Opinion
Civil No. 08-3817(RMB/JS)
06-28-2012
ACCESS 4 ALL, INC., et al., Plaintiffs, v. BOARDWALK REGENCY CORPORATION d/b/a CAESAR'S ATLANTIC CITY HOTEL AND CASINO, Defendant.
[Doc. No. 113] REPORT AND RECOMMENDATION REGARDING PLAINTIFFS' APPLICATION [MOTION] FOR ATTORNEY'S FEES AND COSTS AND EXPERT FEES , WITH APPENDICES
This matter is before the Court on "Plaintiffs' Verified Application [Motion] for Attorney's Fees and Costs and Expert Fees" [Doc. No. 113]. The Court received defendants' opposition [Doc. No. 124] and plaintiffs' reply [Doc. No. 125]. The Court also held oral argument. This Report and Recommendation is issued pursuant to 28 U.S.C. §636(b). For the reasons to be discussed, the Court respectfully recommends that plaintiffs' application be GRANTED in part and DENIED in part. Plaintiffs' request a total award of $515,479.60. As discussed in detail herein, the Court recommends an award of $295,802.25 in attorney's fees, $92,800.00 in expert fees, and $2,760.87 in costs. The total recommended award is $391,363.12.
On July 31, 2008, plaintiffs filed their complaint against Boardwalk Regency Corporation d/b/a Caesar's Atlantic City Hotel and Casino ("Caesar's") [C.A. No. 08-3817]. On September 18, 2008, plaintiffs filed their complaint against Bally's Park Place ("Bally's) [C.A. No. 08-4679]. (Caesar's and Bally's will be collectively referred to as "defendants".) The same plaintiffs filed both cases. Counsel for the plaintiffs and defendants are the same in both cases. On November 9, 2010, the Honorable Renée Marie Bumb consolidated the cases for all purposes and designated C.A. No. 08-3817 as the lead case [Doc. No. 59]. Thus, although there is now only one case, the litigation concerns two separate properties.
This includes paralegal fees.
On April 6, 2009, the Court consolidated eight (8) separate ADA actions, including this action, for discovery and case management purposes. [Doc. No. 24]. All of the cases involved hotel/casinos in Atlantic City, NJ. All of the cases except this action proceeded relatively smoothly. See C.A. No. 08-5145 (Showboat), C.A. No. 08-5237 (Harrah's), C.A. No. 08-5238 (Bally's Park Place), C.A. No. 08-5240 (Tropicana), C.A. No. 08-5243 (Showboat), and C.A. No. 08-5244 (Caesar's).
BACKGROUND
At all relevant times defendants owned and/or operated casino/hotels in Atlantic City, New Jersey. Plaintiffs are disabled individuals within the meaning of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12181 et seq. Plaintiffs' allege defendants violated Title III of the ADA. The gravamen of plaintiffs' complaint is that defendants' facilities violated ADA regulations and guidelines and thereby set up architectural barriers that prevented plaintiffs' full access and enjoyment of defendants' properties.
For example, plaintiffs allege, inter alia, that defendants' parking lots, routes from the streets and sidewalks, guest rooms and bathrooms did not comply with applicable ADA standards and guidelines.
As will be set forth in more detail herein, the parties vigorously prosecuted, defended and litigated the case. On the eve of the scheduled August 2, 2011 trial, the parties informed the Court that the case settled. On July 29, 2011, an Order of Dismissal was entered [Doc. No. 105]. The final Order approving and entering the parties' consent decrees was entered on October 4, 2011 [Doc. No. 112]. Plaintiffs filed the present motion after the parties' unsuccessfully attempted to mediate a resolution of their attorney's fee claim.
Plaintiffs' lead counsel is Fuller, Fuller & Associates, P. A. ("Fuller") from Florida. At different times John Fuller, Esquire, and then Lawrence Fuller, Esquire, was lead counsel. Plaintiffs' local New Jersey counsel is Alan R. Ackerman, Esquire ("Ackerman"). Plaintiffs' total claim is $515,479.60, broken down as follows:
| A. | Attorney's Fees | |
| 1. Fuller - | $380,353.15 | |
| 2. Ackerman - | $13,132.50 | |
|---|---|---|
| SUBTOTAL | $393,485.65 | |
| B. | Expert Fees | $92,800.00 |
| C. | Costs | $29,193.95 |
| TOTAL for Attorney's Fees,Expert Fees and Costs | $515,479.60 |
I. Caesar's
| 6/25/08 - 1/12/12 | Hours | Amount |
|---|
| John Fuller | 222.45 | $83,658.75 |
| Lawrence Fuller | 204.10 | $86,742.50 |
| Paralegal | 30.33 | $3,487.95 |
|---|---|---|
| $173,889.00 | ||
| Experts | $42,400.00 | |
| Costs | $13,268.90 | |
| TOTAL | $229,558.10 |
II. Bally's
| 8/07/08 - 1/12/12 | Hours | Amount |
|---|---|---|
| John Fuller | 242.85 | $96,908.75 |
| Lawrence Fuller | 247.50 | $105,187.50 |
| Paralegal | 37.98 | $4,367.00 |
| $206,463.95 | ||
| Experts | $50,400.00 | |
| Costs | $14,178.41 | |
| TOTAL | $271,042.36 |
III. Alan Ackerman
| 7/31/08 - 7/20/11 | Hours | Amount |
|---|---|---|
| 30.90 | $13,132.50 | |
| Costs | $1,746.64 | |
| TOTAL | ||
| COMBINED TOTAL: |
| Caesar's | $229,558.10 |
| Bally's | $271,042.36 |
| Ackerman | $14,879.14 |
|---|---|
Ackerman submitted one combined bill for Caesar's and Bally's. Albeit, defendants separated his time on Appendices 1 and 2.
