United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on plaintiff's Motion for
Attorney's Fees, Litigation Expenses and Costs (Doc. #23)
filed on May 1, 2019. Defendant filed a Response in
Opposition (Doc. #26) on May 20, 2019.
October 19, 2018, Jeffrey Joel Judy filed a Complaint (Doc.
#1) against Edison Park Plaza Center, LLC. On November 13,
2018, plaintiff filed a Notice of Pendency of Other Actions
(Doc. #8) noting the related case of Lucibello v. Edison
Park Plaza Ctr., LLC, No. 2:07-cv-562-FTM-29SPC. On
November 20, 2018, defendant filed an Answer and Affirmative
Defenses (Doc. #9) and on November 27, 2018, the Court issued
an ADA Title III Scheduling Order (Doc. #11) staying
discovery and setting special deadlines, including mandatory
mediation. On December 18, 2018, plaintiff served defendant
with a copy of his existing written report concerning
violations of the Americans with Disabilities Act, and filed
Answers to Court's Interrogatories (Doc. #14).
February 13, 2019, the Magistrate Judge granted an extension
of time to conduct mediation and to file a status report
indicting whether they had settled or reached an impasse. The
parties advised that they were able to resolve the issue of
injunctive relief, but could not agree to the attorney fees.
On April 15, 2019, the parties filed a Joint Motion for
Approval of Consent Decree (Doc. #20), which was granted. On
April 17, 2019, Judgment (Doc. #22) was entered and the
Consent Decree (Doc. #22-1) was endorsed.
Entitlement to Fees, Costs, and Expenses
parties agree that plaintiff is the prevailing party in the
action, but that the Court should “determine the
reasonable amount of Plaintiff's attorneys' fees,
costs and litigation expenses to be reimbursed by Defendant
under the ADA.” (Doc. #22-1, ¶ 5.)
In any action or administrative proceeding commenced pursuant
to this chapter, the court or agency, in its discretion, may
allow the prevailing party, other than the United States, a
reasonable attorney's fee, including litigation expenses,
and costs, and the United States shall be liable for the
foregoing the same as a private individual.
42 U.S.C. § 12205. As the parties agree that plaintiff
is the prevailing party in this case, and plaintiff received
the relief sought, the Court finds that plaintiff is entitled
to a reasonable attorney's fee, expenses, and costs.
Amount of Fees
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. A “reasonable hourly
rate” is “the prevailing market rate in the
relevant legal community for similar services by lawyers of
reasonably comparable skills, experience, and
reputation.” Norman v. Housing Auth. of
Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). The
burden is on the fee applicant “to produce satisfactory
evidence” that the rate is in line with those
prevailing in the community. Blum v. Stenson, 465
U.S. 886, 896 n.11 (1984). Plaintiff seeks attorney fees in
the amount of $18, 585.00 at a rate of $350 per hour for
Louis I. Mussman, and costs and expenses in the amount of
$820.00, and expert fees in the amount of $800.00.
states that he has been an active member of the Florida Bar
for nearly 17 years since being admitted to the Florida Bar
in 2002. (Doc. #23, p. 10.) Attached is the Firm Biography
(Doc. #23-10, Exh. I) detailing representative cases.
Defendant argues that Mr. Mussman was previously awarded $200
an hour by the undersigned, and therefore the same rate
should be applied in this case. The rate was applied in 2009,
and Mr. Mussman has been practicing during the intervening
decade. The rate will not be reduced to $200 an hour.
Mussman attached the Declaration of Matthew W. Dietz (Doc.
#23-9, Exh. H), an attorney who has been practicing civil
rights litigation since September 1996, and who has been
class counsel in seven class actions involving disability
rights. As of 2011, Mr. Dietz has himself been charging a
rate of $415.00 per hour, and opines that his experience in
the Fort Myers area within the Middle District of Florida
supports a $400 an hour rate. In support, Mr. Dietz cites
numerous cases in the Southern District of Florida where
counsel have been awarded $350 to $500 an hour. In the one
Middle District of Florida case cited, the undersigned
actually reduced hourly rates because the rates in Fort Myers
are significantly lower than those found in Miami. The Court
reduced the $420 an hour rate for Mr. Bacon, admitted to the
Florida Bar in 1998, to $300 an hour. See ...