Midwest Disability Initiative v. Nelmatt, LLC
Midwest Disability Initiative v. Nelmatt, LLC
Opinion of the Court
Plaintiffs Michael Marchand and the Midwest Disability Initiative (collectively "Marchand") brought this action against defendant Nelmatt, LLC ("Nelmatt"), the owner of the real property on which Matt's Bar and Grill ("Matt's Bar") is located. Marchand alleged (among other things) that Matt's Bar was not in compliance with the accessibility requirements of the Americans with Disabilities Act ("ADA"),
This matter is before the Court on Marchand's motion for an award of attorney's fees under
I. PREVAILING PARTY
Under the ADA, "the court ... in its discretion, may allow the prevailing party ... a reasonable attorney's fee, including litigation expenses[.]"
The Court disagrees. The Supreme Court has instructed that "plaintiffs may be considered 'prevailing parties' for attorney's fees purposes if they succeed on any significant issue ... which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart ,
According to the facts pleaded in Marchand's amended complaint-facts that must be treated as true because of Nelmatt's default, see Martinizing Int'l, LLC v. BC Cleaners, LLC ,
Prior to entry of the injunction, Marchand and others like him could not patronize Matt's Bar because of its violations of the ADA; after Matt's Bar was enjoined to comply with the ADA, Marchand and others like him could patronize the bar. ECF No. 10 at ¶¶ 3, 34, 40-44. Marchand was clearly a "prevailing party" for purposes of § 12205, and thus he is entitled to recover reasonable attorney's fees.
II. REASONABLE ATTORNEY'S FEES
The starting point for calculating a reasonable fee award is the lodestar-the number of hours reasonably expended multiplied by a reasonable hourly rate. See Pennsylvania. v. Del. Valley Citizens' Council for Clean Air ,
In Perdue , the Supreme Court again noted the flaws of the 12-factor test and explained:
An alternative, the lodestar approach, was pioneered by the Third Circuit in Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp. ,487 F.2d 161 (1973), appeal after remand,540 F.2d 102 (1976), and "achieved dominance in the federal courts" after our decision in Hensley. Gisbrecht v. Barnhart ,535 U.S. 789 , 801,122 S.Ct. 1817 ,152 L.Ed.2d 996 (2002). "Since that time, '[t]he "lodestar" figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence.' "Ibid. (quoting City of Burlington v. Dague ,505 U.S. 557 , 562,112 S.Ct. 2638 ,120 L.Ed.2d 449 (1992) ).
Although the lodestar method is not perfect, it has several important virtues. First, in accordance with our understanding of the aim of fee-shifting statutes, the lodestar looks to "the prevailing market rates in the relevant community." Blum v. Stenson ,465 U.S. 886 , 895,104 S.Ct. 1541 ,79 L.Ed.2d 891 (1984). Developed after the practice of hourly billing had become widespread, see Gisbrecht,supra , at 801,122 S.Ct. 1817 , the lodestar method produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was *1051billed by the hour in a comparable case. Second, the lodestar method is readily administrable ...; and unlike the [12-factor] approach, the lodestar calculation is "objective," Hensley, supra , at 433,103 S.Ct. 1933 , and thus cabins the discretion of trial judges, permits meaningful judicial review, and produces reasonably predictable results.
Perdue v. Kenny A. ex rel. Winn ,
As instructed by the Supreme Court, then, this Court will apply the lodestar method in assessing the reasonableness of Marchand's fee request.
A. Hourly Rate
Marchand is represented by Patrick Michenfelder, an attorney who has represented plaintiffs in numerous ADA-compliance actions. Michenfelder Decl., ECF No. 31 ¶ 6. Marchand requests that Michenfelder be compensated at the rate of $425 per hour. ECF No. 30 at 6.