This total figure was primarily obtained from the up-to-date bills plaintiffs attached to their Reply Brief [Doc. No. 125]. The Court also examined plaintiffs' "Itemization of Attorney's Fees, Expert Fees and Costs." [Doc. No. 126].
To put the present application in context, a discussion of the history of the litigation is appropriate. The Court has managed the case from its inception and is intimately familiar with all relevant proceedings.
The original named plaintiffs in the case were Peter Spalluto ("Spalluto"), individually, and Access4All, Inc. Shortly after the complaint was filed Spalluto died. On May 18, 2009, plaintiffs amended their complaint to substitute Ronald Moore as the named plaintiff [Doc. No. 29].
Access4All is a not-for-profit Florida Corporation that attempts to assure that "places of public accommodation are accessible to and usable by the disabled and that its members are not discriminated against because of their disabilities." Complaint ¶7.
Throughout the case defendants focused their defense strategy on standing issues. On February 26, 2009, defendants' motions to dismiss filed on October 30, 2008 [C.A. No. 08-2817, Doc. No. 11; C.A. No. 08-4679, Doc. No. 8] were denied without prejudice. On May 28, 2010, defendants filed their motion for summary judgment. The motion was denied without prejudice on November 23, 2010 [Doc. No. 69]. Thereafter, an evidentiary hearing was held on February 24, 2011, to address defendants' standing defense. On March 28, 2011 [Doc. No. 77], defendants' motions for summary judgment were denied. On May 13, 2011, Judge Bumb scheduled the jury trial to start on August 1, 2011 [Doc. No. 84].
In the same Order Judge Bumb dismissed with prejudice plaintiffs' claims "insofar as they allege[d] injury under the ADA, which do not affect mobility—impaired individuals such as Plaintiff Moore."
At the same time that the parties litigated defendants' standing defense, the parties conducted "merits" discovery. After an extended period, fact discovery was completed and expert reports were produced. After extended "haggling," the Joint Final Pretrial Order was entered on July 7, 2011 [Doc. No. 98].
As noted, the "Final Order Approving and Entering Consent Decrees and Dismissing the Cases" was entered on October 4, 2011. As to Caesar's, the settlement required it to complete the modifications and alterations noted in Caesar's expert report (John Salmen ("Salmen") of Universal Design and Consultants, Inc., dated March 9, 2010), by December 31, 2014. As to Bally's, by December 31, 2014, it was required to complete the modifications and alterations in Salmen's April 21, 2010 report.
See Doc. No. 111-2.
See Doc. No. 111-4.
The parties' settlement required Caesar's and Bally's to take substantial corrective actions. See Plaintiffs' Exhibit ("PExh.") B1 (Caesar's) and B2 (Bally's); see also Defendants' Expert Report PExh. H1. Without getting into great detail, remedial work had to be done on defendants' garages, public restrooms, interior paths of travel and common areas, casino floor areas, other gaming areas, baths and spas, access to restaurants, clubs and lounges, and other miscellaneous areas. The work was necessary to meet applicable ADA regulations or guidelines.
The Court's overview of the background of the case does not tell the whole story. Thus far, the Court has not mentioned that the litigation was plagued by regular discovery disputes, frequently on trivial issues. The litigation was also plagued by a lack of cooperation of counsel. Although neither side was free from blame, defense counsel shoulders the brunt of responsibility. It appeared to the Court that the initial defense attorney assigned responsibility for the file had little experience in this area of the law and was often times unprepared. This led to numerous unnecessary discovery disputes, scheduling problems, and requests for extensions of time. By way of example only, see, e.g., Doc. Nos. 6, 40, 42, 50, 59, 88, 91. In addition, the Court was required to intercede in the parties' numerous disputes because defense counsel inexplicably ignored plaintiffs' letters, e-mails and telephone calls.
For example, defendants repeatedly refused to inform plaintiffs if they were pursuing an undue financial hardship defense. See 42 U.S.C. §12111.
On May 11, 2010, plaintiffs informed defendants they agreed to settle based on the "findings and comments of Defendants' expert." See May 11, 2010 letter of J. Fuller, Plaintiffs' Reply Brief ("Reply") Exhibit 2, Doc. No. 125-2. Plaintiffs also sent defendants proposed Consent Decrees to sign. It appears that defendants did not respond to plaintiffs' settlement overture. This accounts for the fact that the parties did not inform the Court that they reached an agreement in principal to settle until late July, 2011, and the final Consent Decrees were not entered until October 4, 2011. It was not until the eve of the scheduled August 1, 2011 trial that the parties finally confirmed in writing that the trial could be postponed and the case dismissed.
The Court's experience in the case leads it to conclude that needless litigation took place because the parties did not cooperate. Not only was there unnecessary bickering, but it appears that the parties wasted an opportunity to settle the case in May, 2010, or shortly thereafter, for essentially the same terms approved on October 4, 2011. This caused the needless expenditure of time and money. The parties' clients were shortchanged given that substantial transaction costs were wasted and the litigation was unreasonably protracted. The Court will take this into consideration when it analyzes plaintiffs' application. Plaintiffs should not be penalized because defendants put off meaningful settlement negotiations. For example, even though the case did not go to trial, plaintiffs had to prepare as though this would occur. Until defendants finally confirmed they agreed to settle, plaintiffs had no choice but to prepare for the scheduled August 1, 2011 trial.
