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Feltzin v. Ciampa Whitepoint LLC

United States District Court, E.D. New York

February 13, 2017



          PEGGY KUO United States Magistrate Judge.

         Plaintiff Lawrence Feltzin (“Plaintiff”) brought this action against Defendant Ciampa Whitepoint LLC (“Defendant”), pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”), for injunctive relief and attorneys' fees, litigation expenses, and costs. (Compl., Dkt. 1.) Plaintiff is a paraplegic and qualifies as an individual with disabilities under the ADA. (Id. ¶ 5.) Defendant owns, leases, or operates the Whitepoint Shopping Center in College Point, New York, which is a place of public accommodation under the ADA. (Id. ¶ 6.) Plaintiff has visited Defendant's property and intends to return. (Id. ¶ 5.)

         Before the Court on referral from the Honorable Jack B. Weinstein is Plaintiff's Motion for Attorneys' Fees and Costs. (See Dkt. 26; Dkt. 31.) For the reasons discussed below, the motion is granted in part and denied in part; Plaintiff is awarded $22, 560.60 in attorneys' fees and costs.


         Plaintiff commenced this lawsuit by filing the Complaint on April 22, 2015 (Dkt. 1), and served Defendant on June 22, 2015 (Dkt. 10). Defendant answered on September 18, 2015. (Dkt. 17.) The only court appearances were four conferences. (See Min. Entry 9/3/2015; Min. Entry 11/20/2015; Min. Entry 1/7/2016; Min. Entry 1/26/2016.) Except for the Initial Conference, which was held in person, the remaining three conferences were held by telephone and concerned only the parties' ongoing settlement discussions. (See id.) On March 7, 2016, the parties filed a status report informing the Court that they had settled the matter but for the issue of attorneys' fees, a determination on which they would defer to the undersigned. (See Status Report, Dkt. 22.) The parties filed a Stipulation of Dismissal on March 11, 2016 (see Stip. of Dismisal, Dkt. 23), and subsequently briefed this motion.


         Pursuant to the ADA, a district court has discretion to award to a “prevailing party…a reasonable attorney's fee, including litigation expenses and costs….” 42 U.S.C. § 12205. “A prevailing party is one who obtains direct benefit from an enforceable judgment that provides relief on the merits of the party's claim.” Brady v. Wal-Mart Stores, Inc., 455 F.Supp.2d 157, 203 (E.D.N.Y. 2006) (internal quotations omitted). Defendant does not contest that Plaintiff in this action is a prevailing party and entitled to recover attorneys' fees and costs. (See Def.'s Mem. in Opp'n at 1, Dkt. 28.) However, Plaintiff seeks to recover $42, 818.60, of which $34, 976.50 is attorneys' fees, $6, 200.00 is expert fees, and $1, 642.10 is other costs (Pl.'s Reply at 8, Dkt. 30); Defendant proposes an award of no more than $13, 665.00 (Def.'s Mem. in Opp'n at 1).

         I. Attorneys' Fees

         The attorneys' fees and costs awarded to Plaintiff by the Court must be “reasonable.” See Riley v. City of New York, No. 10-CV-2513 (MKB), 2015 WL 9592518, at *1 (E.D.N.Y. Dec. 31, 2015). “[T]he lodestar - the product of a reasonable hourly rate and the reasonable number of hours required by the case - creates a presumptively reasonable fee.” Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011); see also Scharff v. Cty. of Nassau, No. 10-CV-4208 (DRH)(GRB), 2016 WL 3166848, at *3 (E.D.N.Y. May 20, 2016), R&R adopted, 2016 WL 3172798 (E.D.N.Y. June 6, 2016); Riley, 2015 WL 9592518, at *1. To calculate the lodestar, the Court determines a reasonable hourly rate and a reasonable number of hours. “District courts have broad discretion to determine both the reasonable number of compensable hours and the reasonable hourly rate.” Brady, 455 F.Supp.2d at 203. The party applying for fees must provide contemporaneous time sheets to document counsel's work, and must support the hourly rates it claims with, for example, evidence of counsel's expertise and prevailing market rates. See Riley, 2015 WL 9592518, at *1. Here, Plaintiff has supplied attorney time sheets (Dkts. 26-6 & 30-2), Plaintiff's expert's resume, reports, and invoices (Dkts. 26-3, 26-7, 26-8, & 26-10), and counsel's professional biographical details (Dkts. 26-4 & 26-5), among other materials.

