United States District Court, E.D. California
ORDER TO SUPPLEMENT THE RECORD WITHIN 14 DAYS WITH
EVIDENCE SUPPORTING REQUEST FOR ATTORNEYS' FEES
Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE
the Court is Plaintiffs motion for default judgment in this
action, which seeks damages and injunctive relief pursuant to
the Americans with Disabilities Act (42 U.S.C. §§
12101 et seq.) (“ADA”), California Civil
Code § 51 (“Unruh Civil Rights Act”), and
California Health and Safety Code § 19959. (ECF No. 1.)
Plaintiff, a disabled man who is substantially limited in his
ability to walk and uses a wheelchair or cane for mobility,
alleges that Defendants are the owners and operators of a
business known as Super 7, located at 41304 Road 128, Orosi,
California 93647. Plaintiff contends that when he visited the
facility, he encountered barriers that interfered with his
ability to use and enjoy the goods and services offered.
(Id.) Plaintiff seeks injunctive relief, statutory
damages, attorney's fees, and costs. (Id. at 8.)
were served with the summons and complaint in November 2016.
(ECF Nos. 4 and 5.) None of the Defendants filed an answer.
Plaintiff requested entry of default and default was entered
on January 9, 2017. (ECF Nos. 6 and 7.) Plaintiff thereafter
filed the instant Motion for Default Judgment, seeking an
award amount of $4, 000.00 in statutory damages and $5,
448.00 in attorney's fees and injunctive relief. (ECF No.
9-1, at 9.) Despite being served with the motion, Defendants
have not filed a Motion to Set Aside the Default, nor have
they responded to the Motion for Default Judgment or
otherwise appeared in this litigation. (ECF No. 10.)
Defendants are not infants, incompetent persons, in the
military serve or otherwise exempted under the Soldiers'
and Sailors' Civil Relief Act of 1940. (ECF No. 9, at 2.)
assigned Magistrate Judge issued Findings and Recommendations
(“F&Rs”) that Plaintiff is entitled to
statutory damages in the amount of $4, 000. (ECF No. 13 at
7-8.) However, the F&Rs recommend rejection of
Plaintiff's request for $2, 970.00 for 9.9 hours of work
expended by Ms. Tanya Moore, Esq. at an hourly rate of
$300.00, instead recommending a reduced number of hours and
an hourly rate of $250.00 be used to calculate a fee award to
total $1, 475.00 for Ms. Moore. (Id. at 9-10.) In
support of the reduced hourly rate, the magistrate judge
cited F&Rs issued in a similar case brought by Ms. Moore,
Trujillo v. Ali, No. 1:16-CV-00694-LJO-SKO, 2016 WL
6902313, at *7 (E.D. Cal. Nov. 23, 2016), in which Magistrate
Judge Sheila K. Oberto reasoned:
[T]his Court, in a detailed opinion, previously deemed Ms.
Moore's hourly rate of $300 unreasonably high and instead
found that “an hourly rate of $250, the rate fixed by
the Kalani court, is appropriate to compensate Ms.
Moore for her time expended in this litigation based on her
level of civil rights experience and expertise in ADA
litigation.” Moore v. Chase, Inc., No.
1:14-CV-01178-SKO, 2016 WL 3648949, at *3 (E.D. Cal. July 7,
2016) (citing Kalani v. Statewide Petroleum, Inc.,
No. 2:13-cv-02287-KJM-AC, 2014 WL 4230920, at *6 (E.D. Cal.
Aug. 24, 2014)).
filed objections to the Magistrate Judge's recommendation
to award a lesser amount of attorney's fees than those
requested by Plaintiff. (ECF No. 15.) Plaintiff points out,
correctly, that other judges in the Fresno Division of the
Eastern District of California have seen fit to award the
requested $300.00 hourly rate to Ms. Moore under similar
circumstances. See, e.g., Moore v.
Millennium Acquisitions, LLC, No.
1:14-cv-01402-DAD-SAB, 2017 WL 1079753, at *3 (E.D. Cal. Mar.
21, 2017); Green v. Cal. Pride, Inc., No.
1:14-cv-02006 DAD-EPG, 2015 WL 769740 at *5 (E.D. Cal. June
15, 2016) (F&Rs adopted July 22, 2016). In addition,
Plaintiff points to an opinion issued by Senior District
Judge Anthony W. Ishii that more generally surveyed legal
decisions on the prevailing hourly rate in the Fresno
Division. Silvester v. Harris, No. 1:11-CV-2137 AWI
SAB, 2014 WL 7239371, at *4 (E.D. Cal. Dec. 17, 2014).
attorney's hourly rate is calculated according to the
prevailing market rates in the relevant community and should
comport with the rates prevailing in the community for
similar services by lawyers of reasonably comparable skill,
experience, and reputation. Shirrod v. Office of
Workers' Compensation Programs, 809 F.3d 1082, 1086
(9th Cir. 2015). The relevant community is the forum where
the district court sits. Id. Absent from any of the
cases cited by Plaintiffs or in F&Rs, or from any
authority on which those cases rely, is any
objective evidence pertaining to the prevailing
market rates in this community. “[T]he burden is on the
fee applicant to produce 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,
465 U.S. 886, 895 n.11 (1984). “Affidavits of the
plaintiffs' attorney[s] and other attorneys regarding
prevailing fees in the community, and rate determinations in
other cases, particularly those setting a rate for the
plaintiffs' attorney, are satisfactory evidence of the
prevailing market rate.” United Steelworkers of Am.
v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir.
of the conflicting hourly rate determinations among similar
ADA cases in this division, Plaintiff cannot satisfy his
burden to establish the prevailing market rate in the Fresno
division with citation to case authority alone. While rate
determinations in other cases, particularly those setting a
rate for the plaintiff's attorney may be considered
satisfactory evidence of the prevailing market rate, these
cases are not binding upon the Court nor do they sufficiently
satisfy the evidentiary burden of the fee applicant due to
the discrepancy in hourly rate awards. There must be
objective support in the record before this Court -
i.e., some type of local rate report and/or affidavits of
local counsel - that either establish $300.00 is the
prevailing hourly market rate in Fresno for attorneys of
similar experience and skill or that $300.00 is an
out-of-district hourly rate that should be awarded because
local counsel could not be retained or the special expertise
of outside-the-district counsel was necessary. See Barjon
v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997).
IT IS HEREBY ORDERED that:
1. Within 14 days from the date of this order, Plaintiff may
file evidence supporting the hourly rate requested in his
motion for attorneys' fees;
2. Thereafter, Defendant shall have 7 days to file any
3. Upon expiration of the response period, the Court will
deem Plaintiffs' motions and the pending F&Rs thereon