Opinion
21-cv-03087-AGT
08-26-2022
BRIAN WHITAKER, Plaintiff, v. ARUNRAS NGIN, Defendant.
REPORT AND RECOMMENDATION
RE: DKT. NO. 22
ALEX G. TSE, UNITED STATES MAGISTRATE JUDGE
Brian Whitaker has moved for default judgment. The defendant, Arunras Ngin, hasn't appeared and consented to have his case decided by a magistrate judge, so the case must be reassigned to a district judge. See Williams v. King, 875 F.3d 500, 504 (9th Cir. 2017). The undersigned issues this report and recommends that the newly assigned district judge grant Whitaker's motion, with a modest adjustment to attorneys' fees.
1. Jurisdiction: Whitaker alleges that Ngin violated Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-89, and the Unruh Civil Rights Act, Cal. Civ. Code §§ 51-53. The Court has jurisdiction to consider these claims under 28 U.S.C. §§ 1331 and 1367. The Court has personal jurisdiction over Ngin because Ngin was personally served with process in California. See Dkt. 13; Burnham v. Superior Court, 495 U.S. 604, 619 (1990) (“[J]urisdiction based on physical presence alone constitutes due process ....”).
2. Merits of the Claims: Whitaker states plausible claims for relief. He alleges that he has quadriplegia and uses a wheelchair to get around; that in April 2021 he visited the Nomad Cafe, a business open to the public and owned by the defendant; that the Nomad Cafe's dining surfaces lack sufficient knee or toe clearance for wheelchair users; that the lack of wheelchair-accessible dining surfaces has deterred him from returning to the cafe; and that the dining surfaces could be modified without much difficulty or expense. See Dkt. 21, FAC ¶¶ 1-3, 8-12, 19-20. These allegations state a claim under Title III of the ADA. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (identifying Title III elements); Whitaker v. Uma & Tej Inc., No. 21-CV-6673-YGR, 2022 WL 74164, at *3 (N.D. Cal. Jan. 7, 2022) (finding substantially similar allegations, of dining surfaces “that lacked sufficient knee or toe clearance for wheelchair users,” to be “sufficient to state a claim under the ADA”). Conduct that violates the ADA also violates the Unruh Act, see Cal. Civ. Code § 51(f), so Whitaker's Unruh Act claim is well pled too.
3. Eitel Factors: The factors identified in Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986), support default judgment. Whitaker will be prejudiced if default judgment isn't entered: he doesn't have another legal remedy. The sum of money at stake (less than $10,000) is modest. The allegations support the claims. There isn't reason to believe that Ngin's default was due to excusable neglect. With one exception, there isn't evidence of a dispute concerning material facts. And although merits decisions are favored, Ngin's default has made such a decision unfeasible.
Some evidence suggests that someone other than Ngin owns the Nomad Cafe. See Dkt. 24 (interim order) (“The property records plaintiff submitted to the Court suggest . . . that the Nomad Cafe, or at least the property on which the cafe is located, is owned by Ian Martin and the Martin Marlene L Trust.” (citing Dkt. 22-8 at 2-10)). But other evidence supports that Ngin is the owner. See Dkt. 26-1 at 3 (email from prior owner's attorney, who says he helped sell the Nomad Cafe to Ngin in 2016); see also Dkt. 22-8 at 2-4, Dkt. 25. While there could be a dispute on this point, Ngin never raised it. And because Ngin is in default (dkt. 16), the allegations in the complaint-including the allegations that Ngin owns the cafe-are taken as true. See Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008).
4. Injunctive Relief: Whitaker seeks an order that would require Ngin to provide wheelchair-accessible dining surfaces at the Nomad Cafe. This relief is warranted under the ADA. See 42 U.S.C. § 12188(a)(2) (declaring that affected individuals may obtain “an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities”).
5. Damages: Whitaker seeks $4,000 in statutory damages. This relief is also warranted. See Cal. Civ. Code § 52(a) (providing $4,000 in statutory damages for each Unruh Act violation).
6. Attorneys' Fees: The ADA permits prevailing plaintiffs to recover reasonable attorneys' 0fees. See 42 U.S.C. § 12205. Fees are calculated by multiplying an attorney's hourly rate by the hours worked. Both the hourly rate and the hours worked must be reasonable. See Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir. 2018).
