Summary
denying costs “for ‘litigation expenses and miscellaneous' ” because they were “wholly unexplained”
Summary of this case from Rogers v. CofieldOpinion
Civil Action No. 00-10794-RWZ.
February 20, 2002
ORDER OF ATTORNEY'S FEES
Plaintiffs brought suit under the Americans with Disabilities Act ("ADA") claiming that the physical layout of the defendant's restaurant violated the statute in a number of ways. After a trial on some of these noncompliance issues, a limited judgment was entered for the plaintiff with respect to one issue only. Both parties now claim to be "prevailing parties" and have filed motions for attorney's fees. I hold that the plaintiffs are the prevailing party and are entitled to attorney's fees, but order that their fees be reduced to account for their limited success.
Generally, a plaintiff will be granted attorney's fees as the prevailing party if he "succeed[s] on any significant issue of litigation which achieves some of the benefit the parties sought in bringing suit." Farrar v. Hobby, 506 U.S. 103, 109 (1992) (internal quotations omitted). On August 10, 2001, I entered a judgment in the plaintiffs' favor ordering that the defendants lower a urinal in the men's bathroom as much as is technically feasible. This was only one of many issues raised by the plaintiffs, the remainder of which were decided in the defendant's favor or abandoned throughout the course of litigation. However, the urinal height was a significant issue; and, under the generous Ferrar standard, the court's order to lower the urinal is sufficient to render the plaintiffs a prevailing party for purposes of awarding attorney's fees, even though areas of noncompliance will remain.
The plaintiffs argue that they have prevailed on virtually all of their claims, and not just the urinal issue, because their lawsuit caused a voluntary change in the defendant's conduct with respect to many other claims. They point to a long list of "extra-judicial" actions taken by the defendant in response to the plaintiffs' demands, including, for example, the removal of planters obstructing handicapped parking spaces, the installation of new handicap access signs in the parking lot and bathrooms, and the alteration of bathroom stall doors. The plaintiffs urge the court to follow the traditional "catalyst" theory of attorney's fees recovery, under which a plaintiff may be regarded as a prevailing party if he achieved his desired objective, even if that result was obtained through a voluntary change in the defendant's conduct. However, the Supreme Court recently rejected this "catalyst" theory of fee recovery in Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Services, 532 U.S. 598, 121 S.Ct. 1835 (May 29, 2001), holding that "[a] defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change" to warrant fee recovery. Id. at 1840. The Court reasoned that an award of attorney's fees must be supported by "a corresponding alteration in the legal relationship of the parties". Id. Here, the only material change in the legal relationship between the parties occurred when the defendant was ordered to lower a urinal in the men's bathroom. Thus, the plaintiffs are prevailing parties as to that claim only. While success on one claim is sufficient to support an award of attorney's fees, the court has discretion to consider the plaintiffs' limited success and to adjust the attorney's fees accordingly.
Having determined that the plaintiffs are the prevailing parties and are entitled to fees and costs, I must determine what fee award is appropriate. I first calculate a "lodestar" figure by multiplying a reasonable number of attorney hours spent on the litigation times a reasonable hourly rate. After calculating the lodestar, I may, in my discretion, adjust that amount to account for certain factors.
The plaintiffs, through their expert on attorney's fees, claim that 175 hours is a reasonable amount of time incurred by their attorney, Mark Orlove, on all aspects of this litigation, and that $275 per hour is a reasonable hourly rate. I accept the total fee of $48,125.00 thus calculated as a reasonable rate for Mr. Orlove's work on all claims.
The plaintiffs also request $9,460.00 in fees for a second attorney, Nicholas S. Guerrera, who apparently consulted with Mr. Orlove prior to trial. While Mr. Orlove states that he depended on Mr. Guerrera's assistance in preparing for trial, it is unclear what role Mr. Guerrera played before or during the trial. Further, since plaintiffs' expert on attorney's fees indicates that a reasonable time for trial preparation is encompassed within Mr. Orlove's fee, Mr. Guerrera's fee will not be included in the lodestar.
The total lodestar amount is therefore $48,125.00.
Adjustment to that figure depends upon several factors including: (1) claim-by-claim success, (2) relief actually achieved, and (3) societal importance of the right vindicated. Coutin v. Young Rubicam Puerto Rico, Inc., 124 F.3d 331, 338-340 (1st Cir. 1997); Guckenberger v. Boston University, 8 F. Supp.2d 91, 109 (D.Mass. 1998).
The plaintiffs have achieved only very limited success on a claim-by-claim basis. Although the total number of claims at issue in this litigation is difficult to ascertain, due in large part to the plaintiffs' inability to clearly articulate their demands throughout the litigation, it is evident that the number of claims at issue at any point in time ranged from four to nineteen. Of these many claims, the plaintiffs prevailed on only one. This factor weighs in favor of a considerable reduction of the attorney's fee award.
Courts generally apply the "relief actually achieved" measure of success in situations where a plaintiff has prevailed on multiple interrelated claims, but has achieved such nominal or insubstantial relief on each of these claims that a reduction of the attorney's fee award is appropriate. This measure of success is of no use here because the plaintiffs prevailed on only one claim.
Finally, any award needs to consider the societal importance and impact of the decision on those similarly situated. Certainly, compliance with the ADA is an important social objective, and its value cannot be underestimated. In this case, however, the defendant was already in compliance with ADA guidelines as to most of the plaintiffs' claims. Further, with respect to the one issue on which the plaintiffs prevailed, their success was necessarily limited because full compliance with ADA standards was not technically feasible.
Given that the plaintiffs prevailed on only one of a wide variety of claims in this case, and given that they were not even wholly successful as to that one claim, I find that the lodestar must be reduced significantly to account for their limited success. They are entitled to attorney's fees in the amount of $3,455.00, which represents an appropriate reduction of the calculated lodestar.
A prevailing party may recover "[t]he attorneys' reasonable and necessary costs and expenses." Guckenberger, 8 F. Supp.2d at 111 (citing Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94, 103 (1st Cir. 1988)). Having reviewed the costs sought by the plaintiffs, I find that certain costs were unnecessary, unreasonable, or improperly documented, and must therefore be deducted from the total cost award.
The plaintiffs request expert fees totaling $4,515.00 for work performed by their ADA expert, Bill Norkunas. Mr. Norkunas prepared an expert report on several of the compliance issues raised by the plaintiffs and testified about those issues at trial. However, Mr. Norkunas's reading and application of the ADA was, at times, inaccurate. As a result, his testimony lacked credibility and made no significant contribution to the trial and to the court's understanding of the issues. His fee will not be awarded.
The plaintiffs also request $300.00 for filing fees and service of process fees, $120.00 for various courier, fax and copy costs, and $160.00 for "litigation expenses and miscellaneous." The final category of costs is wholly unexplained and therefore denied. The first two categories of costs are granted in the total amount of $420.00.
In sum, it is ordered that defendant pay to plaintiffs a total of $3,875.00 for attorney's fees and expenses.