         A. Hourly Rate

         To determine a reasonable hourly rate, the district court considers “rates prevailing in the community for similar services by lawyers of reasonably comparable skill, expertise and reputation.” Cruz v. Local Union No. 3 of IBEW, 34 F.3d 1148, 1159 (2d Cir. 1994). The “community” is the district in which the reviewing court sits, “unless the party seeking fees persuasively establishes that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result.” Scharff, 2016 WL 3166848, at *4 (internal quotations and brackets omitted). “The reasonable hourly rate is the rate a paying client would be willing to pay…bear[ing] in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany, 522 F.3d 182, 190 (2d Cir. 2008). The district court must also “bear in mind all of the case-specific variables that [the Second Circuit] and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate.” Id. at 190 (emphasis in the original). Those factors include “the attorney's experience and expertise, the novelty and complexity of the issues presented, and the overall success achieved in the case.” Brady, 455 F.Supp.2d at 204; see also Chen v. Cty. of Suffolk, 927 F.Supp.2d 58, 71 (E.D.N.Y. 2013). The fee applicant has the burden of justifying the requested rate as reasonable. See Scharff, 2016 WL 3166848, at *4.

         In recent years, fees have been awarded in the Eastern District of New York at an hourly rate of $300 to $450 for partners, $100 to $325 for associates, and $70 to $100 for paralegals in fee-shifting cases. See, e.g., John v. Demaio, No. 15-CV-6094 (NGG)(CLP), 2016 WL 7410656, at *1-2 (E.D.N.Y. Dec. 22, 2016); Volpe v. Nassau Cty., No. 12-CV-2416 (JFB)(AKT), 2016 WL 6238525, at *6 (E.D.N.Y. Oct. 24, 2016); Finkel v. Athena Light & Power, LLC, No. 14-CV-3585 (DLI)(PK), 2016 WL 4742279, at *10 (E.D.N.Y. Sept. 11, 2016); Scharff, 2016 WL 3166848, at *4; Griffin v. Astro Moving & Storage Co., No. 11-CV-1844 (MKB), 2015 WL 1476415, at *8-9 (E.D.N.Y. Mar. 31, 2015); Chen, 927 F.Supp.2d at 72. Plaintiff was represented in this action by three attorneys, all partners, with additional work performed by a paralegal. (See Pl.'s Appl. at 5-7, Dkt. 26; Exh. E to Pl.'s Appl., Dkt. 26-6.) The attorneys, Lawrence Fuller (“Fuller”), James Plaisted (“Plaisted”), and Asaad Siddiqi (“Siddiqi”), request hourly rates of $425, $525, [1] and $400, respectively. In evaluating these rates, the Court notes that this was a straightforward ADA case which settled before the parties had fully engaged in discovery. (See Min. Entry, 1/26/2016.)

         Fuller, who is located in Florida, is a partner at Fuller, Fuller & Associates. (Exh. C to Pl.'s Appl. at 1, Dkt. 26-4.) He has practiced law for 42 years and is admitted to the bars of Florida, New York, and Washington, D.C. (Id.) His practice since 2001 has included an “emphasis…on enforcement of Title II and III of the Americans With Disability Act of 1990.” (Id. at 1-2.) His requested rate of $425 per hour falls within the range of rates recognized as reasonable in this district, and the Court finds that, in light of his experience and expertise, that rate is reasonable in this case.

         Plaisted and Siddiqi are both located in Roseland, New Jersey, and are shareholders at the firm Walder Hayden. (Exh. D to Pl.'s Appl., Dkt. 26-5.) Plaisted has practiced for 41 years and is admitted to the bars of New York and New Jersey. (Id. at 1-2.) He is a former U.S. Attorney's Office division chief with extensive trial experience but does not have expertise in ADA cases. (Id. at 1-3.) His requested rate of $525 per hour falls outside the $300 to $450 per hour rate for partners in this ...

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