Whitaker is represented by attorneys at the law firm Potter Handy LLP, also known as the Center for Disability Access. On the invoice for the firm's work, counsel's billing rates are listed as follows: $650/hour for Mark Potter (an attorney with twenty-five years' experience), $500/hour for Amanda Seabock (an attorney with around ten years' experience), $450/hour for Candice Clipner (an attorney with around twenty years' experience), and $400/hour for Tehniat Zaman (an attorney with around seven years' experience). Legal assistants at the firm billed $100/hour, with the exception of legal assistant Marcus Handy, who billed $200/hour. See Dkt. 22-3.
The evidence submitted to support these rates-the 2010 Pearl declaration, the 2020 Real Rate Report, and the 2019 O'Connor declaration-isn't particularly persuasive. It is outdated (the Pearl declaration), isn't focused on the market for ADA legal work (the Real Rate Report), and identifies a range of rates without establishing that Potter Handy LLP's rates should fall on the higher end of that range (the O'Connor declaration). See Dkt. 22-9, -10, -11. Given these shortcomings, and given the routine and formulaic nature of the ADA cases litigated by Potter Handy LLP, the following discounted rates are more appropriate: $475/hour (not $650/hour) for Mark Potter; $350/hour (not $500/hour or $450/hour) for Amanda Seabock and Candice Clipner; and $300/hour (not $400/hour) for Tehniat Zaman. Based on substantially similar evidence to that submitted here, numerous judges in this district have adopted the same, or nearly the same, reduced rates in calculating reasonable attorneys' fees for Potter Handy LLP. See Love v. Mustafa, No. 20-CV-02071-PJH (AGT), 2021 WL 2905427, at *2 n.2 (N.D. Cal. June 11, 2021) (collecting cases), adopted, 2021 WL 2895957 (N.D. Cal. July 9, 2021).
As for the rate billed by Potter Handy LLP's legal assistants other than Marcus Handy, $100/hour, that rate is reasonable and need not be reduced. See Johnson v. Shahkarami, No. 20-CV-07263-BLF, 2021 WL 1530940, at *10 (N.D. Cal. Apr. 19, 2021) (holding, in another ADA case litigated by Potter Handy LLP, that $100/hour was a reasonable rate for paralegal fees). For Marcus Handy, judges in this district have reduced his rate from $200/hour to $100/hour due to a lack of support for the higher number. See, e.g., Whitaker v. Joe's Jeans Inc., No. 21-CV-00597-CRB, 2021 WL 2590155, at *5 (N.D. Cal. June 24, 2021) (“[A]side from a brief discussion of Marcus Handy's background, [plaintiff] provides no supporting evidence or prior decisions to warrant a $200 per hour rate for a legal assistant with twelve years of experience on disability litigation cases.”); accord Johnson v. An Khang Mi Gia, No. 5:21-CV-01702-BLF, 2021 WL 5908389, at *9 (N.D. Cal. Dec. 14, 2021). The evidence offered here to support Marcus Handy's $200/hour rate is no different than the evidence that was offered in the cases just cited. Finding those cases persuasive, the undersigned recommends the use of $100/hour, not $200/hour, for Marcus Handy.
Collectively, counsel and their legal assistants billed 12.1 hours on this case, a modest amount of time that was reasonable under the circumstances. Of this, Mark Potter billed 0.7 hours, Amanda Seabock billed 0.2 hours, Candice Clipner billed 2.6 hours, Tehniat Zaman billed 2.6 hours, and legal assistants billed 6 hours. When these hours are multiplied by the reduced rates set forth above, the result is a fee award of $2,693. This amount, which is $852 less than the $3,545 award sought by counsel, is reasonable and should be included in the judgment.
7. Costs: The ADA permits prevailing plaintiffs to recover reasonable litigation costs. See 42 U.S.C. § 12205. The litigation costs incurred in this case, totaling $907, were reasonable and should also be included in the judgment.
The undersigned recommends that the district judge grant Whitaker's motion, enter default judgment in the amount of $7,600 (consisting of $4,000 in statutory damages, $2,693 in attorneys' fees, and $907 in costs), and order Ngin to provide ADA-compliant dining surfaces at the Nomad Cafe, 6500 Shattuck Avenue, Oakland, California, 94609. By September 1, 2022, Whitaker must serve Ngin with a copy of this report, by any means reasonably calculated to provide actual notice, and file proof of service. Any party may object to this report within fourteen days of being served with a copy of it. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.72(b).
IT IS SO ORDERED.