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Berthiaume v. Doremus

United States District Court, W.D. Virginia, Lynchburg Division

June 12, 2014

ERIC BERTHIAUME, Plaintiff,
v.
TODD DOUGLAS DOREMUS, DBA YELLOW SUBMARINE, Defendant.

MEMORANDUM OPINION

NORMAN K. MOON, District Judge.

This matter is before the court on Plaintiff Eric Berthiaume's Motion for Attorneys' Fees and Costs ("Motion for Fees"). Plaintiff filed his Complaint in this Americans with Disabilities Act case on July 3, 2013. Plaintiff claimed Todd Douglas Doremus ("Defendant"), owner of the Yellow Submarine restaurant in Lynchburg, Virginia, discriminated against Plaintiff, who has cerebral palsy and uses a walker to move, through barriers to access the restaurant and its restrooms. I granted Plaintiff's Motion for Default Judgment on February 11, 2014 and ordered Defendant to comply with several permanent injunctions regarding the accessibility of his restaurant under the ADA. See Feb. 11, 2014 Mem. Op. and Order (docket nos. 17, 18). Plaintiff now seeks the $9, 550 in attorneys' fees and the $450 in court costs he incurred while pursuing this case. Since I find that Plaintiff was the prevailing party in this case and that Plaintiff requests a reasonable amount of fees and costs, I will grant Plaintiff's Motion for Fees and award Plaintiff's counsel attorneys' fees and costs in the amount of $10, 000.

II. BACKGROUND[1]

Defendant owns the Yellow Submarine restaurant in Lynchburg, Virginia, located at 3313 Old Forest Road. In his complaint, Plaintiff alleged that Defendant discriminated against him under Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181, et seq. Plaintiff has cerebral palsy and uses a walker to move. He claimed Yellow Submarine is a place of public accommodation that violated the ADA by failing to remove architectural barriers to accessibility, including steps between the sidewalk and Yellow Submarine's front and side entrances. Plaintiff attempted to access the restaurant on May 8, 2013, but could not because of steps leading to its entrance and a lack of other accessible entrance options.

Plaintiff also pleaded, on information and belief, that he would not be able to access Yellow Submarine's restroom because of "[an] improper door handle, no grab bars, improper sink controls, " and inadequate space around the toilet. Id. at ¶¶ 15, 45. Plaintiff did not visit the restrooms, but his counsel conducted an investigation there.

Plaintiff attempted to negotiate with Defendant to solve the accessibility issues without resorting to litigation, but those efforts failed. Thereafter, Plaintiff filed a complaint in this Court on July 3, 2013, alleging ADA violations and seeking permanent injunctions to bring Defendant's restaurant into compliance. On October 1, 2013, Plaintiff provided personal service of his complaint and a "Summons in a Civil Action" on Defendant at Yellow Submarine. Defendant did not respond to the complaint or summons, and did not file an answer or other documentation in this Court. On October 31, 2013, Plaintiff filed for an entry of default with the Clerk of this Court, and received one on November 1, 2013. On December 30, 2013, Plaintiff filed a Motion for Default Judgment under Federal Rule of Civil Procedure 55(b)(2). As part of that judgment, Plaintiff sought certain permanent injunctions requiring Defendant's compliance with the ADA so that Plaintiff could access his restaurant.[2]

On January 8, 2014, I ordered the parties to schedule a hearing so that I could further explore Plaintiff's allegations and other matters. Defendant received notice of the hearing by certified mail on January 22, 2014. On February 7, 2014, all parties appeared at the hearing, where the parties argued the merits of Plaintiff's Motion for Default Judgment and I discussed the possibility of an award of attorneys' fees.[3] On February 11, 2014, I granted Plaintiff's Motion for Default Judgment, finding that Plaintiff sufficiently alleged a prima facie case of discrimination under the ADA. In granting the motion, I issued the following permanent injunctions:

* * *

2. Defendant is hereby permanently enjoined from discriminating against Plaintiff under the ADA by not removing or otherwise circumventing barriers to Plaintiff's access to Yellow Submarine and its restrooms;

3. Within 90 days of receiving notice of this order, Defendant shall install an appropriate ramp, either temporary or permanent and to the specifications of the ADA and its regulations, or offer other appropriate accommodations under the ADA so that Plaintiff can enter Yellow Submarine;

4. Within 90 days of receiving notice of this order, Defendant shall modify Yellow Submarine's restroom so that it is accessible to Plaintiff by ADA standards, including any necessary installation of door hardware, grab bars in toilet stalls, removal of toilet partitions, and repositioning of the paper towel dispenser.

See Feb. 11, 2014 Order at 1-2 (footnote omitted) (docket no. 18).

Plaintiff filed this Motion for Fees on March 6, 2014, seeking the $9, 550 in attorneys' fees and $450 in costs associated with pursuing this action. On March 13, 2014, Plaintiff supplemented his Motion for Fees with a Declaration in Support by Jonathan G. Martinis, in which Mr. Martinis stated his opinion that the hourly rates Plaintiff requested were "eminently reasonable, " and likely even "lower than prevailing rates for similarly experienced counsel and staff." See Decl. in Supp. of Mot. for Fees at 1-2 (docket no. 21). On April 28, 2014, this Court issued a notice, similar to that issued in Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), informing Defendant of Plaintiff's request for fees and that this Court would dispose of it ...


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