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Feezor v. Otay Lakes Road

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 9, 2008

LARY FEEZOR, PLAINTIFF,
v.
OTAY LAKES ROAD, L.P., ET AL., DEFENDANT.

The opinion of the court was delivered by: Honorable Barry Ted Moskowitz

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR ATTORNEY'S FEES AND COSTS

Plaintiff Lary Feezor ("Plaintiff") has brought a motion for attorney's fees and costs against Defendant Thrifty Payless, Inc., dba Rite Aid ("Rite Aid"). For the reasons discussed below, Plaintiff's motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

On February 21, 2007, Plaintiff filed this action against defendants Otay Lakes Road, LP; Sutherland Management Co. dba McDonald's #14228; Golden Arch Limited Partnership; Thrifty Payless, Inc. dba Rite Aid #5617; WEC 98-G-3, LLC; Capitas Group, LLC dba Arby's # 7057; The Vons Companies, Inc. dba Vons #2071; Blockbuster, Inc. dba Blockbuster Video # 6682; Lahorian Capital Group, Inc. dba IHOP # 827; IHOP Corp.; IHOP Properties, Inc.; Michael M. Schreter, Trustee of the Michael M. and Barbara J. Schreter Trust dated July 21, 1989 (aka the MBS Trust, July 21, 1989) as amended and restated; and, Barbara J. Schreter, Trustee of the Michael M. and Barbara J. Schreter Trust dated July 21, 1989 (aka the MBS Trust, July, 21, 1989) as amended and restated. The Complaint alleges that Plaintiff, a paraplegic who uses a wheelchair and a mobility-equipped vehicle when traveling about in public, encountered a number of architectural barriers at the facilities located within the Eastlake Village Shopping Center located at 2230-2290 Otay Lakes Road, Chula Vista , California.

The Complaint asserts violations of the ADA, 42 U.S.C. § 12101 et seq., California's Unruh Act (Cal. Civil Code § 52), Cal. Civ. Code § 51, and California's Disabled Persons Act. By December 28, 2007, all of the defendants, except Rite Aid and WEC 98G-3 LLC, were dismissed from the action. On November 26, 2007 plaintiff accepted a Rule 68 Offer by Rite Aid. The Rule 68 Offer provided for injunctive relief, a payment of damages in the amount of $4,001.00, and reasonable attorney's fees and costs. On December 20, 2007, the Court granted judgment in favor of Plaintiff and against Rite Aid in accordance with the Rule 68 Offer.

II. LEGAL STANDARD

Under 42 U.S.C. §12205, the "prevailing party" in an ADA action can recover "reasonable attorney's fees, including litigation expenses, and costs." Likewise, the prevailing plaintiff is entitled to fees and costs under California's disability access laws. See Cal. Civ. Code §§ 52(a), 54.3(a), 55. Judgment was entered in favor of Plaintiff. Therefore, Plaintiff is a "prevailing party."

The amount of the prevailing party's reasonable attorney's fees is calculated by utilizing the lodestar method. Camacho v. Bridgeport Financial, Inc., __ F.3d __, 2008 WL 1792808, *3 (9th Cir. 2008). To calculate the "lodestar," the court multiplies the number of hours the prevailing party reasonably expended on the litigation by a reasonable rate. Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). There is a strong presumption that the lodestar figure represents a reasonable fee. Harris v Marhoefer, 24 F.3d 16, 18 (9th Cir. 1994).

However, courts may adjust the lodestar figure upward or downward based upon the following factors enunciated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975): (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other 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.

"Among the subsumed factors presumably taken into account in either the reasonable hours component or the reasonable rate component of the lodestar calculation are: (1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation (4) the results obtained and (5) the contingent nature of the fee agreement."

Morales, 96 F.3d at 364 n. 9.

III. DISCUSSION

A. Attorney's Fees

Plaintiff seeks attorney's fees in the amount of $10,591.25. The breakdown of the requested fees is as follows:

NameHoursRateTotal Lynn Hubbard, III24.95$350/hr$8,732.50 Lynn Hubbard, III (travel)4.00$175/hr$700.00 Scottlynn J. Hubbard, IV.75$225/hr$168.75 Paralegals11.00$90/hr$990.00

As detailed below, the Court will not grant the full amount requested. The Court makes reductions for, among other things, excessive time spent on certain tasks, work that should not be billed to the client, work performed by Lynn Hubbard that could have been performed by a more junior attorney, and clerical tasks performed by paralegals.

