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Access 4 All, Inc. v. Grandview Hotel Limited Partnership

March 23, 2006

ACCESS 4 ALL, INC., A FLORIDA NOT FOR PROFIT CORPORATION, AND FELIX ESPOSITO, INDIVIDUALLY, PLAINTIFFS,
v.
GRANDVIEW HOTEL LIMITED PARTNERSHIP, AN OHIO LIMITED PARTNERSHIP DEFENDANT,



The opinion of the court was delivered by: Platt, District Judge

AMENDED MEMORANDUM, OPINION and ORDER

Before the Court is the Amended Report and Recommendation ("the Report") of U.S. Magistrate Judge Michael L. Orenstein dated December 20, 2005, which determined that attorneys' fees, costs and litigation expenses were warranted in the above matter and awarded such fees to Plaintiffs Access 4 All ("Access") and Felix Esposito ("Esposito") (collectively "Plaintiffs") pursuant to Title III of the Americans with Disabilities Act ("ADA").*fn1 Defendant Grandview Hotel Limited Partnership ("Grandview") or ("Defendant") objected to this report, arguing inter alia that (i) Defendant did not waive its right to contest standing, (ii) Plaintiffs did not have standing to bring the action, (iii) Plaintiffs are not the prevailing party, and (iv) should the Court choose to award fees, this amount should be reduced because this was a "formulaic" case. Plaintiffs also submitted an objection to report. For the following reasons (i) Plaintiffs' objections are DENIED, (ii) Defendant's objections are DENIED in part and GRANTED in part, and(iii) the Report is AFFIRMED in part and REVERSED in part.

BACKGROUND

The background and history of this action are fully recorded in the Report and will not be repeated in great detail herein. In October 2004, Plaintiffs commenced this action against Defendant seeking injunctive relief and attorneys' fees for alleged violations of Title III of the ADA, 42 U.S.C. §§ 12181 et seq., on the grounds that architectural barriers existed at the Defendant's hotel (the "Property") which prevented disabled persons from equally using and enjoying the goods and services offered at the premises. (Compl. ¶¶ 18-19.)

On or about April 13, 2005 (six months later) the parties signed a Consent Decree which stated in pertinent part:

When all issues are resolved between the parties, the parties hereby agree and will request the Court to enter a Final Order of Dismissal with Prejudice as to all claims, providing for retention of jurisdiction by the Court to enforce, as necessary, the terms of this Consent Decree. If, however, there remains a dispute as to the amount of attorney's [sic] fees, costs, and expert witness fees to be awarded by the court, then this Consent Decree is expressly contingent upon the Court's approval and consent of the terms and conditions hereof.

((Def.'s objections to the Report and Recommendation ("Def.'s objections"), Exhibit E ¶ 8.)

In paragraph five (5) of the Consent Decree, the parties specifically stated that "Plaintiff [sic] asserts a claim to attorneys' fees, experts' fees and costs and defendant contests such claim."

On May 3, 2005 this Court issued an Order Approving the Consent Decree (the "Consent Order") which denied any pending motions as moot and left the case closed, "except for the determination of entitlement to, and the amount of attorneys' and expert's fees, litigation expenses and costs to be awarded to Plaintiffs' counsels and expert." (Consent Order ¶ 3.)

On May 31, 2005, Plaintiffs moved for an award of attorneys' fees. On December 20, 2005, Judge Orenstein concluded inter alia in an amended order that (i) the Plaintiffs had achieved prevailing party status, (ii) Defendant had waived its right to contest standing, and (iii) the reasonable hourly rate for the three attorneys based on the prevailing practices in the Eastern District of New York was $250 per hour for Plaintiffs' Attorneys Lawrence and John Fuller of Fuller, Fuller & Associates, P.A. (or "the law firm"), and $140 per hour for Attorney Mario Mikelich, local counsel on the case. (Report at 8-14.)

On December 30, 2005, Defendant submitted its objections to the Report. Included in these objections was a list of sixty-one (61) actions in which Access or Esposito sued hotels for identical relief in New York, Massachusetts, New Jersey, and Washington D.C. (Def.'s objections at 7.) Plaintiffs' main counsel in this case, Fuller, Fuller & Associates was the attorney in all such actions in the Eastern District, and presumably in many other cases. The Magistrate Judge was unaware of Plaintiffs' history of duplicitous lawsuits when he made his Report and Recommendation.

On January 3, 2006, Plaintiffs filed an objection to the Report, arguing that the hourly rate for their three attorneys was unreasonably low. (Pls.' objections to the Report and Recommendation at 1.)

DISCUSSION

I. Standard of ...


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