"A reasonable hourly rate is usually the ordinary rate for similar work in the community where the case has been litigated." Emery v. Hunt ,
Marchand bears the burden of "produc[ing] satisfactory evidence-in addition to the attorney's own affidavits-that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson ,
To assess the reasonableness of Michenfelder's hourly rate, some context is necessary. This case is one of dozens of cases filed in this District in the past few years in which a disabled person sues a commercial establishment-frequently a bar, restaurant, or convenience store-and alleges that the establishment has violated the accessibility requirements of Title III of the ADA. There is an assembly-line quality to these lawsuits: The plaintiff shows up at an establishment (sometimes having been driven there by an agent of the attorney), the plaintiff looks for a violation of the accessibility requirements (such as a parking spot that has been reserved for persons with disabilities but that has been improperly configured or marked), the plaintiff (or the attorney's agent) reports any violation to the attorney, and the attorney files a lawsuit using a cookie-cutter complaint. In the vast majority of these cases, there is no real dispute that the establishment had failed to comply with an accessibility requirement. And the vast majority of these cases terminate in one of two ways: (1) the parties settle before the establishment has to incur substantial defense costs or (2) the establishment quickly corrects the problem and moves to dismiss the plaintiff's ADA claim as moot. See Davis v. Queen Nelly, LLC , No. 16-CV-2553 (PJS/SER),
*1052This case is unusual only in that it terminated in a default judgment. Nelmatt received legal notice of this lawsuit after being served through the Minnesota Secretary of State. ECF No. 12. But because Nelmatt had failed to inform the Secretary of State of an address change, Nelmatt did not receive actual notice of this lawsuit until after judgment was entered against it. ECF No. 36 at 4. In short, this lawsuit was an unusually rote lawsuit in an unusually rote series of lawsuits. Almost everything that Michenfelder did on behalf of Marchand could have been done by a legal assistant.
The Court is not aware of any order in which a judge of this District has discussed the reasonableness of the hourly rates charged by attorneys who bring these cookie-cutter ADA-compliance actions. (No such order has been cited by either party.) In the Court's view, however, a fair comparator to these ADA-compliance actions are actions under the Fair Debt Collection Practices Act ("FDCPA").
Looking beyond FDCPA cases and more generally to cases that have terminated in default judgments, the Court has had difficulty finding cases in which judges of this District have approved hourly rates exceeding $400, no matter how complex the case. See, e.g. , Finnegan v. SunTrust Mortg., Inc. , No. 15-CV-0204 (SRN/SER),
The three cases cited by Marchand do not persuade the Court that Michenfelder's billing rate is reasonable. In Novus Franchising, Inc. v. AZ Glassworks, LLC , the Court did not identify the hourly rate of any of the plaintiff's attorneys, but the *1053Court did remark on the unusual complexity of the case and the need for the attorneys to seek a preliminary injunction (as well as a default judgment). No. 12-CV-1771 (MJD/TNL),
In light of these authorities, and in light of the Court's own knowledge of the prevailing rates in the Twin Cities legal market, the Court finds that the $425 hourly rate requested by Marchand is not reasonable for Michenfelder's work in this particular case. The Court instead finds that $300 is a reasonable hourly rate.
B. Number of Hours Reasonably Expended
Marchand seeks compensation for a total of 26.4 hours worked by Michenfelder. ECF No. 30 at 5; Michenfelder Decl. ¶ 11 & Ex. A. Nelmatt objects that many of the tasks performed by Michenfelder were necessitated by Marchand's failure to prosecute the case diligently-a failure that required multiple interventions by Magistrate Judge Katherine Menendez. ECF No. 36 at 4-7. The Court agrees that Nelmatt should not have to pay fees that were incurred because Marchand did not diligently prosecute this lawsuit.
1. Correspondence with the Court
a. October 3 and 13, 2016
Marchand filed his complaint on June 7, 2016. ECF No. 1. On September 30, 2016, Judge Menendez issued an order to show cause why the complaint should not be dismissed, given that Marchand had failed to serve Nelmatt with the summons and complaint within the 90-day time period allowed by the Federal Rules of Civil Procedure. ECF No. 6. Michenfelder spent .20 hours reviewing that order on October 3, 2016, and .20 hours drafting a response on October 13, 2016. Michenfelder Decl. Ex. A. That response indicated that Marchand had been trying to effect personal service since June 8, 2016, and requested an additional 30 days to accomplish the task. ECF No. 7. In light of Marchand's failure to alert the Court of his unsuccessful efforts before the 90-day period had passed, the Court will reduce the adjusted lodestar by $120 (.40 hours at $300 per hour).
b. December 14 and 28, 2016
After Marchand failed to serve Nelmatt within the extra 30 days that he had requested, Judge Menendez issued a second order on December 14, 2016, requiring that Marchand provide the Court with an update within 14 days. ECF No. 8. The same day, Michenfelder spent .20 hours reviewing the order. Michenfelder Decl. Ex. A. Two weeks later, on December 28, 2016, Michenfelder spent .20 hours informing the Court that he had finally located an address for Nelmatt and asking to be given until January 9, 2017, to effectuate service.
