Midwest Disability Initiative v. Nelmatt, LLC

• Decision Date: 26 September 2018
• Docket Number: Case No. 16-CV-1890 (PJS/KMM)
• Citation: 344 F.Supp.3d 1047
• Parties: The MIDWEST DISABILITY INITIATIVE and Michael Ray Marchand, Plaintiffs, v. NELMATT, LLC, Defendant.
• Court: U.S. District Court — District of Minnesota

344 F.Supp.3d 1047

The MIDWEST DISABILITY INITIATIVE and Michael Ray Marchand, Plaintiffs,

v.NELMATT, LLC, Defendant.

Case No. 16-CV-1890 (PJS/KMM)

United States District Court, D. Minnesota.

Signed September 26, 2018

Patrick W. Michenfelder, THRONDSET MICHENFELDER, LLC, St. Michael, MN, for plaintiffs.

Kenneth J. Smith and Robert P. Laue, CHRISTENSEN & LAUE, P.A., Edina, MN, for defendant.

ORDER

Patrick J. Schiltz, United States District Judge

Plaintiffs Michael Marchand and the Midwest Disability Initiative (collectively "Marchand") brought this action against defendant Nelmatt, LLC ("Nelmatt"), the owner of the real property on which Matt's Bar and Grill ("Matt's Bar") is located. Marchand alleged (among other things) that Matt's Bar was not in compliance with the accessibility requirements of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq. After Nelmatt failed to appear, the Court granted Marchand's motion for a default judgment and ordered Nelmatt "to make the alterations or modifications necessary to ensure that ... the premises of ‘Matt's Bar’ ... are fully in compliance with the accessibility requirements of Title III of [the ADA] and its implementing regulations[.]" ECF No. 26 at 1-2.

This matter is before the Court on Marchand's motion for an award of attorney's fees under 42 U.S.C. § 12205. ECF No. 29.¹ Marchand seeks attorney's fees in the amount of $11,220.00.² ECF No. 30 at 5. Nelmatt appeared in this action after judgment was entered for the purpose of opposing Marchand's request for attorney's fees. ECF No. 36. Nelmatt argues that Marchand is not entitled to recover any attorney's fees and, even if he is, that the amount of fees he is seeking is unreasonable. After reviewing the materials submitted by the parties, the Court agrees with Marchand that he is entitled to recover attorney's fees, agrees with Nelmatt that the amount that Marchand requested is unreasonable, and finds that Marchand is entitled to recover $6,750.

I. PREVAILING PARTY

Under the ADA, "the court ... in its discretion, may allow the prevailing party ... a reasonable attorney's fee, including litigation expenses[.]" 42 U.S.C. § 12205. Nelmatt contends that Marchand was not a "prevailing party" because the Court merely entered a default judgment in his favor. See ECF No. 36 at 2-3 (arguing that "[p]laintiff[s] did not secure a judgment on the merits" or prevail on their claims because Nelmatt "already had an obligation to be in compliance with .. the ADA" and the Court "d[id] not state that [Nelmatt] is not in compliance").

The Court disagrees. The Supreme Court has instructed that "plaintiffs may be considered ‘prevailing parties’ for attorney's fees purposes if they succeed on any significant issue ... which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart , 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe , 581 F.2d 275, 278-79 (1st Cir. 1978) ). Given this "generous formulation," id. , Marchand easily qualifies as a "prevailing party."

According to the facts pleaded in Marchand's amended complaint—facts that must be treated as true because of Nelmatt's default, see Martinizing Int'l, LLC v. BC Cleaners, LLC , 855 F.3d 847, 850 (8th Cir. 2017) —Matt's Bar was not in compliance with the ADA. ECF No. 10. Marchand obtained from the Court a judgment ordering Nelmatt to bring Matt's Bar into compliance. That judgment was indeed on the merits. See, e.g. , Brown v. Kenron Aluminum & Glass Corp. , 477 F.2d 526, 531 (8th Cir. 1973) ("A judgment by default is as conclusive an adjudication of the issues for purposes of res judicata as a judgment rendered after a trial on the merits. The allegations of the complaint, in effect, become findings of fact." (citations omitted) ). And "that enforceable judgment[ ] on the merits ... create[d] the ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney's fees." Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res. , 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (quoting Tex. State Teachers Ass'n. v. Garland Indep. Sch. Dist. , 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989) ).

Prior to entry of the injunction, Marchand and others like him could not patronize Matt's Bar because of its violations of the ADA; after Matt's Bar was enjoined to comply with the ADA, Marchand and others like him could patronize the bar. ECF No. 10 at ¶¶ 3, 34, 40-44. Marchand was clearly a "prevailing party" for purposes of § 12205, and thus he is entitled to recover reasonable attorney's fees.

