Gilmore v. Audubon Nature Inst., Inc., CIVIL ACTION NO. 17-4176

• Citation: 353 F.Supp.3d 499
• Decision Date: 05 November 2018
• Docket Number: CIVIL ACTION NO. 17-4176
• Parties: Wayne GILMORE v. AUDUBON NATURE INSTITUTE, INC.
• Court: U.S. District Court — Eastern District of Louisiana

353 F.Supp.3d 499

Wayne GILMORE

v.AUDUBON NATURE INSTITUTE, INC.

CIVIL ACTION NO. 17-4176

United States District Court, E.D. Louisiana.

Signed November 5, 2018

Georgianne Sims, Louis I. Mussman, Pro Hac Vice, Ku & Mussman, PA, Pembroke Pines, FL, for Plaintiff.

Michael L. DeShazo, Aaron N. Maples, Claire R. Pitre, Taylor Matthew Burnham, Kinney Ellinghausen Richard & DeShazo, New Orleans, LA, for Defendant.

ORDER AND REASONS ON MOTION

JOSEPH C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE

This is an Americans with Disabilities Act ("ADA") action by plaintiff, Wayne Gilmore ("plaintiff"), against defendant, the Audubon Nature Institute, Inc. ("Audubon"). Plaintiff asserted claims against Audubon for its failure to comply with the building requirements of Title III of the ADA, 42 U.S.C. § 12181 et seq., at the facility known as Audubon Zoo. Record Doc. No. 1. Plaintiff sought injunctive and declaratory relief, attorney's fees, costs and expenses. Record Doc. No. 1, p. 6. The substantive claims were resolved by the court's entry of a consent decree that was agreed upon by the parties. Record Doc. Nos. 29; 31. The consent decree provides in pertinent part that "[p]laintiff is the prevailing party to this action." Record Doc. No. 31, at p. 9, ¶ 1.

As prevailing party, plaintiff filed his motion for attorney's fees and costs, seeking $70,380.00 in attorney's fees and $9,104.57 in costs. Record Doc. Nos. 39; 42-3; 45. Defendant filed a timely opposition memorandum, in which it concedes that plaintiff is entitled to an award of reasonable attorney's fees. Record Doc. 40, at p. 3. Defendant argues, however, that the amount of costs and fees sought by plaintiff is unreasonable. Record Doc. No. 40, at p. 3. Plaintiff was permitted to file a reply memorandum, in which he attempted to explain in greater detail the reasons for the amount of hours billed and fees and costs sought, while supplementing his motion for attorney's fees with contemporaneous time sheets. Record Doc. No. 42-3; 45. Defendant then submitted a six-page sur-reply memorandum. Record Doc. No. 51.

Having considered the written submissions of the parties, the record, and the applicable law, I find that plaintiff's motion should be GRANTED IN PART AND DENIED IN PART. While an award of attorney's fees and costs is warranted, the amount of plaintiff's requested attorney's fees and costs must be reduced.

I. PROCEDURAL BACKGROUND

Audubon "does not dispute the fact that Plaintiff is entitled to an award of reasonable attorney's fees; its opposition is instead based on the truly exorbitant amount of the request." Record Doc. No. 40, at p. 3. As noted above, the consent decree, to which defendant agreed, expressly identifies plaintiff as the "prevailing party." Under the ADA, an award of attorney's fees to the prevailing party is directed to the court's discretion. "In any action ... commenced pursuant to this chapter, the court ..., in its discretion, may allow the prevailing party, ... a reasonable attorney's fee, including litigation expenses, and costs ...." 42 U.S.C. § 12205 (emphasis added). The court's discretion is substantially circumscribed, however, by binding precedent.

"To be entitled to an award of attorney's fees, plaintiffs must either receive an adjudicated judgment on the merits or persuade the defendant to enter into a consent judgment that provides for some sort of fee award." Pamela S. Karlan, Disarming the Private Attorney General, 2003 U. Ill. L. Rev. 183, 207 (2003) (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) ; Evans v. Jeff D., 475 U.S. 717, 742-43, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986) ).

The same " ‘considerations that govern fee-shifting under ... 42 U.S.C. § 1988 apply to the ADA's fee-shifting provision, because the almost identical language in each indicates Congress's intent to enforce them similarly.’ " Deutsh v. Jesus Becerra, Inc., 668 F. App'x 569, 570-71 (5th Cir. 2016) (quoting No Barriers, Inc. v. Brinker Chili's Tex., Inc., 262 F.3d 496, 498 (5th Cir. 2001) ). The Fifth Circuit has "consistently acknowledged in civil rights cases" that " ‘a prevailing plaintiff ... is presumptively entitled to reasonable attorney's fees, unless a showing of ‘special circumstances’ is made that would deem such an award unjust.’ " Id. (quoting Dean v. Riser, 240 F.3d 505, 508 (5th Cir. 2001) (emphasis added)

