Summary
finding $70, "the lowest in the applicable range," appropriate for an unnamed paralegal
Summary of this case from Capital One, N.A. v. Auto Gallery Motors, LLCOpinion
16-CV-2303-JBW-SJB
2019-03-12
Lawrence FELTZIN, Plaintiff, v. UNION MALL LLC, Defendant.
Asaad Khursheed Siddiqi, McCusker Anselmi Rosen & Carvelli PC, Keith Harris, Braff, Harris, Sukoneck, & Maloof, New York, NY, Lawrence A. Fuller, Fuller, Fuller & Associates, P.A., North Miami, FL, Daniel John Garry, Braff, Harris, Sukoneck & Maloof, Livingston, NJ, for Plaintiff. Albert M. Saltz, Saltz Matkov PC, Wayne, PA, Yuriy Mavashev, Mava Law PLLC, Jackson Heights, NY, for Defendant.
Asaad Khursheed Siddiqi, McCusker Anselmi Rosen & Carvelli PC, Keith Harris, Braff, Harris, Sukoneck, & Maloof, New York, NY, Lawrence A. Fuller, Fuller, Fuller & Associates, P.A., North Miami, FL, Daniel John Garry, Braff, Harris, Sukoneck & Maloof, Livingston, NJ, for Plaintiff.
Albert M. Saltz, Saltz Matkov PC, Wayne, PA, Yuriy Mavashev, Mava Law PLLC, Jackson Heights, NY, for Defendant.
MEMORANDUM AND ORDER
BULSARA, United States Magistrate Judge:
Plaintiff Lawrence Feltzin ("Plaintiff") commenced this action on May 9, 2016 against Union Mall LLC ("Union Mall") for violations of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. ("ADA"), seeking injunctive relief and attorney's fees, litigation expenses, and costs. (Compl., Dkt. No. 1). On February 23, 2018, Plaintiff notified the Court that parties had settled and would be filing a joint motion for the Court to determine attorney's fees, expert fees, and costs. (Notice of Settlement, Dkt. No. 34 ("Notice of Settlement")). The Honorable Jack B. Weinstein referred the determination to the undersigned on March 1, 2018, (Referral Order, Dkt. No. 36), and parties filed their joint motion on March 20, 2018. (Joint Mot. for Atty's Fees, Dkt. No. 37 ("Mot.")). For the reasons described below, Plaintiff's request for costs and fees is granted as indicated herein. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Feltzin is a Florida resident and an individual with disabilities under the ADA, because he is paraplegic and uses a wheelchair. (Compl. ¶ 5). Defendant owns, operates, or leases a place of public accommodation known as Union Mall (the "subject property") located at 16216 Union Turnpike, Fresh Meadows, NY 11366. (Id. ¶ 6). During Plaintiff's travels to New York to visit friends and family, he visited the subject property and "encountered architectural barriers ... [that] impaired [his] ability to park safely at the premises, to use restrooms safely, and to access goods and services at the premises." (Id. ¶ 5). For example, Plaintiff was "impeded while attempting to access stores ... due to abrupt changes of level, slopes at the base of doors and a lack of latch side clearance to enter," and "[r]estaurants fail[ed] to provide accessible dining tables for those in wheelchairs." (Id. ¶ 9(G)-(H)). In his Complaint, Plaintiff sought a Declaratory Judgment that Union Mall was in violation of the ADA, (id. at 7), and injunctive relief requiring "Defendant to alter the [subject property] to make those facilities readily accessible" or close the subject property until it was in compliance, (Compl. ¶ 16). The Complaint also sought an award of attorney's fees, costs, and litigation expenses under 42 U.S.C. § 12205. (Id. at 7-8).
On August 16, 2016, Union Mall was served with a copy of the Summons and Complaint through New York's Secretary of State. (See Summonses Returned Executed dated Aug. 22, 2016, Dkt. Nos. 6-8). After Union Mall failed to appear, the Clerk entered default against it on December 9, 2016. (Clerk's Entry of Default, Dkt. No. 11). Several months later, after no activity occurred in the case, the Court ordered Plaintiff to show cause as to why his case should not be dismissed for failure to prosecute. (Order to Show Cause dated June 22, 2017). Plaintiff filed a motion for default judgment against Union Mall, (Mot. for Default J., Dkt. No. 15), but before the Court ruled on the motion, the parties filed a stipulation vacating the Clerk's Entry of Default, withdrawing Plaintiff's motion for default judgment, and extending Union Mall's time to answer the Complaint. (Stipulation dated July 25, 2017, Dkt. No. 16). Union Mall answered the Complaint on July 28, 2017, asserting several affirmative defenses and a counterclaim seeking a Declaratory Judgment that it was in fact compliant with the ADA and that "Plaintiff is a vexatious litigant." (Answer, Dkt. No. 17, ¶¶ 28-29). Union Mall also requested that it be awarded costs and attorney's fees associated with defending the action. (Id. at 5). Plaintiff opposed these requests. (Reply in Opp'n dated Aug. 29, 2017, Dkt. No. 21).
An initial conference was held before Magistrate Judge Anne Y. Shields on September 25, 2017 in the Central Islip Division of the Eastern District of New York. (Minute Order dated Sept. 25, 2017, Dkt. No. 25). However, after the case was reassigned to the Brooklyn Division, (see Order dated Sept. 27, 2017; Order Reassigning Case dated Sept. 28, 2017), a second initial conference was held before the undersigned on November 13, 2017, (Minute Entry dated Nov. 13, 2017). The case was referred to mediation, (Order dated Nov. 13, 2017), and Plaintiff filed a Notice of Settlement on February 23, 2018, (Notice of Settlement). Judge Weinstein referred for decision the determination of attorney's fees, costs, and expert fees to the undersigned, (Referral Order), and parties filed a joint motion for the Court to determine these costs and fees on March 20, 2018, ("Mot.").
