United States District Court, M.D. Florida, Fort Myers Division
REPORT AND RECOMMENDATION 
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.
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
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.).
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.).
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).
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.).
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.
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.
Entitlement to Attorneys' Fees
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).
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.
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).
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).
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).
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.
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.
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
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