It is noteworthy that defendants' challenges to plaintiffs' application are directed more to individual time entries than blocks of time. Had counsel timely produced relevant discovery and responded to plaintiffs' calls, e-mails and letters, numerous discovery and scheduling disputes would have been avoided. The time spent on these unnecessary disputes was substantial. In addition, as noted, had defendants pursued serious settlement negotiations with plaintiffs in May 2010, substantial transaction costs would have been saved. Nonetheless, defendants will not be penalized for waiting until after the trial date was set to conduct settlement negotiations. Defendants had a right to pursue their standing defense which was ultimately unsuccessful. The Court's analysis of defendants' objections to plaintiffs' application, therefore, will not penalize defendants for pursuing their standing defense. However, the Court will also not penalize plaintiffs for preparing for a trial that did not occur. Accordingly, as is noted on the attached Appendices, the Court overruled defendants' objections to the time plaintiffs spent preparing for a trial that did not occur. The Court is aware that it was not until the eve of the scheduled trial that defendants agreed to settle. Plaintiffs had to prepare for trial because they were informed that the trial date would not be changed absent written confirmation that both parties agreed to settle.
DISCUSSION
Plaintiffs seek attorney's fees pursuant to 42 U.S.C. §12205 which states:
In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, ....In order to recover attorney's fees pursuant to this statute, a plaintiff must be a prevailing party. See Buckhannon Bd. v. West Virginia D.H.H.R., 532 U.S. 598 (2001). A plaintiff is a prevailing party if it is "awarded some relief" by the court and it "achieved an alteration in the legal relationship of the parties." Id. at 603-05. "Enforceable judgments" on the merits in court-ordered consent decrees create the "material alteration of the legal relationship of the parties necessary to permit an award of attorney's fees." Id. at 605. In view of the fact that the Court approved the parties' consent decrees on October 4, 2011, defendants do not contest that plaintiffs are prevailing parties.
Defendants argue plaintiffs are not entitled to attorney's fees because they are "professional litigants" and they "failed to give Defendants notice of, and an opportunity to remedy, any alleged ADA violations before instituting these actions." See Defendants' Brief ("Deft. Brief") in Opposition at 7, 9. Defendants cite no case law defining the term "professional plaintiff." They also cite no case law, and none has been uncovered, to support the argument that a plaintiff who files multiple ADA cases is not entitled to attorney's fees. In addition, even defendants admit there is no case law to support their argument that pre-suit notice is required under the ADA. ("Defendants acknowledge that notice and an opportunity to remedy are not legal prerequisites to the institution of an ADA Title III action." Id. at 9.)
Plaintiffs' reliance on Association of Disabled Americans v. Neptune Designs, Inc. ("Neptune Designs"), 469 F.3d 1357 (11th. Cir. 2006), is misplaced. In that case, the plaintiffs appealed from a final Order of the District Court adopting the Magistrate Judge's Report and Recommendation which reduced the award of legal fees and expert costs on the ground that the plaintiffs failed to provide pre-suit notice of the alleged ADA violations to defendant. In its decision, the Eleventh Circuit specifically noted "the ADA does not require pre-suit notice for claims filed against private public accommodations." Id. at 1359-60. The Court further stated, "[a] person may file a suit seeking relief under the ADA without ever notifying the defendant of his intent to do so, and the district court may not dismiss the suit for lack of pre-suit notice." Id. at 1360. The Court also stated, "[w]e stress that pre-suit notice is not required to commence suit under the ADA and lack of pre-suit notice does not compel a reduction of the requested fee award." Id. at 1360.
The Court agrees, as noted in Neptune Designs, that in awarding attorney's fees the District Court has discretion to consider whether the litigation is frivolous or whether the plaintiffs failed to settle after receiving a fair offer. Id. at 1360. The Court also agrees that "where the factual record supports a finding that the plaintiffs filed or maintained a suit unnecessarily, a district court may properly consider such a finding in setting the amount of attorney's fees." Id. at 1360. Nevertheless, there are no facts of record to support an argument that plaintiffs rejected a reasonable settlement offer, unnecessarily prolonged the litigation, or proceeded with litigation in bad faith. To the contrary, throughout the history of the case defendants ignored plaintiffs' repeated efforts to engage in meaningful settlement negotiations. In fact, even after plaintiffs informed defendants they agreed to settle on the basis of defendants' expert reports, defendants steadfastly refused to enter into meaningful settlement negotiations. Defendants' argument that plaintiffs should be denied fees because they did not give defendants "notice of an opportunity to remedy any alleged ADA violations before instituting these actions" (Deft. Brief at 9), is frivolous. Even if such notice had been given, it would have been fruitless because of defendants' litigation strategy. It was only the specter of an imminent inflexible trial date that finally motivated defendants to enter into settlement discussions.
