Citations
- 385 F. Supp. 2d 1272
Full opinion text
MEMORANDUM OF DECISION
GLAZEBROOK, United States Magistrate Judge.
Following the settlement of these consolidated ADA Title III premises liability cases, Plaintiffs demanded $147,366.30 in attorneys fees, litigation expenses, and costs. Docket No. 61 at 21. Defendants opposed the amount sought as excessive, but conceded that $20,686.30 was reasonable. Docket No. 69. On February 26, 2004, the undersigned entered a cursory order finding Plaintiffs’ demand for $147,366.30 “entirely unreasonable,” but finding Defendants’ response thorough and well-reasoned. Docket No. 71 at 2. The Court entered a judgment in favor of Plaintiffs for attorney’s fees, expenses, and costs, but only to the extent conceded by the defendants. Docket No. 71.
Plaintiffs then appealed the award as insufficient. Docket No. 73. The United States Court of Appeals for the Eleventh Circuit remanded the case for the undersigned to articulate the basis for the award so as to permit meaningful review. Association for Disabled Americans, Inc. v. Integra Resort Management, Inc., 387 F.3d 1241 (11th Cir.2004). The Court of Appeals returned the record and issued the decision as a mandate on March 3, 2005, Docket Nos. 96, 98, and the case is now ripe for decision. This Court’s order of February 26, 2004 [Docket No. 71] and judgment on attorney’s fees of February 27, 2004 [Docket No. 72] are VACATED, and this memorandum of decision is substituted in their place.
I. THE ISSUES
First, this memorandum of decision articulates the basis for the original decision, and shows the hourly rate calculations used. 387 F.3d at 1243. This substituted decision sets forth the amount of reasonable attorneys’ fees, litigation expenses, expert fees, and costs incurred in this matter that defendants agreed to pay to plaintiffs counsel pursuant to the consent decree. Docket No. 59 at 45; Docket No. 60 at 2.
Second, this order and memorandum of decision raises sua sponte an important issue which the undersigned failed to address in its original decision — an issue which no party has briefed or even raised. The Court must assure itself that a genuine case or controversy exists — in other words, that plaintiffs have standing to seek injunctive relief for a real and immediate threat of injury — and that this Court has subject matter jurisdiction to enter a judgment for attorney’s fees, expenses, expert fees, and costs.
II. THE LAW
A. STANDING
Article III, § 2 of the United States Constitution limits federal jurisdiction to actual cases or controversies. A federal court therefore has an obligation to assure itself that a litigant who seeks an injunction has Article III standing at the outset of the litigation. See Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 179—80, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (initial standing simply assumed but not decided). The standing doctrine ensures that the “scarce resources of the federal courts are devoted to those disputes in which the parties have a concrete stake.” 528 U.S. at 191, 120 S.Ct. 693. A party has standing to seek injunctive relief only if the threat of injury is both real and immediate, and not abstract, conjectural, or hypothetical. City of Los Angeles v. Lyons, 461 U.S. 95, 101—02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); accord, Shotz v. Cates, 256 F.3d 1077, 1082 (11th Cir.2001).
To satisfy Article Ill’s standing requirements, a plaintiff must show 1.) it has suffered an “injury in fact” that is a.) concrete and particularized and b.) actual or imminent, not conjectural or hypothetical; 2.) the injury is fairly traceable to the challenged action of the defendant; and 3.) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); accord, Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir.2001) (these requirements are the “irreducible minimum” required to proceed in federal court). An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Friends of the Earth, 528 U.S. at 181, 120 S.Ct. 693.
A plaintiff may have standing, for example, to enjoin toxic discharges into a nearby river that he would use for recreation if it were not polluted. Friends of the Earth, 528 U.S. at 184, 120 S.Ct. 693 (seeking to enjoin toxic discharges that directly affect plaintiffs’ recreational, aesthetic, and economic interests). In contrast, litigants may not base Article III standing on mere “general averments” and “conclusory allegations,” Lujan v. National Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), or on speculative “some day” intentions to visit endangered species halfway around the world, Lujan v. Defenders of Wildlife, 504 U.S. 555, 564, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). See Friends of the Earth, 528 U.S. at 184, 120 S.Ct. 693.
An ADA plaintiff therefore lacks standing to seek an injunction unless he alleges facts giving rise to an inference that he will suffer future discrimination by the defendant. Shotz v. Cates, 256 F.3d at 1081. In Shotz, the United States Court of Appeals for the Eleventh Circuit determined that ADA plaintiffs lacked Article III standing to seek injunctive relief because they had never attempted to return to the offending courthouse, and had not even alleged that they intend to do so in the future. The likelihood of future discrimination therefore remained “conjectural, hypothetical, or contingent” and not “real and immediate.” Shotz v. Cates, 256 F.3d at 1082 (ADA Title II public entity case); following Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir.1985).
Standing is a threshold jurisdictional issue which must be addressed prior to and independent of the merits of a party’s claims. Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir.2005). A court must zealously assure that jurisdiction exists over a case, and should itself raise the question of subject matter jurisdiction at any point in the litigation where a doubt about jurisdiction arises. Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir.2001).
B. BARRIERS TO ENTRY IN PUBLIC ACCOMMODATIONS
Title III of the ADA prohibits discrimination against the disabled in the full and equal enjoyment of public accommodations. 42 U.S.C. § 12182(a). The general prohibitions are supplemented by various specific requirements. Entities that provide public accommodations 1.) may not impose “eligibility criteria” that tend to screen out disabled individuals, § 12182(b)(2)(A)(i); 2.) must make “reasonable modifications in polices, practices, or procedures, when such modifications are necessary” to provide disabled individuals full and equal enjoyment, § 12182(b)(2)(A)(ii); 3.) must provide auxiliary aids and services to disabled individuals, § 12182(b)(2)(A)(iii); and 4.) must remove architectural and structural barriers, or if barrier removal is not readily achievable, must ensure equal access for the disabled through alternative methods, § 12182(b)(2)(A)(iv)-(v). See Spector v. Norwegian Cruise Line Ltd., — U.S. —, —, 125 S.Ct. 2169, 2176, 162 L.Ed.2d 97 (2005).
As noted by the Supreme Court in Spec-tor, 125 S.Ct at 2176, these specific requirements, in turn, are subject to important exceptions and limitations. Policies, practices, and procedures need not be modified, and auxiliary aids need not be provided, if doing so would “fundamentally alter” the services or accommodations being offered. § 12182 (b) (2) (A) (ii)-(iii) The barrier removal and alternative access requirements do not apply when these requirements are not “readily achievable,” §§ 12182(b) (2) (A) (iv)-(v). Additionally, structural modifications are not readily achievable within the meaning of § 12181(9) if it would pose a direct threat to the health or safety of others. 125 S.Ct. at 2181. Title III requires a public accommodation to make an individualized inquiry as to whether a specific modification for a particular person’s disability would be reasonable and necessary for that person, and yet not work a fundamental alteration. PGA Tour, Inc. v. Martin, 532 U.S. 661, 688, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001).
