Bowman v. Prida Constr., Inc.
| Decision Date | 20 October 2021 |
| Docket Number | 3:19-cv-66 |
| Citation | 568 F.Supp.3d 779 |
| Parties | Dana BOWMAN, Plaintiff, v. PRIDA CONSTRUCTION, INC., et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Eric Graham Calhoun, Calhoun & Associates, Richardson, TX, for Plaintiff.
Andres Omar Soto, Mills Shirley LLP, Galveston, TX, for Defendants.
Before the court is plaintiff Dana Bowman's motion for attorneys’ fees, expert fees, and costs and expenses under the Fair Housing Act and Americans with Disabilities Act. Dkt. 78. Bowman seeks $159,308.75 in attorneys’ fees, $9,993.91 in expert fees, and $3,176.01 in costs and expenses. Dkt. 78 at 16–17; Dkt. 87 at 15. Defendants Prida Construction, Inc., and Waterfront Housing, LLC, oppose the award on six grounds: (1) attorneys’ fees are discretionary under 42 U.S.C. § 3613 ; (2) Bowman's requested hourly rate is excessive; (3) Bowman did not present sufficient evidence of billing judgment; (4) Bowman's billing entries are excessive, redundant, and demonstrate a lack of billing judgment; (5) the Johnson factors warrant a downward departure from the lodestar amount; and (6) an award of expert fees is not allowed under 42 U.S.C. § 3613. Dkt. 81 at 3. For the reasons that follow, the court awards Bowman attorneys’ fees of $79,213.75, expert fees of $9,993.91, and costs of $3,176.01.
Dana Bowman sued Prida Construction and Waterfront Housing for violations of the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988 (FHA), 42 U.S.C. §§ 3601 – 3619, complaining of lack of accessibility at the Waterfront Apartments in Galveston. After almost two years of litigation and following a partial summary judgment, Dkt. 68, the court signed an agreed judgment ordering the defendants to remediate 96 categories of barriers to access. Dkt. 74. The court found, and the parties agreed, that the plaintiff is the "prevailing party" and therefore entitled to recover reasonable attorneys’ fees, expert fees, costs and expenses. Id. at 2. The sole remaining issue is the amount of the award for attorneys’ fees, expert fees, and costs.
The defendants argue that because the award of attorneys’ fees under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12205, and the FHA, 42 U.S.C. § 3613(c)(2), is discretionary, the court should "use its discretion to deny Plaintiff's request for fees or to award a nominal amount." Dkt. 81 at 3. In support, the defendants note that Bowman and his attorney are serial ADA/FHA litigants with "hundreds of cases to their names." Id. This case, the defendants allege, was one of ten "drive-by lawsuits" Bowman filed in the first four months of 2019. Id. at 1–3. But that is beside the point. Bowman is the undisputed prevailing party whose meritorious legal arguments resulted in broad remediation at the Waterfront Apartments.
While the decision to award attorneys’ fees "lies solely within the discretion of the court," La. ACORN Fair Hous. v. Jaffe , N0. CIV. A. 00-0019, 2000 WL 1610628, at *2 (E.D. La. Oct. 26, 2000), the Supreme Court has cautioned that "[t]his discretion ... must be exercised in light of the considerations we have identified." Hensley v. Eckerhart , 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The Fifth Circuit, in interpreting this guidance, has made it clear that the district court's "broad discretion" is in "setting the appropriate award of attorneys’ fees" due to its "superior knowledge of the facts," not in failing to award a prevailing party fees or awarding only nominal fees. Watkins v. Fordice , 7 F.3d 453, 457 (5th Cir. 1993). So the defendants’ first contention is unpersuasive.
As a preliminary matter, the "method by which the district court calculates an attorneys’ fees award is well established." League of United Latin Am. Citizens No. 4552 (LULAC) v. Roscoe Indep. Sch. Dist. , 119 F.3d 1228, 1232 (5th Cir. 1997). A "lodestar" amount is determined by multiplying the reasonably billed hours by a reasonable hourly rate. Id. In exceptional cases, the lodestar may be adjusted upward or downward, according to the factors identified in Johnson v. Georgia Highway Express, Inc. 488 F.2d 714, 717–19 (5th Cir. 1974).
