Gilmore v. Elmwood S., L.L.C.

• Decision Date: 18 March 2015
• Docket Number: CIVIL ACTION NO. 13-37 DIVISION "3"
• Parties: WAYNE GILMORE v. ELMWOOD SOUTH, L.L.C.
• Court: U.S. District Court — Eastern District of Louisiana

WAYNE GILMORE v. ELMWOOD SOUTH, L.L.C.

CIVIL ACTION NO. 13-37 DIVISION "3"

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

March 18, 2015

ORDER

Before the Court is Plaintiff's Motion for Attorneys' Fees and Related Expenses. [Doc. #40]. The motion is opposed. [Doc. #44]. For the reasons set forth below, IT IS ORDERED that Plaintiff's Motion for Attorneys' Fees and Related Expenses [Doc. #40] is GRANTED IN PART and that order and judgment issue awarding attorneys' fees and costs to plaintiff in the amount of $46,825.69.

I. BACKGROUND

On January 8, 2013, plaintiff Wayne Gilmore sued Elmwood South, L.L.C. ("Elmwood"), the owner of the Elmwood Shopping Center (the "Property"), alleging that Elmwood violated Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Gilmore alleged that Elmwood failed to reasonably accommodate his disabilities. Gilmore is a paraplegic who requires a wheelchair to ambulate. Specifically, he alleged that he suffered discrimination by encountering various architectural barriers at the Property, which hindered his access to stores.

In December 2013, the parties reached a tentative settlement agreement, and, to reduce their agreement to writing, moved for a stay, which the District Court granted until February 2, 2014. [Doc. #29]. The District Court then extended the stay indefinitely. [Doc. #31]. In March 2014, theparties consented to proceed before the undersigned. [Doc. #32]. On July 10, 2014, this Court held a settlement conference at which the main demand between Gilmore and Elmwood settled. [Doc. #36]. This Court also issued a briefing schedule as to the only dispute left, that of attorneys' fees and costs. [Id.]. Gilmore has now filed his motion for summary judgment, Elmwood has filed its opposition, followed by a reply and a sur-reply. Having reviewed the pleadings and the case law, the Court rules as follows.

II. ANALYSIS

A. The Lodestar Approach

Gilmore seeks $55,476.50 in attorneys' fees.¹ The United States Supreme Court and the Fifth Circuit have oft-repeated that a request for attorneys' fees should not spawn major ancillary litigation. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Associated Builders & Contractors of La., Inc. v. Orleans Parish School Bd., 919 F.2d 374, 379 (5th Cir.1990). A court's discretion in fashioning a reasonable attorney's fee is broad and reviewable only for an abuse of discretion, i.e., it will not be reversed unless there is strong evidence that it is excessive or inadequate, or the amount chosen is clearly erroneous. Hopwood v. State of Texas, 236 F.3d 256, 277, n.79 (5th Cir. 2000); Hensley, 461 U.S. at 436-37.

To determine a reasonable fee, the court must provide a concise but clear explanation of its reasons for the fee award, making subsidiary factual determinations regarding whether the requested hourly rate is reasonable, and whether the tasks reported by counsel were duplicative, unnecessary,or unrelated to the purposes of the lawsuit. Hensley, 461 U.S. at 437-39, 103 S.Ct. at 1941-43; Associated Builders & Contractors, 919 F.2d at 379. The Fifth Circuit has noted that its "concern is not that a complete litany be given, but that the findings be complete enough to assume a review which can determine whether the court has used proper factual criteria in exercising its discretion to fix just compensation." Brantley v. Surles, 804 F.2d 321, 325-26 (5th Cir. 1986).

In assessing the reasonableness of attorneys' fees, the court must first determine the "lodestar" by multiplying the reasonable number of hours expended and the reasonable hourly rate for each participating attorney. See Hensley, 461 U.S. at 433; Green v. Administrators of the Tulane Educ. Fund, 284 F.3d 642, 661 (5th Cir. 2002); Migis v. Pearle Vision, Inc., 135 F.2d 1041, 1047 (5th Cir.1998); La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir.1995). The fee applicant bears the burden of proof on this issue. See Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir.1996); Kellstrom, 50 F.3d at 324; In re Smith, 996 F.2d 973, 978 (5th Cir. 1992).

1. Reasonable Hourly Rates

This Court must first determine if the hourly rates of $300.00/hour for Louis I. Mussman, $275.00/hour for M. Ryan Casey, and $300.00/hour for Brian Ku, sought by Ku & Mussman, PA, are reasonable given counsel's ability, competence, experience, and skill. Ku & Mussman, PA is a law firm in Miami, Florida, and Mussman was admitted pro hac vice by the District Court. Ku was not. Casey is admitted to practice in Louisiana. Mussman and Ku are partners with approximately thirteen (13) years of experience, and Casey is a partner with approximately nine (9) years of experience. It is well-established law that "[h]ourly rates are to be computed according to the prevailing market rates in the relevant legal market, not the rates that 'lions at the bar maycommand.'" Hopwood v. Texas, 236 F.3d 256, 281 (5th Cir. 2000) (quoting Leroy v. City of Houston, 906 F.2d 1068, 1079 (5th Cir. 1990) (internal quotation marks and citation omitted)). All three attorneys reduced their out-of-state hourly rates in an effort to comply with their understanding of the prevailing market rates in this district.

