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Access 4 All, Inc. v. HI 57 Hotel


January 18, 2006


The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.


I. Introduction

This is one of many actions brought by plaintiffs Access 4 All, Inc. and Nelson Stern in this District under the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. ("ADA"). Plaintiffs contend that a Holiday Inn on West 57th Street in Manhattan, which is owned and operated by defendants, violated the ADA. Following the settlement of the action, plaintiffs have brought an application to recover attorneys' and expert fees, litigation expenses, and costs from defendants. For the reasons stated below, plaintiffs' application is granted in part and denied in part.

II. Background

On August 18, 2004, plaintiffs commenced a lawsuit against defendant Jaseme Associates, LLC ("Jaseme"), alleging that it owned, operated, or leased the Holiday Inn Midtown ("Hotel"), located at 440 West 57th Street, New York, New York. (Aff. of Joseph Cecala, sworn to on Apr. 19, 2005 ("Cecala Aff."), ¶ 2). The Hotel was built in 1963 and has 597 guest rooms. (Id. at ¶ 4). West 57 Hotel, LP, is the lessee of the land on which the Hotel is located and HI 57 Hotel, LLC, is the subtenant that operates the Hotel. On October 7, 2004, the parties filed a Stipulation substituting HI 57 Hotel, LLC and West 57 Hotel, LP for Jaseme as the parties defendant. (See Docket No. 4).

On February 7, 2005, the parties entered into a Settlement Agreement. (See Pls.' Applic. Ex. 1). In addition to requiring numerous remedial measures, the Settlement Agreement provides that Defendant(s) shall pay Plaintiffs' counsels, Fuller, Fuller and Associates, P.A. and the Law Offices of Nelson M. Stern, for Plaintiffs' attorneys' fees, litigation expenses and costs incurred in this matter, and Plaintiffs' expert(s), for Plaintiffs' expert fees and costs incurred in this matter. The amounts to be paid shall be established by counsel for the parties by separate letter agreement, which is incorporated as part of this Consent Decree. If, however, counsel for the parties are unable to determine the attorneys' fees, including litigation expenses, expert's fees and costs to be paid, the amount to be paid shall be determined by the District Judge or a Magistrate Judge as the Court deems appropriate. If determined by a Magistrate Judge, the parties agree that the Magistrate Judge may enter a final judgment pursuant to 28 U.S.C. § 636(c). (Id. ¶ 12).

On March 14, 2005, Judge Daniels, to whom the case was assigned, entered an order dismissing the case with prejudice. (See Docket No. 11). Thereafter, on March 18, 2005, plaintiffs filed this application, seeking to recover $25,784.59 in attorneys' fees, $6,475.00 in expert fees and $2,768.34 in costs (exclusive of any time spent preparing for or attending a fee hearing). Defendants oppose this motion. (See Docket Nos. 14-15).

III. Discussion

A. Entitlement to Recover Fees, Expenses, and Costs

Under 42 U.S.C. § 12205, the court has the discretion to award a prevailing party in an ADA suit its reasonable attorneys' fees, litigation expenses, and costs. To be a "prevailing party," a plaintiff must "not only achieve some material alteration of the legal relationship of the parties, but that change must also be judicially sanctioned." Roberson v. Giuliani, 346 F.3d 75, 79 (2d Cir. 2003). It is not enough merely to have been a catalyst for voluntary change. See Buckhannon Bd. & Care Home Inc., v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 598 (2001). Instead, where the parties have settled a lawsuit voluntarily, the plaintiff is deemed to be "prevailing" only if (1) the lawsuit was "causally linked to the relief obtained," and (2) the defendant did not act gratuitously, that is, the lawsuit was not "frivolous, unreasonable, or groundless." Fisher v. Kelly, 105 F.3d 350, 353 (7th Cir. 1997) (quoting Gekas v. Attorney Registration and Disciplinary Comm'n, 793 F.2d 846, 849-50 (7th Cir. 1986)).

