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Grievson v. Rochester Psychiatric Center

September 30, 2010


The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge



In May 2006, plaintiff Kim Marie Grievson commenced this lawsuit against the Rochester Psychiatric Center under the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12132, and the Federal Rehabilitation Act of 1973 (the "Rehabilitation Act"), 29 U.S.C. § 794. (Docket # 1). In June 2009, the parties reached a resolution of plaintiff's claims, which is reflected in a written Stipulation and Order of Settlement signed by counsel and entered by United States District Judge Michael A. Telesca. (Docket # 40). The terms of the stipulated order provided that the issue of attorneys' fees and costs, if not subsequently resolved by the parties, would be determined by the court "upon motion to be made at a later date." (Id. at ¶ 2). That motion is now pending before this Court.*fn1 (Docket # 47).


This lawsuit arises from plaintiff's twenty-one day stay in the Rochester Psychiatric Center ("RPC") between August 31, 2005 and September 21, 2005. (Docket # 1). Plaintiff, who is Deaf, claims that she was denied "meaningful access to [RPC's] services, programs and activities" as a result of her hearing disability. (Id. at ¶ 42). Specifically, she alleges that during her stay in RPC's Alternative Living Residence, a residential program for adults with psychiatric disabilities, RPC denied her requests for an American Sign Language interpreter and access to a TTY teletypewriter and computer. As a result, plaintiff was unable to communicate effectively with either RPC staff members or individuals outside RPC, including her family and her counselor. Among other things, those impediments hindered plaintiff's ability to search for an apartment, which was one of the goals of the RPC program.

Plaintiff's complaint sought monetary and injunctive relief under the ADA and the Rehabilitation Act. See 29 U.S.C. § 794a; 42 U.S.C. § 12133. See also Henrietta D. v. Bloomberg, 331 F.3d 261, 291 (2d Cir. 2003) ("injunctive relief to remedy a violation of the ADA or Rehabilitation Act is appropriate if it provides the injured plaintiff with "meaningful access to the programs to which the plaintiff is facially entitled"), cert. denied, 541 U.S. 936 (2004). Plaintiff's complaint also requested a discretionary award of attorneys' fees and costs, which both statutes also authorize to prevailing parties.

Shortly after the Rule 16 conference in September 2006, the parties commenced settlement negotiations. Those negotiations occurred periodically through most of 2007 and included several conferences with this Court, some in-person and some telephonic. In all of those conferences, plaintiff's settlement demand included both monetary and injunctive components. It was not until December 2007 that counsel for defendant first indicated to this Court that defendant was opposed to any form of injunctive relief because it believed that plaintiff lacked standing to assert claims for injunctive relief.

At that point, the parties commenced discovery in earnest (which had been extended several times in view of the ongoing negotiations). Over the course of the next six months, written discovery was exchanged and reviewed, and eight depositions were conducted, consisting of seven depositions of defendant's employees and a two-day deposition of plaintiff. (See Docket # 55 at ¶¶ 29-30).

In August 2008, following a change in its counsel, defendant sought to reinitiate settlement negotiations with plaintiff. Those negotiations occurred fitfully over the next eight months, accompanied by six extensions of the deadline for filing summary judgment motions. (Docket ## 25, 26, 27, 29, 30, 32). In a letter dated February 6, 2009, counsel for defendant stated, "while defendant's position is that plaintiff has no standing to seek injunctive relief, I have been authorized to provide you with a list of changes made at RPC since plaintiff's stay . . . in 2005." (Docket # 69 (Defendant's Exhibit ("Ex.") 1)). The letter then proceeded to describe the various changes. (Id.).

This Court held a settlement conference on April 16, 2009. Plaintiff made no demand for injunctive relief at that time. The mediation was not successful principally because of the parties' dispute over the appropriate amount of attorneys' fees. Although plaintiff was willing to settle her claims and submit to the Court for determination the question of attorneys' fees, defendant persisted in its position that both issues should be resolved by negotiation. The next day plaintiff filed a motion for summary judgment. (Docket # 34).

Two months after plaintiff filed her summary judgment motion, she negotiated a stipulation of settlement with defendant. At the parties' request, the terms of the agreement were ordered by the Court on June 17, 2009. (Docket # 40). The agreement provided that defendant would pay plaintiff $14,000 "in full satisfaction of all her claims for damages and injunctive relief." (Id. at ¶ 2). As explained above, the parties agreed that the sum did not encompass plaintiff's claim for attorneys' fees and costs, which would be submitted to the Court for determination in the event that the parties were unable to resolve that issue. (Id.). The agreement further provided that the Court would retain jurisdiction "solely for purposes of enforcing th[e] Stipulation of Settlement and Order and to determine the attorney fee issue." (Id.).