Under the following case law, the Court finds that the aforesaid hourly rates are at the higher end of the range of the market rate in this area. See, e.g., Alexander v. Ace Ins. Co., Civ. A. No. 14-310, 2014 WL 4163756 (E.D. La. Aug. 19, 2014) (sanctioning $250/hour for attorney with ten years experience and $200/hour for attorney with four years experience); Cox. v. Precision Surveillance Org., Civ. A. No. 13-6600, 2014 WL 1785350 (E.D. La. May 5, 2014) (sanctioning $275.00/hour for attorney with ten years experience); Barrack v. Pailet, Meunier & LeBlanc, L.L.P., Civ. A. No. 12-2716, 2013 WL 6198861 (E.D. La. Nov. 27, 2013) (approving $250/hour for attorney with 24 years experience); Cole v. Orleans Parish Sheriff's Office, Civ. A. No. 11-2211, 2013 WL 5557416 (E.D. La. Oct. 8, 2013) (reducing hourly rates from $300/hour to $275/hour for attorney with 34 years experience and from $300/hour to $250/hour for attorney with 29 years experience); Foley v. SAFG Retirement Servs., Inc., Civ. A. No. 10-2827, 2012 WL 956499 (E.D. La. Mar. 20, 2012) (reducing hourly rates from $450/hour to $350/hour for attorney with 30 years experience and from $300/hour to $275/hour for attorney with eight years experience); Constr. Courht, Inc. v. Jenkins, Civ. A. No. 11-1201, 2001 WL 3882271 (E.D. La. July 29, 2011) (approving $350/hour for partners with 30 and 36 years experience); Entergy La., L.L.C. v. The Wackenhut Corp., Civ. A. No. 09-7367, 2010 WL 4812921 (E.D. La. Nov. 17, 2010) (awarding $175.00/hour to attorney with 16 years of experience); Wilson v. Tulane Univ., Civ. A. No. 09-7451, 2010 WL 3943543 (E.D. La. Oct. 4,2010) (awarding $250.00/hour and $160.00 hour to attorneys with 25 and four years experience respectively); Gulf Coast Facilities Mgmt, L.L.C. v. BG LNG Servs., L.L.C., Civ. A. No. 09-3822, 2010 WL 2773208 (E.D. La. July 13, 2010) (awarding $300.00/hour to attorneys with 17 years experience and $180.00/hour and $135.00/hour to attorneys with seven years and two years experience respectively); Hebert v. Rodriguez, Civ. A. No. 08-5240, 2010 WL 2360718 (E.D. La. June 8, 2010) (awarding $300.00/hour to attorney with 33 years of experience); Belfor USA Group, Inc. v. Bellemeade Partners, L.L.C., Civ. A. No. 09-158, 2010 WL 6300009 (E.D. La. Feb. 19, 2010) (awarding $210.00/hour, $250.00/hour and $180.00/hour to attorneys with 20, ten and four years experience respectively); Marks v. Standard Fire Ins. Co., Civ. A. No. 09-1947, 2010 WL 487403 (E.D. La. Feb. 3, 2010) (awarding $185.00/hour to attorney with seven years of experience); Johnson v. Big Lots Stores, Inc., 639 F. Supp. 2d 696 (E.D. La. 2009) (awarding $300/hour for partners, $225/hour for associates, and $75/hour for paralegals); Creecy v. Metro. Prop. & Cas. Ins., Co., 548 F. Supp. 2d 279, 285 (E.D. La. 2008) (Roby, M.J.) (sanctioning $175/hour for associate with five years experience); Orrill v. Mortgage Elec. Registration Sys., Inc., Civ. A. No. 06-10012, 2009 WL 4861994, at *3 (E.D. La. Nov. 7, 2008) (Roby, M.J.) (sanctioning $150/hour for associate with four years experience).

Considering the prevailing market rates in the Greater New Orleans area, and the reasonable fees set by the courts in this district, the Court finds that $275.00 per hour is a reasonable rate for the services of Mussman and Ku and $250.00 per hour is a reasonable rate for the services of Casey.

With regard to Ku, however, the Court is more circumspect. The Court's review of the case law reveals that the issue of whether a court may award fees to an attorney from outside a districtwho is not admitted pro hac vice has created what appears to be a circuit split. Compare Priestley v. Astrue, 651 F.3d 410, 416 (4th Cir. 2011) (holding that the Equal Access to Justice Act "authorizes the plaintiffs to receive reimbursement for work performed by an attorney, regardless of whether the attorney performing the work is admitted to practice or not." to Shapiro v. Paradise Valley Unified School Dist. No. 69, 374 F.3d 857, 862 (9th Cir. 2004) (affirming district court's award of attorneys' fees only from date of attorney's admission pro hac vice), and Idaho Sporting Congress, Inc. v. Alexander, 23 Fed. Appx. 713, 714 (9th Cir. 2001) ("Failure of ISC counsel to properly and timely secure pro hac vice admission before the district court was a sufficient reason to deny ISC's application for attorneys' fees . . . .").

While the Court recognizes that Ku seeks fees for only 11.4 hours, and the Court is reticent to make a mountain out of a molehill, the Court notes that the District Court never admitted Ku to practice pro hac vice in this district. That absence of pro hac vice status gives the Court pause. Pro hac vice rules exist for a reason: To ensure that an attorney is...