In this case, plaintiffs have established themselves as "prevailing parties." First, their lawsuit was causally linked to the relief obtained pursuant to the Settlement Agreement. In their complaint, plaintiffs sought to compel defendants to modify certain barriers on the Hotel premises to comply with the ADA, a result which the Settlement Agreement achieved. Moreover, while the Hotel may have voluntarily made some accommodations in the past, it seems clear that the lawsuit led to others. The plaintiffs' allegations regarding the Hotel's alleged ADA violations also were grounded in fact and, thus, not "frivolous, unreasonable or groundless."

As prevailing parties, plaintiffs are entitled to recover their reasonable attorneys' fees and litigation expenses related to the case.

B. Reasonable Attorneys' Fees, Litigation Expenses, and Costs

1. Attorneys Fees

In this Circuit, courts apply the "lodestar" approach to calculate attorneys' fees. See Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998). Under this approach, fees are determined by multiplying "the number of hours reasonably expended on the litigation . . . by a reasonable hourly rate." LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763-64 (2d Cir. 1998) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Downward adjustments to the lodestar figure may be made to account for such items as unnecessary or unproductive services. See Murphy v. Lynn, 118 F.3d 938, 952 (2d Cir. 1997).

a. Reasonable Rate

Plaintiffs seek compensation for 37.55 hours of Lawrence Fuller's time, 13.8 hours of John Fuller's time, and 2.40 hours of Nelson Stern's time at a uniform hourly rate of $425.*fn1 Plaintiffs argue that this rate is reasonable given their extensive experience in civil rights litigation and the high cost of doing business in this District. (See Pls.' Applic. at 5-6). Plaintiffs also argue that this rate is in line with the rates generally prevailing in this community. (Id.).

"The Supreme Court has stated that awards of attorney's fees must be calculated according to 'the prevailing market rates in the relevant community.'" Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058 (2d Cir. 1989) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). Other factors that a court may consider in determining a reasonable hourly rate for an attorney's fee award include (i) the time and labor required; (ii) the novelty and difficulty of the questions; (iii) the skill required to perform the legal service properly; and (iv) whether the retainer prevented counsel from accepting other legal employment. See BNP-Dresdner Bank ZAO v. Haque, No. 98 Civ. 1109 (JGK), 1998 WL 831353, at *4 (S.D.N.Y. Nov. 30, 1998).

While it is true that an hourly rate of $425 has been deemed reasonable in civil rights litigation in the Southern District of New York, see Rodriguez v. McLoughlin, 84 F. Supp. 2d 417, 423 (S.D.N.Y. 1999) (finding $425 rate reasonable for an attorney at a major law firm), solo practitioners and smaller firms "may be subject to their own prevailing market rate." Chambless, 885 F.2d at 1059; see also Pascuiti v. New York Yankees, 108 F. Supp. 2d 258, 266-67 (S.D.N.Y. 2000) ($250 per hour more reasonable than requested $325 per hour for "seasoned civil rights litigators" at smaller firm).

Defendants argue that the underlying issues were neither complex nor novel since this case was virtually identical to scores of other lawsuits filed by plaintiffs. Indeed, they note that plaintiff Stern has commenced more than 75 actions alleging violations of the ADA in the Southern and Eastern Districts of New York, and that his co-counsel, Fuller, Fuller & Associates, has represented plaintiffs in at least 92 such actions over the past two years. (See Aff. of Judith A. Stoll, Esq., sworn to on Apr. 22, 2005 ("Stoll Aff."), ¶¶ 17-18 & Exs. G, H). They also note that no court conferences were held during the course of litigation, the only discovery which took place involved an inspection of the Hotel, and neither side filed any motions other than the present application for attorneys' fees. (Id. ¶ 16).

The size of counsels' firms, the similarity of this case to many of plaintiffs' other ADA cases, and the minimal activity which took place prior to the settlement all augur in favor of a downward adjustment of plaintiffs' requested $425 per hour billing rate. Accordingly, the attorneys' fees for the Fuller firm and Stern will be calculated on the basis of a $350 per hour rate for all three timekeepers. I note that this is the same rate that Judge Francis awarded the Fuller firm in an Access 4 All case only a few weeks ago.*fn2

See Access 4 All, Inc. v. Park Lane Hotel, Inc., No. 04 Civ. 7174 (SAS)(JCF), 2005 WL 3338555, at *5 (S.D.N.Y. Dec. 7, 2005).

b. Reasonable Hours

In determining the number of hours for which fees should be awarded, the court should not compensate counsel for hours that are "excessive, redundant, or otherwise unnecessary." See Hensley, 461 U.S. at 434. Upon finding that counsel seeks compensation for excessive hours, "the court has discretion simply to deduct a reasonable percentage of the number of hours claimed 'as a practical means of trimming fat from a fee application.'" Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (citing New York Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983)). Alternatively, of course, a court can make specific adjustments.

