Opinion
NO. CIV. S-06-01486 LKK/DAD.
February 1, 2008
ORDER
Plaintiff Robert Dodson brought this action against defendant Rite Aid Corporation, d/b/a Rite Aid #6073, under the Americans with Disabilities Act (ADA) after he allegedly encountered architectural barriers at a shopping center in Sacramento, California. Plaintiff accepted defendant's offer of judgment, which encompassed both injunctive relief and monetary damages. Pending before the court is plaintiff's motion for attorneys' fees. For the reasons explained below, the court awards plaintiff $12,911.13 in fees and costs.
I. Procedural History
Plaintiff commenced this action in 2006 against various defendants based upon architectural barriers that he allegedly encountered at the Vineyard Square shopping center in Sacramento, California. On January 5, 2007, all defendants except one — Rite Aid — were dismissed from this action. On November 26, 2007, plaintiff accepted Rite Aid's offer of judgment, which encompassed injunctive relief and monetary damages in the amount of $4,001. Fed.R.Civ.P. 68. On November 27, 2007, the court entered judgment in plaintiff's favor.
II. Standard
The ADA provides that "the court . . . in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs." 42 U.S.C. § 12205. The propriety of awarding attorneys' fees turns on three elements: (1) whether the party who seeks attorneys' fees is the prevailing party; (2) whether the court should exercise its discretion to award the fees; and (3) what constitutes a reasonable award.
A prevailing party is one who has "succeed[ed] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (citations and internal quotation marks omitted). A party achieves prevailing party status by establishing a "clear, causal relationship between the litigation brought and the practical outcome realized."Rutherford v. Pitchess, 713 F.2d 1416, 1419 (9th Cir. 1983) (citations and internal quotation marks omitted). Although the attorneys' fees provision is stated in discretionary terms, a prevailing plaintiff should ordinarily recover attorneys' fees unless special circumstances would render such an award unjust. Barrios v. Cal. Interscholastic Fed'n, 277 F.3d 1128, 1134 (9th Cir. 2002).
The starting point for calculating the amount of a reasonable fee is the number of hours reasonably expended multiplied by a reasonable hourly rate. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). This lodestar figure is presumptively reasonable and should only be enhanced or reduced in "rare and exceptional cases." Id. (quoting Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986)). The court may, however, adjust the lodestar figure if various factors overcome the presumption of reasonableness. Hensley, 461 U.S. at 433-34. The court may adjust the lodestar figure on the basis of the Kerr factors:
(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the "undesirability" of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.Morales v. City of San Rafael, 96 F.3d 359, 364 n. 8 (9th Cir. 1996) (quoting Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)); see also Cairns v. Franklin Mint Co., 292 F.3d 1139, 1158 (9th Cir. 2002) ("The court need not consider all . . . factors, but only those called into question by the case at hand and necessary to support the reasonableness of the fee award.").
Before the lodestar method developed, Kerr's twelve factors constituted the test for setting attorneys' fee awards in the Ninth Circuit. See Kerr, 526 F.2d at 70. At present, the court uses some of the Kerr factors in deciding the reasonableness of the hours billed and the hourly rate. Fischer, 214 F.3d at 1119 n. 3; see also Morales, 96 F.3d at 364 n. 9 (listing the Kerr factors subsumed in the initial lodestar calculation).
III. Analysis
Plaintiff seeks attorneys' fees and costs in the amount of $15,024.81. Defendant argues that this amount should be reduced to $3,738.88. For the reasons explained below, the court awards $12,911.13.
A. Prevailing Party
It is undisputed that plaintiff is the prevailing party in this action, given that he accepted defendant's offer of judgment.
B. Discretion
A prevailing plaintiff should ordinarily recover attorneys' fees unless special circumstances would render such an award unjust. Barrios, 277 F.3d at 1134. Here, defendant does not contest that at least some fees should be awarded; rather, defendant only contests the precise amount.
C. Reasonable Fee
1. Reasonableness of Hours Billed
See Hensley461 U.S. at 433
Plaintiff's counsel has billed approximately 40 hours in this action. Attorney Lynn Hubbard billed 32.1 hours, and attorney Scottlynn Hubbard billed 6.95 hours. Defendant contends that this amount was excessive because this was a "typical run of the mill ADA case," Opp'n at 11, that did not present any novel or difficult issues. In addition, defendant points out that plaintiff ultimately accepted its settlement offer of $4,001 (closely tracking the $4,000 statutory minimum amount of damages provided by California Civil Code § 52) and that the injunctive relief only entails repairs to the restroom, plus signage at the check-out stand. Nevertheless, plaintiff's attorneys only billed approximately 40 hours in this action — which amounts to a week's worth of work. While the results obtained may have been modest, it is doubtful that litigating a case from beginning to end (even if it settles before trial) could take much less time. At the very least, 40 hours is not an unreasonable figure.
The court has also reviewed defendant's item-specific objections. Defendant has objected to each and every one of plaintiff's billing entries — several on the basis of the hourly billing rate (a matter discussed below) but the majority on other grounds. Most of these objections are not meritorious. Nevertheless, because certain letters, discovery requests, and stipulations were created by modifying preexisting documents (and therefore should have taken significantly less time than creating such documents from scratch), the court reduces Lynn Hubbard's hours billed by 2.9 hours. Accordingly, the reasonable number of hours billed is 29.2 hours for Lynn Hubbard and 6.95 hours for Scottlynn Hubbard. For paralegal and legal assistants, the reasonable number of hours billed is 9.9 hours.