The settlement agreement provides that, among other things, "Defendant shall pay Plaintiff's counsel ... for Plaintiff's attorneys' fees, litigation expenses and expert fees, and costs incurred in this matter. The parties have agreed that the Court shall have the right to determine the amount of [these fees]." (Settlement Agreement, attached as Ex. 3 to Pl.'s Appl., Dkt. No. 37 ("Settlement Agreement") ¶ 2).
Plaintiff's original fee application sought a total of $31,175.15 in fees and costs. (Pl.'s Verified Appl., attached as Ex. 1 to Mot., Dkt. No. 37 ("Pl.'s Appl.") at 8). This included $21,090.50 in attorney's fees for the firm of Fuller, Fuller & Associates, P.A., $5,397.50 for the firm of Braff, Harris, Sukoneck & Maloof, $2,800 for expert witness fees, and $1,887.15 in costs. (Id. ¶ 24). Attorney Lawrence Fuller ("Fuller"), who billed 49.3 hours, and Attorney Keith Harris ("Harris"), who billed 12.5 hours, both use an hourly billing rate of $425 as partners in their respective firms. (Id. ¶ 15; see Braff, Harris, Sukoneck & Maloof Invoice, attached as Ex. 2 to Pl.'s Appl., Dkt. No. 37 ("Harris Invoice I"); Fuller, Fuller & Associates, P.A. Invoice, attached as Ex. 2 to Pl.'s Appl., Dkt. No. 37 ("Fuller Invoice I")). Attorney Daniel J. Garry ("Garry"), an associate from Braff, Harris, Sukoneck & Maloof, billed 0.2 hours at an hourly rate of $425. (Harris Invoice I). An unnamed paralegal from Fuller, Fuller & Associates billed 1.2 hours at an hourly rate of $115. (Fuller Invoice I at 3).
Plaintiff's fee application states that the amount of attorney's fees for Braff, Harris, Sukoneck & Maloof was $5,395.50; however, the submitted invoice shows this amount is actually $5,397.50. (Braff, Harris, Sukoneck & Maloof Invoice, attached as Ex. 2 to Pl.'s Appl., Dkt. No. 37 ("Harris Invoice I") at 2). Similarly, the fee application states that miscellaneous costs totaled $1,887.50; however, the submitted invoice shows they are actually $1,887.15. (See id. ; Fuller, Fuller & Associates, P.A. Invoice, attached as Ex. 2 to Pl.'s Appl., Dkt. No. 37 ("Fuller Invoice I") at 3-4 (adding the expenses listed on each invoice, not including the "Expert Fee")).
On April 18, 2018 Union Mall responded to Plaintiff's fee application, arguing "the fees and costs claimed by Plaintiff's counsel are extremely excessive and unreasonable given the paltry amount of work required to obtain an amicable resolution in this matter." (Def.'s Resp. in Opp'n, Dkt. No. 40 ("Def.'s Opp'n") at 2). Union Mall objects to all costs incurred by Plaintiff except for the $400 filing fee. (Id. at 9-10). Overall, Union Mall proposes that Fuller's fees be "substantially reduce[d]," Harris and Garry's fees be reduced to $1,182.50, and the costs be reduced to $400. (Id. at 10-11).
These costs include $225 for opening and closing the case, $200 for a title search, $115 in service fees, $750 for re-inspection of the subject property, $22 for photocopies, $16.50 for telephone charges, and $158.65 in travel costs. (Def.'s Opp'n at 9-10).
Plaintiff replied to Union Mall's objections and agreed to reduce or eliminate certain charges, including $225 for opening and closing the file, $750 for re-inspection of the subject property, and approximately 2 hours' worth of time billed. (Pl.'s Reply dated Apr. 24, 2018, Dkt. No. 42 ("Pl.'s Reply") at 3-4). However, Fuller included an additional 4.8 hours for reviewing Union Mall's opposition to the fee application and preparing the reply, and a new entry of 2.6 hours from February 5, 2018 appeared on the invoice for various tasks pertaining to the Settlement Agreement and Stipulation of Dismissal. (See Fuller, Fuller & Associates, P.A. Invoice, attached as Ex. 5 to Pl.'s Reply, Dkt. No. 42 ("Fuller Invoice II") at 2-3). Plaintiff therefore seeks a total of $23,513 in fees billed by Fuller, Fuller & Associates, $5,397.50 in fees billed by Braff, Harris, Sukoneck & Maloof, $2,800 in expert witness fees, and $912.15 in costs. (See Fuller Invoice II; Braff, Harris, Sukoneck & Maloof Invoice, attached as Ex. 6 to Pl.'s Reply, Dkt. No. 42 ("Harris Invoice II") at 2).
Plaintiff re-submitted the same invoice pertaining to Braff, Harris, Sukoneck & Maloof as originally submitted with his fee application, (compare Harris Invoice I, with Harris Invoice II); for the sake of clarity, the Court refers the second submission as "Harris Invoice II."