II. REASONABLE ATTORNEY'S FEES

The starting point for calculating a reasonable fee award is the lodestar—the number of hours reasonably expended multiplied by a reasonable hourly rate. See Pennsylvania. v. Del. Valley Citizens' Council for Clean Air , 478 U.S. 546, 564, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). In calculating fee awards, judges in this District have also occasionally cited 12 factors identified by the Supreme Court in a footnote in Hensley.³ But Hensley did not hold that district courts must consider those 12 factors. And subsequent to Hensley , the Supreme Court has criticized the 12-factor test for giving "very little actual guidance to district courts," "plac[ing] unlimited discretion in trial judges," and "produc[ing] disparate results." Id. at 563, 106 S.Ct. 3088.

In Perdue , the Supreme Court again noted the flaws of the 12-factor test and explained:

An alternative, the lodestar approach, was pioneered by the Third Circuit in Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp. , 487 F.2d 161 (1973), appeal after remand, 540 F.2d 102 (1976), and "achieved dominance in the federal courts" after our decision in Hensley.Gisbrecht v. Barnhart , 535 U.S. 789, 801, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002). "Since that time, ‘[t]he "lodestar" figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence.’ " Ibid. (quoting City of Burlington v. Dague , 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992) ).

Although the lodestar method is not perfect, it has several important virtues. First, in accordance with our understanding of the aim of fee-shifting statutes, the lodestar looks to "the prevailing market rates in the relevant community." Blum v. Stenson , 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Developed after the practice of hourly billing had become widespread, seeGisbrecht, supra , at 801, 122 S.Ct. 1817, the lodestar method produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case. Second, the lodestar method is readily administrable ...; and unlike the [12-factor] approach, the lodestar calculation is "objective," Hensley, supra , at 433, 103 S.Ct. 1933, and thus cabins the discretion of trial judges, permits meaningful judicial review, and produces reasonably predictable results.

Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542, 551-52, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010).

As instructed by the Supreme Court, then, this Court will apply the lodestar method in assessing the reasonableness of Marchand's fee request.

A. Hourly Rate

Marchand is represented by Patrick Michenfelder, an attorney who has represented plaintiffs in numerous ADA-compliance actions. Michenfelder Decl., ECF No. 31 ¶ 6. Marchand requests that Michenfelder be compensated at the rate of $425 per hour. ECF No. 30 at 6.

"A reasonable hourly rate is usually the ordinary rate for similar work in the community where the case has been litigated." Emery v. Hunt , 272 F.3d 1042, 1048 (8th Cir. 2001) (citing Avalon Cinema Corp. v. Thompson , 689 F.2d 137, 140 (8th Cir. 1982) (en banc) ). "[D]istrict courts may rely on their own experience and knowledge of prevailing market rates." Hanig v. Lee , 415 F.3d 822, 825 (8th Cir. 2005) (citing Warnock v. Archer , 397 F.3d 1024, 1027 (8th Cir. 2004) ). A district court has "broad discretion" in awarding attorney's fees. Id.

Marchand bears the burden of "produc[ing] satisfactory evidence—in addition to the attorney's own affidavits—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 v. Stenson , 465 U.S. 886, 895 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) ; McDonald v. Armontrout , 860 F.2d 1456, 1458-59 (8th Cir. 1988). In support of his fee request, however, Marchand submits only a declaration from Michenfelder himself, who opines that his hourly rate is reasonable. Michenfelder Decl. ¶ 11. Marchand also cites three orders issued by judges of this District (discussed below). ECF No. 30 at 6.

To assess the reasonableness of Michenfelder's hourly rate, some context is necessary. This case is one of dozens of cases filed in this District in the past few years in which a disabled person sues a commercial establishment—frequently a bar, restaurant, or convenience store—and alleges that the establishment has violated the accessibility requirements of Title III of the ADA. There is an assembly-line quality to these lawsuits: The plaintiff shows up at an establishment (sometimes having been driven there by an agent of the attorney), the plaintiff looks for a violation of the accessibility requirements (such as a parking spot that has been reserved for persons with disabilities but that has been improperly configured or marked), the plaintiff (or the attorney's agent) reports any violation to the attorney, and the attorney files a lawsuit using a cookie-cutter complaint. In the vast majority of these cases, there is no real dispute that the establishment had failed to comply with an accessibility requirement. And the vast majority of these cases terminate in one of two ways: (1) the parties...