts routinely award fees to prevailing
parties in civil rights and discrimination cases,” Shasteen v. Olympus Gym, Inc., 121 F.3d 700,
1997 WL 488848, at *1 (4th Cir. Aug. 22, 1997) (unpublished), and “a prevailing plaintiff in an
ADA action is generally entitled to recover fees paid to an attorney unless special circumstances
render such an award unjust.” Rhoads v. F.D.I.C., 286 F. Supp. 2d 532, 541 (D. Md. 2003) aff'd,
94 F. App'x 187 (4th Cir. 2004).
In considering attorney’s fees in an ADA action, a court must first determine whether the
applicant is a prevailing party. A prevailing party must obtain “actual relief on the merits of his
claim [that] materially alters the legal relationship between the parties by modifying the
4
defendant’s behavior in a way that directly benefits the plaintiff.” Farrar, 506 U.S. at 111; see
also Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health & Human Res., 532 U.S.
598, 604 (2001) (acknowledging that “judgments on the merits” as well as “settlement
agreements enforced through [] consent decree[s] may serve as the basis for an award of
attorney’s fees,” because they constitute “chang[es] [in] the legal relationship between [the
plaintiff] and the defendant.”). However, a person is not a prevailing party if the person fails to
secure a judgment on the merits, achieving “the desired result because the lawsuit brought about
a voluntary change in the defendant's conduct.” See Buckhannon, 532 U.S. at 600.
If a court finds that an applicant is a prevailing party, the court must then consider
“whether an award of attorney's fees should be granted to the prevailing party and what amount
would be reasonable under the specific circumstances of the case; the district court has
significant discretion in determining the amount of a statutory fee award.” Rhoads, 286 F. Supp.
2d at 541. In the context of the Civil Rights Attorney’s Fees Awards Act, among others, the
Fourth Circuit has utilized a twelve-factor analysis to discern what amount of attorney’s fees
would prove reasonable. See, e.g., Lilly v. Harris-Teeter Supermarket, 842 F.2d 1496, 1510–11
(4th Cir. 1988) (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th
Cir. 1974) and 42 U.S.C. § 1988); Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 (4th Cir. 1978)
(adopting Johnson factors). These factors likewise apply to determining whether a requested fee
award would be reasonable for a prevailing party in an ADA suit, and I will utilize them in this
case. See, e.g., Rhoads, 286 F. Supp. 2d at 543.
5
IV. DISCUSSION
Plaintiff requests $10,000 in attorneys’ fees and costs. This figure includes $9,550 in
attorneys’ fees, which represents 53 hours, mostly billed at $200 per hour. 4 The remaining $450
represents this Court’s filing fee of $400 and a $50 service fee (because Defendant did not
respond to waive service). See Mot. for Fees at 5. Plaintiff’s counsel has deducted many hours
from each attorney and staff member’s time sheets as “no charge” hours and has not requested
the costs of driving to and from Lynchburg to investigate the case and attend court hearings.
A. Prevailing Party
A prevailing party must obtain “actual relief on the merits of his claim [that] materially
alters the legal relationship between the parties by modifying the defendant’s behavior in a way
that directly benefits the plaintiff.” Farrar, 506 U.S. at 111; see also Buckhannon, 532 U.S. at
604. Federal district courts have found that ADA plaintiffs qualify as prevailing parties when
those plaintiffs won injunctions or settlements over which courts retained jurisdiction. See, e.g.,
Blackwell v. Foley, 724 F. Supp. 2d 1068, 1074 (N.D. Cal. 2010) (observing the ADA offers
only injunctive relief and provides for an award of attorney’s fees to the prevailing party); Doe v.
Hogan, 421 F. Supp. 2d 1051, 1059 (S.D. Ohio 2006) (finding ADA plaintiff who gained
settlement was prevailing party, and granting attorney’s fees to plaintiff).
This Court’s February 11, 2014 Memorandum Opinion and Order granted Plaintiff actual
relief on the merits of his claim that materially altered the relationship between the parties by
ordering that Defendant make his restaurant accessible to Plaintiff. Cf. Farrar, 506 U.S. at 111;
4
The Motion for Fees notes that two attorneys, Mr. Traubert and Ms. Ek, and one paralegal/disability rights
advocate, Ms. Stumhofer, worked on this case. Mr. Traubert billed 33 hours at $200 per hour, Ms. Ek billed 5 hours
at $200 per hour, Mr. Traubert billed as a Managing Attorney at $350 per hour for 3 hours, and Ms. Stumhofer
billed at $75 per hour for 12 hours. See Mot. for Fees at 7–9. The average hourly rate requested for the 53 hours
worked, billed at a total of $9,550, equals about $180 per hour. Plaintiff does not request an amount greater than
this figure, so no lodestar multiplier is involved. See generally Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235,
244 (4th Cir. 2009) (discussing calculation of lodestar: multiplying the hours spent times a reasonable hourly rate).