C. DECISIONS OF THE UNITED STATES DISTRICT COURTS
The United States District Courts in Florida have recently adjudicated a flood of ADA premises liability cases, many of which have been brought by Charouhis, Rodriguez, Brother, and various associations for the disabled. The following is a chronology of the relevant decisions, divided into cases that preceded this Court’s February 26, 2004 decision on attorney’s fees (now on remand), and those that followed that decision.
1. Decisions Prior to Order Dated February 26, 2004
a. Judge Spaulding’s Unpublished Decision
Jorge Luis Rodriguez, Daniel Ruiz, and the Association for Disabled Americans filed an ADA premises liability lawsuit against the owner of a Howard Johnson hotel, and the parties consented to proceed before the Honorable Karla R. Spaulding, United States Magistrate Judge, Orlando Division. See Association for Disabled Americans v. Orlando Hawaiian Motel Co., Case No. 6:98-cv-Orl-KRS. After an evidentiary hearing, Judge Spaulding determined that Charouhis and the plaintiffs had filed a document falsely stating that they had entered into a settlement agreement even though a dispute existed regarding whether a settlement agreement had ever been fully executed. Case No. 6:98-cv-Orl-KRS, Docket No. 105 at 18 (M.D. Fla. June 26, 2002).
Judge Spaulding awarded no fees for plaintiffs expert, Michael Brennan, noting an earlier finding by the Honorable David A. Baker (United States Magistrate Judge, Orlando Division) that Brennan’s qualifications were minimal. Id. at 26; citing Association for Disabled Americans, Inc. v. Red Roof Inns, Inc., Case No. 6:98-cv-1199-Orl-DAB, Docket No. 82 [available on CM7ECF]. Pursuant to the parties’ settlement agreement, Judge Spaulding awarded plaintiffs $24,762.43 in attorney’s fees, litigation expenses, and costs — a figure that reflected reduced hourly rates for Charouhis (reduced to $225) and his associates, Christina Galindo ($120) and Lori Barkus ($170), as well as a disallowance of some 60 hours for work that was not awardable, duplicative, unsuccessful, unnecessary, or incurred without first conferring with opposing counsel pursuant to Local Rule 3.01(g). Id. at 19—22, 31.
b. Judge Moody’s Rosenkrantz Case
In Rosenkrantz v. Markopoulos, the Honorable James Moody concluded that a disabled tourist living in Miami lacked standing to sue a hotel located in Clear-water, Florida. The plaintiff lived hundreds of miles away from Clearwater beach; had only been to the location once; traveled only twice a year and the most direct route to and from the plaintiffs destination (North Carolina) came nowhere near the Clearwater area; and plaintiff had available countless other hotels located in the area including several which he had sued. Rosenkrantz v. Markopoulos, 254 F.Supp.2d 1250, 1253 (M.D.Fla. March 27, 2003); followed in Brother v. Tiger Partner, LLC, 331 F.Supp.2d 1368, 1374 (M.D.Fla.2004).
c. The “Cottage Industry” Case
Three minutes before Plaintiff Jorge Luis Rodriguez filed the instant lawsuit against Integra and Enclave, Case No. 6:02-cv-917-31JGG, he filed a nearly identical ADA premises liability lawsuit against another hotel. See Rodriguez v. Investco, L.L.C., Case No. 6:02-cv-916-Orl-31KRS (consecutive case numbers). Two days before the undersigned magistrate judge issued the February 26, 2004 order granting in part and denying in part Charouhis’ motion for attorney’s fees and expenses [Case No. 6:02-cv-917-31JGG, Docket No. 71], the Honorable Gregory A. Presnell issued a widely-circulated decision in Rodriguez v. Investco, L.L.C., Case No. 6:02-cv-916-Orl-31KRS. See Rodriguez v. Investco, L.L.C., 305 F.Supp.2d 1278 (M.D.Fla.2004) [the “Cottage Industry” case]. Following a bench trial on January 9, 2004, Judge Presnell found as follows.
Plaintiff, Jorge Luis Rodriguez, suffered a diving accident in 1985, which rendered him a quadriplegic. He was wheelchair-bound and had limited use of his arms and hands. Until recently, he had lived and worked in Miami. Rodriguez v. Investco, L.L.C., 305 F.Supp.2d at 1279. Approximately one year before the trial, Rodriguez moved to Deltona, Florida, and was unemployed at the time of the trial. During the past few years, Rodriguez has filed almost 200 lawsuits against various establishments, alleging violations of the ADA. In most of these cases, Rodriguez has been represented by the same counsel, William Charouhis. 305 F.Supp.2d at 1279.
In the case tried by Judge Presnell, Rodriguez had stayed at the defendant’s hotel facility in May 2002 before the defendant owned or operated it. Rodriguez wished to stay two nights but stayed only one, claiming that he was not able to enjoy the facility because of barriers he encountered. Accordingly, he called Charouhis, who inspected the property on August 3, 2002. On August 5, 2002, Charouhis advised Rodriguez that the hotel was not ADA compliant, and thus filed this lawsuit four days later. 305 F.Supp.2d at 1279.
At trial, Rodriguez testified that he wished to return to the hotel for another visit, and had made a reservation for the nights of June 22 and 23, 2004. This reservation was made two days before the trial commenced. Plaintiff could not explain why he would choose to stay at the hotel, when other nearby hotels admittedly met his needs. Judge Presnell found that the real reason for the reservation was obvious: his attempt to comply with the requirement that he prove an intent to return. 305 F.Supp.2d at 1280 and n. 3.
At the bench trial, Rodriguez called an expert witness, Thomas Ricci, who introduced a report listing the deficiencies inherent at the time of the defendant’s acquisition of the hotel. Judge Presnell found that Ricci’s report was “exaggerated and misleading.” For example, Ricci criticized access to a non-existent tennis court, and criticized the size, shape, and slope of non-existent handrails and grab bars. Moreover, Judge Presnell found that the photos attached to Ricci’s report could not be matched to the violation being alleged, and found no basis in the evidence for other expert opinions expressed by Ricci. 305 F.Supp.2d at 1280 and n. 6 — 8.
