WHALEN, United States Magistrate Judge.
Plaintiffs brought this case under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181, et. seq. On August 11, 2005, the Court approved and entered a consent decree, dismissing the case with prejudice. As part of the consent decree, the matter was referred to the undersigned "for the sole purpose of determining as to the entitlement to and amount of attorneys' fees and expert's fees, litigation expenses, and costs to be awarded Plaintiffs' counsel and expert as set forth in the Consent Decree and for entry of final judgment thereon." The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c).
Plaintiffs seek attorneys' fees for four lawyers (three out-of-state attorneys and one local counsel), an expert witness fee, and costs, and have submitted an invoice totaling $22,110.97. Defendant argues that Plaintiffs are not entitled to "prevailing party" status, and therefore should not be awarded attorney fees and costs, or in the alternative that the requested fees are excessive, as to both the hourly rate and the total number of hours claimed.
Prevailing Party Status
The ADA, specifically 42 U.S.C. § 12205, provides that a district court "in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs." To establish their eligibility for fees and costs, then, the Plaintiffs must first demonstrate that they are "prevailing parties." In Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987), the Supreme Court noted that "[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail." In Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989), the Court refined the definition of "prevailing party" as follows:
In Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 604-605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the Court reiterated the "change of legal relationship" test, adding that such change must carry some judicial imprimatur, not merely be the result of a defendant's voluntary conduct. Significantly, Buckhannon recognized that consent decrees could form the basis of attorney's fees:
In the present case, the consent decree requires the Defendant to undertake remedial measures to conform to the ADA, thus giving Plaintiffs "at least some relief on the merits of [their] claim." Hewitt v. Helms. Under clear Supreme Court precedent, the consent decree imparts a judicial imprimatur to a change in the legal relationship between the parties.
The Defendant argues that because the Plaintiffs have not themselves received any tangible benefit, and because they have not shown that they will use Defendant's hotel in the future, they lack standing to request attorney's fees. This argument is without merit. The cases cited by Defendant, e.g., Brother v. C.P.L. Investments, Inc., 317 F.Supp.2d 1358 (S.D.Fla. 2004) and Rodriguez v. Investco, LLC, 305 F.Supp.2d 1278 (M.D.Fla.2004), involve situations where judgment was entered for the defendants based on issues of standing; in other words, the defendants were prevailing parties. Here, by entering into a consent decree, the Defendant has waived any defenses based on standing. In United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971), the Supreme Court held:
See also Access 4 All, Inc. v. Grandview Hotel Limited Partnership, 2006 WL 566101, *3 (E.D.N.Y.2006) ("[B]y signing the Consent Decree, the Defendant implicitly waived its standing claim").
Accordingly, Plaintiffs will be considered prevailing parties, and thus entitled to seek attorneys' fees and costs.
Amount of Fees and Costs
Under 42 U.S.C. § 12205, any attorneys' fees awarded must be reasonable. As the Supreme Court noted in Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." In Glass v. Secretary of HHS, 822 F.2d 19, 21 (6th Cir.1987), the Sixth Circuit, citing Coulter v. State of Tennessee, 805 F.2d 146, 149 (6th Cir.1986), recognized "that the rate-times-hours method of calculation, also known as the `lodestar' approach, includes most, if not all, of the factors relevant to determining a reasonable attorney's fee."
Once the lodestar is calculated, the fee may be adjusted in consideration of a number of factors, including "(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
Ultimately, the decision whether and in what amount to award attorney's fees is addressed to the court's discretion. 42 U.S.C. § 12205; Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir.2005).
In determining a reasonable hourly rate, "courts should look to the hourly rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Fuhr v. School Dist. of Hazel Park, 364 F.3d 753, 762 (6th cir.2004). However, the court retains broad discretion to determine what constitutes a reasonable hourly rate. Id.; Wells v. New Cherokee Corp., 58 F.3d 233, 239 (6th Cir.1995).
In the present case, attorneys Lawrence Fuller and John Fuller (out-of-town counsel) and Henry Langberg (local counsel) are all seasoned litigators with extensive experience and expertise in ADA cases. They seek an hourly rate of $325.00. In another ADA case in this District, Fuller, Fuller & Associates were awarded fees at the rate of $325 per hour. Betancourt v. 3600 Centerpoint Parkway Investments, LLC, Docket No. 03-72868. In yet another, the Fuller law firm was given $300 per hour. Disabled Patriot of America v. Romulus Nights, Inc., 2005 WL 3132206 (E.D.Mich.2005). In the Southern District of New York, the rate was $350 per hour. Access 4 All, Inc. v. Hi 57 Hotel LLC, 2006 WL 196969 (S.D.N.Y.2006).
Given the experience and skill level of Messrs. Fuller and Langberg, it would not be unreasonable to place them in the 95th percentile of fees. Adjusting Defendant's six-year-old figures for inflation, the hourly rates established in the Betancourt and Romulus Nights cases are not out of line with what can be considered an acceptable and customary range. Accordingly, this Court determines that a reasonable hourly rate for Mr. Langberg and the Fullers is $300.
Plaintiff valuates the services of attorney Tracie L. Dickerson, who has been employed with Fuller & Fuller since June of 2004, at the rate of $240 per hour, for 1.9 hours of work. Ms. Dickerson's resume, which is appended to Plaintiff's Application, reveals an impressive academic background, but in the Southeastern Michigan market, $240 per hour for an attorney who has been a member of the bar for less than two years is high. With due regard for Ms. Dickerson's potential as a lawyer, a reasonable hourly rate for her work in this case is $150.
