The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
The matter now before this Court involves the issue of attorney fees. Plaintiffs commenced this action on April 27, 2007, alleging that Defendant Niagara Group Hotels failed to maintain an accessible facility in violation of the Americans with Disabilities Act, §§ 12181 et seq. (ADA). On June 4, 2009, the Court granted Plaintiffs' unopposed motion for summary judgment. (Docket No. 66.)
After entry of judgment in their favor, Plaintiffs moved for attorneys' fees, expert fees, litigation expenses, and costs in the amount of $46,196.82 under 42 U.S.C. §12205. (Docket No. 68.) Defendant was afforded the opportunity to object to the application (Docket No. 69), but did not. Plaintiffs then moved to have their fee application deemed admitted and granted in full. (Docket No. 70.)
A. Plaintiffs are Eligible to Receive Fees
Title 42 of the United States Code, Section 12205, allows for the payment of attorney fees as follows:
In any action or administrative proceeding commenced pursuant to this Act, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual. (emphasis supplied.)
In order to be considered a "prevailing party" under the ADA, the applicant must have achieved some material alteration of the legal relationship of the parties, and that change must be judicially sanctioned. Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 532 U.S. 598, 604-05, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (prevailing party under ADA and Fair Housing Amendments Act); see also, Garcia v. Yonkers Sch. Dist., 561 F.3d 97, 102 (2d Cir. 2009) (a prevailing party is one who has favorably effected a material alteration of the legal relationship of the parties by court order). There can be no dispute that an applicant who receives a favorable judgment on the merits satisfies both prongs of the prevailing party test. Buckhannon, 532 U.S. at 604; Perez v. Westchester County Dep't of Corr., 587 F.3d 143, 150-51 (2d. Cir. 2009).
In this case, Defendant was found liable for maintaining its property in violation of the ADA, and is barred from reopening its premises unless it presents a detailed plan, satisfactory to the Court, as to corrective measures to be undertaken. Accordingly, Plaintiffs are prevailing parties eligible to receive reasonable attorney's fees as set forth in the statute, and the Court now will determine the reasonable fees and costs to be awarded.
B. Plaintiffs' Motion that their Fee Request be Deemed Admitted is Denied
In their motion to deem their fee request admitted, Plaintiffs contend that, absent objections from Defendant, their request should be granted in its entirety. They rely on United States v. Eleven Vehicles, a Third Circuit case involving a fee application under the Equal Access to Justice Act, to urge that courts "may not reduce fees sua sponte as excessive, redundant or otherwise unnecessary." 200 F.3d 203, 211 (3d Cir. 2000).
Eleven Vehicles, in turn, relied on Cunningham v. City of McKeesport, 753 F.2d 262, 267 (3d Cir. 1985) (fee application under 42 U.S.C. § 1988), vacated and remanded on other grounds, 478 U.S. 1015, 106 S.Ct. 3324, 92 L.Ed. 2d 731 (1986). In this latter case, the Third Circuit was clearly troubled by the district court's failure to explain its significant reduction in total hours and hourly rates, and its application of a 50 percent downward reduction to the already-reduced fee, noting that if the court believes a fee reduction is indicated, it must analyze the circumstances requiring the reduction and its relation to the fee, and make findings that are supportable on the fee application record. Id. 269. Despite the absence of such analysis, the Third Circuit sustained the district court's reduction of the unopposed fee request to the extent it was based on time spent in proceedings of which the court presumably had knowledge. Id. at 267.
Thus, I read Eleven Vehicles and Cunningham together as standing for the proposition that a court may not reduce a fee request sua sponte absent a foundation in the record or an experiential basis to do so.
Even were the Court inclined to accept Plaintiffs' interpretation of Eleven Vehicles as requiring a "rubber stamp" on its application, this approach is rejected for other reasons. Eleven Vehicles-which clearly states its holding "is well settled in this circuit," 200 F.3d at 211 (emphasis supplied)-has never been followed, or even cited, in the Second Circuit. The Third Circuit appears to stand alone here. Plaintiffs have not identified supporting authority outside that circuit, nor has this Court located any. Finally, I reject this approach because it would require the Court to abdicate the application of discretion clearly called for in 42 U.S.C. § 12205.*fn1 Disabled Patriots of America, Inc. v. Odco Investments, Ltd., 04-CV-7399, 2009 U.S. Dist. LEXIS 53532 (N.D. Oh. June 23, 2009) (declining to endorse fee application under ADA absent court review).
Accordingly, Plaintiffs' motion requesting an award of fees and costs without court review (Docket No. 70), is denied.
C. Amount of Award for Fees and Costs
Having concluded that Plaintiffs are eligible for an award of attorneys fees in this case, the Court will now ...