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Kennedy v. Radio Road Plaza Investments, LLC

United States District Court, M.D. Florida, Fort Myers Division

January 10, 2017

PATRICIA KENNEDY, individually, Plaintiff,
v.
RADIO ROAD PLAZA INVESTMENTS, LLC, Defendant.

          ORDER

          JOHN E. STEELE, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on plaintiff's Verified Application for Attorney's Fees, costs, Expert Witness Fees and Litigation Expenses (Doc. #28) filed on April 13, 2016. Defendant filed a Response (Doc. #29) on April 27, 2016. Plaintiff filed a Reply in Support of Her Verified Application (Doc. #32) with leave of Court. (Doc. #31.) On May 24, 2016, plaintiff filed a Verified Supplemental Application (Doc. #33) seeking additional fees for the filing of the reply and the supplemental application. Defendant filed a Response (Doc. #34).

         I.

         As a preliminary matter, plaintiff sought leave to file a 5 page reply to address the defendant's response, and the e-mails submitted with defendant's response, to “furnish the Court with the legal authorities rejecting the Defendant's claims”, and to provide a more complete picture of discussions between counsel. (Doc. #30.) The Magistrate Judge granted the motion and specifically permitted a reply “of no more than five (5) pages.” (Doc. #31, p. 2, § 2.) On May 24, 2016, plaintiff filed a Reply (Doc. #32) that was in fact 6 pages in length, and also attached e-mails in support. The reply will be stricken and the 6 pages will not be considered based on Plaintiff's failure to comply with the granted page limit.

         As to the e-mails submitted by both counsel, the Court finds that they neither help nor hinder the decision on what constitutes a reasonable fee. Both attorneys engaged in normal tactics in support of their respective positions to either compel a quicker settlement or to avoid discovery in hopes of a less expensive settlement. In the end, all parties agreed that there were barriers to access that needed to be addressed, and the only current issue before the Court is whether the attorney fees, costs, and expenses sought are reasonable.

         On May 24, 2016, plaintiff filed a Verified Supplemental Application (Doc. #33) seeking fees and expenses expended subsequent to the original filing, and specifically related to the reply. As the Court finds that the reply should be stricken, the Court will deny this supplemental application for an extraordinary $4, 704.00 in its entirety.

         II.

         Plaintiff initiated her Complaint (Doc. #1) on October 9, 2015, and defendant filed an Answer and Affirmative Defenses (doc. #10) on November 9, 2015. On February 29, 2016, plaintiff filed an Amended Motion for Summary Judgment (Doc. #20), however the parties reached a settlement before the response was due. (Doc. #25.) On April 1, 2016, the Court issued an Order (Doc. #26) granting the parties' Joint Motion for Approval of Consent Decree and Dismissal of Case With Prejudice (Doc. #25), approving the parties' attached proposed Consent Decree, and directing the entry of judgment. Judgment (Doc. #27) was entered on April 4, 2016, and the parties agreed in the approved Consent Decree (Doc. #27-1) as follows:

Defendant shall pay Plaintiff's counsel, Thomas B. Bacon, Plaintiff's attorneys' fees, litigation expenses, expert fees, re-inspection fees and costs incurred in this matter. The amounts to be paid shall be established by the Court.

(Doc. #27-1, p. 2, ¶ 2) (emphasis added). Plaintiff now seeks fees, costs, and expenses as the prevailing party[1] under 42 U.S.C. § 12205, and Plaintiff's entitlement to same is undisputed. Plaintiff seeks $13, 272.00 for both Mr. Bacon and Mr. Cullen's fees based on an hourly rate of $420.00 per hour; paralegal fees of $149.50 based on an hourly rate of $115; $461.54 for costs and expenses; $1, 300 for expert expenses; and $1, 000 for the re-inspection fee for a total of $16, 183.04, not including the additional funds requested in the supplemental application.

         III.

         A reasonable attorney fee is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The party seeking an award of fees should submit adequate documentation of hours and rates in support, or the award may be reduced. Id. In determining the reasonable amount of hours, the Court may conduct an hour-by-hour analysis or it may reduce the requested hours across the board, Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008), and the Court must eliminate excessive, unnecessary, and redundant hours, Norman v. Housing Auth. Of Montgomery, 836 F.2d 1292, 1301-02 (11th Cir. 1988).

         Although defendant does not object to the request for fees by Mr. Cullen, counsel of record in this case, the Consent Decree signed by both parties, approved by the Court, and attached to the judgment only provides for payment of attorney fees to Mr. Bacon. Therefore, the motion will be denied without prejudice as to all fees incurred on behalf of Mr. Cullen.

         Hourly ...


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