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Maurer v. Shiva-Egg Harbor, Inc.

United States District Court, D. New Jersey, Camden Vicinage

November 18, 2014

DENNIS MAURER, Plaintiff,
v.
SHIVA-EGG HARBOR, INC., Defendant.

MEMORANDUM OPINION AND ORDER

JOEL SCHNEIDER, Magistrate Judge.

This matter is before the Court on plaintiff's "Verified Application for Attorneys' Fees, Litigation Expenses, Expert Fees and Costs" [Doc. No. 8]. Plaintiff seeks attorneys' fees and costs pursuant 42 U.S.C. § 12205 and Fed.R.Civ.P. 54(d) as a result of a default judgment entered against defendant on May 7, 2014. See Order of May 7, 2014 [Doc. No. 6]. No opposition was filed to plaintiff's motion. The Court exercises its discretion to decide plaintiff's motion without oral argument. See Fed.R.Civ.P. 78; L. Civ. R. 78.1. Plaintiff requests a total award of $13, 939.75. For the reasons to be discussed, plaintiff's motion is GRANTED in part and DENIED in part. Plaintiff will be awarded the total amount of $13, 173.25.

BACKGROUND

Plaintiff commenced this action on October 29, 2014 pursuant to Title III of the Americans with Disabilities Act, 42 U.S.C. 12181, et seq. and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12. See generally Compl. [Doc. No. 1]. Plaintiff alleges that defendant, the owner of a shopping center, a public accommodation within the meaning of 28 C.F.R. § 36.201, violated state and federal law by placing architectural barriers which prevented plaintiff and other disabled persons from using the goods and services offered to the public at the property. Compl. ¶¶ 5-6.

On December 30, 2013, plaintiff filed a request for entry of default against defendant which was entered by the Clerk. [Doc. No. 4]. Plaintiff moved for a default judgment on March 27, 2014. [Doc. No. 5]. On May 7, 2014 the Honorable Joseph H. Rodriguez entered an Order granting default judgment. In relevant part, Judge Rodriguez ordered:

The Defendant, Shiva-Egg Harbor, Inc. shall comply with all sections of the Americans With Disabilities Act, 42 U.S.C. § 12181, the Standards for Accessible Design ("2010 Standards"), as promulgated by the U.S. Department of Justice, 28 C.F.R. Chapter 1, Part 36, App. A, as specifically set forth in the Plaintiff's Complaint and the Affidavit of Plaintiffs expert, Gene C. Mattera of AccesSolution.com, Inc. at the Harbortowne Plaza located at 6090 Black Horse Pike, Egg Harbor Township, N.J. 08234 in Atlantic County, in the State of New Jersey.

May 7, 2014 Order. Defendant was given three months to comply with the Order. Id. at 2. The Order additionally specified plaintiff would be entitled to recover attorneys' fees, litigation expenses, costs and expert fees from defendant. Id. at 3.

DISCUSSION

Plaintiff seeks attorneys' fees pursuant to 42 U.S.C. §12205 which states:

In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, ....

In order to recover attorneys' fees pursuant to this statute, a plaintiff must be a prevailing party. See Buckhannon Bd. v. West Virginia D.H.H.R., 532 U.S. 598 (2001). A plaintiff is a prevailing party if it is "awarded some relief" by the court and it achieved a material alteration in the legal relationship of the parties. Id. at 603-05. The entry of default against plaintiff results in plaintiff obtaining prevailing party status. See Petros v. U.S. 23 Drive In Theater, Inc., C.A. No. 12-14975, 2014 WL 3941372, at *1 (E.D. Mich. July 31, 2013); Raetano v. Msawel, C.A. No. 8:12-1625, 2013 WL 1465290, at *1 (M.D. Fla. Apr. 11, 2013); Shariff v. Alsaydi, C.A. No. 11-CV-6377, 2013 WL 4432218, at *4 (E.D.N.Y. Aug. 15, 2013); Garcia v. Tariq, C.A. No. 2:06-826, 2007 WL 2492614, at *2 (E.D. Cal. Aug. 30, 2007). Therefore, plaintiff is the prevailing party in this matter.

Next, the Court must determine what constitutes a reasonable amount of fees to be awarded. Reasonable attorneys' fees are computed by multiplying the reasonable hourly rate by the reasonable number of hours expended, an amount known as the lodestar. In calculating the lodestar, the Court must "carefully and critically evaluate the hours and the hourly rate put forth by counsel." Blakey v. Continental Airlines, Inc., 2 F.Supp.2d 598, 602 (D.N.J. 1998) (quotation omitted). The party seeking a fee is required to submit evidence to support the reasonableness of its request. Id . Thus, here, plaintiff bears the burden of proof as to the reasonableness of the claimed hourly rate and hours worked. Interfaith Comm. Org. v. Honeywell Intern., Inc., 426 F.3d 694, 703 n.5 (3d Cir. 2005).

"It is the general rule that a reasonable hourly rate is calculated according to the prevailing market rates in the community." P.N. v. Clementon Bd. of Educ., 2007 WL 1186552, at *2 (D.N.J. April 20, 2007) (citing S.D. v. Manville Bd. of Educ., 989 F.Supp. 649, 656 (D.N.J. 1998)). This burden is normally addressed by affidavits prepared by other attorneys in the relevant legal community. Id . The relevant market is what attorneys with comparable experience bill per hour in southern New Jersey. See L.J. ex rel. V.J. v. Audobon Bd. of Educ., C.A. No. 06-5350 (JBS), 2009 WL 995458 (JBS), at *11 (D.N.J. April 13, 2009) (citations omitted) (rejecting an affidavit from a Philadelphia attorney because the rates charged in a large metropolitan area are likely to be higher than those charged by attorneys practicing in Southern New Jersey). Plaintiff has not provided any affidavits, but only the resumes of John F. Fuller and Alan R. Ackerman. See Pl.'s Br. Ex. B.

After the Court decides the appropriate hourly rate to award, the Court then must decide whether hours were reasonably expended. To do this the Court must examine the record to determine that the hours billed are not "unreasonable for the work performed." Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1037 (3d Cir. 1996) (citation omitted). The higher the hourly rate charged by an attorney based upon his or her skill and experience, the shorter the time it should take the attorney to perform a particular task. Apple Corps. Ltd. v. Int'l Collectors Soc., 25 F.Supp.2d 480, 490-91 (D.N.J. 1998) (citation omitted); Deptford Twp. Sch. Dist. v. H.B. ex rel. E.B., C.A. No. 01-784 (JBS), 2006 WL 3779820, at *5 (D.N.J. Dec. 21, 2006); P.N., 2007 WL 1186552, at *2. General education or background research should not be charged to the client. Spectrum Produce ...


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