Judge Presnell noted that, although the ADA’s private remedies are limited to in-junctive relief, 42 U.S.C. § 12188(a), the ADA nevertheless contains an incentive to private litigation — the attorney’s fee provision (42 U.S.C. § 12205). 305 F.Supp.2d at 1281 and n. 9. According to Judge Pres-nell, the ADA’s statutory scheme has resulted in an explosion of private ADA-related litigation. 305 F.Supp.2d at 1281. In the Middle District of Florida alone, there have been hundreds of Title III cases filed in the past three years. These cases have been filed by a relatively small number of plaintiffs (and their counsel) who have assumed the role of private attorneys general. Five hundred and seventy nine cases have been filed by only five organizations (and a few of their associated members): Access 4 All, Inc.; Access Now, Inc.; Association for Disabled Americans, Inc.; Access for America, Inc.; and Access for Disabled, Inc. 305 F.Supp.2d at 1281. During this period, Plaintiff, Jorge Rodriguez, represented by Charouhis, also filed 11 individual cases in the Middle District of Florida. Charouhis has been counsel in 75 cases in this district during the past three years. In 27 of these cases, the Court has had occasion to issue 33 show cause orders for his failure to abide by the Court’s orders. 305 F.Supp.2d at 1281.
Judge Presnell found that the case that he had just tried was a “case in point.” Rodriguez had filed the suit less than a week after Charouhis had verified the ADA deficiencies. Charouhis made no effort to communicate with the property owner to encourage voluntary compliance. Had Charouhis contacted the first named defendant, he would have learned that the entity he was about to sue was in bankruptcy. Charouhis gave no warning and no offer to forbear during a reasonable period of time while remedial measures are taken. 305 F.Supp.2d at 1281.
Judge Presnell then posed and answered two central questions. First, he asked:
Why would an individual like Plaintiff be in such a rush to file suit when only injunctive relief is available? Wouldn’t conciliation and voluntary compliance be a more rational solution? Of course it would, but pre-suit settlements do not vest plaintiffs’ counsel with an entitlement to attorney’s fees. Buckhannon Bd. and Care Home, Inc., v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Moreover, if a plaintiff forebears and attempts pre-litigation resolution, someone else may come along and sue first. The current ADA lawsuit binge is, therefore, essentially driven by economics — -that is, the economics of attorney’s fees.
305 F.Supp.2d at 1281—82 (footnotes omitted from quotation). Indeed, the Middle District of Florida is already experiencing competing claims by different plaintiffs over that same facility. Cf. Disability Advocates v. Cocoa Beach Hotel, Case No. 6:03-cv-1770-Orl-22KRS and Access 4 All, Inc. v. Cocoa Beach Hotel, Case No. 6:03-cv-1564-Orl-22KRS. 305 F.Supp.2d at 1281, n. 13. Second, Judge Presnell asked:
One might reasonably ask whether attorney’s fees should be awarded where no effort is made pre-suit to obtain voluntary compliance. After all, if the litigation achieves no result other than that which could be accomplished by agreement, what social or economic value has been added by the lawyer’s decision to file a suit without warning? Indeed, under this scenario, it would seem that litigation carries only negative economic value — it has accomplished nothing but expense and waste of precious judicial resources.
At trial, Judge Presnell found Rodriguez to be “evasive and willfully ignorant, and totally lacking credibility.” 305 F.Supp.2d at 1285. Rodriguez’s explanation for his initial visit to the facility was disingenuous, and he did not convey any honest desire to return there. Rodriguez’s testimony left Judge Presnell with the distinct impression that Rodriguez was “merely a professional pawn in an ongoing scheme to bilk attorney’s fees from the Defendant.” 305 F.Supp.2d at 1285. Rodriguez had relied on an inapplicable legal theory to argue that the defendant was engaging in unlawful discrimination, and also failed to establish at trial that the defendant had subjected him to any discrimination in regard to the facility. The Court therefore entered judgment for the defendant, and assessed costs against Rodriguez. 305 F.Supp.2d at 1285.
2. Decisions After Order Dated February 26, 2004
a. Judge Martinez’s Case
Following a bench trial in the Southern District of Florida, the Honorable Jose E. Martinez found that Steven Brother lacked standing to complain about purely speculative injuries arising from alleged barriers in a hotel at which he had never stayed, and entered judgment for the hotel. Brother v. CPL Investments, Inc., 317 F.Supp.2d 1358 (S.D.Fla. March 22, 2004). In light of Brother’s extensive litigation (more than 50 ADA suits in Florida in the last year), the fact that he had never stayed at the hotel (but had visually inspected it), and his hollow testimony about why he did not keep a subsequent reservation, Judge Martinez refused to credit Brother’s allegation that he intended to patronize the hotel again. 317 F.Supp.2d 1358 at 1360—61, 1369 (also citing Judge Presnell’s month-old “Cottage Industry” decision).
Furthermore, the allegedly wrongful behavior could not reasonably be expected to recur because — to the extent the alleged barriers ever existed — the hotel remedied them after notification of Brother’s complaints in the form of the lawsuit. 317 F.Supp.2d 1358 at 1372 — 73. According to Judge Martinez, Ricci’s expert report was “based on misinformation and lack of information”; “confusing and difficult to follow”; “based on assumptions and omissions of relevant information”; and such an unreliable assessment of the facility that it did little to assist the plaintiffs in establishing their prima facie case. 317 F.Supp.2d 1358 at 1372 — 73.
b. Judge Conway Calls for a Legislative Solution
The Honorable Anne C. Conway also had occasion to find that, despite Brother’s affidavit asserting his specific intent to return to defendant’s hotel, Brother had demonstrated no credible threat of future injury, and therefore lacked standing to sue. Brother v. Tiger Partner, LLC, 331 F.Supp.2d 1368, 1374 (M.D.Fla. July 6, 2004). Judge Conway reasoned that:
First, Mr. Brother lives more than two hundred and eighty miles (280) away from the subject property, and admits that he travels to the greater Orlando area (Disney World in particular) only about twice a year. Second, Mr. Brother’s testimony indicates he lacks “a continuing connection” to the subject property. Mr. Brother, after all, found the Best Western Deltona Inn “by chance.” He had never attempted to stay at that location prior to the Fall or Winter of 2002. Moreover, he has not attempted to return to the Best Western Deltona Inn since that time. Also, it is undisputed that Mr. Brother never stayed at the Best Western Deltona Inn on the night in question. This Court additionally notes that there are countless other hotels located closer to Disney World than the Best Western Deltona Inn (which is located approximately fifty miles from that tourist attraction) including hotels that Mr. Brother is suing.
331 F.Supp.2d at 1373 (citations omitted). In view of his extensive litigation history, Judge Conway found Brother’s professed intent to return to the property insufficient to satisfy Article Ill’s standing requirement — noting that Brother’s family lives on social security checks and food stamps totaling $1,600 per month, yet has professed an intent to return to all fifty-four of the properties he has sued. 331 F.Supp.2d at 1369,1375 — 76.
