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Kennedy v. Three J's L.L.P.

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

February 6, 2018

PATRICIA KENNEDY, individually, Plaintiff,
v.
THREE J'S L.L.P., T.T. KWAN, INC. and LJ FT. MEYERS LLC, Defendants.

          REPORT AND RECOMMENDATION [1]

          MAC R. MCCOY UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Plaintiff's Verified Motion for Attorney's Fees, Costs, Expert Witness Fees and Litigation Expenses (Doc. 59), filed on August 10, 2017. Plaintiff seeks an award of attorneys' fees and costs in the total amount of $49, 908.50. (Id. at 22). Defendants filed a Response (Doc. 62) in opposition on September 7, 2017, arguing that Plaintiff should not be awarded fees because she failed to provide pre-suit notice or, alternatively, that Plaintiff's demand should be reduced as excessive. The matter was referred to the Undersigned for a Report and Recommendation and is ripe for review. For the reasons stated herein, the Undersigned respectfully recommends that Plaintiff's Motion (Doc. 59) be GRANTED IN PART and DENIED IN PART.

         I. Background

         On March 18, 2016, Plaintiff brought the current action pursuant to the Americans with Disabilities Act (“ADA”). (Doc. 1). Plaintiff alleged that Defendants Three J'S LLP, T.T. Kwan, Inc., and LJ Ft. Myers LLC denied her access to their property because of multiple ADA violations. (See id.). Throughout the course of this litigation, one common theme has emerged. Specifically, the parties agree on virtually all issues, except for the issue of attorneys' fees.

         For instance, eleven months after the case was filed, the Court entered an Order directing the parties to advise the Court regarding the status of mediation. (Doc. 25). Only Kennedy responded. (See Doc. 26). Plaintiff stated that she was “under the impression that [the] case. . . resolved.” (Id. at 1). The Court then directed the parties to file a notice of settlement or notify it as to the status of settlement, (Doc. 27), but neither party timely responded to the order. Plaintiff then filed her Motion to Enforce Settlement. (Doc. 28). At that time, and at a later status conference conducted by the Court, it was clear that the parties had essentially resolved all issues except for the issue of attorneys' fees. (See Doc. 28-2; Doc. 35 at 4; Doc. 35 at 10). Nonetheless, after a review of the parties' submissions and arguments, the Court found that entitlement to attorneys' fees was a material term of the parties' purported settlement agreement. (Doc. 39 at 5-6). Moreover, because the parties failed to agree on that term, the Court declined to incorporate and enforce the parties' settlement agreement and, therefore, denied Plaintiff's Motion to Enforce Settlement. (Id.).

         Prior to the Court's resolution of the Motion to Enforce Settlement, Plaintiff filed a Motion to Extend Certain Deadlines, Compel Compliance with Scheduling Order and for [the] Imposition of Sanctions (Doc. 38). Some of the relief requested by Plaintiff was mooted by the Court's Order denying the Motion to Enforce Settlement. (See Doc. 39). In pertinent part as to what remained of Plaintiff's arguments, Plaintiff argued that Defendants had not complied with the deadlines set forth in the Court's Case Management and Scheduling Order. (Id.). As a result, Plaintiff requested that the Court extend various case management deadlines, compel Defendants to comply with the new deadlines, and award her sanctions for Defendants' and/or Defendants' counsel's conduct. (Id. at 5-6). Despite the parties' apparent agreement on many issues, the Court noted that “it [was] clear that the parties still [had] stark disagreements on some issues in this case.” (Doc. 41 at 3). Without an enforceable agreement between the parties, the Court stated that the case must continue to move forward toward trial. (Id.). Thus, the Court granted Plaintiff's Motion to the extent it requested an extension of the remaining case management deadlines. (Id.). The Court further admonished all parties that they must strictly comply with all amended case management deadlines. (Id.). Finally, the Court found, upon a careful review of the record, that the parties were equally responsible for the posture of this case and, therefore, declined to award sanctions. (Id.).

         Plaintiff then filed a Motion for Summary Judgment (Doc. 43) and a Motion to Strike Defendants' Pleadings (Doc. 46). Based on the Motions, the posture of the case, and the parties' failure to mediate, the Court found it necessary to hold a hearing. (Doc. 47 at 1). The parties appeared for a hearing on July 6, 2017. (See Doc. 50). At the hearing, the parties again indicated that their only remaining issue was attorneys' fees. (Doc. 51 at 3).