Having determined that plaintiffs are prevailing parties, the Court turns to the issue of what fees and costs are recoverable. Reasonable attorney's fees are computed by multiplying the reasonable hourly rate by the reasonable number of hours expended. This amount is the lodestar. In calculating the lodestar formula, the Court must "carefully and critically evaluate the hours and the hourly rate put forth by counsel." Blakey v. Continental Airlines, Inc., 2 F. Supp. 2d 598, 602 (D.N.J. 1998)(quotation omitted); see also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The party seeking a fee is required to submit evidence to support the reasonableness of its request. Id. Plaintiffs have the burden of proof as to the reasonableness of their claimed hourly rate. Interfaith Comm. Org. v. Honeywell Intern., Inc., 426 F.3d 694, 703 n.5 (3d Cir. 2005). "It is the general rule that a reasonable hourly rate is calculated according to the prevailing market rates in the community." P.N. v. Clementon Bd. of Educ., 2007 WL 1186552, at *2 (D.N.J. April 20, 2007). This burden is normally addressed by affidavits prepared by other attorneys in the relevant legal community. Id. The relevant market is what attorneys with comparable experience bill per hour in Southern New Jersey. See L.J. ex rel. V.J. v. Audobon Bd. of Educ., 2009 WL 995458, at *11 (D.N.J. April 13, 2009) (citations omitted) (rejecting an affidavit from a Philadelphia attorney because the rates charged in a large metropolitan area are likely to be higher than those charged by attorneys practicing in Southern New Jersey).
Relying upon Public Interest Research Group of New Jersey, Inc. v. Windall, 51 F.3d 1179 (3d Cir. 1995), the Court disagrees with plaintiffs' argument that the entire State of New Jersey, rather than Southern New Jersey, is the relevant legal market. The Windall decision focused on the issue whether the rates in the forum state (New Jersey) should be used rather than the rates where the plaintiff's attorneys were located (Washington, DC). Id. at 1186-1188. In addition, plaintiffs have not argued that few South Jersey law firms were available to represent them. Id. at 1187.
After the Court decides the appropriate hourly rate to award, the Court then must decide whether hours were "reasonably expended." To do this the Court must examine the record to determine that the hours billed are not "unreasonable for the work performed." Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1037 (3d Cir. 1996). The higher the hourly rate charged by an attorney based upon his or her skill and experience, the shorter the time it should take the attorney to perform a particular task. Apple Corps. Ltd. v. International Collectors Soc., 25 F. Supp. 2d 480, 490-91 (D.N.J. 1998)(citation omitted); Deptford Township School District v. H.B. ex rel. E.B. ("Deptford Township"), 2006 WL 3779820, at *5 (D.N.J. Dec. 21, 2006); P.N., supra, at *2. General education or background research should not be charged to the client. Spectrum Produce Distributing, Inc. v. Fresh Marketing, Inc. ("Spectrum Produce"), 2012 WL 2369367 (D.N.J. June 20, 2012)(citation omitted). Further, time to perform clerical work should not be billed at an attorney's hourly rate. Id. at *8.
As noted by the Third Circuit, "the burden remains on the party requesting the fee to prove its reasonableness, and the court has a positive and affirmative function in the fee fixing process, not merely a passive role." Interfaith Comm. Org., 426 F.3d at 713 (internal quotations and citations omitted); Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 178 (3d Cir. 2001) (internal quotation omitted). To the extent there is a doubt as to the amount of fees to be awarded, the doubts should be resolved against an award of fees. Spectrum Produce, supra, at *8. "This is because the party seeking to recover attorney's fees bears the burden of establishing its right to them." Veneziano v. Long Island Pipe Fabrication & Supply Corp., 238 F. Supp.2d 683, 695 (D.N.J. 2012). Attorneys requesting fees must document with specificity the hours for which reimbursement is sought. Washington, supra, at 1037; Deptford Township, supra, at *4. The burden is on the attorney to maintain records that permit the reviewing court to assess their recoverability. Hensley, supra, at 437. If the documentation of hours is inadequate, the court may reduce the award. Id. A court must do more than a cursory review of billing records and must "go line, by line" through the billing records supporting the fee request. P.N., supra, at *2 (citation omitted).
Although the Court "cannot decrease a fee award based on factors not raised at all by the adverse party," the opposing party's challenge need only be sufficiently specific to place the moving party on notice as to the grounds for the challenge. Rode v. Dellarciprete, 892 F.2d 1177, 1184 (3d Cir. 1990) (internal quotation omitted); see also Loughner, supra, at 178. Additionally, the opposing party's obligation to challenge the fee application does not eliminate the Court's obligation to determine whether the fee application is facially reasonable. Id. at 178-180 (outlining the proper standards and procedures relating to the fee application process).
Turning to the specifics of plaintiffs' application, plaintiffs seek the following hourly rates:
| Lawrence A. Fuller - | $375 |
| John P. Fuller - | $375 |
| Alan R. Ackerman - | $425 |
| Paralegal - | $115 |
[c]ourt holdings in the past few years in the District of New Jersey provide evidence of the going rate in the community. Rates ranging from $425 to $600 per hour have been found by the District Court of New Jersey to be reasonable in similar types of litigation over the past few years for attorneys, like Lawrence Fuller and John Fuller and Alan Ackerman, each of whom have more than 25 years of legal experience.Plaintiffs' Memorandum of Law ("Memo of Law") at 5. However, the cases plaintiffs rely on are inapposite. See Illinois National Insurance Company v. Wyndham Worldwide Operations, Inc. ("Illinois National"), 2011 WL 2293334 (D.N.J. June 7, 2011); Gary S. Wade v. State Trooper Michael Colaner ("Wade"), 2010 WL 5479625 (D.N.J. Dec. 28, 2010). Neither of these cases was filed in the Camden vicinage. The cases also did not address ADA issues. Illinois National involved a complex insurance coverage dispute and Wade involved an action filed pursuant to 42 U.S.C. §1983. Furthermore, simply because plaintiffs legal team was admitted to the bar more than 25 years ago does not necessarily guarantee them a high hourly rate. While this is a factor the Court considers, not all attorneys graduating the same year from law school are in lockstep. Unlike other reported cases, plaintiffs' attorneys simply included their resumes in the record and did not properly substantiate their experience in ADA cases.