Expressing concern that Charouhis and his clients will simply find some device to satisfy Article Ill’s standing requirements, Judge Conway called for a legislative solution:
This being said, it should be emphasized that the system for adjudicating disputes under the ADA cries out for a legislative solution. Only Congress can respond to vexatious litigation tactics that otherwise comply with its statutory frameworks. Instead of promoting “conciliation and voluntary compliance[,]” the existing law encourages massive litigation. “[P]re-suit settlements[,]” after all, “do not vest plaintiffs’ counsel with an entitlement to attorney’s fees” under the ADA. Moreover, the means for enforcing the ADA (attorney’s fees) have become more important and desirable than the end (accessibility for disabled individuals). This is particularly the case in the Middle District of Florida where the same plaintiffs file hundreds of lawsuits against establishments they purportedly visit regularly. This type of shotgun litigation undermines both the spirit and purpose of the ADA.
331 F.Supp.2d at 1375 (citations omitted).
c. Judge Klein’s Case
In Brother v. Miami Hotel Investments, Ltd., 341 F.Supp.2d 1230 (S.D.Fla. August 9, 2004), The Honorable Theodore Klein, United States Magistrate Judge addressed attorney’s fee issues after entry of a consent decree in an ADA Title III case involving Charouhis. Referring to Charouh-is, Judge Klein echoed the alarm sounded by Judge Presnell in the “Cottage Industry” opinion:
The key word here is reasonable. The Act was never intended to turn a lofty and salutary mission into a fee-generating mill for some lawyers to exploit the statutory scheme to see how many billable hours they could cram into a case before it is either tried or settled. They do a disservice to the disabled, and to the vast majority of lawyers who carry out their duties under the ADA with skill, dedication, and professionalism.
This was a case of ordinary proportions and dimensions. It had no unusual features or unique characteristics. After determining that Defendant was not in compliance with the ADA, Mr. Charouhis immediately filed suit which resulted in the attorney’s fee clock to begin ticking. No effort was made to communicate with Defendant and seek compliance before suit, despite the fact that the only remedy in the Act is in-junctive relief. That is, aside from attorney’s fees, which thus provides an incentive for protracted litigation as opposed to pre-suit or post-suit early settlement.
According to Judge Klein, the facts contradicted Charouhis’s assertion that his firm is one of the most “well respected ADA plaintiffs firm in this jurisdiction.” Judge Klein noted Judge Moreno’s reduction of Charouhis’s fees due to unreasonable conduct, and Judge Klein’s own findings of unjustified failures to appear, equivocation, and an explanation that was “disingenuous, contrived, and in bad faith.” 341 F.Supp.2d at 1234. The Court found that much of the delay in the case was attributable to Charouhis, that many of the hours expended by Chaouhis and Barkus were “unnecessary, redundant, and dupli-cative,” that the time records were “replete with unnecessary work and duplication” too numerous to detail, and that the hours claimed for the fee application were “totally disproportionate and grossly inflated.” 341 F.Supp.2d at 1236 (e.g., 50 hours for the case, and 20 — 25 hours to show why the 50 hours were reasonable). Judge Klien refused to allow Charouhis fees for “failing to abide by his stipulation, and then engaging in duplicitous conduct in court resulting in a sanctions order.” Id.
Judge Klein found that Charouhis could have achieved the same result much more efficiently and far less expensively:
Furthermore, Plaintiff could have achieved the same result by engaging in early settlement with Defendant, whose counsel claims he was willing to do so and made early offers to resolve the matter amicably. Even if Mr. Charouh-is is correct that he sought to advance the settlement process, it appears that the protracted litigation engaged in by Plaintiffs counsel had little or no benefit to the client; it only benefitted counsel. Fees may be adjusted downward based on the fact that much of the time expended was of minimal value to the ultimate result since the same or a substantially similar result could have been achieved without the expenditure of much of that time. The Court is permitted to reduce fees if the litigation did not achieve the anticipated results. In this instance, it was not the protracted litigation that achieved the results. The results could have been achieved much more efficiently and far less expensively.
341 F.Supp.2d at 1239 — 40.
d. Judge Bucklew’s Unpublished Decision
In Brother v. Rossmore Tampa Ltd. Partnership, the Honorable Susan C. Bucklew concluded that Brother lacked standing to assert an ADA claim against a hotel in Tampa. Judge Bucklew reasoned that: 1.) Brother had never spent the night at the hotel; 2.) Brother visited the hotel only once before bringing suit and one time after suit was filed; and 3.) Brother’s affidavit stating his intent to return to the Tampa hotel while attending a walk-a-thon in Bradenton “lacked credibility” and was “merely a convenient statement in an attempt to satisfy the standing requirement.” Case No. 8:03-cv-1253-T-24MAP, Docket No. 127 (M.D.Fla. August 19, 2004)(also finding in n. 7 that Brother had been “less than candid with the Court”)[available on CM/ECF], Judge Bucklew therefore dismissed the case pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, and Brother did not appeal.
e. Judge Moody’s Unpublished Order Denying Fees
In Colleen Macort and Access Now, Inc. v. Checker Drive-In Restaurants, Inc., 8:03-cv-1328-T-30EAJ [available on CM/ECF], a plaintiff who had brought 53 ADA lawsuits in the Middle District of Florida had sued the owner of a restaurant demanding injunctive relief compelling the remediation of barriers to entry. In order to “prevent this case from simply becoming an income generating device for the Plaintiffs’ attorneys” (not Charouhis), the restaurant asked the Honorable James Moody to stay the proceedings pending remediation, which he did. See Case No. 8:03-cv-1328-T-30EAJ, Docket Nos. 11, 13.
When the plaintiffs later moved for attorneys fees and costs, Judge Moody summarily denied the motion in a two-page order. Case No. 8:03-cv-1328-T-30EAJ, Docket No. 31 (January 28, 2005). Citing judge Conway’s Tiger Partner case and Judge Presnell’s “Cottage Industry” decision, Judge Moody observed that the purpose of the ADA is to ensure accessibility to public accommodations, not to enrich attorneys. Judge Moody exercised his discretion under 42 U.S.C. § 12205 not to award attorney’s fees “for prosecuting a lawsuit when a pre-suit letter to the defendant would have achieved the same result.” Case No. 8:03-cv-1328-T-30EAJ, Docket No. 31 at 1—2 (January 28, 2005).
f. Judge Jones’s Case
In Access 4 All v. Oak Spring, Inc., 2005 WL 1212663, Case No. 5:04-cv-75-O-GRJ (M.D.Fla. May 20, 2005), the Honorable Gary R. Jones granted summary judgment in favor of the owner of a Howard Johnson hotel in Ocala. The individual plaintiff (Felix Esposito), a “self-described spy for all disabled people,” sought out violations of the ADA, and then filed federal lawsuits against the hotels as a kind of private attorney general. 2005 WL 1212663 at *2. Following Tiger Partner and Rosenkrantz, Judge Jones held that the plaintiffs had failed to show that they had standing to seek the requested injunctive relief. Other than Esposito’s bald assertion that he plans to return to the Howard Johnson, Esposito and Access 4 All had not alleged a real and immediate threat of future injury which would be addressed through an injunction.