6
Buckhannon, 532 U.S. at 604. Although Plaintiff initially sought slightly broader permanent
injunctions than those granted by this Court, the permanent injunctive relief granted was the only
relief Plaintiff ultimately sought in this litigation.
In his complaint, Plaintiff requested: (1) a declaration that Yellow Submarine is “a place
of public accommodation” and “is not accessible to Mr. Berthiaume, in violation of his rights
under the ADA;” (2) “a permanent injunction prohibiting Defendant from discriminating against
Mr. Berthiaume by violating his rights under the ADA,” partially by “requiring Defendant to
fully comply with the ADA, ADA Regulations and ADAAG,” and partly by “ensuring that Mr.
Berthiaume can fully and equally access and utilize the goods and services provided by
Defendant.” Compl. at 10. In the Motion for Default Judgment, Plaintiff specified how this
relief could be effected more particularly, asking this Court to order that Defendant make his
entrance ADA-compliant and accessible to Plaintiff and “others similarly situated” and install an
accessible restroom. See Mot. for Default J. at 5.
In this Court’s February 11, 2014 Memorandum Opinion and Order, I found that Yellow
Submarine is a place of public accommodation and was not accessible to Plaintiff in violation of
his rights under the ADA. See Feb. 11, 2014 Order at 1. I also issued several permanent
injunctions requiring that Defendant modify Yellow Submarine’s entrance and restrooms, in
ways Plaintiff requested in the Motion for Default Judgment, so that the entrance and restroom
would be accessible to Plaintiff by ADA standards. Id. at 1–2. Clearly, in granting Plaintiff’s
Motion for Default Judgment, I granted Plaintiff relief on the merits that directly benefitted him:
the injunctions required Defendant to physically modify his restaurant so that it would be
accessible to Plaintiff. This confers prevailing party status on Plaintiff for the purposes of the
7
ADA’s fee shifting provision. See 42 U.S.C. § 12205; Blackwell, 724 F. Supp. 2d at 1074; Doe,
421 F. Supp. 2d at 1059.
B. A Reasonable Award and the Johnson Factors
The Fourth Circuit has instructed that courts should consider the twelve factors from
Johnson v. Georgia Highway Express in “arriving at the proper hourly rate for the lodestar
calculation.” Lilly v. Harris-Teeter Supermarket, 842 F.2d 1496, 1510–11 (4th Cir. 1988). In
other words, a court should consider the twelve Johnson factors in determining what amount of
attorney’s fees and costs would be “reasonable under the specific circumstances of the case,”
taking into account the number of hours reasonably expended, multiplied by a reasonable hourly
rate. See Rhoads, 286 F. Supp. 2d at 541. For the reasons that follow, I find that Plaintiff’s
requested attorneys’ fees of $9,550 constitute a reasonable award. The rate at which Plaintiff has
billed this work constitutes a reasonable hourly rate, averaging about $180 per hour, and 53
hours constitutes a reasonable amount of time expended on this case.
1. Hourly Rate
First, I consider the following factors in discerning what constitutes a reasonable hourly
rate for work performed by Plaintiff’s counsel:
(1) the time and labor required, (2) the novelty and difficulty of the questions
involved, (3) the skill requisite to perform the legal service properly, (4) the
preclusion of other employment by the attorney due to acceptance of the case, (5)
the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations
imposed by the client or the circumstances, (8) the amount involved 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.
8
See, e.g., Blackwell, 724 F. Supp. 2d at 1081; see generally Johnson v. Georgia Highway Exp.,
Inc., 488 F.2d 714, 718–19 (5th Cir. 1974). 5
The time and labor required in this ADA case involving a non-responsive defendant
understandably proved substantial.
Plaintiff’s counsel had to investigate the nature of
Defendant’s business, precisely measure accessibility problems, brainstorm and research
potential solutions, and argue before this Court about complex and unsettled standing issues, all
without crucial financial and architectural information from Defendant. These diligent efforts
showed in Plaintiff’s thorough briefing and argument.
Many of the questions involved,
including whether Plaintiff possessed standing to bring this action, were novel and complex.
