Marshall v. Rio Grande River Ltd. P'ship

162 F.Supp.3d 54

John Marshall, Plaintiff,

v.Rio Grande River Limited Partnership, a Massachusetts Limited Partnership, Defendant.

CIVIL ACTION No. 13-11189-WGY

United States District Court, D. Massachusetts.

Signed February 18, 2016

Louis I. Mussman, Ku & Mussman, PA, Miami, FL, Ashley D. Forest, Law Office of Ashley D. Forest, Boston, MA, for Plaintiff.

Garrett J. Lee, Denzil D. McKenzie, McKenzie & Associates, P.C., Boston, MA, for Defendant.

MEMORANDUM & ORDER

YOUNG, DISTRICT JUDGE.

I. INTRODUCTION

John Marshall (“Marshall”) brought this suit against Rio Grande River Limited Partnership (“Rio Grande”) alleging that Rio Grande's property at 2343 Washington Street, Boston, Massachusetts (the “Property”) had architectural barriers that prevented Marshall from entering it, see Compl. 1–2, ECF No. 1, in violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 -12213. Virtually on the eve of trial Marshall and Rio Grande agreed to settle. See Settlement Order Dismissal, ECF No. 91. Thereafter, Rio Grande tried to back out of the agreement, but this Court denied its motion to do so, see Decree Enforcing Settlement (“Decree”) 1, ECF No. 100, and entered Final Judgment in favor of Marshall, Final J. 1, ECF No. 104. Marshall requested attorneys' fees and expenses. See Pl.'s Mot. Att'ys' Fees Related Expenses (“Pl.'s Fees Mot.”), ECF No. 108; Pl.'s Mem. Supp. Mot. Att'ys Fees and Related Expenses (“Pl.'s Mem. Supp.”), ECF No. 112. Rio Grande opposed his request. See Substitute Def.'s Opp. Pl.'s Mot. Att'ys' Fees Related Expenses (“Def.'s Opp'n”), ECF No. 116.

Marshall asks for a total of $150,685.00 in attorneys' fees and $8,853.80 in costs and expenses, Pl.'s Reply Mem. Supp. Mot. Att'ys Fees and Related Expenses (“Pl.'s Reply”) 1, ECF No. 121. Rio Grande claims the number of hours billed is excessive, and the hourly rates are unreasonable. Def.'s Opp'n 1.

A. Factual Background

Marshall, moving for fees and costs, and Rio Grande, opposing his request, each have asserted certain foundational facts relevant to Marshall's motion that are effectively undisputed. The Court briefly recounts them before delving into its analysis.

Marshall's complaint alleged that the Property, which consists of two banks, has architectural barriers—steps without a ramp or lift—that prevent Marshall, a partial amputee in a wheelchair, from accessing it, in violation of the ADA. Compl. ¶ 11; see 42 U.S.C. § 12182 (stating that a person who operates a place of public accommodation cannot discriminate against individuals on the basis of disability).

Marshall is represented by Louis Mussman (“Mussman”) of Ku & Mussman, P.A.,¹ and Ashley Forest (“Forest”), who serves as local counsel for Marshall. Compl. 5.

Marshall hired an expert to evaluate the Property. Pl.'s Mem. Supp. 4. Nicholas Heybeck (“Heybeck”) traveled from Houston, Texas to the Property to prepare a report. Id. Heybeck also evaluated Rio Grande's expert report and assisted in Marshall's settlement attempts. Id. In addition, Heybeck prepared for and completed “a deposition by written questions.” Id.

Rio Grande plans on redeveloping the Property into a mixed-use commercial building. Def.'s Opp'n 5. The Property currently consists of one building that is listed in the National Register of Historic Places. See Opp'n Mot. Att'ys Fees and Related Expenses, Ex. 3, Re: Dudley Station Historic District, Roxbury, Massachusetts, ECF No. 115-3. Rio Grande plans to renovate the property by adding an additional building and an underground parking lot. Opp'n Mot. Att'ys Fees and Related Expenses, Ex. 23, Aff. Kenneth Guscott 2, ECF No. 115-23. The additional building would meet the accessibility requirements of the ADA, as well as make the original building accessible. Def.'s Opp'n 2.

B. Procedural History

At the initial case management scheduling conference on December 11, 2013, the Court placed this case on the December 2014 running trial list. Am. Joint Proposed Case Management Schedule 1-2, ECF No. 20. The case was continued and placed on the March 2015 running trial list following an error. Elec. Notice Rescheduling, ECF No. 38. On February 25, 2015, the parties reported the case settled but for the determination of attorneys' fees. Settlement Order Dismissal, ECF No. 91. The Court entered a decree in accordance with the settlement. Decree 1. The Decree required, among other things, that Rio Grande complete its redevelopment of the Property as it had planned, which included making the Property and the additional building compliant with the accessibility requirements of the ADA. Id. at 2-3.