Judge Jones reasoned that Esposito lives in Broward County, Florida, a five hour drive from Ocala, and that he had no continuing connection to the greater Ocala area. 2005 WL 1212663 at *5. Espositio’s general statement that he enjoys traveling represented no more than speculative future injury, particularly in light of his statement of intent to return to all of the approximately one hundred hotels that he has sued. 2005 WL 1212663 at *5. Additionally, Judge Jones granted summary judgment because Esposito brought his claim to benefit others, for his own personal benefit — indeed many of Esposito’s claims involved barriers that concerned people with other disabilities. 2005 WL 1212663 at *6.
D. THE LAW ON CALCULATION OF ATTORNEY’S FEES
Laudable purposes underlie the ADA. Lawyers must be available and willing to take on ADA cases. Congress therefore granted discretion to the district courts to award or deny to a prevailing party a reasonable attorney’s fee, litigation expenses, and costs. 42 U.S.C. § 12205. The United States Supreme Court, however, expects that a request for attorney’s fees will not result in a second major litigation, and that ideally the litigants will settle the amount of the fee. Hensley v. Eckerhart, 461 U.S. 434, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Justices Brennan, Marshall, Blackmun, and Stevens characterized post-judgment litigation over attorneys fees and related appeals as “one of the least socially productive types of litigation imaginable.” Id. at 442, 103 S.Ct. 1933 (concurring in part and dissenting in part).
Historically, attorney’s fees awards have been analyzed according to Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). Johnson set forth twelve factors to be considered in calculation of a fee award. The Eleventh Circuit has consistently refined calculation of awards of attorney’s fees to comport with decisions of the Supreme Court, Norman v. Housing Auth., 836 F.2d 1292, 1299 (11th Cir.1988). Norman adopted the lodestar approach for calculation of attorney’s fees which presumptively includes the twelve factors adopted in Johnson, 488 F.2d 714. Norman, 836 F.2d at 1298—9.
Therefore, the Eleventh Circuit applies the lodestar as developed by Norman and its progeny in establishing a reasonable attorney’s fee. Camden I Condominium Assoc., Inc. v. Dunkle, 946 F.2d 768, 772 (11th Cir.1991); see also Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). Simply stated, the lodestar is the product of the number of reasonable hours expended and the reasonable hourly rate. Burlington v. Dague, 505 U.S. 557, 559—560, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992)(citing Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986)).
1. Reasonable Hourly Rate
The Court must first determine the reasonable hourly rate. Duckworth v. Whisenant, 97 F.3d 1393 (11th Cir.1996); Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.1994); Norman v. Housing Auth., 836 F.2d 1292, 1299 (11th Cir.1988). The reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services provided by lawyers of reasonably comparable skills, experience, and reputation. Norman, 836 F.2d at 1299. The party seeking attorney’s fees bears the burden of producing “satisfactory evidence that the requested rate is in line with prevailing market rates,” which requires “more than the affidavit of the attorney performing the work.” Loranger, 10 F.3d at 781 (citing Noman, 836 F.2d at 1299). Evidenced may be established through either direct evidence of rates for similar services or by opinion evidence. Norman, 836 F.2d at 1299.
The Eleventh Circuit looks to skill as the ultimate determinate of compensation level because experience and reputation are a mirror image of skill. Norman, 836 F.2d at 1300. Skill is evidenced by an attorney’s initial case assessment, continuing negotiation and settlement attempts, persuasiveness, and other fundamental aspects of organization and efficiency. Norman, 836 F.2d at 1300—1301. Organization means that “discovery devices and motions are thought out and not utilized in a random and erratic way or for the mere purpose of going through established routines. Efficiency means doing well just what out to be done and doing it in a minimum time.” Norman, 836 F.2d at 1301. Legal skill, therefore, correlates to a knowledge of both trial practice and substantive law. Norman, 836 F.2d at 1301.
Although an attorney who must familiarize herself with either or both aspects of practice may prove exemplary as an advocate, he does not have a right to claim comparable skill to attorneys whose first actions are directed at the finer points of the case. Norman, 836 F.2d at 1301. No two attorneys possess the same skill, therefore the Court must look to the range provided by the evidence and interpolate a reasonable market rate. Norman, 836 F.2d at 1300. In summary, the Eleventh Circuit mandates that a reasonable rate is determined by a range of fees established by the marketplace and modified by reference to an individual attorney’s skill. Norman, 836 F.2d at 1301; e.g., Duckworth, 97 F.3d 1393 (11th Cir.1996).
2. Reasonable Hours Expended
The second step of determining the lodestar requires the Court to determine the reasonable number of hours expended in the litigation. Norman, 836 F.2d at 1302. Inquiry into the reasonable number of hours focuses on the exercise of “billing judgment” — exclusion of those hours not reasonably billable to a client irrespective of counsel’s skill, therefore the Court must deduct for redundant hours. Norman, 836 F.2d at 1301—2 (citing Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). A court must not consider an attorney’s skill at this stage as this would constitute a double penalty— the rate would first be decreased and the hours would then be lowered. Norman, 836 F.2d at 1301.
The fee applicant bears the burden of documenting the appropriate number of hours. Norman, 836 F.2d at 1303 (citing Hensley, 461 U.S. at 437, 103 S.Ct. 1933); United States v. Blue Cross and Blue Shield of Florida, Inc., 882 F.Supp. 166, 170 (M.D.Fla.1995). Generalized statements concerning reasonableness are of little or no assistance to the Court, instead proof of the hours dedicated to litigation and any corresponding objections must be made with sufficient specificity. Duckworth, 97 F.3d at 1396; Norman, 836 F.2d at 1301. The fee applicant does not receive compensation for unsuccessful claims, therefore the Court deducts time devoted to discrete and unsuccessful claims. Norman, 836 F.2d at 1302. Throughout the calculation of the lodestar, the Court remains cognizant that it is itself an expert on the question, and may consider the request in light of its own knowledge and experience with or without the aid of witnesses as to value or hours dedicated to litigation. Loranger, 10 F.3d at 781; Norman, 836 F.2d at 1303.
3. Adjustment of the Lodestar
At its discretion, the Court may adjust the lodestar in light of the results obtained. Duckworth, 97 F.3d at 1399; Norman, 836 F.2d at 1302. Adjustments may be based upon partial or limited success or exceptional results. Hensley, 461 U.S. at 436—37, 103 S.Ct. 1933. Yet, even if the results were exceptional, no enhancement is permissible unless there is specific evidence establishing that the quality of representation was superior to that which could be reasonably expected in light of the rates claimed because the rate claimed should reflect the attorney’s skill. Norman, 836 F.2d at 1302.
