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Judy v. Edison Park Plaza Center, LLC

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

June 18, 2019

JEFFREY JOEL JUDY, an individual, Plaintiff,
v.
EDISON PARK PLAZA CENTER, LLC, a Florida limited liability company, Defendant.

          OPINION AND ORDER

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Procedural History

         On 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).

         On 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.

         II. Entitlement to Fees, Costs, and Expenses

         The 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.

         III. Amount of Fees

         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. 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.

         1. Hourly Rate

         Counsel 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.

         Mr. 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 ...


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