DISCUSSION
I. Attorney's Fees
"Pursuant to the ADA, a district court has discretion to award to a ‘prevailing party ... a reasonable attorney's fee, including litigation expenses and costs.’ " Feltzin v. Ciampa Whitepoint LLC , No. 15-CV-2279, 2017 WL 570761, at *1 (E.D.N.Y. Feb. 13, 2017) (quoting 42 U.S.C. § 12205 ). "The purpose of such statutory fee shifting is to ‘encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.’ " Brady v. Wal-Mart Stores, Inc. , 455 F. Supp. 2d 157, 202 (E.D.N.Y. 2006) (quoting Raishevich v. Foster, 247 F.3d 337, 344 (2d Cir. 2001) ), aff'd , 531 F.3d 127 (2d Cir. 2008). The Settlement Agreement itself also provides for attorney's fees and costs, including expert witness fees, and requires the Court to determine the reasonable amount. (See Settlement Agreement, attached as Ex. 3 to Pl.'s Appl., Dkt. No. 37 ("Settlement Agreement") ¶ 2 ("Defendant shall pay Plaintiff's counsel ... for Plaintiff's attorneys' fees, litigation expenses and expert fees, and costs incurred in this matter. The parties have agreed that the Court shall have the right to determine the amount of [these fees].")).
"A prevailing party is one who obtains direct benefit from an enforceable judgment that provides relief on the merits of the party's claim." Brady , 455 F. Supp. 2d at 203 (quotations omitted). Union Mall does not contest that Plaintiff is the prevailing party, and, in fact, has already agreed to pay his attorney's fees and costs. (See Settlement Agreement ¶ 2; see generally Def.'s Opp'n). Further, Union Mall has agreed to implement several changes to the subject property, including providing ramps to access stores and accessible dining tables for restaurants, such that Plaintiff may be considered the prevailing party under the ADA. (See Settlement Agreement ¶ 14); e.g. , Swartz v. HCIN Water St. Assocs., LLC , No. 17-CV-4187, 2018 WL 5629903, at *1 (S.D.N.Y. Oct. 31, 2018) ("A party prevails when actual relief on the merits of his [or her] claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.... Swartz, having entered into a settlement agreement with Defendant, may therefore be awarded reasonable attorney's fees and costs as the prevailing party in this action.") (quotations omitted).
When assessing whether legal fees are reasonable, the Court determines the "presumptively reasonable fee" for an attorney's services by examining what reasonable clients would be willing to pay. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany , 522 F.3d 182, 183-84 (2d Cir. 2008). To calculate the presumptively reasonable fee, a court must first determine a reasonable hourly rate for the legal services performed. Id. at 184. The next step is to determine the reasonableness of the hours expended by counsel. See, e.g. , LaBarbera v. Empire State Trucking, Inc. , No. 07-CV-669, 2008 WL 746490, at *4-5 (E.D.N.Y. Feb. 26, 2007), report and recommendation adopted , Mem. and Order dated Mar. 19, 2008, Dkt. No. 10. The number of hours spent on a lawsuit are considered unreasonable if they are excessive, redundant, or unnecessary. See, e.g. , LaBarbera v. Frank J. Batchelder Transp. LLC , No. 08-CV-3387, 2009 WL 240521, at *4 (E.D.N.Y. Feb. 2, 2009) (citing Gierlinger v. Gleason , 160 F.3d 858, 876 (2d Cir. 1998) ). "District courts have broad discretion, using their experience with the case, as well as their experience with the practice of law, to assess the reasonableness of each component of a fee award." Finkel v. Captre Elec. Supply Co. , No. 14-CV-3584, 2015 WL 5316257, at *5 (E.D.N.Y. July 31, 2015) (quotations omitted), report and recommendation adopted , 2015 WL 5330388 (Sept. 11, 2015).
A. Hourly Rates
Turning first to the reasonable hourly rate, the Court first examines the experience and qualifications of counsel seeking the fee award. Two of the three attorneys that billed for this case, Fuller and Harris, are partners at their respective law firms, Fuller, Fuller & Associates and Braff, Harris, Sukoneck & Maloof. (See Fuller Resume, attached as Ex. 1 to Pl.'s Appl., Dkt. No. 37 ("Fuller Resume") at 1; Harris Resume, attached as Ex. 1 to Pl.'s Appl., Dkt. No. 37 ("Harris Resume") at 1). Fuller graduated from University of Miami School of Law, has been a practicing attorney for over 43 years, and has been involved in ADA litigation since 2001. (Pl.'s Appl. ¶ 15; Fuller Resume at 1-2). Harris graduated from California Western School of Law, has been a practicing attorney for 26 years, and specializes in "general and commercial litigation, employment related practices, complex professional liability, construction defect, [and] directors and officers liability and insurance coverage." (Pl.'s Appl. ¶ 15; Harris Resume at 1). Plaintiff did not provide a resume or background information on the third attorney, Garry from Braff, Harris, Sukoneck & Maloof, or on the unidentified paralegal from Fuller, Fuller & Associates. (See generally Mot.; Pl.'s Reply).
"In recent years, fees have been awarded in the Eastern District of New York at an hourly rate of $300 to $450 for partners, $100 to $325 for associates, and $70 to $100 for paralegals in fee-shifting cases." Ciampa Whitepoint LLC , 2017 WL 570761, at *2 (collecting cases). "The highest rates in this district are reserved for expert trial attorneys with extensive experience before the federal bar, who specialize in the practice of civil rights law and are recognized by their peers as leaders and experts in their fields." Hugee v. Kimso Apartments, LLC , 852 F. Supp. 2d 281, 300 (E.D.N.Y. 2012). The Court finds the requested hourly rate of $425 for Fuller to be reasonable, but the requested hourly rate of $425 for Harris and Garry and $115 for the unidentified paralegal to be unreasonable.
