United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
This case is on remand from the Ninth Circuit Court of Appeals for the second time on the issue of attorneys' fees. Previously, the Court granted Plaintiff an award of fees at a reduced rate as well as a reduced award of expert witness fees. Plaintiff appealed and the Ninth Circuit reversed and remanded.
Plaintiff is a disabled individual who uses a wheelchair due to a condition known as fibrodysplasia ossificans progress. He sued Defendants in this Court under the Americans with Disabilities Act of 1990 ("ADA") to require them to remove certain architectural barriers at The General Store in Mound House, Nevada. The case was assigned to the Honorable Brian E. Sandoval. The parties filed cross-motions for summary judgment, and Judge Sandoval granted Plaintiff's motion because Defendants had failed to respond. (June 31, 2009 Order, ECF No. 18). Beyond the failure to respond to Plaintiff's motion, Judge Sandoval found that Defendants presented no evidence to support their contention that the barriers identified by Plaintiff had been removed. ( Id. at 4). On the other hand, Plaintiff had submitted the declaration and expert witness report of C. Jeffery Evans ("Evans"), which identified the various barriers existing at The General Store as of February 18, 2009. Based on the expert's report, Judge Sandoval ruled that Defendants were violating the ADA and found that the removal of all barriers would be readily achievable. ( Id. ).
On August 14, 2009, Plaintiff filed his Motion for Attorneys' Fees. (ECF No. 20). Shortly thereafter, due to the resignation of Judge Sandoval, the case was reassigned to this Court. (ECF No. 23). The Motion sought $13, 997.50 in attorneys' fees and $8, 464.80 in litigation expenses and costs, $7, 889.80 of which related to expert fees for Evans. (Mot. Att'ys' Fees 8, ECF No. 20). Plaintiff's counsel sought a compensable rate of $275 per hour for 50.9 hours of work.
The Court held a hearing on the issue of attorneys' fees on October 29, 2009. (ECF No. 31). The parties presented a number of arguments during the hearing. First, Plaintiff contended that he had sent notice to Defendants prior to filing the instant lawsuit complaining of the various ADA violations, an issue the Court found important to the amount of fees to be awarded since pre-filing notice would have demonstrated an attempt to resolve the dispute quickly and less expensively. ( See Hearing Transcript 3:8-16, ECF No. 32).
Defendants represented that as soon as they were informed of Plaintiff's ADA complaints, they "immediately commenced compliance." ( Id. at 6:23). Defendants "had their parking lot restriped, they had a... van-accessible sign put up, they changed the entry door hardware, they lowered the paper towel dispenser, they lowered the toilet seat cover dispenser, and they provided pipe wrap." ( Id. at 6:23-7:2). When Defendants inquired as to the cost of making the remaining restroom modifications, they received a bid of $80, 000, which was "twice the annual revenue of [the] business." ( Id. at 7:9). After receiving permission from Lyon County to provide a single, unisex ADA compliant bathroom in The General Store, the bid was reduced to $20, 000 and Defendants prepared to "immediately commence compliance." ( Id. at 7:15-16). It was at this point that Defendants received Plaintiff's Motion for Attorneys' Fees also demanding over $20, 000. Defendants, owners of a small-town convenience store in rural Nevada, could not afford to pay both.
After reviewing the briefing and listening to oral arguments, the Court determined that it would "allow $125 per hour on the fees" as well as costs, excluding the expert witness fee. ( Id. at 10:5-6). The reduction in fee award was based on (1) lack of proof that Plaintiff attempted to resolve the issue pre-litigation, (2) Defendants compliance in making architectural modifications as required by the ADA, (3) the lack of itemization on the work conducted by Evans, (4) the exorbitant amount of time Evans billed Plaintiff to take measurements of The General Store, and (5) the unnecessary presence of Plaintiff's counsel during Evans inspection of The General Store that resulted in billed time. ( See id. at 10:25-11:9). The Court explained that although all of the hours submitted by Plaintiff's counsel would be awarded, the reduced rate would take into account Defendants' objections to the fee award. ( Id. ). The Court then instructed Plaintiff's counsel to prepare a proposed order reflecting the Court's ruling.
