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SCHULTZ v. SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT

August 26, 2005.

BEVERLY SCHULTZ, Plaintiff,
v.
SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, Defendant.



The opinion of the court was delivered by: MARILYN PATEL, Chief Judge District

MEMORANDUM AND ORDER

Defendant San Francisco Bay Area Rapid Transit District moves for attorneys fees pursuant to 42 U.S.C. section 12205 and/or Federal Rule of Civil Procedure 56(g). Having considered the parties' submission and arguments, and for the reasons set forth below, the court enters the following memorandum and order.

BACKGROUND

  Plaintiff Beverly Schultz brought this action against defendants Does 1 through 50 and Roes 1 through 50 of the San Francisco Bay Area Rapid Transit District (collectively "BARTD"), alleging that the acceleration of a BARTD train caused her to fall and injure herself. After a series of court orders to pare down her complaint to omit improper causes of action, plaintiff timely filed a revised second amended complaint that included inter alia claims arising under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq. On February 11, 2005 the court entered a memorandum and order denying defendant's motion to strike plaintiff's second amended complaint. On February 28, 2005, plaintiff without leave of court or noticed motion attempted to file a third amended complaint which did not contain any claims under the ADA. The clerk of the court, however, rejected the complaint and it was entered but not filed. On March 25, 2005, plaintiff's attorney filed a notice of withdrawal of the third amended complaint On March 28, 2005 defendants filed a motion for summary judgment and a hearing was set for May 2, 2005. On April 28, 2005 plaintiff's attorney filed an attorney affidavit of James Fishel in response to the motion for summary judgment, seventeen days after the due date. On June 29, 2005 the court granted defendant's motion, dismissing the case in its entirety.

  Now before the court is defendant's motion for attorneys' fees pursuant to 42 U.S.C. section 12205 and/or Federal Rule of Civil Procedure 56(g) for work performed in response to the attorney affidavit of James Fishel. Defendant initially requested attorneys' fees of between $11,402.83 and $17,104.25 under section 12205, which represented one sixth and one fourth of the total fees incurred, respectively. In addition, and in the alternative, defendant requested $3,599.00 pursuant to Rule 56(g) for work done in response to the attorney affidavit of James Fishel. In their reply brief, however, defendants have limited their claim to attorneys' fees of $2,565 and court costs of $6,202.12.

  DISCUSSION

  I Award of Attorneys' Fees under the ADA

  A 42 U.S.C. section 12205

  Under section 12205, a court may impose a "reasonable attorneys' fee, including litigation expenses" against the non-prevailing party in any action or administrative proceeding under the ADA. 42 U.S.C. § 12205.

  Defendant contends that the ADA claims pursued by the plaintiff in the second amended complaint are unreasonable and frivolous and that defendant should be awarded attorneys' fees pursuant to 42 U.S.C. section 12205 for the time spent litigating those claims. In response, plaintiff claims that but-for the actions of defendants and this court, she would have been able to properly file the third amended complaint and in so doing remove the problematic ADA claims. See Fishel Dec. at 4:10-16. Furthermore, plaintiff claims that the ADA fees requested by defendants are unreasonable and would be a source of financial hardship for the plaintiff. (i) Reasonableness of Defendant's Attorneys' Fees Request

  The ADA claims pursued by plaintiff's counsel were unreasonable and frivolous and as the prevailing party in a proceeding under the ADA, defendant is entitled to an award of reasonable attorneys fees pursuant to section 12205. In the second amended complaint, plaintiff's counsel asserted ADA claims but failed, as the court noted in its order granting the motion for summary judgment, to provide any evidentiary basis for these claims. The record contained no indication of substantial impairments nor did it outline any limitations on the plaintiff's activities.

  Defendant has submitted documentation detailing the hours spent and fees charged for this action since August of 2003 and has estimated in their motion for attorney's fees that a minimum of one-fourth of the total fees charged involved the ADA claims ($11,402.83). See Meyer Dec. ¶ 11. This initial request, as plaintiff's attorney contends, was unreasonable because while the ADA claims were only introduced in the second amended complaint in October of 2004, the defendant seeks a portion of its legal costs for a twenty-month period beginning in August of 2003. Defendant's amended request for $2,595 in attorneys' fees for work done on the ADA claims, however, is reasonable, reflecting one-fourth of the time spent on this action for the three months following the filing of the second amended complaint.

  Defendant has also submitted a bill of costs demonstrating $6,202.12 in court costs, including the professional fees of John R. Lang who conducted a medical exam of the plaintiff pursuant to her ADA claims. These costs are reasonable and documented and plaintiff's attorney has not submitted any evidence to refute them. Defendant is therefore entitled to attorneys fees of $2,595 for ...


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