Courts have indicated that such requests "should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ; Assoc'd Builders & Contractors of La., Inc. v. Orleans Parish Sch. Bd., 919 F. 2d 374, 379 (5th Cir. 1990). Contrary to this admonition, plaintiff's motion was initially supported by a lengthy 23-page memorandum; the joint declaration of his two attorneys who recorded work on this matter; expert reports with their resumes and qualifications; an affidavit of attorney William Most attesting to what constitutes a reasonable hourly rate in New Orleans; contemporaneous time sheets describing the work done by plaintiff's attorneys; interrogatories and requests for production of documents from plaintiff's counsel to defendant's counsel; emails between plaintiff's counsel and defendant's counsel concerning settlement; resumes of plaintiff's attorneys; travel receipts of plaintiff's counsel and experts; and invoices reflecting the costs expended on this litigation. Record Doc. Nos. 39-1 through 39-18. Defendant's opposition memorandum consisted of 17 pages, with attached suggested reductions to plaintiff's counsel's computation of billed time. Record Doc. Nos. 40 through 40-2. Plaintiff subsequently submitted a 10-page reply memorandum, to which he again attached a joint declaration of plaintiff's attorneys and contemporaneous time sheets describing the work done by plaintiff's attorneys. Record Doc. Nos. 42-2; 42-3; 45. Defendant then submitted a six-page sur-reply memorandum. Record Doc. No. 51.

Both sides agree that calculation of recoverable attorney's fees begins with the familiar lodestar evaluation, which involves multiplying the reasonable hourly rates of plaintiff's lawyers by the reasonable number of hours expended. Plaintiff seeks to recover $70,380.00 in fees, including 203.9 hours for one attorney billing at $300 per hour, and 30.7 hours for a second attorney billing at $300 per hour. Record Doc. No. 42-3.¹

Audubon argues that the requested time should be reduced because plaintiff's counsel spent excessive time on the matter. Record Doc. No. 40, at pp. 6-9. It also contends that plaintiff unreasonably incurred the higher billing rate of two senior attorneys, when the lower rate of a more junior attorney or paralegal was sufficient to handle such a routine, largely uncontested lawsuit. Id. at pp. 5-6. It also notes that a substantial sum of what is sought relates to the drafting of a motion for summary judgment, when the motion was never ruled on by the court and became unnecessary after the substantive claims were resolved by consent decree. Id. at pp. 9-10. Audubon also filed a sur-reply memorandum in opposition, Record Doc. No. 51, quoting Gilmore v. Elmwood South, L.L.C., 2015 WL 1245770 (E.D. La. Mar. 18, 2015) (hereinafter " Elmwood"), in which Magistrate Judge Knowles stated as to these same plaintiff's attorneys:

This Court has searched the nation-wide Pacer internet website and Westlaw and has discovered that–as defendant puts it–"[t]his is not Plaintiff's counsel's first rodeo." This law firm has acted as lead counsel in hundreds of ADA cases throughout the country. As defendant notes, Mussman has represented Christopher E. Brown in approximately 111 Title III ADA actions against public accommodations in New York, Pennsylvania, Connecticut, and New Jersey since 2006. Gilmore himself has filed 13 lawsuits in Louisiana federal courts and has retained Mussman & Ku, PA [sic] to represent him in the majority of them.

This Court has reviewed the complaints and the pleadings in a majority of the other lawsuits and finds them to be nearly identical to the ones filed here. For example, while the alleged violations may be slightly different in each case, the complaints are essentially–as defendant notes–"cut and paste" complaints. In addition, these are all Title III claims, and the law in each is the same. Moreover, the Court has reviewed several motions for attorneys' fees, and while there are difference s, the majority of the law in each motion is identical, thus rendering much of the legal research largely unnecessary....

Elmwood, 2015 WL 1245770, at *5-6 (emphasis added). Defendant argues that Magistrate Judge Knowles's analysis is equally applicable to the instant matter. Finally, in response to plaintiff's assertion that defendant's opposition was "riddled with math errors," Record Doc. No. 45, at pp. 8-9, defendant revised its total reasonable amount of expenses calculation to $6,920.00 and total reasonable attorney's fees calculation to $13,242.50, arguing that the total reasonable amount should be $20,162.50. Record Doc. No. 51, at p. 5.

II. STANDARDS FOR AN AWARD OF ATTORNEY'S FEES

As the parties agree, the lodestar method is routinely used to determine attorney's fee awards in federal civil actions and applies in this case brought under a federal statute. Under the lodestar method,

[t]he determination of a fees award is a two-step process. First the court calculates the "lodestar[,]" which is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work. The court should exclude all time that is excessive, duplicative, or inadequately documented. Once the lodestar amount is calculated, the court can adjust it based on the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) [, abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939,

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