Bowman's attorney, Eric G. Calhoun, is a seasoned attorney with over 30 years of legal practice and extensive experience in FHA/ADA cases. Dkt. 78-1. His practice is based in Dallas County in the Northern District of Texas. Dkt. 78-2. Mr. Calhoun asks for $650, his hourly rate for "complex litigation." Dkt. 78-1 at 4, ¶ 8. The defendants contend that rate is excessive. Dkt. 81 at 3. In determining an hourly rate, the district court bases its decision on the "prevailing market rates in the relevant community." LULAC , 119 F.3d at 1234 (quoting Blum v. Stenson , 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) ). The "burden is on the applicant to produce satisfactory evidence ... that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum , 465 U.S. at 895 n.11, 104 S.Ct. 1541. The Fifth Circuit "has interpreted rates ‘prevailing in the community’ to mean what it says," namely that district courts are required to consider the local rates for similar work "in the community." McClain v. Lufkin Indus., Inc. , 649 F.3d 374, 381 (5th Cir. 2011).
Tellingly, this Circuit has reduced an out-of-district counsel's fee from his home district in Washington, D.C., to the prevailing forum rate in Austin, Texas, despite his success at trial, because local counsel was not only available but had "provided competent and skilled representation." Hopwood v. State of Texas , 236 F.3d 256, 281 (5th Cir. 2000). But when there is "abundant and uncontradicted evidence prov[ing] the necessity of ... turning to out-of-district counsel," said counsel may have their home-district rates considered as a "starting point for calculating the lodestar amount." McClain , 649 F.3d at 382.
Nevertheless, the district court retains the discretion to adjust the lodestar to achieve an overall reasonable award, keeping in mind that while the forum rate "sets a floor for compensation," the purpose of a fee-shifting statute is likewise undermined if plaintiff's counsel "reap a windfall at the expense of a defendant by overcharging for their services." Id. ; see City of Riverside v. Rivera , 477 U.S. 561, 580, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) () (internal quotation omitted).
Two findings militate against awarding plaintiff's counsel his home-district rate. First, Bowman's counsel has failed to establish what his customary rate is for FHA/ADA claims in the Northern District. While Mr. Calhoun states his hourly rate for complex litigation is $650, Dkt. 78-1 ¶ 8 (Calhoun Declaration), his only evidence of this is a Dallas state-court case involving a stock-subscription agreement. Dkt. 90 at 2. The court agrees with the defendants that Mr. Calhoun's work in that Dallas case is distinguishable because it was not an FHA/ADA case and required materially more complex work than the form pleadings in the present case. Dkt. 91 at 1–2.
Additionally, the plaintiff has failed to establish with "abundant and uncontradicted evidence" that it was necessary to turn to out-of-district counsel, such as Mr. Calhoun, over other counsel in the local forum. McClain , 649 F.3d at 382. Mr. Calhoun's chief evidence for the contention that he alone could provide the necessary competent and skilled representation is his own declaration, Dkt. 78-1 ¶¶ 4,7 ().
Yet, Mr. Calhoun overlooks the rest of the Southern District. While Galveston may lack attorneys whose experience is comparable to his in FHA/ADA cases, Houston—just 50 miles away—does not. The court takes judicial notice of an abundance of FHA and ADA suits handled by attorneys in the Houston area—and takes notice that Houston lawyers regularly practice in the Galveston Division. Accordingly, the court finds Houston as the relevant local market for consideration of the prevailing market rate for FHA work. McClain , 649 F.3d at 381.
As evidence of the prevailing market rate for complex litigation in Houston, Mr. Calhoun proffers the affidavit of an attorney well-known and well-regarded by this court, Craig Smyser, from a separate case. Dkt. 78-5. But the case which Mr. Smyser's affidavit concerns is substantially dissimilar from this one. A "well-known and highly publicized class action lawsuit questioning Harris County's" secured money bail system, it is demonstrably more complex than the form pleadings, motions, and discovery required by this FHA suit. Dkt. 81-1 at 5. Meanwhile, in an affidavit by another attorney well-known and well-regarded by this court, Fred Raschke, the defendants have presented uncontroverted evidence that the customary fee in Galveston for cases like this is $175 to $300 per hour. Dkt. 81-1 at 8. As Mr. Raschke also notes that "the rates charged in Houston are, on average, much higher than in Galveston," id. at 6, the court will add a $200/hour premium to the upper end of the defendants’ proposed range and find that $500 is a reasonable hourly rate.
a. Billing Judgment, Duplication of Effort, and Excessive Hours
Bowman asks for 237.1 attorney hours and 41.55 legal support hours for its lodestar calculation.1 The defendants contest Bowman's billed hours, arguing (1) Bowman did not present sufficient evidence of billing judgment and (2) that his billing entries were excessive, redundant, and displayed a lack of billing judgment....
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...the redaction of exhibits. In the Fifth Circuit, redacting exhibits is considered clerical work. See Bowman v. Prida Constr., Inc., 568 F.Supp.3d 779, 787 (S.D. Tex. 2021) (“Preparing, assembling, and redacting documents and exhibits, including affixing labels, are likewise clerical.”). Thu......