E. THE LAW ON CALCULATION OF COSTS
A prevailing party may recover costs as a matter of course unless otherwise directed by the Court or applicable statute. See Fed.R.Civ.P. 54(d)(1). Congress has delineated which costs are recoverable under Rule 54(d), Fed.R.Civ.P. See 28 U.S.C. § 1920; see also Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441—42, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987). When challenging whether costs are properly taxable, the burden lies with the losing party, unless the knowledge regarding the proposed cost is a matter within the exclusive knowledge of the prevailing party. See Desisto College, Inc. v. Howey-in-the-Hills, 718 F.Supp. 906, 910 n. 1 (M.D.Fla.1989), declined to follow on other grounds by EEOC v. W & O, Inc., 213 F.3d 600 (11th Cir.2000). The Court has the discretion to award those costs specifically enumerated in 28 U.S.C. § 1920. See Crawford, 482 U.S. at 440-44, 107 S.Ct. 2494. The Court may not tax as costs any items not included in 28 U.S.C. § 1920. 482 U.S. at 440-44, 107 S.Ct. 2494; see also Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460 (11th Cir.1996); Desisto, 718 F.Supp. at 911.
Congress has also established the fees payable to a witness, and the extent to which those fees are included in awardable costs. 28 U.S.C. § 1821; see Crawford, 482 U.S. at 437, 107 S.Ct. 2494. When a prevailing party seeks reimbursement for fees paid to its own expert witnesses — as opposed to those appointed by the court— “a federal court is bound by the limit of 28 U.S.C. § 1821(b), absent contract or explicit statutory authority to the contrary.” Crawford, 482 U.S. at 442, 107 S.Ct. 2494 (emphasis added); see Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460, 463 (11th Cir.1996). Section 1920(3)’s provision for the costs of witness fees is specifically limited by § 1821. See Crawford, 482 U.S. at 441—42, 107 S.Ct. 2494; see also Kivi v. Nationwide Mutual Insurance Company, 695 F.2d 1285, 1289 (11th Cir.1983); Loughan v. Firestone Tire & Rubber Company, 749 F.2d 1519, 1526 (11th Cir.1985) (upholding a denial of expert witness fees in excess of those awardable under § 1821 in a products liability diversity case).
Section 1920(2) authorizes the taxation of costs for the “[flees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case.” 28 U.S.C. § 1920(2); EEOC, 213 F.3d at 620; see Maris Distributing Co. v. Anheuser-Busch, Inc., 302 F.3d 1207, 1225 (11th Cir.2002). Even though § 1920(2) does not specifically use the word “deposition,” deposition transcript costs (like costs for other transcripts) are taxable only if the deposition was “necessarily obtained” for use in the case. EEOC, 213 F.3d at 621. District courts have great latitude in determining whether a deposition was “necessarily obtained” for use in the case. Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 337 (5th Cir. Unit B June 1981).
Deposition costs of witnesses on a losing party’s witness list are generally considered taxable. Maris Distributing Co. v. Anheuser-Busch, Inc., 302 F.3d at 1225. In addition, deposition costs are taxable even if a prevailing party’s use of a deposition is minimal or not critical to that party’s ultimate success, unless the losing party demonstrates that the deposition was not related to an issue present in the case at the time of the deposition. EEOC, 213 F.3d at 621.
In addition to the costs allowable under § 1920, Congress has provided that, in an ADA Title III case, a district court “in its discretion, may allow the prevailing party ... a reasonable attorney’s fee, including litigation expenses, and costs.” 42 U.S.C. § 12205. Accordingly, this Court has discretion in this Title III case to award reasonable litigation expenses and costs that fall outside of § 1920.
III. PROCEDURAL HISTORY
Plaintiffs are professional litigants. Over the last six years, Jorge Louis Rodriguez—often in conjunction with the Association for Disabled Americans, Inc.—has filed 69 lawsuits in the Middle District of Florida demanding relief from restaurants, hotels, and similar businesses. Rodriguez has filed another 116 such lawsuits in the Southern District of Florida. Steven Brother has filed 50 lawsuits in Florida in just one year. See 317 F.Supp.2d 1358. William Nicholas Charouhis of Miami, Florida, has been attorney of record in 127 disability lawsuits against restaurants, hotels, and similar businesses in the Middle District of Florida. Charouhis has brought some 976 disability and other lawsuits in the Southern District of Florida. Charouhis states that he has litigated more than 230 ADA cases over eight years. Docket No. 61 at 13—14.
A. Three Plaintiffs Claim Discrimination
On August 9, 2002, Charouhis commenced this action by filing a complaint on behalf of three plaintiffs—Association for Disabled Americans, Inc., Daniel Ruiz, and Jorge Luis Rodriguez. Docket No. I. In the complaint, Plaintiffs allege that two defendants, Integra Resort Management, Inc. [“Integra”] and Enclave Resort Hotel, LLC d/b/a The Enclave [“Enclave”], owned and operated a hotel containing numerous guest rooms and facilities that were inaccessible to individuals with disabilities, and that Defendants had discriminated against disabled persons by denying them benefits equal to those provided to able-bodied individuals. Docket No. 1 at 5. The complaint accused Defendants of some fifty or more specific violations of the ADA, pertaining, for example, to ramps with appropriate slopes; hearing-impaired properly-positioned telephones; widened doorways; insulated restroom pipes; visual and audible alarms; accessible shuttles; paths of access to the pool area without steps; lowered coat hooks; mirrors in public restrooms; and Braille signs in all spaces. Docket No. 1 at 6 — 9.
In the complaint, the Association for Disabled Americans, Inc. asserts that it is a “non-profit” corporation, whose purpose is to assure the accessibility of public accommodations for its members, and to provide speakers, seminars, counseling, information, aid, and donations for disability issues. The complaint alleges that defendants Integra and Enclave discriminated against the Association for Disabled Americans, Inc. because of its association with its disabled members and their disability claims. Docket No. 1 at 2. The Association for Disabled Americans, Inc. claims that discrimination by Integra and Enclave has caused an “impairment” of the Association’s time and money. Docket No. 1 at 2.
The complaint also alleges that Plaintiffs Daniel Ruiz and Jorge Luis Rodriguez are individuals with disabilities who are members of the Association. Docket No. 1 at 3. According to the complaint, Ruiz and Rodriguez both attempted to access and use the premises of the Enclave Resort Hotel, but were “excluded from proper unobstructed access and use” by “barriers to access” resulting from ADA violations. Docket No. 1 at 3. The complaint further claims that both Ruiz and Rodriguez intend to return to the hotel in the future:
The Association’s members, and the individual Plaintiffs, intend to gain access into and use the premises and the facilities thereof in the future, as members of the able-bodied community are presently able to do, but they will be denied such access and use as a result of Defendants’failure to remove barriers to access and comply with the ADA as set forth therein and are at serious risk of suffering further and irreparable injury without the relief requested herein.