Courts have awarded Fuller an hourly rate between $350 and $425. (See Pl.'s Appl. ¶¶ 10-11). Although Fuller has provided minimal evidence that he is recognized as a "leader" or "expert" in the field, (see generally Fuller Resume), he has been engaged in ADA litigation since 2001 and this District has recently awarded him an hourly rate of $425 in a case with substantially similar fact pattern. See Ciampa Whitepoint LLC , 2017 WL 570761, at *2. A $425 rate for Fuller is, therefore, appropriate for this case.
Harris, however, provides no information or citations for his fee award in other ADA cases. His resume does not indicate that he has been involved in any ADA cases before this one, (see generally Harris Resume), although from the Court's own research, he appears to have served as counsel in at least a few ADA cases in the Eastern District of New York. See, e.g. , Feltzin v. Clocktower Plaza Props., Ltd., No. 16-CV-4329, 2018 WL 1221153 (E.D.N.Y. Mar. 8, 2018) ; Feltzin v. 183 S. Wellwood Ave. Corp. , No. 16-CV-5387, 2017 WL 6994213 (E.D.N.Y. Oct. 25, 2017). None of these cases involved attorney's fees, and thus the Court has no basis from which to award Harris an hourly rate at the top of the range. (See Pl.'s Appl. ¶¶ 10-11 (providing examples only of attorney's fees awards involving Fuller)).
Further, the nature of the work in this case "was not sufficiently complex or difficult to litigate as to justify a rate at the high end of the range of fees typically awarded." John v. DeMaio , No. 15-CV-6094, 2016 WL 7469862, at *7 (E.D.N.Y. Sept. 29, 2016) (recommending a partner rate of $350 per hour in a case involving no motion practice, discovery disputes, or complex legal issues), report and recommendation adopted, 2016 WL 7410656 (Dec. 22, 2016) ; see also Thompson v. Rising Star Beauty Salon Inc. , No. 15-CV-3716, 2016 WL 9583995, at *5 (E.D.N.Y. Dec. 23, 2016) (finding the requested partner rate of $375 per hour unreasonable due to the straightforward nature of work in the case) (report and recommendation). As Union Mall points out, Fuller, Fuller & Associates has been involved in dozens of similar cases, often with the same Plaintiff, and this case did not pose unique factual or legal questions or extensive discovery practice. Nothing in the application suggests that Harris provided unique experience or insight to the case such that he too should be awarded a rate at the high end of the range. The Court does, however, note the success achieved by the Settlement Agreement, in which Union Mall agreed to implement changes to the subject property to make it more accessible. See Ross v. Royal Pizza Cafe Corp. , No. 17-CV-6294, 2018 WL 6313208, at *6 (E.D.N.Y. Aug. 1, 2018) (noting courts must consider the "overall success achieved in the case" when determining reasonable hourly rates), report and recommendation adopted , 2018 WL 6313182 (Dec. 3, 2018).
There is no merit to Union Mall's contention that Fuller and Harris should not be awarded E.D.N.Y. rates for this action because they are not practitioners within the District. (See Def.'s Opp'n at 5). Both attorneys are admitted to the E.D.N.Y. Bar. And in determining reasonable hourly rates pursuant to market rates in the relevant community, "[t]he relevant community ... is the district in which the court sits." Farbotko v. Clinton Cty. , 433 F.3d 204, 208 (2d Cir. 2005). Other than determining the recoverability of travel costs and fees, the location of an attorney's law office is irrelevant, and Union Mall cites to no authority indicating otherwise.
Balancing the attorneys' levels of expertise, the non-complex nature of the case, the fact that there are multiple attorneys billing on the matter, and the success achieved by the Settlement Agreement, the Court awards an hourly rate of $325 for Harris. Cf. John , 2016 WL 7469862, at *7 (reducing attorney rate because of lack of complexity in the case and insufficient attorney expertise); Access 4 All, Inc. v. Grandview Hotel Ltd. P'ship , No. 04-CV-4368, 2006 WL 566101, at *4 (E.D.N.Y. Mar. 3, 2006) ("The Complaint in this case contains the same boilerplate language as Complaints the firm filed [in two other actions].... [T]his Court chooses to reduce Fuller, Fuller & Associates' fees from $250.00 to $150.00 an hour. We also reduce the paralegals' fees from $100.00 to $75.00. These reductions are warranted due to the garden variety nature of this action and its lack of complexity."); Brown v. Green 317 Madison, LLC , No. 11-CV-4466, 2014 WL 1237448, at *9 (E.D.N.Y. Feb. 4, 2014) ("[T]he Court cannot find a basis to award the fee rates requested by counsel.... Mr. Mussman has only 11 years experience, and his work in this case, while not insubstantial, did not involve years of litigation or require a trial on the merits. Moreover, ... his case was a relatively straight forward ADA access case without the type of complex factual investigation that was required in some of these other cases. Finally, counsel's own description of his experience does not appear to justify the rates requested. It is unclear from his submission how many ADA access cases he has handled over the years and whether any of them have proceeded to trial."), report and recommendation adopted , 2014 WL 1237127 (Mar. 25, 2014).