The Court will not consider plaintiffs' unsubstantiated averments of fact (Memo. of Law at 17-18) that are not supported by an affidavit/certification.
In support of their claimed hourly rates, plaintiffs rely upon the affidavits of Jonathan L. Albert, Esquire ("Albert")(PExh. I), and Anthony J. Brady, Esquire ("Brady")(PExh. I2). Neither of the affidavits is helpful. Mr. Albert is not a member of the New Jersey bar and has not submitted any evidence that he ever practiced in South Jersey. Nor did Albert identify with any specificity his experience litigating ADA cases. As to Brady, although he opines that plaintiffs' proposed rates are reasonable (Certification ¶5), he does not cite one New Jersey case where plaintiffs' proposed rates were awarded in an ADA case. Accordingly, the Court finds that plaintiffs have not satisfied their burden of proving that their proposed rates are reasonable and appropriate.
Mr. Albert appears to have been admitted pro hac vice in one New Jersey case pending in Newark. Certification ¶3.
Although the Court agrees it is efficient to use a paralegal for certain tasks, plaintiffs did not produce any evidence to justify the proposed $115 per hour rate.
Having determined that plaintiffs did not satisfy their burden as to their proposed rates, the question becomes what rates are appropriate. To answer this question the Court must use its discretion to determine the market rate. Washington, 89 F.3d at 1036; Loughner, 260 F.3d at 180 ("Having rejected the prevailing party's evidence of rates, the District Court was free to affix an adjusted rate."). To answer this question the Court looks to defendants' Opposition Brief [Doc. No. 124]. With regard to L. Fuller and A. Ackerman's pre-settlement work, defendants concede $360 per hour rate is a reasonable rate. Deft. Brief at 10. Defendants base this figure on the $325 per hour the Court approved for L. Fuller in Access4All v. AAMJ, LLC, 2007 WL 655491 (D.N.J. Feb. 27, 2007), plus a 9.4 inflation rate. Id. at 10-11. The Court agrees this is a reasonable rate for Messrs. Fuller and Ackerman and will award this rate. Although defendants propose $330 per hour for J. Fuller, the Court does not approve this lower rate. J. Fuller appears to have comparable experience and expertise to L. Fuller and Ackerman and there does not appear to be a principled reason to distinguish amongst them.
The Court declines defendants' proposal to approve a lower hourly rate for defense counsel ($120) based on the nature of the work they did. Defendants propose that the rate for plaintiffs' counsel be reduced to $120 per hour for work done after the case settled, e.g., preparation of plaintiffs' fee application. Deft. Brief at 10 n. 6. The Court rejects this argument. A party entitled to a fee award is also entitled to reimbursement for the time spent to prepare a fee application. Planned Parenthood of Cent. New Jersey v. Attorney General of State of New Jersey, 297 F.3d 253, 268 (3d Cir. 2002). Defendants cite no binding authority for their proposal that the time spent to prepare a fee application should be billed at a lower rate than other work on the case. However, when evaluating the hours spent on plaintiffs' fee application the Court will consider the routine nature of the work along with counsel's experience. In addition, the higher the billing rate the more efficient the work should be performed. Glass v. Snellbaker, 2008 WL 4416450 (D.N.J. Sept. 23, 2008)("[A] significant [billing] rate buys a client the efficiency, experience and expertise of an attorney practiced at representing clients in just this type of litigation.").
As to the proposed paralegal rate, plaintiffs did not submit any proof to justify an award of $115 per hour. The Court will only award the $75 per hour rate conceded by defendants. Deft. Brief at 10.
Plaintiffs' request for an enhancement or multiplier on their lodestar is denied. Plaintiffs' do not discuss the Supreme Court's decision in Perdue v. Kenny A. ex rel. Winn, ___ U.S. ___, 130 S. Ct. 1662 (2010). In that case the Court ruled that enhancements may only be awarded in "rare" and "exceptional circumstances." Id. at 1673. This conclusion derives from the notion that the lodestar figure already includes most, if not all, of the relevant factors constituting a reasonable attorney's fee. Id. The burden of proving that an enhancement is necessary is on the fee applicant. Id. The lodestar fee is "presumptively sufficient" to achieve its objective. Id.
See Certification of J. Albert ¶17 (opining that a multiplier of 1.7 to 2.2 is appropriate).
Plaintiffs have not satisfied their burden of demonstrating that this is a "rare" and "exceptional" case where an enhancement is necessary. Insofar as the merits of the case are concerned, this was a fairly straightforward ADA case. Although defendants' facilities were not small, they were not enormous. Further, the case did not present any especially difficult or novel legal issues. The standing issue addressed by Judge Bumb was not unusual or novel and had already been addressed in other New Jersey cases. In addition, the case was not extraordinarily lengthy and plaintiffs did not outlay an exorbitant amount of out-of-pocket expenses. It is true that discovery in the case was lengthy. However, this was due more to the parties' failure to cooperate than the complexity of the litigated issues. A good indication that an enhancement is inappropriate is the fact that it appears none was granted or agreed upon in any of the other similar consolidated cases. See n.3, infra.
Having determined the appropriate hourly rate to apply, the next issue to address is whether plaintiffs' claimed hours were reasonably spent. In this regard, the defendants prepared spreadsheets listing all of plaintiffs' time entries with hundreds of objections. Defendants' objections fit into the following main categories:
1. Duplicate entries of attorney hours.
2. Attorney hours and costs where description lacks sufficient information for fee award.
3. Attorney hours for conduct unrelated to this action.
4. Attorney hours and costs resulting from the long distance travel of plaintiffs' pro hac vice counsel and undocumented travel expenses.
