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September 20, 2005.

DEBORAH ANDERSON, et al., Plaintiffs,

The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District



Plaintiffs brought this action under 42 U.S.C. § 1983 and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., alleging that defendants Rochester-Genesee Regional Transportation Authority and Lift Line, Inc. (collectively "the company") violated the ADA in a number of respects in connection with defendants' delivery of paratransit service, i.e., transit service for disabled persons. On August 14, 2001, this Court issued a Decision and Order granting summary judgment in favor of plaintiffs on three of their four claims (plaintiffs did not move for summary judgment on their second claim for relief), and enjoining defendants "to take immediate steps to comply with their obligations under the ADA and federal regulations implementing that Act. . . ." Anderson v. Rochester-Genesee Regional Transp. Auth., 206 F.R.D. 56, 71 (W.D.N.Y. 2001).*fn1

  On April 26, 2002, the Court issued a second Decision and Order designed to implement its August 14, 2001 order. 205 F.Supp.2d 106 (W.D.N.Y. 2002). The April 26 order directed the company to take certain specific actions in order to comply with the ADA.

  On July 23, 2003, the Court of Appeals for the Second Circuit issued a decision affirming this Court's grant of summary judgment on plaintiffs' first and third claims, alleging violations of 49 C.F.R. §§ 37.131(b) and (f) respectively, and reversing as to plaintiffs' fourth claim, which alleged a violation of 42 U.S.C. § 12143(e)(4).*fn2 The Court of Appeals also "remand[ed] for proceedings on the latter claim, [and] for any reframing of the injunction that may be justified by [the Second Circuit's] opinion or circumstances that have developed during the pendency of the appeal. . . ." 337 F.3d 201, 217 (2d Cir. 2003).

  On remand, I modified the injunction to provide, consistent with the Court of Appeals' decision, that "[t]he company must design, fund and implement a plan to meet 100% of the demand for next-day ride service," and that "[i]f a pattern of noncompliance develops, or if it appears that ride denials are attributable to the design of the company's paratransit system, the company must modify the plan, and implement whatever corrective changes are necessary to achieve the goal of reaching the 100% service level." 332 F.Supp.2d 540, 542 (W.D.N.Y. 2004).

  Plaintiffs have now moved for an award of attorney's fees and costs in the amount of $545,883.52, pursuant to 42 U.S.C. §§ 1988 and 12205. Defendants do not dispute that plaintiffs are "prevailing parties" in this case, and are therefore entitled to some fee award, but contend that the amount requested is excessive and should be reduced substantially.


  I. Attorney's Fees Under 42 U.S.C. §§ 1988 and 12205 — General Principles

  Section 1988 of Title 42 provides that "[i]n any action or proceeding to enforce a provision of section? . . . 1983 . . . of this title, . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs. . . ." Similarly, § 12205 provides that "[i]n any action . . . commenced pursuant to this chapter, the court . . ., in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs. . . ." Thus, a fee request under either statute is analyzed under the same standards. See Brinn v. Tidewater Transp. Dist. Comm'n, 242 F.3d 227, 233 n. 3 (4th Cir. 2001); Bercovitch v. Baldwin Sch., Inc., 191 F.3d 8, 11 and n. 2 (1st Cir. 1999); Pottgen v. Missouri State High Sch. Activities Ass'n, 103 F.3d 720, 723 (8th Cir. 1997); Homeward Bound, Inc. v. Hissom Mem'l Ctr., 963 F.2d 1352, 1354 n. 1 (10th Cir. 1992); Jones v. Illinois Dep't of Rehabilitation Servs., 689 F.2d 724, 730 n. 8 (7th Cir. 1982).

  In this Circuit, "[t]he lodestar approach governs the initial estimate of reasonable fees." Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992), cert. denied, 506 U.S. 1053 (1993). Under this approach, "the number of hours reasonably expended on the litigation [are] multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Grant, 973 F.2d at 99.

  The Court must determine if the hours expended and the rates charged are reasonable, and the fee applicant has the burden to establish the reasonableness of both. Hensley, 461 U.S. at 433; Alnutt v. Cleary, 27 F.Supp.2d 395, 399 (W.D.N.Y. 1998). The initial fee calculation should exclude hours that were not "reasonably expended" because they were "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434. A reasonable rate is one that is "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984).

  Although there is a strong presumption that the lodestar figure represents the reasonable fee, City of Burlington v. Dague, 505 U.S. 557, 562 (1992), other considerations may lead to an upward or downward adjustment of the lodestar. Hensley, 461 U.S. at 434. The most critical factor to consider is the degree of success obtained by the plaintiff. Id. at 436.

  II. Application to this Case

  A. Reasonableness of Hours Expended

  Defendants' first objection to plaintiff's fee request is that the hours expended by plaintiffs' attorneys were excessive, duplicative, and, in some instances, completely unnecessary. Plaintiffs respond that they have already reduced their fee request by 5% of the hours actually expended to account for any duplication of work, inefficiencies, etc.

  In assessing whether an attorney's time was "reasonably expended," the Court must ask whether the attorney exercised "billing judgment." As the Supreme Court has explained,
[c]ounsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. "In the private sector, `billing judgment' is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority."
Hensley, 461 U.S. at 434 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc)). Under this principle, excessive, redundant, or unnecessary hours are to be excluded from a fee award, and a district court may apply a reasonable percentage reduction "as a practical means of trimming fat from [the] fee application." Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (quoting New York Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983)).

  In the case at bar, after reviewing the time records of plaintiffs' counsel, I conclude that, even with the 5% reduction in the hours claimed, the time that counsel spent on this case was excessive. A further reduction is therefore warranted.

  In their memorandum of law in opposition to plaintiffs' fee application, defendants point out a number of entries that suggest that plaintiffs' attorneys spent an inordinate amount of time on certain matters. Plaintiffs take issue with some of defendants' calculations, but even accepting plaintiffs' figures, the hours spent on this case are unreasonably high.

  For example, it appears that plaintiffs' attorneys spent about 140 hours researching and writing a brief and supporting papers in October 2000. Plaintiffs do not dispute the accuracy of that figure, but contend that those hours were reasonably expended because of the number and complexity of the issues involved. They also note that this time was spent not just on a single motion, but in responding to defendants' motion for summary judgment, and in support of plaintiff's cross-motions for partial summary judgment and for a preliminary injunction.

  I recognize that addressing the issues presented by those motions required researching the relevant statutes and regulations, as well as analyzing the data presented by defendants concerning the company's provision of paratransit service. On the other hand, there were very few reported cases applying these provisions; in its July 2003 decision, the Second Circuit noted that it was "the first circuit court to consider and apply these regulations," and that only two district courts had applied the regulations up to that point. 337 F.3d 208 and n. 5. While this dearth of authority may have made it more important for counsel to research the legislative and regulatory history of ...

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