As for Garry, Plaintiff provided no background information, despite the objections by Union Mall identifying such a deficiency. (See Def.'s Opp'n at 5; see generally Pl.'s Appl.; Pl.'s Reply). Garry is an associate, not a partner, and thus the requested rate of $425 per hour is significantly above prevailing rates in the district. See Ciampa Whitepoint LLC , 2017 WL 570761, at *2 (noting that $100 to $325 is the prevailing hourly rate for associates). Similarly, Plaintiff fails to identify or provide background information on the paralegal involved in the case. (See Pl.'s Appl.; Fuller Invoice I at 3 (referring to paralegal as "Z-Paralegal" in billing records); Fuller Invoice II at 3 (same)). This makes it impossible for the Court to award Plaintiff the requested hourly rate of $115, which is also higher than the normal range awarded in this District. See Ciampa Whitepoint LLC , 2017 WL 570761, at *2 (noting that $70 to $100 is the prevailing hourly rate for paralegals).
The Court reduces the hourly rate for Garry and the unnamed paralegal to the lowest in the applicable range, $100 and $70, respectively. Cf. Thompson , 2016 WL 9583995, at *5 (recommending reduction of hourly rate to the lowest in the applicable range); Zepeda v. Hillside Tire Shop, Inc. , No. 15-CV-530, 2016 WL 5376246, at *4 (E.D.N.Y. June 30, 2016) (reducing hourly paralegal rate to $75, the average rate awarded in the district), report and recommendation adopted , 2016 WL 5390129 (Sept. 26, 2016) ; Santiago v. Coco Nail HB, Inc. , No. 10-CV-3373, 2012 WL 1117961, at *4 (E.D.N.Y. Mar. 16, 2012) (recommending reduction in hourly rate "[i]n consideration of the lack of information provided about Mr. Wietz's background and experience and the lack of sophistication of the work being done"), report and recommendation adopted , 2012 WL 1118853 (Apr. 3, 2012).
Although such deficiency would enable the Court to deny fees for Garry and the unnamed paralegal altogether, or at least postpone the determination of a reasonable hourly rate, Union Mall itself suggests that Garry be awarded an hourly rate of $100 and the paralegal an hourly rate of $70. (See Def.'s Opp'n at 5).
B. Hours Billed
Turning next to the reasonableness of the time expended, according to the billing records submitted, Plaintiff's attorneys spent a total of 68.9 hours on the case, consisting of 55 hours by Fuller, 12.5 hours by Harris, 0.2 hours by Garry, and 1.2 hours by the unnamed paralegal. (See Fuller Invoice II at 3; Harris Invoice II at 2). The 55 hours billed by Fuller reflect the voluntary removal of approximately 2 hours in response to Union Mall's objections, (see Pl.'s Reply at 4), but it includes an additional 2.5 hours to review Union Mall's objections and 2.3 hours to prepare a response. (Fuller Invoice II at 3). It also includes an added charge from February 5, 2018 of 2.6 hours to review the Settlement Agreement and prepare the stipulation of dismissal, among other things. (Id. at 2). Union Mall argues that Fuller's billing entries are "excessive, vague, or unnecessary" and that Harris's billing entries are "excessive, duplicative or not compensable." (Def.'s Opp'n at 6, 8).
"The party applying for fees must provide contemporaneous time sheets to document counsel's work[.]" Ciampa Whitepoint LLC , 2017 WL 570761, at *1 ; see N.Y. State Ass'n for Retarded Children, Inc. v. Carey , 711 F.2d 1136, 1148 (2d Cir. 1983) (determining that, in order to recover fees, attorneys must submit contemporaneous time records that specify "the date, the hours expended, and the nature of the work done"); Daniello v. Planned Sys. Integration Ltd. , No. 07-CV-1729, 2009 WL 2160536, at *6 (E.D.N.Y. July 17, 2009) ("This Circuit requires contemporaneous billing records for each attorney, documenting the date, the hours expended, and the nature of the work.") (adopting report and recommendation). Plaintiff here evidenced the attorney's fees through invoices, (see generally Fuller Invoice II; Harris Invoice II), but did not attest to whether the invoices were derived from contemporaneous billing records. Thus, before any award of attorney's fees becomes final, Plaintiff must file a declaration describing the contemporaneous nature of his submissions. See, e.g. , Genn v. New Haven Bd. of Educ. , No. 12-CV-704, 2017 WL 2079648, at *2 (D. Conn. May 15, 2017) (denying without prejudice attorney's fees motion because "counsel's work log [did] not, on its face, show any sign that it was compiled with the assistance of actual contemporaneous time records," nor did counsel "state whether or not she kept actual contemporaneous records").
"In reviewing a fee application, the court ‘should exclude excessive, redundant or otherwise unnecessary hours.’ " Brown , 2014 WL 1237448, at *10 (collecting cases) (quoting Bliven v. Hunt , 579 F.3d 204, 213 (2d Cir. 2009) ); see also John , 2016 WL 7469862, at *8 ("[A] trial court may reduce the claimed hours and, accordingly, counsel's award, where proposed billing schedules are unsupported by evidence or objectively unreasonable."). "Where entries on a time sheet are vague, duplicative, or otherwise insufficient, a court need not itemize individual entries as excessive; rather, it may make an across-the-board reduction, or percentage cut, in the amount of hours." John , 2016 WL 7469862, at *8 (quotations omitted); accord Brown , 2014 WL 1237448, at *11 ("Rather than itemizing individual entries as excessive, the court may make an across-the-board reduction, or percentage cut, in the amount of hours.") (quotations omitted). "[I]t is less important that judges attain exactitude, than that they use their experience with the case, as well as their experience with the practice of law, to assess the reasonableness of the hours spent." John , 2016 WL 7469862, at *9 (quotations omitted).