5. Attorney hours and costs related to the admission, and electronic noticing, of pro hac vice counsel.
6. Attorney hours spent on unnecessary tasks.
7. Attorney hours relating to Lawrence D. Fuller's preparation for and appearance at the evidentiary hearing.
8. Attorney hours conducting post-complaint legal research on the issue of plaintiffs' standing in these actions.
9. Attorney hours responding to defendants' standing-based dispositive motions.
10. Excessive attorney hours for the tasks completed.
11. Attorney hours for tasks which could, and should have, been performed by legal staff.
12. Attorney hours for tasks which could, and should have, been performed by a paralegal.
13. Paralegal hours for tasks which could, and should have, been performed by legal staff.
14. Excessive paralegal hours for the tasks completed.
Attorneys seeking fees must document the hours for which compensation is requested "with sufficient specificity.... [W]here the documentation of hours is inadequate, the district court may reduce the award accordingly." Washington, 89 F.3d at 1031. Generally speaking, plaintiffs' descriptions are adequate and provide sufficient detail to identify the specific work done.
Defendants argue that because Spalluto died during the litigation, all communications with him are immaterial. Deft. Brief at 17 n. 13. The Court disagrees. The Court also disagrees with defendants' argument that all pre-complaint communications with Moore are immaterial. Id. at n. 22. The fact that Spalluto died was not expected and was not plaintiffs' fault. The work counsel did with Spalluto contributed to the final result and should be compensated. Similarly, counsel's work with Moore in connection with the case, but before the complaint was formally amended, also contributed to the final outcome and should be compensated.
As to travel time, it is generally compensable if legal work is being performed during the travel. Glass, 2008 WL 4416450, at *9. However, the Court has discretion to reduce the claimed travel time to one-half of counsel's rate if there is no indication that legal services were rendered en route. Id. at *10. Counsels' travel time will be reduced by one-half because there is no indication they performed legal work while they traveled.
To the extent the argument is made, the Court rejects the notion that none of the time spent by local New Jersey counsel is reimbursable. Courts in the District have historically compensated local counsel's time. See Perez v. Midland Funding LLC, 2011 WL 5156869, at *5 n.6 (D.N.J. Aug. 11, 2011), adopted 2011 WL 5127767 (D.N.J. Oct. 27, 2011); Employers Ins. Co. of Wausau v. Harleysville Inc., 2008 WL 5046838, at *2-3 (D.N.J. Nov. 20, 2008). Nevertheless, the Court will reduce excessive time spent on pro hac vice applications (id.), and otherwise deduct time and costs not reasonably spent or documented.
The Court rejects this argument. It was not unreasonable for J. Fuller and L. Fuller to both attend the February 2011 evidentiary hearing. The hearing was held in connection with defendants' key defense and was case dispositive. The plaintiffs were justified in arranging for their key counsel to prepare for and attend the hearing.
To the extent defendants argue that no post-complaint standing research should be compensated, the argument is rejected. Even experienced attorneys are not expected to know the nuances of all relevant standing law, and all relevant recent developments. Further, the Court believes it is unreasonable to expect plaintiffs' attorneys to respond to defendants' motions and arguments and not research the relevant law. Indeed, if the plaintiffs did not do research they could be accused of violating the Rules of Professional Conduct and Fed R. Civ. P. 11. Nevertheless, the Court closely analyzed the hours spent on plaintiffs' standing legal research to assure that only time reasonably spent is compensated. The Court's analysis identified the time spent related to specific issues, motions and briefs. While in toto the time spent may seem high, when the time is categorized it appears to the Court that most of the research time was reasonably spent. Albeit, some deductions were made.
See discussion in n. 23, infra.
In addition to what has already been set forth, the following discussion summarizes the legal principles the Court will apply to determine if plaintiffs' claimed hours were reasonably spent.
A prevailing party is not automatically entitled to compensation for all the time spent working on a case. The burden of establishing the reasonableness of the number of hours spent on a case is on plaintiffs, the party requesting an award. S.A. v. Riverside Delanco School Dist. Bd. of Educ., 2006 WL 827798, at *5 (D.N.J. March 30, 2006). A court may reduce hours if the attorney's time records are sloppy and imprecise and "fail to document adequately how he or she utilized large blocks of time." L.J. ex rel. V.J., 2009 WL 995458, at *17. Hours spent that are excessive, redundant and otherwise unnecessary are not compensable. Interfaith, 426 F.3d at 711. For example, "the wasteful use of highly skilled and highly priced talent for matters easily delegable to non-professionals or less experienced associates will not be tolerated." Microsoft Corp. v. United Computer Resources of New Jersey, Inc., 216 F. Supp. 2d 383, 391 (D.N.J. 2002) (citation and quotation omitted). Further, the higher the allowed rate commanded based upon skill and experience the shorter the time it should take an attorney to perform a particular task. Employers Ins. Co. of Wausau, supra, at *4 (citation and quotation omitted). As noted in Perez, supra, at *5, "[the] Court will not allow an award of fees based on attorneys unreasonably performing the same work, the performance of unnecessary work, or expending an unreasonable number of hours on simple straightforward tasks." The Court will also exclude hours that are not reasonably expended because of excessiveness, redundancy or lack of necessity. Mosaid Tech. Inc. v. Samsung Elecs. Co., 224 F.R.D. 595, 597 (D.N.J. 2004).
