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Childress v. Fox Associates, LLC

United States District Court, E.D. Missouri, Eastern Division

June 29, 2018

MARIA C. CHILDRESS, a/k/a Tina Childress, et al., Plaintiffs,
FOX ASSOCIATES, LLC, d/b/a Fabulous Fox Theatre, Defendant.



         Plaintiffs Maria C. “Tina” Childress and Mary Stodden are deaf individuals who brought this action claiming that defendant Fox Theatre violated Title III of the Americans with Disabilities Act (ADA) by providing services, privileges, advantages, and accommodations to deaf Fox patrons that were not equal to those afforded hearing patrons, and thus that they were treated differently from hearing patrons, in violation of 42 U.S.C. §§ 12182(b)(1)(A)(ii) and 12182(b)(2)(A)(iii).[1] I granted summary judgment to plaintiffs in April 2018. Plaintiffs now move for an award of attorney's fees, expenses, and costs under 42 U.S.C. § 12205. I will grant their request.

         Statutory Authority

         Under “the bedrock principle known as the American Rule, ” each litigant pays its own attorney's fees unless a statute or contract provides otherwise. Baker Botts L.L.P. v. ASARCO LLC, 135 S.Ct. 2158, 2164 (2015) (internal citation and quotation marks omitted). Parties who prevail on an ADA claim are allowed reasonable attorney's fees and costs under 42 U.S.C. § 12205 at the discretion of the court. Shrader v. OMC Aluminum Boat Grp., Inc., 128 F.3d 1218, 1220 (8th Cir. 1997). A reasonable attorney's fee includes litigation expenses. 42 U.S.C. § 12205. There is no dispute that plaintiffs prevailed on their claims under the ADA and are thus entitled to reasonable fees and costs.

         Attorney's Fees

         To determine the amount of a reasonable attorney's fee, I employ the “lodestar” method where the starting point “is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Quigley v. Winter, 598 F.3d 938, 956-57 (8th Cir. 2010). Once I determine that amount, I consider a number of other factors to determine whether to adjust the fee upward or downward.[2] Hensley, 461 U.S. at 434; see also City of Riverside v. Riveria, 477 U.S. 561, 568 n. 3 (1986).

         Plaintiffs' attorney, John Frazier Waldo, Jr., expended 223.3 hours[3] in this action and seeks fees at a rate of $450 per hour. He was the only attorney who worked on plaintiffs' case. With the lodestar calculations, Waldo's requested fee award would total $100, 485. Fox objects to the hourly rate and the time expended, and argues that, regardless, the amount of the award should be reduced given plaintiffs' limited recovery.

         A. Hourly Rate

         Waldo is a sole practitioner with his office in Houston, Texas. He has over thirty years' litigation experience, focusing his practice during the last ten years exclusively on access rights for people who are deaf or hearing impaired. He does not charge fees to his clients before matters go to court, and only then seeks fees under the ADA and/or appropriate state laws. He does not have a standard billing rate for clients, and seeks fees at a rate he deems appropriate for the litigation forum. While Waldo provides substantial authority showing that $450 is a reasonable hourly rate in today's St. Louis market for an attorney of his experience, expertise, and specialization in the particular area of law that was litigated in this matter, Fox cites only the hourly rate for its own counsel to argue against Waldo's proffered rate. Fox's counsel, however, while well-respected and entirely capable in their practice, have less years' experience and a broader base of practice, focusing on labor and employment law.

         I find Waldo's proffered rate of $450 per hour to be reasonable for the work performed.

         B. Time Expended

         Waldo's time record submitted with his motion for fees shows that he worked 216.7 hours from May 10, 2016, through May 2, 2018. The time record submitted with his reply brief shows an additional 6.6 hours of work expended after filing the original motion. Fox challenges the reasonableness of the hours claimed in the first time record, specifically arguing that the lack of contemporaneous logging of some hours and the administrative nature of certain tasks warrants a reduction in the requested fees. Fox also appears to argue that the time Waldo expended is excessive per se given that the fees incurred by its own counsel are substantially less. I disagree.

         First, contemporaneous time records are not required to support a motion for attorney's fees in the Eighth Circuit as long as reconstructed records satisfactorily document the time. Kline v. City of Kansas City, Mo., Fire Dep't, 245 F.3d 707, 708 (8th Cir. 2001). Waldo declares that he reconstructed some entries for communications with clients and opposing counsel that took only a fraction of an hour, basing the recorded time on email logs. Waldo avers that this method, which was limited to only very brief communications, was more efficient and facilitated the exercise of billing judgment. I have carefully reviewed Waldo's time records and find the entries to satisfactorily document the time Waldo expended in this action, including those entries that document brief communication with clients and counsel. I will not reduce Waldo's fee award in these circumstances. See id.

         With respect to the administrative nature of some tasks, Fox cites as non-exhaustive examples Waldo's receiving and filing of documents, confirming meetings, and transmitting records. Hours billed for secretarial or clerical tasks are not compensable. Ladd v. Pickering, 783 F.Supp.2d 1079, 1094 (E.D. Mo. 2011). Although Waldo declares that he did not bill for such work, I find that some of the examples cited by Fox fall within the parameters of clerical or secretarial work. From those entries cited by Fox - and specifically those dated May 17, July 6, and September 22, 2016; February 8 and ...

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