         Subsequently, the Court ruled on Plaintiff's Motion for Summary Judgment. (Doc. 54). As the Court noted in the Order, Defendants did not dispute Ms. Kennedy's statement of facts. (Id. (citing Doc. 45)). Indeed, Defendants specifically requested that the Court grant Plaintiff's Motion for Summary Judgment. (Id. (citing Doc. 45 at 5)). Nevertheless, Defendants further requested that the Court “reserve ruling on the issue of entitlement to attorney's fees.” (Id. (citing Doc. 45 at 5)). Based on the evidence and the parties' positions, the Court found that Ms. Kennedy was entitled to summary judgment. (Id. at 4). The Court, however, reserved ruling on all issues related to attorneys' fees. (Id.).

         Plaintiff ultimately filed the present Verified Motion for Attorney's Fees, Costs, Expert Witness Fees and Litigation Expenses (Doc. 59) to which Defendants responded (Doc. 62). The Undersigned now addresses the issues raised in Plaintiff's Motion, beginning with her request for attorneys' fees.

         II. Attorneys' Fees

         The ADA authorizes a court, in its discretion, to allow the prevailing party a reasonable attorney's fee, including litigation expenses and costs. 42 U.S.C. § 12205. Here, the parties contest both the entitlement to attorneys' fees and the reasonableness of the fees sought. The Undersigned addresses both issues in turn.

         A. Entitlement to Attorneys' Fees

         Plaintiff argues that, as the prevailing party, she is presumptively entitled to her attorneys' fees. (Doc. 59 at 2). Indeed, Plaintiff argues that Defendants have, in fact, conceded that the only remaining issue is the amount of attorneys' fees. (Id. (citing, e.g., Doc. 45 at 2 ¶ 3)). Furthermore, contrary to Defendants' position, Plaintiff argues that pre-suit notice is not required by statute. (Id. at 17 (citations omitted)). Moreover, Plaintiff argues that, in her experience, pre-suit notice “simply doesn't work.” (Id. at 17-18). Finally, Plaintiff argues that her prior litigation history is irrelevant to the current dispute. (Id. at 19-20).

         In response, Defendants do not contest that Plaintiff is the prevailing party. (See Doc. 62). Instead, Defendants argue that the Court, in its discretion, should decline to award attorneys' fees in this case. (Id. at 10). In support, Plaintiff points out that the relevant statute indicates that an award of attorneys' fees is discretionary. (Doc. 62 at 7 (citing 42 U.S.C. § 12205)). Additionally, Defendants cite decisions of this Court where the Court, in its discretion, denied awards of attorneys' fees and costs for failure to provide pre-suit notice. (Id. (citing Macort v. Checker Drive-In Restaurants, Inc., No. 8:03-CV-1328-T-30EAJ, 2005 WL 332422, at *1 (M.D. Fla. Jan. 28, 2005); Ass'n for Disabled Americans, Inc. v. Integra Resort Mgmt., Inc., 385 F.Supp.2d 1272, 1307 (M.D. Fla. 2005); Rodriguez v. Investco, L.L.C., 305 F.Supp.2d 1278, 1285 (M.D. Fla. 2004))).

         Here, Defendants state that “at no time prior to filing this lawsuit did Plaintiff make a written demand requesting immediate action to bring the premises into ADA compliance.” (Id. at 9). Thus, Defendants argue that they were “afforded absolutely no opportunity to voluntarily remedy such violations pre-litigation and have incurred significant expense as a result.” (Id. at 10). Moreover, Defendants specifically argue that they would have voluntarily remedied the violations had they been provided pre-suit notice. (Id. at 3). In support, Defendants point out that “[i]mmediately after being sued the Defendant's [sic] hired their own expert and agreed to make all necessary modifications.” (Id. at 3, 10). Accordingly, based on the failure to provide pre-suit notice, Defendants argue that the Court should deny Plaintiff's Motion. (Id. at 10).