As to time claimed by experts, the moving attorney also bears the burden to justify the time claimed. Interfaith Comm. Org., 426 F.3d at 714. "[T]he district court has the obligation to conduct a thorough and searching review of the time claimed by a prevailing party's experts." Id. at 714. The Court will apply the same legal principles discussed above to the claimed hourly rate and hours requested by plaintiffs' expert.
Having set forth the applicable legal principles, the Court reviewed in detail all of plaintiffs' claimed time and costs. This is consistent with the Court's obligation to "go line, by line, by line" through the billing records supporting the fee request. Evans v. Port Authority of New York and New Jersey, 273 F.3d 346, 362 (3d Cir. 2001). Attached as Appendix 1 is the Court's analysis of plaintiffs' billing for the Caesar's claim through October 14, 2011. Attached as Appendix 2 is the Court's analysis of plaintiffs' billing for the Bally's claim through October 14, 2011. The Court addressed all of defendants' objections. In the "footnote" column, the Court indicated if defendants' objection was sustained ("S") or overruled ("O"). If the objection was sustained in toto, all claimed time will be deducted, and the time to be deducted noted. If there is no indication work was conducted during travel, and as noted herein, one-half of the time will be deducted. This will be designated with a "T" with the hours to be deducted listed. If the Court sustained in part and overruled in part defendants' objection, and disallowed some but not all of the claimed hours and charges, this is indicated by "SIP" with a notation of the amount of time deducted. All hours to prepare plaintiffs' fee application are designated with an "F." The Court will separately address these hours. Defendants' spreadsheet for Caesar's (Appendix 1) runs from June 25, 2008 to October 14, 2011. Attached as Appendix 3 is the analysis of the time and costs spent on Caesar's from October 15, 2011 to January 12, 2012. The spreadsheet for Bally's (Appendix 2) runs from August 7, 2008 through October 14, 2011. Attached as Appendix 4 is the analysis of the time and costs spent on Bally's from October 15, 2011 to January 12, 2012. Several of the entries on Appendices 1 and 2 include footnotes. The notes are included as Appendix 5 and provide further explanation for the Court's rulings on defendants' objections.
As noted, plaintiffs are entitled to reimbursement for the time spent to prepare their fee application. However, the time will be scrutinized to the same extent as the other time plaintiffs' attorneys are claiming. According to the Court's analysis, the Fuller firm spent a total of 109.4 hours preparing their fee application, broken down as follows:
Hours Spent on Fee Application
All fee application work is designated with an "F" in Appendices 1, 2, 3 and 4.
| Caesar's | Bally's | Totals | |
|---|---|---|---|
| John Fuller | 4.2 | 29.7 | 33.9 |
| Lawrence Fuller | 51.8 | 23.7 | 75.5 |
| 56.0 | 53.4 | 109.4 |
Ordinarily the Court would have no hesitation in ruling that 109.4 hours to prepare a fee application is excessive. After all, the Fullers are experienced ADA litigators and have undoubtedly filed numerous fee applications. By now plaintiffs should be familiar with the applicable law and the necessity to submit descriptive time bills. Therefore, a fee application should be a fairly straightforward matter that does not necessitate an inordinate amount of time. This case is a little different, however, because plaintiffs had to spend an excessive amount of time responding to numerous meritless objections. The Court will take this into account in its analysis. Plaintiffs should not be penalized because they were compelled to research and respond to defendants' meritless objections. In addition, the Court will take into account the fact that defendants filed an 83 page Brief, and voluminous attachments, in response to plaintiffs' fee application [Doc. No. 120 (1-21)]. The Court struck the Brief on the ground that its length exceeded the page limitation in the Local Rules of Procedure. See December 8, 2011 Order, Doc. No. 123. Plaintiffs should not be penalized for the time they spent to review plaintiffs' Brief that was eventually struck.
These objections include, but are not limited to, the arguments that (1) plaintiffs are not entitled to fees because they are "professional plaintiffs"; (2) plaintiffs should have given defendants an "opportunity to cure" before they filed their lawsuit; (3) trial preparation work should not be compensated because the case settled; (4) communications with plaintiff Peter Spalluto should be deducted because he died; and (5) plaintiffs' expert fees are not recoverable because plaintiffs used "professional experts."
Having reviewed plaintiffs' fee application closely, the Court will deduct 10 hours from J. Fuller's hours and 25 hours from L. Fuller's hours. Thus, the net hours plaintiffs may recover for their fee application is 74.4 (109.4 - 35.0). The Court's deduction is a little less than one-third of the time spent on plaintiffs' fee application. The Court's analysis accounted for the fact that L. Fuller estimated he would spend 9.0 hours traveling to and attending the hearing on plaintiffs' fee application.
For the sake of expediency, all the hours will be deducted from the totals for Bally's.
The following chart summarizes the Court's final computation of the number of billable hours recoverable by plaintiffs' attorneys. These totals include plaintiffs' fee application hours.