C. Marshall's Request

Marshall has provided an itemized bill of the hours worked by Mussman, Forest, and two paralegals, T. Rose (“Rose”) and R. Sarmiento (“Sarmiento”) on this matter. Pl.'s Mem. Supp., Ex. 3, Marshall v. Rio Grande River Itemized Billing (“Itemized Attorney Billing”), ECF No. 112-3. The itemized billing has several discounts, including reduced hours for discussions and review of co-counsel and non-productive travel time. See id. It also includes an estimated time entered for anticipated future hours billed. Id. Marshall provided an updated document with a final cost for Mussman's services, while the other costs remained the same. Pl.'s Reply 10. The bill stretches over three years, and the total for the four lawyers comes to $150,685.00.² Id.

Heybeck is Marshall's expert for this case, and has submitted his bill, which Marshall seeks to recover in his costs. Pl.'s Mem. Supp., Ex. 2, Itemization of 42 U.S.C § 12205 Costs (“Itemized Costs”) 1, ECF No. 112-2. Heybeck's billable hours, at his proffered rates, total $5,660.00. See id. at 28-29.³

Marshall asks for $8,853.80 total in costs. $5,660.00 of those costs are the expert fees mentioned above; the remaining $3,193.80 comes from various other costs. See id. at 1.⁴

II. ANALYSIS

Rio Grande advances two substantive arguments opposing Marshall's request for attorneys' fees and costs. First, it argues that Marshall is not a prevailing party, and is thus entitled to nothing. See Def.'s Opp'n 10-12. Second, in the alternative, Rio Grande claims that Marshall's requested fees and costs are unreasonable, both because Marshall's proffered rates are too high, and because the amount of hours claimed is excessive. See id. at 12-21. The Court holds that Rio Grande's first argument lacks merit, and, while substantially rejecting its second argument, too, does reduce in part Marshall's requested amounts.

A. Prevailing Party

Rio Grande argues that the Decree is ambiguous as to whether Marshall is the prevailing party, and thus the Court should refuse to award fees. See id. at 10-11. Rio Grande relies on language in the Decree that states, “this Decree shall not be construed as an admission by [Rio Grande] of any violation of federal laws or local statutes (including the ADA), and state or municipal fire safety or building code, or any other wrongdoing or liability whatsoever.” Decree 4. Rio Grande argues that, since the Court made no finding that Rio Grande had violated the ADA or any other statute, the Decree simply maintains the “status quo.” Def.'s Opp'n 11.

Rio Grande is wrong: Marshall is the prevailing party. The Decree here orders Rio Grande to remove barriers from the Property to the “full satisfaction of [Rio Grande's] obligations under law[.]”. Decree 2. The Decree reads: “The Court having reviewed the facts and being otherwise fully advised, it is hereby ORDERED AND ADJUDGED that the following relief is entered in the Plaintiff's favor.” Id. at 1. That Rio Grande did not admit liability is of no import: the key is that Marshall obtained a legally enforceable right against Rio Grande. See Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health & Human Res. , 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (“[S]ettlement agreements enforced through a consent decree may serve as the basis for an award of attorney's fees. Although a consent decree does not always include an admission of liability by the defendant, it nonetheless is a court-ordered change in the legal relationship between the plaintiff and the defendant.”) (internal citations omitted); Aronov v. Napolitano , 562 F.3d 84, 89 (1st Cir.2009) (citing Buckhannon , 532 U.S. at 604, 121 S.Ct. 1835 ).

B. Reasonableness of Marshall's Request

Rio Grande also challenges nearly every aspect of Marshall's request for specific fees and costs. The Court discusses these objections in turn.

1. Fees

The Court may award the prevailing party in a civil rights case reasonable attorneys' fees, which include litigation expenses. 42 U.S.C. § 12205 ; see also Fed. R. Civ. P. 54(d)(2) (describing the process for obtaining attorneys' fees). Typically, a reasonable fee is calculated by taking the number of hours reasonably expended on the litigation and multiplying it by a reasonable hourly rate, producing the so-called lodestar amount. Hensley v. Eckerhart , 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (2016). The party seeking fees must submit evidence in support of the hours worked and rates claimed; if the documentation is inadequate, the award may be reduced. Id. “Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in a private practice ethically is obligated to exclude such hours from his fee submission.” Id. at 434, 103 S.Ct. 1933. The lodestar represents a presumptively reasonable fee, but may be adjusted upward or downward depending on the circumstances. Lipsett v. Blanco , 975 F.2d 934, 937 (1st Cir.1992) ; see Ins. Recovery Group, Inc. v. Connolly , 95 F.Supp.3d 73, 79 (D.Mass.2015) (internal citation omitted), appeal dismissed (May 14, 2015). The Court may also disallow time spent in litigating failed claims from the fee award. Torres–Rivera v. O'Neill–Cancel , 524 F.3d 331, 336 (1st Cir.2008) (citing Lipsett , 975 F.2d at 940–41 ).

Rio Grande's...