Nedder v. Rivier College

Opinion

Nedder v. Rivier College CV-95-116-SD 06/30/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mary Nedder

v. Civil No. 95-116-SD

Rivier College

O R D E R

Having successfully prevailed on her claim under the

Americans with Disabilities Act, 42 U.S.C. § 12101, et sea.,

plaintiff now moves for an award of attorney fees, litigation

expenses, and costs. Document 56.1 No objection has been

interposed by the defendant.

There is no guestion that plaintiff is the prevailing party

1The motion is grounded on 42 U.S.C. § 12205, which provides,

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, and the United States shall be liable for the foregoing the same as a private individual. in this litigation. Farrar v. Hobby, 506 U.S. 103, 109 (1992).2

The starting point for an award of attorney fees is therefore the

"lodestar", which represents the number of hours reasonably

expended on the litigation multiplied by a reasonable hourly

rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

The total amount here sought in attorney fees is the sum of

$38,590, the components of which are (1) 230.8 hours at an hourly

rate of $150 for the services of Attorney Paul McEachern, trial

counsel for plaintiff, egualing $34,620, and (2) 39.7 hours at an

hourly rate of $100, or $3,970, for Attorney Alec McEachern, who

assisted at the trial of this action. While the court, having

carefully reviewed the itemized time charges set forth in the

affidavit of Attorney Paul McEachern, has no guarrel with the

hours and hourly rate attributed to his services,3 it will

disallow 50 percent of the amount attributable to Attorney Alec

2Although Farrar v. Hobby, supra, concerned a fees award pursuant to the Civil Rights Act, 42 U.S.C. § 1988, analysis of awards under that statute have been utilized by the courts in their consideration of entitlement to awards pursuant to 42 U.S.C. § 12205. See Pottgen v. Missouri State High School Activities Ass'n, 103 F.3d 720, 723 (8th Cir. 1997); Pedigo v. P.A.M. Transport, Inc., 98 F.3d 396, 397-98 (8th Cir. 1996). 3Admitted in 1966, Attorney Paul McEachern, the court finds, is well gualified to receive an hourly rate of $150.

2 McEachern,4 finding the latter amount to be both excessive and

duplicative.

As thus recomputed, the total sum of attorney fees herewith

awarded is $36,605, to which the court adds, finding them to be

proper and reguiring no further discount, the total disbursements

of $3,588.37. The total amount herewith awarded is therefore the

sum of $40, 193 .37 .

This case is now in that stage for, and the court herewith

directs the clerk of court to complete entry of final judgment.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

June 30, 1997

cc: Paul McEachern, Esg. Daniel P. Schwarz, Esg.

4Admitted in 1994, Attorney Alec McEachern is probably entitled to an hourly rate closer to $75 than $100. Moreover, examination of the itemized charges set forth for him indicate that they comprise largely hours spent in research and note taking at trial. Attorney Alec McEachern did not participate in oral argument or direct or cross examination of any of the witnesses presented at such trial.