Caesar's
| HoursClaimed | Total HoursDeducted | NetHours | Dollar ValueRecoverable | |
| J. Fuller ($360) | 222.45 | 19.65 | 202.80 | $73,008.00 |
| L. Fuller ($360) | 204.10 | 23.45 | 180.65 | $65,034.00 |
| Paralegal ($75) | 30.33 | 1.0 | 29.33 | $2,199.75 |
|---|---|---|---|---|
| Total | $140,241.75 |
Bally's
| HoursClaimed | Total HoursDeducted | NetHours | Dollar ValueRecoverable | |
| J. Fuller ($360) | 242.85 | 34.15 | 208.70 | $75,132.00 |
| L. Fuller ($360) | 247.50 | 54.95 | 192.55 | $69,318.00 |
| Paralegal ($75) | 37.98 | 0 | 24.78 | $1,858.50 |
|---|---|---|---|---|
| Total | $146,308.50 |
Alan A. Ackerman, Esquire
| HoursClaimed | Total HoursDeducted | NetHours | Dollar ValueRecoverable | |
| A. Ackerman($360) | 30.90 | 5.20 | 25.70 | $9,252.00 |
|---|
| TOTAL FEESRECOVERABLE | $295,802.25 |
With regard to expert fees, plaintiffs claim $42,400.00 (212 hours) for Caesar's and $50,400.00 (252 hours) for Bally's, for a total expert fee of $92,800.00. The expert's bills are attached as PExh. F1, 2. The expert's reports are attached as PExh. E1, 2, 3, 4. The expert's billable rate is $200.00 per hour.
The Court finds that $200 for plaintiffs' expert is a reasonable rate for the work performed. Defendants do not object to the rate.
Although defendants argue the time spent by plaintiffs' expert was excessive, the Court disagrees. The expert conducted comprehensive inspections of defendants' large facilities and prepared detailed reports. The complexity, length and level of detail in the expert's reports evidences the substantial time it took to complete the work. Further, substantial time had to be spent to prepare for trial. The effort was a necessity given the inflexible August 1, 2011 trial date. Thus, the Court will award plaintiffs the full amount of their expert's bills or $92,400.
Defendants argue plaintiffs' expert fees should not be reimbursed because the experts are professional ADA litigators. Deft. Brief at 50. The argument is rejected for the same reasons defendants' similar argument regarding attorney's fees was rejected.
The authority to award reasonable attorney's fees "includes the authority to award reasonable out-of-pocket expenses . . . normally charged to a fee-paying client in the course of providing legal services." Planned Parenthood, 297 F.3d at 267 (citation omitted). Nonetheless, plaintiffs cost claim documentation is deficient. Plaintiffs only provided a minimal number of receipts for significant out-of-pocket costs such as travel expenses. Plaintiffs did not even serve an affidavit averring that the listed costs were actually incurred and paid, and that they only billed for the actual costs incurred. Plaintiffs also did not provide an explanation of how they computed their copying and postage charges. As such, plaintiffs' cost claim will be significantly reduced. See Port Drivers Federation 18, Inc. v. All Saints, 2011 WL 3610100, at *10 (D.N.J. Aug. 16, 2011)(declining to reimburse undocumented costs). With regard to all claimed costs above $50.00, the Court will only grant reimbursement if a receipt was provided. The Court will not require this level of documentation for cost claims below $50.00. The Court's rulings on plaintiffs' claimed costs are included in Appendices 1, 2, 3, 4.
For two reasons the Court will reject any suggestion that plaintiffs should be given an opportunity to supplement their submission to supply the missing documentation. One, plaintiffs are experienced ADA litigators who have undoubtedly served numerous fee applications in their careers. Plaintiffs know or should know that they have the burden to show the reasonableness of their claimed fees and costs. Interfaith Comm. Org., 426 F.3d at 712. Second, plaintiffs have already been given an opportunity to address defendants' objections. Defendants detailed spreadsheets (Addendums 1 and 2) objected to many of plaintiffs' claimed costs on the ground that plaintiffs' costs were "undocumented." See also Deft. Brief at 53-56. When plaintiffs filed their Reply Brief they did not take advantage of the opportunity they had to submit their missing documentation. "[A] fee request is not the opening salvo in a back and forth negotiation with the court. The request is not the sticker price on a used car that all parties understand is the starting point for spirited dickering." M.G. v. Eastern Regional High School Dist., 2009 WL 3489358, at *11 (D.N.J. Oct. 21, 2009), vacated and remanded on other grounds, 386 Fed. Appx. 186 (3d Cir. 2010).
In sum, the Court finds that the following amounts are recoverable:
Caesar's
| Attorney's Fees - | $140,241.75 |
| Expert Fees - | $42,400.00 |
| Costs - | $886.77 |
|---|---|
| $183,528.52 |
Bally's
| Attorney's Fees - | $146,308.50 |
| Expert Fees - | $50,400.00 |
| Costs - | $1,874.10 |
|---|---|
| $198,582.60 | |
| A. Ackerman Fees- | $9,252.00 |
| TOTAL | $391,363.12 |
| Attorney's Fees - | $295,802.25 |
| Expert Fees - | $92,800.00 |
| Costs - | $2,760.87 |
|---|---|
| TOTAL | $391,363.12 |
CONCLUSION
In conclusion, and for all of the foregoing reasons, it is respectfully recommended that plaintiffs' "Verified Application [Motion] for Attorneys Fees and Costs and Expert Fees" be GRANTED in part and DENIED in part. The Court recommends that plaintiffs be awarded a total of $391,363.12. This is comprised of $295,802.25 in attorney's fees, $92,800.00 in expert fees, and $2,760.87 in costs. Pursuant to Fed. R. Civ. P. 72 and L. Civ. R. 72.1(c)(2), the parties shall have fourteen (14) days from the date of service of this Order in which to file their objections with the Court.
According to the Court's calculation, a total of $124,116.48 ($515,479.60 - $391,363.12) was deducted from plaintiffs' total claim. This results in a net reduction of approximately 24% of plaintiffs' claim. --------
s/Joel Schneider
JOEL SCHNEIDER
United State Magistrate Judge DATED: June 28, 2012
APPENDIX
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