Hernandez v. Berlin Newington Associates, LLC

699 F. App'x 96

2d Cir.

2017

Check Treatment

Docket

Modesto HERNANDEZ, an individual, Plaintiff-Appellee, v. BERLIN NEWINGTON ASSOCIATES, LLC, Defendant-Appellant.

No. 16-3824

United States Court of Appeals, Second Circuit.

November 2, 2017

Present: ROBERT A. KATZMANN, Chief Judge, RAYMOND J. LOHIER, JR., CHRISTOPHER F. DRONEY, Circuit Judges.

that is reserved to the trial court and, as in Peterson, is an improper delegation of sentencing authority. To allow the Probation Office to determine whether Waden would undergo the treatment made Waden‘s “liberty itself contingent on a probation officer‘s exercise of discretion.” Matta, 777 F.3d at 122.

Accordingly, we VACATE that portion of the sentence and REMAND to the district court to remove in full the condition that Waden undergo mental health intervention designed for sexual offenders.

For Plaintiff-Appellee: Louis I. Mussman, Ku & Mussman, P.A., Pembroke Pines, FL.

For Defendant-Appellant: Stephen P. Brown, Nicole R. Fernandes, Wilson Elser Moskowitz Edelman & Dicker LLP, Stamford, CT.

SUMMARY ORDER

Defendant Berlin Newington Associates, LLC appeals the order of the United States District Court for the District of Connecticut (Bryant, J.) awarding $222,780.25 in attorney‘s fees and expenses to plaintiff Modesto Hernandez, the prevailing party in an action brought pursuant to Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181 et seq. We assume the parties’ familiarity with the facts and procedural history of this case, as well as the issues on appeal. We review a district court‘s award of attorney‘s fees for abuse of discretion. Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009).

Berlin Newington first argues that the district court abused its discretion in approving billing rates in excess of prevailing forum rates for two of Hernandez‘s attorneys. “According to the forum rule, courts should generally use the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee.” Id. (internal quotation marks omitted). Here, the district court‘s conclusion that $375 per hour was a forum rate for two of Hernandez‘s attorneys was a proper exercise of discretion. The district court appropriately relied, inter alia, on the attorneys’ significant experience with ADA cases, on the district court‘s own familiarity with market rates, and on declarations from local attorneys concerning forum rates. See Farbotko v. Clinton Cty., 433 F.3d 204, 209 (2d Cir. 2005); see also Harty v. Bull‘s Head Realty, No. 3:11-cv-01760 (VLB), 2015 WL 1064630, at *9 (D. Conn. Mar. 11, 2015) (Bryant, J.) (collecting forum cases).

Berlin Newington next argues that the district court abused its discretion in approving an excessive number of hours. District courts reviewing fee petitions must exclude “[h]ours that are ‘excessive, redundant, or otherwise unnecessary,‘” allowing only those hours that are “reasonably expended.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 172-73 (2d Cir. 1998) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Here, the district court carefully scrutinized Hernandez‘s detailed fee petition, disallowed certain time entries as vague or non-billable, and approved the balance as reasonable. Given the district court‘s firsthand experience with the case, we cannot conclude that this was an abuse of discretion.

Berlin Newington‘s remaining arguments are wholly without merit. First, Berlin Newington argues that, because Hernandez‘s local counsel could have competently handled all in-person appearances, no travel expenses should have been awarded to his out-of-state attorney. However, the district court‘s modest award of travel expenses for “essential court appearances,” J. App‘x 296, was not an abuse of discretion. See Kuzma v. IRS, 821 F.2d 930, 933-34 (2d Cir. 1987) (“Identifiable, out-of-pocket disbursements for items such as photocopying, travel, and telephone costs are generally taxable under § 1988[.]“); see also Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep‘t of Health & Human Res., 532 U.S. 598, 603 n.4 (2001) (interpreting ADA fee-shifting statute consistently with other fee-shifting statutes). Second, Berlin Newington argues that the district court improperly based its award on “dissatisfaction” with Berlin Newington‘s litigation strategy, Br. of Appellant at 18, but the district court mentioned strategy solely to explain the number of hours Hernandez‘s counsel billed. Third, Berlin Newington argues that the district court made a mathematical error in calculating the fees, when, in fact, there was no such error.

Hernandez is also entitled to recover a reasonable attorney‘s fee for defending his initial fee award on appeal. See Perez v. Westchester Cty. Dep‘t of Corr., 587 F.3d 143, 156 (2d Cir. 2009). However, although Hernandez‘s requests for a delay enhancement and postjudgment interest on his initial fee award are not waived, we decline to reach them in the first instance. We therefore remand this case to the district court to calculate a reasonable fee award for defending the initial fee award on appeal and to consider in the first instance Hernandez‘s applications for a delay enhancement and postjudgment interest.

We have considered all of the parties’ remaining arguments and have found in them no basis for altering our decision. Accordingly, the order of the district court is AFFIRMED, and the case is REMANDED to the district court for further proceedings consistent with this order.

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