Considerable skill, time, and labor was required to research this evolving area of law, gather
information from Plaintiff, guess about the particulars of Defendant’s business, analyze the
premises, and suggest readily achievable solutions in briefing and argument, all without
Defendant’s input. As a result, Plaintiff’s counsel states that his office’s resources could not be
spent taking on new cases, that other case projects had to be deferred, and that other goals and
priorities were limited. See Mot. for Fees, Traubert Decl. ¶ 21. I find that the first four factors
weigh in favor of the attorneys’ fee Plaintiff requests.
Many of the remaining factors also weigh in favor of Plaintiff’s requested fee. Working
for a disability rights advocacy organization, Plaintiff’s counsel possesses considerable
experience and ability in these cases. If counsel’s conduct in this litigation is any indication,
they likely also benefit from a good reputation in the legal community. Counsel charged
Plaintiff nothing for the services rendered. ADA accessibility cases like this one are often seen
as undesirable by attorneys because of the difficulty of proving the claims and the small chances
5
After this step, a deduction is sometimes made in the fee amount to account for a plaintiff’s pursuit of unsuccessful
claims. See, e.g., Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243–44 (4th Cir. 2009). Since Plaintiff
essentially prevailed in all of his claims, I will not make such a deduction in this case.
9
of receiving payment for the work, even on a contingent basis. Providing a fee award in such an
undesirable, contingency-fee case vindicates the policy animating the ADA’s provision for fees.
It encourages attorneys to help disabled persons assert and vindicate their rights when attorneys
might otherwise shy away from this type of representation.
Several of the Johnson factors bear little relevance to this case. Although Plaintiff
wished to gain access to the restaurant as quickly as possible, this case did not pose particularly
difficult time limitations that would affect the attorneys’ fees. Plaintiff did not seek damages in
this case, but he enjoyed success in obtaining permanent injunctions that ordered the accessibility
he sought. 6 Plaintiff did not have a long-standing relationship with his counsel that might have
led to a reduction in the amount charged; instead, as a nonprofit, public interest organization, his
counsel knew of his “limited financial means” and accepted his case “without any
compensation” from him. 7 Mot. for Fees, Traubert Decl. ¶ 23.
Finally, the customary fee for this type of work and the fees awarded in similar cases
support Plaintiff’s requested hourly rate.
Regarding the customary fee for this type of work,
Plaintiff submitted a declaration from Mr. Jonathan G. Martinis, the Legal Director for a
nonprofit legal advocacy organization called Quality Trust for Individuals with Disabilities. See
Martinis Aff. in Supp. of Mot. for Fees (“Martinis Affidavit”). Mr. Martinis once worked for the
Virginia Office for Protection and Advocacy (VOPA), the predecessor organization to the
disAbility Law Center of Virginia, where Plaintiff’s counsel now work. Martinis Aff. ¶ 4.
6
The amount of damages obtained may be relevant to the degree of a plaintiff’s success, or to the reasonableness of
a disproportionately large fee award. But the amount of damages should not act as a cap on the statutory damages
granted by the ADA, and in ADA cases in which injunctive relief predominates, a lack of damages does not
preclude a large fee award. See Blackwell, 724 F. Supp. 2d at 1074, 1076–78, 1085–86; Doe, 421 F. Supp. 2d at
1059–61.
7
Nor does counsel’s status as a nonprofit, public interest organization jeopardize its eligibility for attorneys’ fees at
fair market value. See Doe, 421 F. Supp. 2d at 1060 (holding state-funded agency representing disabled person was
entitled to attorney’s fees at fair market rate (citing Eggers v. Bullitt Cty. Sch. Dist., 854 F.2d 892 (6th Cir. 1988)).
10
Explaining that he has represented people with disabilities for over twenty years, and has been
lead counsel in over 500 cases, Mr. Martinis opines that Plaintiff’s counsel requests an
“eminently reasonable” rate for the services provided. Martinis Aff. ¶ 7. Drawing on his
litigation experience in Virginia and in this district, Mr. Martinis states that “the hourly rates,
hours worked and total fees and costs sought in plaintiff’s Motion are more than reasonable and
consistent with those sought by similarly experienced counsel and staff in similar cases in this
District and Division.” Martinis Aff. ¶ 9. I find Mr. Martinis is qualified to opine on the
customary fee for disability rights representation in this district and that his opinion supports a
finding that Plaintiff’s requested fee is reasonable.
Fee awards in similar cases also support Plaintiff’s request, including an award in the
Western District of Virginia involving some of the same attorneys. In Siler v. Thai Thaworn,
Inc., No. 7:08-cv-00483, slip op. at 3–4 (Mar. 17, 2009) (unpublished), a court in this district
approved a fee of $350 per hour for a managing attorney at VOPA (at the time, Mr. Martinis), a
$150-per-hour fee for Ms. Ek, and a $75-per-hour fee for a paralegal/disability rights advocate.