As an initial matter, 2.6 hours billed for work on February 5, 2018 must be deducted because it did not appear on the original invoice submitted—making it unclear whether it was a contemporaneous record—and was added only in Plaintiff's reply papers. Even for attorney's fees applications, " ‘[a]rguments may not be made for the first time in a reply brief.’ " U.S. ex rel. Karlin v. Noble Jewelry Holdings Ltd. , No. 08-CV-7826, 2012 WL 1228199, at *4 (S.D.N.Y. Apr. 9, 2012) (quoting Knipe v. Skinner , 999 F.2d 708, 711 (2d Cir. 1993) ) (report and recommendation).
The Court also declines to award Harris attorney's fees for 7.4 hours of travel time to and from both initial conferences. (See Harris Invoice II at 1 (entries dated Sept. 25, 2017 and Nov. 13, 2017)); see, e.g. , Ciampa Whitepoint LLC , 2017 WL 570761, at *3 ("Defendants should not be penalized for a plaintiff's choice of out-of-district counsel, unless the case required special expertise beyond the competence of forum district law firms. This is particularly so when out-of-district counsel [the Fuller Firm] did not charge lower rates than the prevailing rates in the district. The location of the alleged violative property is in New York .... Moreover, this district is not lacking in counsel with ADA expertise. The Court therefore denies an award of travel-related fees.") (quotations and citations omitted) (alterations omitted); Swartz v. HCIN Water St. Assocs., LLC , No. 17-CV-4187, 2018 WL 5629903, at *6 (S.D.N.Y. Oct. 31, 2018) (deducting the requested 8 hours of fees "incurred for non-local travel because [the court] finds it was not reasonable for Swartz to incur the additional expenses of hiring a non-local attorney").
Although the billing records do not specify, travel presumably occurred from Harris's law offices in Livingston, New Jersey. (See Harris Invoice II at 1).
The Court also agrees with Union Mall that several of the billing entries are vague, duplicative, or excessive, warranting a percentage reduction in the number of hours billed. For example, Fuller billed at least 7.8 hours of phone calls with Plaintiff, opposing counsel, or other unidentified individuals without explaining the nature or subject of the phone call; his paralegal billed 1.2 hours preparing and reviewing letters to opposing counsel without any explanation. (See Fuller Invoice II at 1-3); cf. Caban v. Emp. Sec. Fund of the Elec. Prods. Indus. Pension Plan , No. 10-CV-389, 2015 WL 7454601, at *7 (E.D.N.Y. Nov. 23, 2015) ("There are also some vague entries, such as those for time spent on document review, consultations, and phone calls, which do not contain further elaboration.... [V]ague descriptions make it difficult to determine the reasonableness of the time spent on particular tasks and warrant a reduction in attorney's fees."). Harris billed 0.6 hours to "[r]eview ... file in preparation for initial conference" on September 22, 2017 and 0.5 hours again for the same thing on September 26, 2017, the day after the initial conference. (See Harris Invoice II at 1; Minute Order dated Sept. 25, 2017, Dkt. No. 25). These are duplicative and redundant. See John , 2016 WL 7469862, at *10 (noting duplicative billing entries in recommending overall reduction of fees); Yash Raj Films (USA) Inc. v. Movie Time Video USA, Inc. , No. 04-CV-5107, 2007 WL 2572109, at *5 (E.D.N.Y. July 26, 2007) (reducing fee award based, in part, on duplicative and excessive entries), report and recommendation adopted , Order dated Aug. 22, 2007.
Similarly, both Fuller and Harris billed for tasks that could have been completed by an associate or paralegal, such as the 0.3 hours Harris spent filing a notice of appearance or the 0.9 hours Fuller spent reviewing a scheduling order and referral to mediation. (See Fuller Invoice II at 2 (entry dated Nov. 14, 2017); Harris Invoice II at 2 (entry dated Nov. 14, 2017)); see, e.g. , Ciampa Whitepoint LLC , 2017 WL 570761, at *3 ("Fuller ... billed for clerical tasks that could have been performed by a non-lawyer at a lower hourly rate, such as a phone call with opposing counsel's legal assistant. The Court finds that a reduction of those hours is appropriate.") (citation omitted); id. ("[A]lmost all of Siddiqi's other time entries involve ‘reviewing’ either ECF docket entries or e-mails between [other counsel], work that does not require a partner to perform.").
"A percentage reduction is a practical means of trimming fat from a fee application and is a permissible way of reducing a fee award." Caban , 2015 WL 7454601, at *8 (quotations omitted). To account for vague, duplicative, and excessive hours billed, the Court finds an overall reduction of 30% appropriate in this case, to be calculated after the deduction of the 2.6 hours billed by Fuller on February 5, 2018 and the 7.4 hours for travel billed by Harris. See, e.g. , Ciampa Whitepoint LLC , 2017 WL 570761, at *3 (reducing fee award to Fuller Firm by 40% after travel-related hours had been deducted); Brown , 2014 WL 1237448, at *13 (recommending reduction in fee award by 20% to account for vague, excessive, duplicative, and confusing entries after travel-related hours had been deducted); Yash Raj Films , 2007 WL 2572109, at *5 (finding "a twenty percent reduction in plaintiff's counsel's billing records sufficient to account for the vague entries and some duplicative and excessive work").