1. Lynn Hubbard's Fees

Rite Aid argues that the fees claimed by Lynn Hubbard are excessive. Rite Aid argues that the hourly rate of $350 per hour (for non-travel time) is not reasonable given that no novel or complex issues were raised by the case, the parties did not engage in discovery, and no motions (other than the instant motion for attorney's fees) were filed. Rite Aid reasons that a more junior attorney, such as Scottlynn Hubbard, could have performed the work billed by Lynn. Scottlynn billed less than an hour on this case. The Court agrees that the hourly rate of $350 is excessive given the type of work done and finds that $250 an hour is reasonable.

Rite Aid also argues that the fees for certain tasks should be divided among the nine defendants who were still in the case at the time. For example, Rite Aid claims that it should be held responsible for only 1/9 of the fees billed for a trip to San Diego for meet and confer inspections at the shopping center and for travel time and attendance at the ENE. The Court will divide the fees incurred in connection with the meet and confer inspections and the ENE.

However, only four defendants had answered at the time of the meet and confer inspections, and only three defendants attended the ENE. Therefore, the fees in question will be divided by four or three, whichever is applicable.

Rite Aid challenges specific time entries on the ground that they should not be compensable or are excessive. As detailed below, the Court agrees that a number of these time entries should be disallowed or reduced.

Date Description Time Time Reason for Reduction

Billed Allowed

1/25/07 Conflict check .30 0 Unclear whether conflict check was for Rite Aid defendants. Plaintiff's counsel has filed multiple complaints against Rite Aid.

2/20/07 Letter to client re: fee .15 0 Not a billable task agreement

2/20/07 Create client fee .25 0 Not a billable task. agreement

Date Description Time Time Reason for Reduction

Billed Allowed

4/10/07 Review letter from .20 .10 Letter was a two-sentence defense counsel re: letter that would take no extension of time for more than a minute to Rite Aide to respond to review.

Complaint

4/13/07 Review Notice of .10 0 Notice is not a substantive

Noncompliance with notice or order that requires Local Rule 5.4(a) time to review. Mandatory Electronic Filing

4/17/07 Travel to and from San 2 .5 Time is equally divided

Diego for meet and among four defendants who confer at subject had answered the property Complaint.

4/17/07 Meet and confer at 1 .2 Time is equally divided subject property among four defendants who had answered the Complaint.

4/20/07 Letter to defense .70 .50 Much of settlement letter counsel re: settlement was form language demand

4/27/07 Letter to defense .70 .20 Letter was very brief and did counsel re: ownership of not require 42 minutes to Rite Aid Property draft.

5/1/07 Travel to and from San 2 .7 Time is equally divided

Diego for ENE among three defendants who attended the ENE

5/1/07 Attend ENE 1.5 .5 Time is equally divided among three defendants who attended the ENE.

7/23/07 Review Defendants' .70 .50 Initial disclosures were very

Initial Disclosures; meet brief and identified only two with Crista [paralegal] witnesses. regarding defendants' witnesses

9/13/07 Review letter from .15 .10 Three-sentence letter did not defense counsel re: require more than a minute status of settlement to review. negotiations

10/3/07 Review letter from .20 .10 One paragraph letter did not defense counsel re: require more than a minute status of Offer of to review.

Judgment

Date Description Time Time Reason for Reduction

Billed Allowed

10/29/07 Prepare Disclosure of .65 .20 Plaintiff's counsel has form Plaintiffs Expert, Ronald expert witness disclosure for Wilson Ronald Wilson.

10/30/07 Review Defendants' 1.30 .50 Expert witness designated Designation of Expert by Rite Aid has been used Witness; phone call with numerous times in past client litigation with Plaintiff's counsel. Vague description regarding phone call with client.

11/13/07 Review Defendants' .90 .50 Expert witness designated Supplemental by Rite Aid has been used Designation of Expert numerous times in past Witness; phone call with litigation with Plaintiff's Plaintiff's expert. counsel.

12/21/07 Prepare Bill of Costs 2.00 .7 Simple form should not require the requested time.

12/28/07 Prepare Plaintiffs 4.00 3.00 Appears to be a form motion Motion for Attorney that was also filed in another Fees case. (Def.'s Ex. 19.)

The Court finds the other hours spent to be reasonable.

Taking into account the reduction of hours detailed above, the Court will allow the recovery of 17.25 hours worked by Lynn Hubbard at the rate of $250 and 1.2 hours at the rate of $175, for a total of $4,522.50. No upward or downward adjustment to the lodestar amount is warranted.