With respect to expert witness Dave Pedraza, Plaintiff seeks fees at the rate of $175 per hour. In Romulus Nights, supra, the Court awarded expert architect fees for Mr. Pedraza's services at that rate, but with little analysis, other than noting that "[t]he Court assumes that architects charge widely varying rates for what appears to be similar work, presumably because the quality of that work also
Finally, Plaintiff valuates paralegal time at $75 per hour. The median salary for a paralegal in Detroit, Michigan is $45,521 per year, or approximately $22 per hour.
Plaintiff claims, attorney and expert time as follows:
—John Fuller: 4.9 hours —Lawrence Fuller: 36.8 hours —Henry Langberg: 7.9 hours —Tracie Dickerson: 1.9 hours —Paralegal: 2.0 hours —Dave Pedraza: 34.5 hours
The Court finds the hours claimed by Mr. Langberg, Ms. Dickerson and the Paralegal to be reasonable. However, the hours claimed by John Fuller, Lawrence Fuller and Dave Pedraza are excessive. Several factors support that conclusion.
The Fuller law firm is counsel of record in at least 41 ADA cases filed in the Eastern District of Michigan. Of those, at least 30 were brought by the same Plaintiffs as the present case: Disabled Patriots of America, Inc. And Efrem Walker. Fuller, Fuller & Associates has filed numerous ADA actions in other districts as well. See Access 4 All, Inc. v. Grandview Hotel, supra at *4 (noting that "Fuller, Fuller & Associates have pursued dozens of Title III actions against various hotels in federal courts throughout New York, New Jersey, Massachusetts, and D.C."); Access 4 All, Inc. v. Hi 57 Hotel, supra at *3 ("Fuller, Fuller & Associates has represented plaintiffs in at least 92[ADA] actions over the past two years"). Of course, the extensive experience of Fuller and Fuller is one factor justifying an hourly rate of $300. However, that experience also suggests that the Fullers would be able to prosecute this fairly routine ADA case with a considerably lower expenditure of time than would a rookie. As the court noted in Brother v. Miami Hotel Investments, Ltd. 341 F.Supp.2d 1230, 1236 (S.D.Fla.2004), "If [plaintiff's counsel] is as good as he says he is, he should have been able to litigate this unexceptional case by utilizing the formulaic approach that served him so well in all the similar cases he handled[.]"
The hours billed by the Fuller law firm not only appear to overlap with time that would necessarily be spent in the 30 other Disabled Patriots cases, but a number of specific items within this case are redundant. For example, John Fuller claims .8 hours on August 20, 2004 for reviewing title and ownership documents. Those documents were previously reviewed by the paralegal, who claims .9 hours on August 18, 2004. Further, Mr. Pedraza billed for "verification of property identification and owner" on August 16, 2004.
In addition, many of the items claimed by Lawrence Fuller, such as preparation of routine discovery requests and other documents, would be common to all of the other ADA suits filed in this Court, and either the paralegal or Ms. Dickerson could have simply adapted these items to the present case, at considerably lower cost. See Doran, supra, 360 F.Supp.2d at 1062, where the court found "the tasks to be duplicative, tasks that could easily be accomplished by paralegals and, for the most part, tasks that had already been accomplished in prior litigation and were merely copied or adapted for this case."
Fuller, Fuller & Associates has thus benefited from an economy of scale. While the firm is deserving of a reasonable fee, it is not entitled to a windfall at the Defendant's expense.
In my view, Lawrence Fuller and John Fuller seek compensation for an excessive number of hours. Where this occurs, "the court has discretion simply to deduct a reasonable percentage of the number of hours claimed `as a practical means of trimming fat from a fee application.'" Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir.1998) (internal citations omitted). This method is preferable here, particularly given the ambiguities in the invoice which arise out of the bundling of otherwise discrete tasks.
John Fuller claims 4.9 hours and Lawrence Fuller claims 36.8 hours, for a total of 41.7 hours. At the rate of $300 per hour, this comes to $12, 510. In the exercise of the Court's discretion, and for the reasons stated, that amount will be reduced by 40%, to $7,506. Having found the hours claimed by attorney Dickerson (1.9 hours @ $150) and the paralegal (2 hours @ $30) to be reasonable, the attorney fees awarded to Fuller, Fuller & Associates for time expended up to the entry of the consent decree is $7,851.
In addition, Plaintiff is entitled to compensation for attorney time related to preparing and litigating the question of attorney fees. In Coulter v. State of Tennessee, supra, 805 F.2d at 151, the Court held that the hours so expended should not exceed 3% of the total award for attorney hours in the underlying case where a settlement is attained.
Expert witness Dave Pedraza's hours are also excessive, as are costs associated with his reports. His two vouchers, dated August 16, 2004 and February 28, 2005, appear to cover substantially the same work. The Court sees no reason why two inspections were necessary. Furthermore, Fuller, Fuller & Associates, who routinely retain Mr. Pedraza as an expert, filed four other ADA lawsuits in this District on the same date or within a week of the day this case was filed. Travel and other expenses associated with Mr. Pedraza's inspection could and should be spread among those several cases.
Apart from Mr. Pedraza's claimed fees, the other client costs are for the most part for photocopying, faxing and courier service.
Plaintiffs' Application for Attorneys' Fees, Costs, and Expert's Fees [Docket # 20] is therefore GRANTED IN PART, as follows:
Attorneys' Fees, Fuller, Fuller & Associates: $ 7,851.00 Attorney's Fees, Henry Langberg: $ 2,370.00 Attorneys' Fees for Fee Petition (3%): $ 306.63 Expert Fees, Dave Pedraza: $ 2,000.00 Costs: $ 500.00
TOTAL AWARD: $13,027.63___________
Final judgment for fees and costs shall enter for Plaintiffs in the amount of thirteen-thousand twenty-seven dollars and sixty-three cents ($13,027.63).