Jones v. Eagle-North Hills Shopping Centre, L.P.
| Decision Date | 21 March 2007 |
| Docket Number | No. 06-CIV-161-RAW.,06-CIV-161-RAW. |
| Citation | 478 F.Supp.2d 1321 |
| Parties | Charlie JONES, Plaintiff, v. EAGLE-NORTH HILLS SHOPPING CENTRE, L.P., Defendant. |
| Court | U.S. District Court — Eastern District of Oklahoma |
Stephan M. Nitz, Schwartz Zweben & Slingbaum, Hollywood, FL, Juliet N. Brennan, Bonds & Matthews Law Firm, Muskogee, OK, for Plaintiff.
Lu Ann Stout, Hagen & Brewer, Oklahoma City, OK, for Defendants.
Before the Court is Plaintiff's Motion for Attorneys' and Expert's Fees, Litigation Expenses and Costs [Docket No. 50], filed on December 15, 2006. On December 29, 2006, Defendant filed its Response in Opposition to the Motion [Docket No. 51]. The Court has also considered the supplemental briefs filed by both parties regarding the issue of whether "attorney fees should be withheld if no clear advance notice and opportunity to cure is given." (Plaintiffs Memorandum of Law and Response to the Court's Order Entered on February 7, 2007 [Docket No. 57] and Defendant's Supplement to Objection to Plaintiffs' Claims for Fees, Costs and Expenses [Docket No. 58] ). Lastly, the Plaintiff filed (without a request from the Court for additional authority, and without prior leave of court as required by the Local Civil Rules) a Supplemental Memorandum of Law [Docket No. 59] regarding a recent decision issued from the Middle District of Florida; Defendant quickly filed (likewise without prior Court approval) a Response to Plaintiffs Memorandum of Law [Docket No. 60].
This case was originally filed on April 27, 2006 alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA") against the Defendant North Hills-Ada — Shopping Center, L.P. On May 18, 2006, Plaintiff filed his First Amended Complaint [Docket No. 19] adding Eagle-North Hills Shopping Centre, L.P. as a Defendant.
The ADA violations alleged by the Plaintiff include (but are not limited to) matters such as the following: lack of proper signage at the accessible parking spaces; cross slopes too steep in various accessible parking spaces; improper access aisles at various accessible parking spaces; entry doors at various locations with panel-type pull handles; and last but certainly not least, a public telephone lacking proper floor clearance (trash in the way).
On November 13, 2006, the parties filed a Joint Stipulation of Voluntary Dismissal Without Prejudice [Docket No. 46] dismissing Defendant North Hills — Ada — Shopping Center, L.P. On December 7, 2006, the parties filed a Joint Notice of Settlement [Docket No. 46].
The parties have fully briefed the issues, and the Court has carefully considered the motions, objections, supporting and supplemental briefs, and exhibits regarding this issue. For the following reasons, the Court awards Plaintiff attorney's fees, expert fees, litigation expenses, and costs as outlined below.
Plaintiff has filed his motion for fees and costs, requesting the following:
Attorney's Fees $ 7,806.00
Local Counsel Fees 1,024.371
Expert Fees 4,280.00
Costs 1,125.21
__________
Total $14,235.58
In its Response in Opposition [Docket No. 51], Defendant did not dispute that Plaintiffs counsel is entitled to recover reasonable attorney's fees and costs. Defendant objected to the requested amounts, however, arguing that Plaintiffs attorney's fees are excessive, the expert fees are unreasonable, and that Plaintiff seeks costs outside those allowed by federal statute. Defendant also stated that Plaintiff failed to comply with local rules regarding the submission of a bill of costs. The filing of a bill of costs is waived in this case in order to expedite the process of determining the reasonable fees and costs. In its Supplement [Docket No. 58], however, Defendant requested the Court deny Plaintiffs application for costs, litigation expenses and attorney fees.
Pursuant to 42 U.S.C. § 12205, a court may, in its discretion, allow a Plaintiff to recover attorney's fees if the Plaintiff is a "prevailing party":
In any action ... commenced pursuant to this chapter, 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.A. § 12205. A plaintiff becomes a "prevailing party" if "actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992).
The Court finds the Plaintiff to be the "prevailing party" in this matter. See, Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Thus, Plaintiff is entitled to recover reasonable attorney's fees and costs.
To determine a reasonable attorney's fee, courts use the lodestar method by which a reasonable hourly rate is multiplied by the reasonable number of hours worked on the case. See, Case v. Unified School District No. 233, 157 F.3d 1243, 1249 (10th Cir.1998). The district court is required to exclude from the initial fee calculation hours that were not "reasonably expended," i.e., that are excessive, redundant or otherwise unnecessary. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). See also, Case v. Unified School Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, *1250 (10th Cir.1998) (). Further, the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir.1986).
"The first step in setting a rate of compensation for the hours reasonably expended is to determine what lawyers of comparable skill and experience practicing in the area in which the litigation occurs would charge for their time." Case, 157 F.3d at 1256 (quoting Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir.1983)). See also, Beard v. Teska, 31 F.3d 942, *956 (10th Cir.1994) ()
Plaintiff alleges that ADA cases are Counsel for Plaintiff provided copies of four (4) orders from the Western District of Oklahoma as justification for the attorney's hourly rate requested in the application.
Defense counsel points out, however, that Plaintiff failed to attached any affidavits to support his request for attorney's fees. Both types of supporting documentation, however, are helpful to the Court. "... National Ass'n, of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, *1325 (C.A.D.C., 1982). Further, the Court may consider a request for attorney fees "in light of its own knowledge and experience with or without the aid of witnesses as to value or hours dedicated to litigation." See Association for Disabled Americans, Inc. v. Integra Resort Management, Inc., 385 F.Supp.2d 1272, 1287 (M.D.Fla.2005).
In its objection, Defendant's counsel provides two affidavits — one by Mark Edwards, defense counsel in Lawson, et al. v. Robson, Case No. 04-CV-246-W, Western District of Oklahoma (counsel charged $175.00 per hour in that matter) and one by defense counsel in this matter (counsel is charging $160.00 per hour in this case).
Plaintiff alleges that neither "he, nor his counsel know of any attorneys in Oklahoma who handle Plaintiff Title II and Title III ADA cases." Thus, Plaintiff alleges it was necessary to retain out of state counsel. "While a party is free to select counsel from any locality, absent a clear showing that the matter could not reasonably have been handled by counsel from the locality, rates above the prevailing local hourly rates should not be applied." Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, *1259 (10th Cir.2005). The Court is not persuaded that this matter could not have been handled by local attorneys. This Court does not subscribe to the idea that no lawyer in this state is willing or has the requisite knowledge or experience necessary to handle ADA litigation. Plaintiff has not made a clear showing that the matter could not have been handled by counsel within the State of Oklahoma, and therefore the prevailing local hourly rates should apply.
While ADA litigation may not be the most common in Oklahoma, the Court finds that this litigation is not so unusual or highly technical such that only out-of-state attorneys are qualified to handle these cases. The Court acknowledges, however, the experience of Plaintiffs counsel in ADA litigation, albeit due to the sheer number of ADA lawsuits filed in this district and in the Western District of Oklahoma.2
The Court makes the following...
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