Docket No. 1 at 3. Plaintiffs demand that the Court issue a permanent injunction against continuing the discriminatory practices; order the defendants to modify the premises; order the hotel closed until the requisite modifications have been completed; and award attorneys fees, costs, and litigation expenses pursuant to 42 U.S.C. § 12205. Docket No. 1 at 11.
On September 11, 2002, Integra and Enclave filed an answer denying discrimination, and denying that Plaintiffs intend to return. As an affirmative defense, defendants assert that they have complied with the ADA, and that all “readily achievable” architectural barriers have been removed. Docket No. 8. Defendants also asserted as an affirmative defense that Plaintiffs brought the action in bad faith, without adequate factual basis or investigation, without a prior request or demand of any sort, and for the improper purpose of harassment and recovery of needless attorneys fees. Docket No. 8 at 3.
Charouhis notified the Court that this case is not related to any pending or closed case filed in any court. Docket No. 11. In the Case Management Report, the parties advised the Court that settlement was likely. Docket No. 12 at 7. On October 31, 2002, the Court entered a Case Management and Scheduling Order setting various dates, including a bench trial set for the trial term beginning November 3, 2003. Docket No. 13.
B. Two of the Three Plaintiffs Discharge Charouhis
On March 4, 2003, Charouhis filed a motion seeking permission to withdraw as counsel for both the Association for Disabled Americans, Inc. and Daniel Ruiz, the Association’s president. Docket No. 15. The motion states that Ruiz and the Association discharged Charouhis, and directed him to “cease and desist from taking any further actions” on their behalf. Id.
Charouhis also filed a Notice of Lien and Fee Claim Against Plaintiffs and Defendants [Docket No. 16] and a Notice of Retaining Lien [Docket No. 17] asserting that withdrawing plaintiffs were responsible for his attorneys fees. This Court struck the lien notices on the ground that they “are not recognized documents for filing in a federal action, and Charouhis has no individual standing as a party or intervenor to seek relief in this case.” Docket No. 18.
Charouhis’s motion to withdraw asked the Court to allow the Association and Ruiz an appropriate period of time to obtain alternate counsel. Docket No. 15 at 2. On March 7, 2003, the undersigned issued an Order and Notice of Hearing on the Motion to Withdraw ordering that substitute counsel for Ruiz and the Association file a Notice of Appearance, and that the plaintiffs appear at a hearing in person along with their substitute counsel. Docket No. 18. The order warned the plaintiffs that “failure to comply may result in the imposition of sanctions, and the dismissal of all claims brought by Daniel Ruiz and the Association for Disabled Americans, Inc.” Id. No substitute counsel filed a Notice of Appearance or appeared at the March 26, 2003 hearing. Plaintiffs did not appear at the hearing. However, Char-ouhis informed the Court that he had never notified plaintiffs of the hearing, and that plaintiffs may not have been aware that their case was subject to dismissal for failure to appear. Docket No. 19.
On March 27, 2003, the Court issued an Amended Order and Notice of Hearing. Docket No. 20. The order rescheduled the hearing on Charouhis’s Motion to Withdraw, ordered the plaintiffs and their substitute counsel to appear in person, and warned the plaintiffs that “failure to comply may result in the imposition of sanctions, and the dismissal of all claims brought by Daniel Ruiz and the Association for Disabled Americans, Inc.” Id. The order further directed Charouhis to serve on Daniel Ruiz and the Association a copy of the Motion to Withdraw (Docket 15), the original Order and Notice of Hearing (Docket No. 18), and the Amended Order and Notice of Hearing (Docket No. 20). Charouhis filed a Notice of Service stating that he had served, by certified mail, the documents to Daniel Ruiz and the Association at their last known address. Docket No. 22.
C. The Second Lawsuit
On March 5, 2003, the day after Char-ouhis moved to withdraw from representing the Association and Ruiz in Case No. 6:02-cv-917-Orl-31JGG, James V. Johnstone, Esq. filed a separate lawsuit against the condominium association. See Access for America, Inc. and Doug Wilder v. The Enclave at Orlando Condominium Association, Inc., Case No. 6:03-cv-264-Orl-28KRS. In the complaint [Case No. 6:03-cv-264, Docket No. 1], two new plaintiffs allege that one new defendant, The Enclave at Orlando Condominium Association, Inc. [hereinafter “the condominium association”], “is the owner, lessee, lessor and/or operator of the real property and improvements which are the subject of this action, commonly referred to as The Enclave Suites, located at or about 6165 Carrier Drive, Orlando, Florida 32819 (hereinafter, the ‘Facility’).” The complaint accuses the condominium association of numerous violations of the ADA. Case No. 6:03-cv-264, Docket No. 1 at 2—10.
In the complaint, Plaintiff Access for America, Inc. asserts that it is a “nonprofit” corporation, whose purpose is to represent its disabled members’ interests by assuring the accessibility of public accommodations. The complaint alleges that the condominium association discriminated against Access for America, Inc. because of its association with its disabled members and their disability claims. Case No. 6:03-cv-264, Docket No. 1 at 3. Access for America, Inc. claims that discrimination by the condominium association has caused it unspecified damages. Case No. 6:03-cv-264, Docket No. 1 at 3.
The complaint also alleges that Plaintiff Doug Wilder is a disabled individual who is a member of Access for America, Inc. Docket No. 1 at 3. According to the complaint, both plaintiffs [Wilder and Access for America, Inc.] attempted to access and use the facility, but could not do so because of “physical barriers to access” resulting from ADA violations. Case No. 6:03-cv-264, Docket No. 1 at 5, 10. The complaint further claims that “Plaintiff’ [not specifying Wilder or Access for America, Inc.] intends to visit the facility again in the near future in order to utilize all of the facilities offered. Case No. 6:03-cv-264, Docket No. 1 at 5. Plaintiffs claim that they will suffer irreparable harm unless the Court issues a permanent injunction against continuing the discriminatory practices; order the defendants to modify the premises; order the hotel closed until the requisite modifications have been completed; and award attorneys fees, costs, and litigation expenses pursuant to 42 U.S.C. § 12205. Case No. 6:03-cv-264, Docket No. 1 at 10—11. Johnstone inaccurately certified to this Court that Case No. 6:03— cv-264 is not related to any pending civil case filed with this Court. Case No. 6:03-cv-264, Docket No. 5.
