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
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
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
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 ...