The proposed order was submitted to the Court on November 12, 2009 and read in its entirety that "[t]he Court hereby grants Plaintiff's Motion for Attorney's Fees, Litigation Expenses and Costs in part and denies the motion in part. Plaintiff is awarded attorney's fees in the sum of $6, 362.50 and costs in the amount of $575.00. Plaintiff's request for payment of his expert witness fee is denied." (ECF No. 33). The Court accepted and signed the proposed order on November 19, 2009.
Plaintiff then appealed the fee award. (ECF No. 35). The Ninth Circuit held that the Court had abused its discretion in making the award at a "highly reduced rate" because the body of the Order did not contain analysis, the Court having provided its reasoning to the parties during the October 29, 2009 hearing. (9th Cir. Memo. 2, ECF No. 43). Nevertheless, the Appeals Court determined that "[t]he lack of meaningful explanation" in the November 18, 2009 Order "prevent[ed] review and require[ed] a remand." ( Id. ). The court also held that a denial of expert witness fees, "without explanation, " also constituted an abuse of discretion. ( Id. ).
On remand, the Court set out to explain its reasoning behind the reduced rate and denial of the expert witness fee that had been given during the hearing, but was not incorporated into the text of the November 18, 2009 Order. The Court first pointed out that although pre-litigation notice does not determine whether attorneys' fees should be awarded, it is "a permissible consideration" if specifically connected to a reason why the lawsuit, once filed, "would have been resolved more cheaply." (Apr. 27, 2011 Order 2, ECF No. 44 (quoting Jankey v. Poop Deck, 537 F.3d 1122, 1133 (9th Cir. 2008)). Regardless of the pre-litigation notice, however, the Court still determined that the $125 per hour was a reasonable rate due to the Defendants' compliance with ADA requirements once the suit was filed, the size of Defendants' business, and the significant harm that a higher award would pose to Defendants' livelihood. ( Id. ). For these reasons, the award of attorneys' fees was unchanged.
The Court further acknowledged that the ADA allows plaintiffs to recover expert witness fees and therefore it awarded Plaintiff an additional $1, 000. While some degree of labor was required to take the various measurements at The General Store to determine ADA compliance, the Court found the $8, 000 bill unreasonable for a day's worth of work. Besides being overqualified for the task at hand, the Court also found that Evans billed an unreasonable amount even in light of his qualifications. ( Id. at 3). The Court reduced the expert fee accordingly and awarded Plaintiff $6, 362.50 in attorneys' fees and $1, 575 in costs. ( Id. ).
Again not satisfied with the Court's ruling, Plaintiff appealed the fee award. (ECF No. 48). The Ninth Circuit once more determined that the Court had abused its discretion in reducing the attorneys' fees and expert witness fees. (Jan. 5, 2012 9th Cir. Memo. 4, ECF No. 54). The Appeals Court reversed and remanded, ordering this Court "(1) to reconsider attorneys' fees and costs... (2) to consider the Kerr factors before reducing Kilby's hourly rate, (3) to discuss the evidence supporting the reduction of the expert's fees, and (4) to again consider awarding costs on appeal." ( Id. at 7).
A. Attorneys' Fees
The ADA states that the court, "in its discretion, may allow the prevailing party... a reasonable attorney's fee, including litigation expenses, and costs...." 42 U.S.C. § 12205. "[F]or a litigant to be a prevailing party for the purpose of awarding attorneys' fees, he must meet two criteria: he must achieve a material alteration of the legal relationship of the parties, and that alteration must be judicially sanctioned." P.N. v. Seattle Sch. Dist. No. 1, 474 F.3d 1165, 1172 (9th Cir. 2007) (internal quotation marks omitted). Under the ADA, a prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render ...