2. Scottlynn Hubbard's Fees

Although Rite Aid does not object to the amount of time billed by Scottlynn (.75 hours), Rite Aid argues that a reasonable rate for an associate attorney in the Eastern District of California is $150 per hour. However, "[g]enerally, when determining a reasonable hourly rate, the relevant community is the forum in which the district sits." Camacho v. Bridgeport Financial, Inc., __ F.3d __, 2008 WL 1792808, *4 (9th Cir. 2008). The Court finds that $225 per hour is a reasonable hourly rate for an experienced senior associate (see Def.'s Ex. 19) in the Southern District of California. Accordingly, the Court will allow recovery of the $168.75 in fees billed by Scottlynn Hubbard.

3. Paralegal Billing

Rite Aid requests that the Court reduce the paralegals' hourly rate to $75. However, the Court finds that $90 per hour is a reasonable rate in this district. Rite Aid seeks a reduction of the hours billed by the paralegals on the ground that excessive time was spent on certain tasks. Rite Aid also seeks a reduction of the hours on the ground that the paralegals billed for the performance of clerical tasks.

Time spent on filing, document organization, and other clerical matters should not be billed at a paralegal rate, but, rather should be accounted for by a law firm's overhead. See Jones v. Wild Oats Markets, Inc., 467 F. Supp. 2d 1004, 1016 (S.D. Cal. 2006). Therefore, the Court will not allow recovery for time spent by paralegals on purely clerical tasks such as creating files and filing documents with the Court.*fn1

The Court makes the following reductions due to excessive time spent on the task or the clerical nature of the task:

Date Description Time Time Reason for

Billed Allowed Reduction

2/5/07 Create client file 1.00 0 Clerical

3/19/07 Received Proof of .35 0 Clerical

Service of Summons and Complaint on WEC; file with Court

4/10/07 Serve Plaintiffs Early .30 0 Clerical

Neutral Evaluation

Statement on defense counsel

4/16/07 Letter to defense .30 .20 Short letter did not counsel re: confirming require more than 10 date and time for meet minutes to draft. and confer at the subject property

Date Description Time Time Reason for

Billed Allowed Reduction

4/16/07 Received Defendant .40 0 Clerical

Rite Aid's Answer to Plaintiffs Complaint; update file with attorney information

4/16/07 Calendar meet and .30 .1 No more than a few confer between the minutes required to parties at the subject calendar event property

4/27/07 Fax letter dated .30 0 Clerical

4/27/07 to defense counsel

5/7/07 Phone call with .30 .20 Rite Aid's counsel defense counsel for recalls that the WEC re: extension of telephone call did not time to respond to last longer than 10 Plaintiff's Complaint minutes

5/14/07 Received Defendant .40 0 Clerical

WEC's Answer to Plaintiffs Complaint; update file

7/12/07 Instruct Cori to serve .20 .10 5 minutes sufficient

Plaintiffs Initial time to give Disclosures on instructions re: defense counsel service

7/19/07 Instruct Cori to send a .20 .10 5 minutes sufficient letter to Magistrate time to give Judge Papas re: instructions re: letter lodging Joint Discovery Plan

10/17/07 Left message with .20 .10 A 12-minute voice defense counsel re: mail message was status of settlement not received and is negotiations unlikely

10/29/07 Gather exhibits to and .60 .30 Same expert witness file Disclosure of disclosure and Plaintiffs Expert, exhibits were filed Ronald Wilson, with earlier in another the Court case. (Def.'s Ex. 14.)

Time spent filing not recoverable.

Date Description Time Time Reason for

Billed Allowed Reduction

11/26/07 Gather exhibits to and .30 0 The only exhibit to the file Plaintiffs Acceptance of Offer Acceptance of Offer of was the Rule 68 Offer Judgment with the itself. Time spent Court filing not recoverable.

The Court finds the other hours spent to be reasonable.

Taking into account the reductions, the Court will allow recovery of 6.95 paralegal hours at the rate of $90, for a total of $625.50.

B. Litigation Expenses and Costs

The Court has reviewed the litigation expenses and costs and finds them to be reasonable with the exception of (1) the costs that were already awarded in the Order Taxing Costs filed on January 24, 2008, and (2) the cost of the financial report regarding defendant, which was unnecessary because Plaintiff's counsel already has a number of these reports in connection with other actions filed against Rite Aid. Subtracting the $350 for filing fees, $123 for service of the summons and complaint, and $550 for the financial report, the Court awards $2,244.15 for litigation expenses and costs.

III. CONCLUSION

For the reasons discussed above, Plaintiff's motion for attorney's fees and costs is GRANTED IN PART and DENIED IN PART. The Court awards Plaintiff attorney's fees in the amount of $5,316.75 and costs in the amount of $2,244.15, for a total award of $7,560.90. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.


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