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Melo v. Lawrence Plaza Limited Partnership

United States District Court, D. Massachusetts

February 6, 2017

ANDRES RAMON MELO, Plaintiff,
v.
LAWRENCE PLAZA LIMITED PARTNERSHIP, Defendant.

          MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS

          F. DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.

         Plaintiff Andres Ramon Melo brought this action against defendant Lawrence Plaza Limited Partnership under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. On August 17, 2016, plaintiff accepted defendant's offer of judgment. Plaintiff has moved for an order awarding attorneys' fees, litigation costs, and other expenses pursuant to 42 U.S.C. § 12205. For the following reasons, plaintiff's motion will be granted in part and denied in part.

         I. Background

         According to the complaint, Andres Melo is disabled and uses a wheelchair for mobility purposes. He acts as a “tester” on behalf of other persons with disabilities to discover discrimination against the disabled in public accommodations. Melo tests reported barriers to access and, in some instances, proceeds with legal action seeking to enjoin such barriers on the ground that they constitute illegal discrimination against the disabled.

         In bringing this action, Melo is represented by Attorneys Todd Shulby of Weston, Florida, and Edward Garno of Lowell, Massachusetts, with whom he has worked many times in the past. Since November 2009, Melo has filed no fewer than 56 lawsuits in the District of Massachusetts alone against various businesses and individuals alleging ADA violations.[1] In all of these cases, Melo was represented by Shulby and Garno together, or Garno alone.[2] Of these cases, Melo petitioned the court for attorneys' fees and costs in only one, following defendants' default in that case. See Pl. Mot. for Attorneys' Fees, Melo v. U.S. Plaza et al., No. 12-12259-GAO (D. Mass. Dec. 1, 2012), Docket No. 44. The other cases were voluntarily dismissed, often within a matter of months, presumably following either a quick settlement agreement or a determination that the case had no merit.

         Defendant Lawrence Plaza Limited Partnership owns a strip shopping center called “Stadium Plaza” in Lawrence, Massachusetts. The complaint alleges that Melo visited Stadium Plaza both for personal reasons and in his capacity as a tester, and discovered a number of physical barriers and conditions that render the facility inaccessible to people with disabilities. Compl. ¶ 17. On September 30, 2015, Melo brought suit against Lawrence Plaza L.P., alleging multiple violations of the ADA and seeking injunctive relief to remove physical barriers to access at Stadium Plaza.

         Lawrence Plaza L.P. filed an offer of judgment on August 3, 2016. The offer of judgment proposed a permanent injunction requiring it to bring Stadium Plaza fully into compliance with the ADA by November 30, 2016. It offered Melo the option of either accepting $2, 500 in attorneys' fees or filing a motion with the court to assess fees. On August 17, 2016, Melo accepted the offer of judgment. He has moved for attorneys' fees and costs pursuant to 42 U.S.C. § 12205.

         II. Analysis

         The ADA provides that “[i]n any action . . . commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee.” 42 U.S.C. § 12205. In the First Circuit, courts follow the so-called “lodestar” method for calculating reasonable attorneys' fees. Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir. 1994); see also Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1, 13 (1st Cir. 2011). The lodestar method involves “multiplying the number of hours productively spent by a reasonable hourly rate to calculate a base figure.” Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

         In fashioning the lodestar, the first step is to calculate the number of hours reasonably expended by the attorneys for the prevailing party, excluding those hours that are “excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434; see also Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984) (explaining that a court should subtract “hours which [are] duplicative, unproductive, excessive, or otherwise unnecessary”). “[T]he court has a right-indeed, a duty-to see whether counsel substantially exceeded the bounds of reasonable effort.” United States v. Metro. Dist. Comm'n, 847 F.2d 12, 17 (1st Cir. 1988) (quotation omitted).

         After determining the number of hours reasonably expended, a court's second step in calculating the lodestar requires a determination of a reasonable hourly rate-a determination that is benchmarked to the “prevailing rates in the community” for lawyers of like “qualifications, experience, and specialized competence.” See Gay Officers League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001). In determining a reasonable hourly rate, a court must consider “the type of work performed, who performed it, the expertise that it required, and when it was undertaken.” Grendel's Den, 749 F.2d at 951. The moving party bears the burden of establishing an attorney's level of skill and experience, and when that party fails to provide documentation as to the attorney's qualifications, a court may reduce the hourly rate. See, e.g., Martinez v. Hodgson, 265 F.Supp.2d 135, 142 (D. Mass. 2003).

         After determining the reasonable number of hours and hourly rate, the court may adjust the lodestar upward or downward based on a number of factors. Spooner v. EEN, Inc., 644 F.3d 62, 68 (1st Cir. 2011). Those factors include:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of 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.

Diaz v. Jiten Hotel Mgmt., 741 F.3d 170, 177 n.7 (1st Cir. 2013) (quoting Hensley, 461 U.S. at 430 n.3).

         A. Attorn ...


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