Defendants argue that the fee application in this case is unreasonable and excessive because of the minimal legal work allegedly necessary and the similarity of the case to many of plaintiffs' other ADA cases. (See Defs.' Mem. at 10). While they cite certain examples of alleged overbilling, the time entries for the dates in question typically also reflect tasks which are not "cookie-cutter" such as time spent reviewing an expert report or phone calls with one of the clients. Accordingly, the Court declines to reduce the number of hours claimed by counsel. The Court also rejects the notion that the relatively few hours billed by Stern impermissibly duplicate the hours billed by the Fuller firm.

I note, however, that certain of the tasks performed by attorneys at the Fuller firm could more appropriately have been performed by a paralegal. The tasks actually performed by a paralegal at the Fuller firm were billed at a rate of $115 per hour, which seems reasonable. To account for plaintiffs' failure to have additional work performed at that rate, I have reduced the billable hours recoverable by the Fuller firm by five hours.

c. Calculation of Attorneys' Fees

After making the foregoing adjustments, plaintiffs are entitled to recover legal fees in the amount of $17,235, consisting of $16,395 for legal services rendered by the Fuller firm (46.35 hours x $350 1.5 hours x $115) and $840 for legal services rendered by Stern (2.4 hours x $350).*fn3

2. Expert Fees

Plaintiffs also seek to recover expert witness fees totaling $6,125 for two reports prepared by their expert, Carol Durban, of ADA Investigations, Inc. (See Pls.' Applic. at 7-9, 11 & Ex. B). Under the ADA, a court may award a plaintiff its expert witnesses' reasonable fees as a litigation expense. 42 U.S.C. § 12205; Park Lane, 2005 WL 3338555, at *5 (describing award as discretionary). Defendants argue that the two reports generated by Durban were so generic and unhelpful that plaintiffs should not be entitled to recover the amounts she billed. There is, however, no doubt that Durban conducted two inspections of the Hotel and that plaintiffs relied on her inspections and reports in prosecuting this case. Accordingly, defendants are not entitled to avoid paying all of the expenses associated with plaintiffs' expert.

On the other hand, Durban's first invoice provides no information concerning the dates when her services allegedly were performed. (See Pls.' Applic. Ex. 8). There consequently is no means to check those billings against the other records in this case. For example, the Court cannot determine whether the two hours that she claims to have spent on phone conversations with plaintiffs' counsel correlates to their own billings. To account for these infirmities, the time charges on Durban's first invoice will be reduced by $525 (3 hours x $175). The time charges on Durban's second invoice similarly will be reduced by $350, because she has billed for two hours of anticipated future time without any showing that such time will actually be required. (Id.). After making these adjustments, plaintiffs are awarded $5,600 in expert fees ($6,475-$875).

3. Other Costs

Plaintiffs seek an additional $2,768.34 for costs and expenses that they incurred for travel, telephone, photocopying, filing fees, and the like. Defendants argue that non-local travel expenses amounting to $1,222.02 should be disallowed, not because they are unreasonable or insufficiently documented, but because the plaintiffs could have utilized local professionals. Suffice it to say, I disagree. The plaintiffs are, within reason, entitled to select the professionals they believe are best suited for the work that they anticipate. Accordingly, plaintiffs are awarded the full amount that they seek for other costs and expenses.

IV. Conclusion

For the foregoing reasons, plaintiffs' application is granted in part and denied in part. Plaintiffs are awarded a total of $25,603.34, consisting of $17,235 in attorneys' fees, $5,600 in expert fees, and $2,768.34 in costs and expenses.


FRANK MAAS United States Magistrate Judge

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