         Upon review of this issue, Defendants are correct that an award of attorneys' fees in ADA cases is discretionary. See 42 U.S.C. § 12205. Nevertheless, the Undersigned recommends that Plaintiff be awarded attorneys' fees in this case as the prevailing party because she exposed Defendants' ADA violations and obtained remediation thereof. See Larkin v. Envoy Orlando Holdings LLC, No. 6:15-cv-439-ORL-31GJK, 2015 WL 12857079, at *2 (M.D. Fla. Dec. 21, 2015).

         In coming to this conclusion, the Undersigned finds illuminating two decisions by the Honorable Gregory A. Presnell from this Court-Rodriguez v. Investco, L.L.C., 305 F.Supp.2d 1278 (M.D. Fla. 2004) and Larkin v. Envoy Orlando Holdings LLC, No. 6:15-cv-439-ORL-31GJK, 2015 WL 12857079 (M.D. Fla. Dec. 21, 2015).

         In Rodriguez, Judge Presnell initially questioned whether attorneys' fees should be awarded in ADA cases when there is no effort to obtain voluntary compliance pre-suit. 305 F.Supp.2d at 1282. In Larkin, however, Judge Presnell ultimately determined that attorneys' fees should be awarded even though there was no pre-suit notice. 2015 WL 12857079, at *2. Judge Presnell expressly acknowledged that “it seems clear that if notified beforehand, Defendant would have agreed to remediate without the need to file suit.” Id. Nevertheless, Judge Presnell noted that, because only injunctive relief is available in ADA cases, “an ADA plaintiff and his attorney would have little incentive to investigate and expose an ADA violator unless some compensation is reasonably assured.” Id.As a result, Judge Presnell found that the plaintiff's counsel was entitled to a reasonable fee for exposing the defendant's ADA violations and obtaining remediation thereof even though there was no pre-suit notice. Id.

         In this case, similar to Larkin, the Defendants steadfastly maintain that, had they been provided pre-suit notice, they would have voluntarily remedied the situation. (Doc. 62 at 3, 9-10). Yet pre-suit notice is not required under the ADA. See Ass'n of Disabled Americans v. Neptune Designs, Inc., 469 F.3d 1357, 1360 (11th Cir. 2006). Indeed, the Eleventh Circuit has expressly acknowledged that “[a] person may file a suit seeking relief under the ADA without ever notifying the defendant of his intent to do so, and the district court may not dismiss the suit for lack of pre-suit notice.” Id. Nevertheless, the court has stated that “in awarding attorney's fees, a district court has discretion to consider, among other things, whether the litigation is frivolous or whether the plaintiff declined to settle after receiving a fair offer of judgment.” Id. (citing Fed.R.Civ.P. 11, 68). Additionally, “a district court may consider whether the plaintiff's failure to ask for or to accept voluntary compliance prior to suit indicates that the plaintiff has acted in bad faith, has been unduly litigious, or has caused unnecessary trouble and expense.” Id. The court stressed, however, “that pre-suit notice is not required to commence suit under the ADA and that lack of pre-suit notice does not compel a reduction of the requested fee award.” Id. Moreover, the court indicated that the factual record must support a finding that the plaintiff filed or maintained a suit unnecessarily for the district court to properly consider a reduction in the fee award. Id.

         Upon consideration, here, the Undersigned finds that Plaintiff's counsel should be awarded a reasonable fee for exposing Defendants' ADA violations and obtaining remediation thereof even though Plaintiff did not provide Defendants pre-suit notice. See Larkin, 2015 WL 12857079, at *2. Stated bluntly, pre-suit notice is not required in ADA cases. See Neptune Designs, 469 F.3d at 1360. Thus, the availability of attorneys' fees should not be foreclosed on that basis alone.

         Moreover, the Undersigned is unable to conclude that Plaintiff filed or maintained this suit unnecessarily or that this litigation is frivolous. See Id. Plaintiff's claims clearly had merit given that (1) Defendants admitted as much and (2) the Court granted summary judgment in favor of Plaintiff. See Id. Moreover, the record does not support a finding that Plaintiff acted in bad faith, has been unduly litigious, or has caused unnecessary trouble and expense. See Id. Indeed, as the Undersigned found previously in this case, both sides are equally to blame for how aspects of this litigation unfolded. (See Doc. 41 at 3). Furthermore, the record does not show that Defendants ever offered or that Plaintiff ever declined to settle this action after receiving a fair offer of judgment, a specific scenario outlined by the Eleventh Circuit that would justify a denial of ...


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