D. The First Consolidation
The condominium association then moved either to dismiss the complaint, to substitute defendants, or to consolidate the case with Case No. 6:02-cv-917. Case No. 6:03-cv-264, Docket No. 7. Following reassignment of the case from the Honorable John Antoon II, the Honorable Gregory Presnell granted defendant’s motion to consolidate on April 11, 2003, and otherwise denied without prejudice defendant’s motion to dismiss or substitute defendants. Case No. 6:03-cv-264, Docket No. 12. All pleadings and papers in the consolidated cases were thereafter to be filed in the lower-numbered case, Case No. 6:02-cv-917.
E. Rodriguez Proceeds Alone Against Integra and Enclave
On April 24, 2003, the Court held a second hearing on Charouhis’s Motion to Withdraw. Neither Ruiz nor a representative of the Association nor substitute counsel appeared at the hearing. Accordingly, the Court granted Charouhis’s motion to withdraw, and ultimately dismissed the claims brought by Ruiz and the Association for failure to prosecute. Docket Nos. 27, 29. On May 19, 2003, Rodriguez alone filed an Amended Complaint reasserting the same claims that he had asserted in the original complaint against Integ-ra Resort Management, Inc. and Enclave Resort Hotel, LLC d/b/a the Enclave. Docket No. 30. Rodriguez’s Amended Complaint asserted no claim against the defendant in the consolidated ease, The Enclave at Orlando Condominium Association, Inc.
Defendants Integra and Enclave answered on June 10, 2003. Docket No. 36. Defendants deny (as without knowledge) Rodriguez’s allegation [in the Amended Complaint, Docket No. 30 at 2, Paragraph 3] that Rodriguez attempted to access and use the hotel premises, that Rodriguez was discriminated against and excluded, and that Rodriguez intends to use the hotel premises in the future. Docket No. 36 at 1. Defendants assert five affirmative defenses. The First Affirmative Defense is failure to state a claim. The Second Affirmative Defense is that — presuming the applicability of the ADA — the physical areas of the premises are in compliance, and all “readily achievable” architectural barriers have been removed; and that defendants are financially unable to make the modifications demanded except over a seven to ten year period or during remodeling. Docket No. 36 at 3.
The Third Affirmative Defense denies that Rodriguez has standing to bring this action, particularly as to alleged barriers that do not affect him (e.g., Rodriguez is not sight-impaired). Docket No. 36 at 3. As a Fourth Affirmative Defense, defendants reassert that:
Plaintiffs have [sic] brought this action in bad faith, without adequate factual basis and/or investigation, and without prior request or demand or any sort. The action has moreover been brought for improper purposes, including but not limited to the harassment of the Defendants and for the recovery of otherwise needless attorneys’ fees, expenses and costs.
Docket No. 36 at 3. The Fifth Affirmative Defense is failure to join indispensable parties — the other owners of the common areas and rooms for which modification is demanded. Defendants demand attorneys fees pursuant to 42 U.S.C. § 12205 and 28 C.F. R. § 36.505 and Fed.R.Civ.P. 11, costs, and expenses. Docket No. 36 at 4.
F. Settlement of the Second Lawsuit
At the Preliminary Pretrial Conference on June 10, 2003, the parties announced that they had resolved by agreement Consolidated Case No. 6:03-cv-264-Orl-31JGG against the Enclave at Orlando Condominium Association, Inc. Docket No. 37. The mediation of the primary case against Integra and Enclave [Case No. 6:02-cv-917-Orl-31JGG], however, resulted in an impasse. Docket No. 40.
On June 24, 2003, Rodriguez then moved to again amend his complaint in the primary case to add Steven Brother as a plaintiff, and to add as a defendant The Enclave at Orlando Condominium Association, Inc. — the same condominium association that had supposedly settled Case No. 6:03-cv-264-Orl-31JGG. Docket No. 41. The proposed Second Amended Complaint (signed by Charouhis) contends that Brother also “attempted to access and use the subject premises in the past ...”, and “intends to gain access into and use the premises and the facilities thereof in the future ...” R. 41 at 6. Integra and Enclave opposed adding new parties after discovery had closed, after mediation had been held, after Charouhis had dismissed the condominium association from the consolidated cases, and after the case had been noticed [Docket No. 43] for trial on a date certain on November 3, 2003. Docket No. 44. The Court denied the late motion for leave to amend. Docket Nos. 45, 46.
G. Joint Pretrial Statement
On September 25, 2003, the parties filed a joint pretrial statement. Docket Nos. 47—49. The parties stipulated that the Court had subject matter jurisdiction over the action pursuant to 28 U.S.C. §§ 1331 and 1343 for the claims arising under 42 U.S.C. §§ 12181 et seq. based on alleged violations of Title III of the ADA. In the pretrial statement, Rodriguez reasserted the list of claimed violations in the amended complaint. Docket No. 47 at 1-3. Integra and Enclave denied Rodriguez’ operative allegations, and reasserted three affirmative defenses: 1.) Rodriguez has no standing to assert his claims; 2.) Integra and Enclave do not own the common areas; and 3.) Rodriguez’s claimed ADA violations either are not architectural barriers or their removal is not readily achievable. Docket No. 47 at 3.
Although the parties could agree on only one uncontested fact (that Integra and Enclave were foreign entities authorized to transact business in Florida), several issues of fact remained for trial. See Docket No. 47 at 6—7. Whether Rodriguez in fact intended to return to the defendants’ premises, however, was not listed. The parties agreed that Title III of the ADA required public accommodations to remove architectural barriers where such removal is readily achievable, but disputed whether defendants’ premises (consisting of individual condominium units) must comply, and if so, to what extent and when. Docket No. 47 at 7—8. With respect to attorneys’ fees and experts’ fees, the parties stated:
Plaintiffs estimate that to date allowable attorneys’ and expert’s fees, litigation expenses and costs are approximately $30,000. Plaintiff will seek an award from Defendants for all attorneys’ and expert’s fees, plus an appropriate multiplier, and all litigation expenses and costs incurred in this matter. Defendants contest whether Plaintiff is entitled to fees and contest the amount and reasonableness of the fees charged.
Docket No. 47 at 8.
At the final pretrial conference on October 21, 2003, Judge Presnell informed the parties that he will try only liability issues at the bench trial on November 3, 2003, and that attorneys fees will be reserved for a later hearing if necessary. Docket No. 54. Rodriguez filed proposed findings of fact and conclusions of law. Docket No. 55. Rodriguez proposed a 17-page list of ADA violations that Rodriguez “will continue to suffer” [Docket No. 55 at 1] absent injunctive relief pertaining to parking; initial access into the building; the lobby area check-in desk; public telephones; doors; men’s and women’s restrooms and showers in the ballroom area and indoor pool area; fitness center; guest laundry; food court; outdoor patio; three pools; gazebo; drinking fountains; guest rooms; meeting rooms; and gift shop. Rodriguez proposed no further finding as to his intent to return to the property.
H. The Settlement of the Pr