Courts also have discretion in awarding attorney's fees for time spent preparing a fee application. These hours should be evaluated "in the same manner as the costs of litigating the case." John , 2016 WL 7469862, at *11 ; see also Johnson v. City of New York , No. 11-CV-06176, 2016 WL 590457, at *6 (E.D.N.Y. Feb. 11, 2016) ("It is within a judge's discretion to award fees in connection with the fee application by an attorney seeking an award of attorney's fees. The Second Circuit courts do not follow a uniform practice of awarding ‘fees on fees.’ This decision rests in the Court's evaluation of whether the incurred costs for the fee application were reasonable.") (citations omitted). Here, Fuller billed a total of 17.8 hours related to the fee application, consisting of 13 hours in research and preparation of the original fee application and 4.8 hours to review and respond to Union Mall's objections. (Fuller Invoice II at 3). This is over 25% of the total attorney's fees sought. (See id. (seeking a total of 55 hours in attorney's fees; Harris Invoice II at 2 (seeking a total of 12.7 hours in attorney's fees)). This is excessive and is yet another reason for the 30% overall reduction in fees. See, e.g. , Brown , 2014 WL 1237448, at *13 (noting, in support of its 20% fee reduction, that "Mr. Mussman spent 33 hours preparing this fee application and the materials associated with the motion for attorney's fees," which "amounts to more than ten percent of the number of total hours he spent on the entire case").
C. Total Fee Award
The Court thus awards Plaintiff $16,822.05 in attorney's fees, as indicated below, which accounts for the 10-hour initial deduction and the 30% overall reduction.
Attorney/Paralegal Rate No. of Hours Amount 30% Reduction Lawrence Fuller $425/hour 52.4 $22,270 $15,589 Keith Harris $325/hour 5.1 $1,657.50 $1,160.25 Daniel Garry $100/hour 0.2 $20 $14 Unnamed Paralegal $70/hour 1.2 $84 $58.80
II. Expert Fees
Plaintiff seeks an award in expert fees of $2,800, which represents the services rendered by Anthony Mattera ("Mattera"), for 14 hours of work at a rate of $200 per hour. (Pl.'s Appl. at ¶ 23; Access Consultants, LLC Invoice dated Dec. 23, 2015, attached as Ex. 5 to Pl.'s Appl., Dkt. No. 37 ("Mattera Invoice")). Mattera is a Consultant and Lead Accessibility Inspector, "who inspected the property to ascertain and confirm the ADA violations." (Pl.'s Appl. ¶ 23; Mattera Resume, attached as Ex. 4 to Pl.'s Appl., Dkt. No. 37 ("Mattera Resume")). Mattera created an initial pre-suit report on the subject property, which Plaintiff attached to his fee application. (See Access Consultants, LCC Report dated Dec. 23, 2015, attached as Ex. 6 to Pl.'s Appl., Dkt. No. 37).
"The court in its discretion may award a prevailing party its reasonable expert fees as a litigation expense pursuant to the ADA." Spalluto v. Trump Int'l Hotel & Tower , No. 04-CV-7497, 2008 WL 4525372, at *17 (S.D.N.Y. Oct. 2, 2008) (quotations omitted) (adopting report and recommendation); see also Santiago , 2012 WL 1117961, at *5 ("Under the ADA, a court may in its discretion award litigation expenses and costs, including an expert witness fee."). The Settlement Agreement also provides for expert fees. (See Settlement Agreement ¶ 2). "It is well established that the party seeking reimbursement for expert fees bears the burden of proving reasonableness." Brown , 2014 WL 1237448, at *15.
Mattera has experience in ADA compliance, serving as a consultant on ADA inspections since 2008 and as a Lead Accessibility Inspector since 2013. (Mattera Resume). His invoice, however, does not provide any dates on which services were rendered, which "prevents [the Court] from cross-checking the experts' billing with the [attorney] invoice to assess the reasonableness of the experts' hours." Spalluto , 2008 WL 4525372, at *17. The Court thus reduces the expense requested by 20% and awards $2,240 in expert fees. See, e.g. , id. (recommending a reduction of 15% in expert fees to account for an omission of the dates when services were rendered); Access 4 All, Inc. v. HI 57 Hotel, LLC , No. 04-CV-6620, 2006 WL 196969, at *4 (S.D.N.Y. Jan. 26, 2006) (reducing expert fees because plaintiff provided "no information concerning the dates when her services allegedly were performed").
III. Costs
Plaintiff seeks $912.15 in costs. (Fuller Invoice II at 3; Harris Invoice II at 2). This is composed of the $400 filing fee, $115 in process server fees, $200 for a title search, $22 for photocopies, and $16.50 in telephone charges billed by Fuller, (Fuller Invoice II at 3), and $158.65 in mileage, parking, and tolls billed by Harris's firm to attend both initial conferences, (Harris Invoice II at 2).
Plaintiff originally sought reimbursement of $225 for opening/closing the case file and $750 in re-inspection fees in addition to these other costs. (See Fuller Invoice I at 3). Plaintiff has removed those charges "[r]ather than argue with Defendant over every penny spent." (Pl.'s Reply at 3; see Fuller Invoice II at 3). The Court notes that, in any event, these charges would not be taxable. See Swartz , 2018 WL 5629903, at *7-8 ("Defendant challenges the $225 amount requested for ‘Open/Close File Charge’ on grounds that it is a clerical, non-compensable cost. The Court deducts this charge because Swartz fails to support it, and it appears to be part of general office overhead that is compensated through attorneys' fees. Lastly, the Court will not award a requested $750 re-inspection fee. Again, Swartz fails to provide any supporting documentation for this expense, which is not on its face reasonable. Without more, the Court agrees with other courts that have found this to be a non-compensable charge.") (quotations and citations omitted).