On November 16, 2009, plaintiff filed the instant motion for attorneys' fees and costs. (Docket # 47). The motion originally sought an award of $105,191.55, comprised of $102,620.55 in fees and $2,571 in costs. (Id.). Since that time, plaintiff has adjusted the total sum sought to $110,042.50,*fn2 which reflects reductions for duplicative and erroneous billing entries, additions for attorney time spent litigating the attorneys' fees motion and an increase of $1,320 in costs for interpretive services. (Docket # 54).

Defendant does not oppose an award of attorneys' fees and costs to plaintiff as a prevailing party under the ADA and the Rehabilitation Act, but contends that the amount sought is excessive. Defendant instead asks the Court to award a sum of $51,698.50. (Docket # 51 at 4-5).

This Court heard oral argument on February 9, 2010. (Docket # 68). The following constitutes this Court's decision and order on the pending motion.


I. Applicable Legal Standards

The ADA and the Rehabilitation Act both contain fee-shifting provisions affording discretion to the court to award attorneys' fee and costs to a prevailing party. The ADA provides:

In any action or administrative proceeding commenced pursuant to this Act, the court or agency, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs.

42 U.S.C. § 12205. The Rehabilitation Act includes a provision with almost identical language permitting a discretionary award of attorneys' fees and costs. See 29 U.S.C. § 794a(b).

A prevailing party is one who achieves a "material alteration of the legal relationship of the parties," Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 604 (2001) (quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989)), provided the alteration is a "judicially sanctioned change." Id. at 605. Such judicially-sanctioned alterations may be achieved by an enforceable judgment or by a settlement agreement enforced through a consent decree. Id. at 604. Even a private settlement agreement over which a district court retains enforcement jurisdiction "entails a level of judicial sanction sufficient to support an award of attorney's fees." Roberson v. Giuliani, 346 F.3d 75, 82 (2d Cir. 2003).

In deciding the amount of attorneys' fees to be awarded to a prevailing party, the court must determine the lodestar figure, Perdue v. Kenny A., 130 S.Ct. 1662, 1672 (2010), known in this Circuit as the "presumptively reasonable fee," Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 190 (2d Cir. 2008).*fn3 Indeed, the Supreme Court has recently reaffirmed the lodestar method as appropriate for arriving at a fee that is "presumptively" reasonable and "sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case." Perdue, 130 S.Ct. at 1672-73. In the Court's judgment, the lodestar method, with its emphasis on prevailing market rates in the community, is preferable to the method set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), which lists twelve factors for a court to consider in setting a reasonable fee:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Perdue, 130 S.Ct. at 1672 n.4. As the Court reasoned, the lodestar method results in a presumptively reasonable fee precisely because it "includes most, if not all, of the relevant factors constituting a 'reasonable' attorney's fee," such as the novelty and complexity of a case and the quality of an attorney's performance -- factors that will be subsumed in the determination of reasonable hours spent and reasonable hourly rates, respectively. Id. at 1673 (internal quotation omitted).

Calculating the lodestar figure begins with an examination of the prevailing hourly rates in the community in order to "roughly approximate[] the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case." Perdue, 130 S.Ct. at 1672. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. Ctny. of Albany, 522 F.3d at 190 (court must determine the "reasonable hourly rate . . . a paying client would be willing to pay," recognizing that "a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively"). Once the reasonable hourly rate is determined, it must then be multiplied by the number of hours reasonably expended litigating the case in order to arrive at the lodestar figure or "presumptively reasonable fee." Id. at 193. The reasonableness of that amount "does not depend on whether the attorney works at a private law firm or a public interest organization." Arbor Hill, 522 F.3d at 184 n.2. See Blum v. Stenson, 465 U.S. 886, 894 (1984) ("Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization").

The most critical factor in determining a reasonable fee is "the degree of success obtained" by the prevailing party. Barfield v. New York City Health and Hospitals Corp., 537 F.3d 132, 152 (2d Cir. 2008) (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992); Kassim v. City of Schenectady, 415 F.3d 246, 254 (2d Cir. 2005)). "Both 'the quantity and quality of relief obtained,' as compared to what the plaintiff sought to achieve as evidenced in her complaint, are key factors in determining the degree of success achieved." Id. (quoting Carroll v. Blinken, 105 F.3d 79, 81 (2d Cir. 1997)). Even if the plaintiff does not prevail on all her claims in the lawsuit, her attorneys' fees should not be reduced "[w]here [she] has obtained ...

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