For example, defendant argues that because plaintiff's counsel chose to locate their offices in Chico, travel time to Sacramento (which plaintiff's counsel bills at a lower rate) should not be compensated. The court has rejected this argument elsewhere.Chapman v. Pier 1 Imports, Inc., No. 04-1339 LKK/DAD, 2007 WL 2462084, at *4 (E.D. Cal. Aug. 24, 2007). Defendant also argues that time spent performing a conflicts check is not compensable,see Martinez v. Thrify Payless, Inc., No. 02-0745 MCE/JFM, 2006 WL 279309, at *4 (E.D. Cal. Feb. 6, 2006), but as it is "necessary and directly related to litigation," it is recoverable as attorneys' fees. See Michigan v. U.S. Entl. Prot. Agency, 254 F.3d 1087, 1093 (D.C. Cir. 2001).
The court makes this deduction based upon the following billing entries. With regard to the initial settlement demand, the court reduces the time from .7 to .3 hours. With regard to reviewing defendant's response to the request for production of documents, set two (which simply stated their unavailability), the court reduces the time from .5 to .2 hours. With regard to the stipulation to amend the scheduling order, the court reduces the time from .8 to .5 hours. With regard to plaintiff's acceptance of the offer of judgment, the court reduces the time from .5 to .2 hours. With regard to the bill of costs, the court reduces the time from 2.1 to .5 hours.
The court deducts .6 hours for telephone calls, based on the declaration of defendant's counsel. See Decl. of Catherine McCleary, ¶ 2. The remaining hours billed by the paralegals and legal assistants are recoverable. See Missouri v. Jenkins by Agyei, 291 U.S. 274, 288 (1989).
2. Reasonable Hourly Rate
The court determines the reasonable hourly rate "according to the prevailing market rates in the relevant community," Blum v. Stenson, 465 U.S. 886, 895 (1984), which is typically the one in which the district court sits, Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992). The experience, skill, and reputation of the attorney requesting fees are taken into account. See Webb v. Ada County, 285 F.3d 829, 840 n. 6 (9th Cir. 2002). The party moving for attorneys' fees "has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation." Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987) (citing Blum, 465 U.S. at 895-97 n. 11).
The rates that courts in this district currently use for ADA practitioners were set approximately a decade ago. See, e.g.,Connally v. Denny's, Inc., No. 96-5521 SMS slip op. at 6 (E.D. Cal. Aug. 10, 1999) (setting hourly rate at $250); Connally v. Brooks, No. 99-0220 DFL/PAN, slip op. at 6 (E.D. Cal. Dec. 4, 2000) (same). While courts may appropriately look to previous cases for guidance in determining the prevailing market rate, exclusive reliance on such historical data would lock-in a fixed rate that ignores inflation and other market pressures affecting the cost of legal services. Accordingly, rate increases over time are appropriate. See Friend v. Kolodzieczak, 72 F.3d 1386, 1391 n. 5 (9th Cir. 1995) (finding a $50 increase in hourly billing rates over 3 years to be "reasonable in view of inflation and rising costs of legal services"); see also Associated Indem. Corp. v. Fairchild Indus., Inc., 961 F.2d 32, 35-36 (2d Cir. 1992) (courts may take judicial notice of inflation).
It would also ignore the fact that as attorneys acquire more experience, they may justifiably charge a higher rate for their services. Thus, in addition to ignoring inflation, holding a particular attorney's rate constant for 10 years fails to take into account his or her current level of experience.
Here, plaintiff requests $350/hour for Lynn Hubbard, $225/hour for associate Scottlynn Hubbard, and $90/hour for paralegals and legal assistants (previously at $250/hour, $150/hour, and $75/hour, respectively). There is no dispute that plaintiff's counsel are skilled and experienced ADA practitioners. In light of the time that previous rates were held constant, the court finds that these requested rates fairly reflect the prevailing market rates for ADA litigation in this district. See Friend, 72 F.3d at 1391 n. 5; see also Decl. of Lynn Hubbard ¶ 9, 22.
The paralegal rate only applies to paralegal-level tasks, as opposed to "purely clerical or secretarial tasks." See Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n. 10 (1989); Burt v. Hennessey, 929 F.2d 457, 459 (9th Cir. 1991) (holding that secretarial tasks are compensable at a lower rate than paralegal tasks). Here, the court applies a lower rate of $75/hour for the .4 hours spent on faxing.
3. Lodestar adjustment
The lodestar figure is presumptively reasonable and should only be enhanced or reduced in "rare and exceptional cases." Fischer, 214 F.3d at 1119. Reviewing the Kerr factors not already addressed in arriving at the lodestar figure, the court finds that this is not a rare or exceptional case. Accordingly, no upward or downward adjustment to the lodestar figure is appropriate.
D. Costs
Plaintiff requests $1,281.06 in costs. Because this figure double-counts the filing fee, service of process fee, and mail expenses, the court deducts $374.68.
IV. Conclusion
For the reasons explained above, the court awards attorneys' fees and costs in the following amounts:
This figure reflects the rate that the billing entry lists for travel, although Mr. Hubbard's accompanying declaration incorrectly applied the higher rate.
IT IS SO ORDERED.