The ADA allows the prevailing party to recover costs associated with the action. 42 U.S.C. § 12205 ("[T]he court ... may allow the prevailing party ... costs[.]"); see also Swartz , 2018 WL 5629903, at *7 ("The court in its discretion may award a prevailing party its reasonable costs pursuant to the ADA.") (quotations omitted). The Settlement Agreement also provides for the recovery of costs. (Settlement Agreement ¶ 2). Plaintiffs may ordinarily recover "[c]osts relating to filing fees, process servers, postage, and photocopying[.]" Teamsters Local 814 Welfare Fund v. Dahill Moving & Storage Co. , 545 F. Supp. 2d 260, 269 (E.D.N.Y. 2008). Only those costs that are tied to " ‘identifiable, out-of-pocket disbursements’ " are recoverable. Moon v. Gab Kwon , 99-CV-11810, 2002 WL 31512816, at *8 (S.D.N.Y. Nov. 8, 2002) (quoting Kuzma v. IRS , 821 F.2d 930, 933-34 (2d Cir. 1987) ). "[T]he party moving for costs bears the burden of demonstrating the reasonableness of each charge; failure to provide adequate documentation of costs incurred will limit, or even defeat, recovery." John , 2016 WL 7469862, at *12. Filing fees are recoverable without supporting documentation if verified by the docket. Shalto v. Bay of Bengal Kabob Corp. , No. 12-CV-920, 2013 WL 867420, at *2 (E.D.N.Y. Mar. 7, 2013) ; Philpot v. Music Times LLC , No. 16-CV-1277, 2017 WL 9538900, at *11 (S.D.N.Y. Mar. 29, 2017) (noting that the filing fee is "a fact of which the Court can take judicial notice"), report and recommendation adopted , 2017 WL 1906902 (May 9, 2017). Although Plaintiff did not submit an invoice for the clerk's filing fee, the docket indicates the filing fee was paid. (Dkt. No. 1 (clerk's entry reflecting payment of $400 filing fee)). Plaintiff is, therefore, awarded the $400 filing fee. See, e.g. , John , 2016 WL 7469862, at *12 (awarding Plaintiff the filing fee based on judicial notice of the docket).
Process server fees are also recoverable but must be supported by documentation. See Martinez v. Alimentos Saludables Corp. , No. 16-CV-1997, 2017 WL 5033650, at *29 (E.D.N.Y. Sept. 22, 2017) ("[F]ailure to provide adequate documentation of costs incurred will limit, or even defeat, recovery."), report and recommendation adopted , Order dated Oct. 18, 2017; Sheldon v. Plot Commerce , No. 15-CV-5885, 2016 WL 5107072, at *20 (E.D.N.Y. Aug. 26, 2016) (recommending the costs for serving the defendant "be denied due to lack of adequate documentation"), report and recommendation adopted , 2016 WL 5107058 (Sept. 19, 2016). Although Plaintiff did not submit documentation of the process server fee with his motion for attorney's fees, he did file a service invoice on the docket. (See Summons Returned Executed dated Aug. 22, 2016, Dkt. No. 7). This invoice indicates the cost of service was $169.99, ( id. ); however, the Court will award Plaintiff $115 in service fees, as this is the amount requested. (Fuller Invoice II at 3).
Union Mall "objects to paying the costs of service to the extent Plaintiff did not provide Defendant an opportunity to waive service" pursuant to Rule 4(d)(2). (Def.'s Opp'n at 10). No provision of Rule 4 requires a plaintiff to utilize a service waiver. See Fed. R. Civ. P. 4(d)(1) ("The plaintiff may notify ... a defendant that an action has been commenced and request that the defendant waive service of a summons.") (emphasis added).
As to the remaining costs, Plaintiff provided no supporting documentation or receipts with his application, nor are there any filed on the docket. "Courts in this district have rejected the award of costs without supporting documentation." Ciampa Whitepoint LLC , 2017 WL 570761, at *4 (quotations and alterations omitted). Thus, the Court declines to award the $200 for a title search, $22 for photocopies, $16.50 in telephone charges, and the $158.65 in mileage, parking, and tolls. See, e.g. , John , 2016 WL 7469862, at *12 ("[T]he Court cannot simply take the ledger that plaintiffs' counsel created at face value without any additional evidence of the costs alleged therein. Accordingly, the Court respectfully recommends that plaintiffs be awarded $1,123.22 in costs, but that the remaining requested $70.00 in other costs be denied in the absence of supporting documentation."). The Court thus awards Plaintiff the $400 filing fee and $115 in process server fees, for a total of $515 in costs.
Even if Plaintiff had provided supporting documentation for the $158.65 in travel costs, the Court would have denied the request, as Plaintiff had ample choice of counsel in this District to pursue this matter. See Swartz , 2018 WL 5629903, at *6 ("It is true that courts in the Second Circuit often reduce attorneys' fees for travel time by 50 percent. However, expenses and fees related to travel must be excluded from an award of attorneys' fees if the hypothetical reasonable client who wishes to spend the least amount necessary to litigate the matter would have retained local counsel.") (alterations omitted) (quotations and citations omitted); Brown , 2014 WL 1237448, at *14 (denying out-of-state travel expenses given that "defendants are not required to bear the expense of plaintiff's choice of non-local counsel"). Plaintiff has not met his burden to show "the reasonableness of fees and expenses incurred due to [his] decision to hire out-of-state professionals." Swartz , 2018 WL 5629903, at *6.
CONCLUSION
For the reasons described above, the Court awards Plaintiff $16,822.05 in attorney's fees, $2,240 in expert fees, and $515 in costs. Plaintiff is directed to file a declaration describing the contemporaneous nature of the billing invoices submitted with his motion before any award of attorney's fees becomes final. See supra note 8.
SO ORDERED.