Id. See also Cnty. Sch. Bd. Of York Cnty., Va. v. A.L. et al., No. 4:03-cv-00174, 2007 WL
756586, at *8, 13 (E.D. Va. Mar. 6, 2007) (finding hourly rates of $150 for staff attorneys and
$350 for managing attorney reasonable in a special education case). Five years have passed
since Siler, and Ms. Ek and Mr. Traubert request only slightly more than that approved amount
for staff attorney work. They request the same amount as in Siler for the work performed by a
paralegal/disability rights advocate. Mr. Traubert has over ten years of experience representing
clients in over 200 disability rights cases, while Ms. Ek has over six years of experience in these
cases. See Traubert Decl. ¶ 4; Ek Decl. ¶ 4. Given the increased experience of these attorneys
11
since Siler, their substantial expertise in disability rights law, and their meticulous efforts to bill
at a staff attorney rate, I find that their requested fee of $200 per hour is reasonable.
All the relevant Johnson factors weigh in favor of finding that Plaintiff’s requested fee
constitutes a reasonable hourly rate for the work performed in this case. I find that $350 for a
managing attorney, $200 for a staff attorney, and $75 for a paralegal/disability rights advocate
constitute reasonable hourly rates in this district for work on a disability rights case in these
circumstances.
2. Hours Expended
I find that Plaintiff expended a reasonable number of hours on this case. In the Motion
for Fees, Plaintiff’s counsel explains that he “reviewed the Statements [of Work Performed] and
identified the majority of hours worked in this case as ‘No Charge’ hours.” Mot. for Fees at 7.
Plaintiff deducted those hours, and “does not seek attorneys[’] fees for any work or time
identified as ‘No Charge.’” Id. Plaintiff deducted 1.5 hours from Ms. Ek’s time sheet, 7.5 hours
from Mr. Trauber’s “Managing Attorney” time sheet, 32.4 hours from Mr. Traubert’s “Senior
Staff Attorney” time sheet, 8 and 3 hours from Ms. Stumhofer’s time sheet. Id. at 7–8. The total
number of hours expended fell to 53 hours after these cuts. 9 This figure encompasses screening
the client, researching the law, effecting service, filing the complaint and motions, arguing
8
Mr. Traubert explains that most of the work he performed could have been performed by a staff attorney, but one
was not available. Therefore, he billed at a staff attorney rate, even though he is a managing attorney in his office.
See Mot. for Fees, Traubert Decl. ¶ 7.
9
Mr. Traubert and the other persons who worked on this case also noted that they meticulously documented the
work performed immediately after its performance, and did not record hours spent if there was no notation of
exactly what work was performed during a given time frame. See, e.g., Mot. for Fees, Traubert Decl. ¶ 7.
12
before this Court, and doing more extensive research on the issues than is perhaps customary due
to Defendant’s lack of response. 10 See Mot. for Fees, Decls. of Traubert, Ek, and Stumhofer.
Expending 53 hours to file a complaint, effect service, investigate, research, and pursue a
complex ADA case to its conclusion is reasonable. Defendant mounted no opposition, apart
from his appearance at the Motion for Default Judgment hearing, but his absence cuts both ways.
Plaintiff expended more time effecting service, attempting to communicate, and researching the
relevant law without a responsive opponent, but Plaintiff was also able to obtain a favorable
default judgment more quickly and easily due to the lack of response. On the whole, the amount
of time Plaintiff expended is reasonable.
3. Costs
I will also award Plaintiff the $450 in costs that he requests. Plaintiff makes no attempt
to bill for any copying, mileage, or other costs associated with this case, instead requesting only
the cost of the filing fee and of serving court papers on Defendant. Asking Defendant to pay
these costs is more than reasonable, especially since it seems that the case was filed and service
was issued in part due to Defendant’s refusal to respond to Plaintiff.
10
Plaintiff’s counsel did not charge for the time spent traveling to and from Yellow Submarine for investigations
and negotiations, nor for time traveling to and from this Court for the February hearing. See Mot. for Fees, Traubert
Decl. ¶ 26, Traubert Statement of Work Performed at 4.
13
V. CONCLUSION
Since I find that my February 11, 2014 Memorandum Opinion and Order conferred
prevailing party status on Plaintiff, it is within my discretion to award him reasonable attorneys’
fees and costs. After considering the Johnson factors, I find the $9,550 in attorneys’ fees and
$450 in costs requested by Plaintiff to be reasonable, and I will exercise my discretion to award
Plaintiff the entire $10,000 in fees and costs. An appropriate order follows.
12th
Entered this ________ day of June, 2014.
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