*1054c. December 27, 2016
On December 27, 2016, Michenfelder spent .40 hours amending the complaint to remove an unnecessary defendant. Michenfelder Decl. Ex. A; ECF No. 10. Marchand did not specifically respond to Nelmatt's contention that this amount of time was unnecessary, but based on Michenfelder's comments at the hearing on Marchand's motion for a default judgment, the Court is persuaded that this work was reasonable. Marchand had understandable difficulty identifying the owner of Matt's Bar, and it was not unreasonable for Michenfelder to spend less than 30 minutes amending the complaint to remove a defendant against whom Marchand had no viable claim.
d. February 28 and March 29, 2017
After Nelmatt had been properly served with the summons and amended complaint and failed to respond, Judge Menendez issued an order on February 27, 2017, instructing Marchand to take certain steps within 30 days to perfect service and move the litigation forward. ECF No. 13. The next day, Michenfelder spent .20 hours reviewing the order. Michenfelder Decl. Ex. A. Then, on March 29, 2017, Michenfelder spent .20 hours responding to the Court via email.
e. February 28, 2018
On March 30, 2017, Judge Menendez decided not to recommend dismissing the case for lack of prosecution but instead instructed Marchand to move for entry of default. ECF No. 14. Although Marchand applied for entry of default, ECF No. 15, he took no other steps to move the case forward; in particular, he failed to move for a default judgment. Judge Menendez was therefore forced to issue yet another show-cause order on February 22, 2018. ECF No. 18. Michenfelder spent .20 hours reviewing that order on February 28, 2018. Michenfelder Decl. Ex. A. Again, Nelmatt should not be forced to pay for Marchand's lack of diligence in prosecuting this case, so the Court will reduce the adjusted lodestar by $60 (.20 hours at $300 per hour).
f. Summary
For the reasons described above, the Court reduces the adjusted lodestar by $420 (1.4 hours at $300 per hour) to account for tasks that were necessitated by Marchand's failure to diligently prosecute this lawsuit.
2. Motion for Default Judgment
Nelmatt also objects to the 6.3 hours that Michenfelder spent on April 2, 3, and 19, 2018, preparing papers related to the motion for entry of a default judgment and preparing for oral argument on that motion. ECF No. 36 at 5-6. The Court does not regard the amount of time that Michenfelder spent on these tasks as unreasonable.
3. Motion for Attorney's Fees
Finally, Nelmatt objects to the 6.5 hours that Michenfelder spent on May 2, 3, and 4, 2018, preparing Marchand's motion for attorney's fees. ECF No. 36 at 6. The objection is well taken; the Court has difficulty understanding why it would take Michenfelder longer to prepare a routine fee request than it took him to draft the papers related to the default-judgment motion and prepare for oral argument on that motion. The Court will compensate Michenfelder for four hours and reduce the adjusted lodestar by $750 (2.50 hours at $300 per hour).
C. Further Adjustments to the Lodestar
Nelmatt urges the Court to depart from the lodestar based on the presence of "special circumstances." ECF No. 36 at 3 (citing *1055Newman v. Piggie Park Enters., Inc. ,
* * *
For these reasons, the Court awards Marchand a total of $6,750 in attorney's fees, which represents 22.5 hours of work at the rate of $300 per hour.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:
1. Plaintiffs' motion for an award of attorney's fees under42 U.S.C. § 12205 [ECF No. 29] is GRANTED IN PART AND DENIED IN PART.
2. Plaintiffs are awarded $6,750 in attorney's fees.
Marchand died after judgment was entered against Nelmatt and while his motion for attorney's fees was pending. ECF No. 35. Marchand's death does not render his claim for attorney's fees moot, however. See Libertarian Party of Ark. v. Martin ,
Marchand's counsel asserts that "[u]nder
Marchand is not seeking to recover filing or service fees or any other costs.
"The twelve factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the 'undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases." Hensley ,
The Court does not believe that typical civil-rights actions-such as employment-discrimination actions brought under the ADA or excessive-force actions brought under
Reference
- Full Case Name
- The MIDWEST DISABILITY INITIATIVE and Michael Ray Marchand v. NELMATT, LLC
- Cited By
- 4 cases
- Status
- Published