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ORDER - 1

THE HONORABLE RONALD B. LEIGHTON

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

MICHELLE BEARDSHEAR,

 Plaintiff,

v.

SHILO MANAGEMENT CORPORATION,

a foreign corporation, and SHILO INN,

HAZEL DELL, L.L.C., a foreign limited

liability company, 

Defendants.

No. C06-5175 RBL

ORDER ON PLAINTIFF’S MOTION

FOR ATTORNEYS’ FEES AND COSTS

I. INTRODUCTION

This matter is before the Court on Plaintiff’s motion for attorneys’ fees, costs, and litigation

expenses. For the reasons set forth below, the Court awards Plaintiff fees and costs in a reduced amount.

II. BACKGROUND

This dispute arose over the condition of two motels located in Vancouver, Washington. The

motels are operated by the above-named defendants (collectively “Shilo” or “Defendants”). Plaintiff

Michelle Beardshear (“Plaintiff”) is a paraplegic and disability rights activist who claims the hotels were not

in compliance with various provisions of the American’s with Disabilities Act (“ADA”), 42 U.S.C. § 12181

et seq. and the Washington Law Against Discrimination (“WLAD”), RCW 49.60. 

Plaintiff filed her complaint on April 4, 2006, seeking declaratory and injunctive relief, money

damages, and attorneys’ fees and costs. Prior to trial, the parties entered into a “Confidential Stipulation

for Settlement and General Release” (“Settlement Agreement”), whereby Shilo committed to make some

of the modifications requested by Plaintiff and to pay her money damages. However, Defendants reserved

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1

 Defendants also move to strike Plaintiffs’ briefs because they exceed the page limitations imposed by

Local Rule W.D. Wash. 7(e)(4). The first request is contained in Defendants’ responsive brief, which is itself

overlength. The Court reminds the parties that motions to file overlength briefs are disfavored and that, when

necessary, such motions should be filed at least three days before the underlying document is due. Local Rule

W.D. Wash. 7(f). In addition to the page limitations correctly cited by Defendants (but ignored by both

parties), the Court directs Plaintiff to conform future pleadings with the Local Rules on formatting, which

require that all pleadings include a three-inch margin at the top of the first page, line numbers in the left margin,

and certain descriptive information in the bottom margin. See Local Rule W.D. Wash. 10(e) (available online

at http://www.wawd.uscourts.gov/Reference Materials/CivilRules.htm). 

Whether to strike all or part of an overlength pleading is within the discretion of the Court. See

Swanson v. U.S. Forest Service, 87 F.3d 339, 345 (9th Cir. 1996); see also Expedia, Inc. v.

Reservationsystem.com, Inc., 2007 WL 201069 (W.D.Wash.) (Martinez, D.J.) (striking overlength brief sua

sponte). While striking all of the pleadings before the Court would certainly vindicate the Local Rules, doing

so would also prevent the issue at bar from being decided on the merits. This is an invitation which, while

tempting, the Court declines. Defendants’ motions to strike are therefore DENIED. 

2

 Defendants argue that Barrios is distinguishable because the settlement agreement in that case was

confirmed by the district court and entered as a judgment. While this did initially occur, the judgment was

eventually vacated, and the parties then stipulated to a dismissal with prejudice. Barrios, 277 F.3d at 1133.

ORDER - 2

the right to challenge Plaintiff’s claim for attorneys’ fees and costs – the only issue now before the Court. 

Plaintiff claims she is entitled to recover all of her attorneys’ fees, costs, and litigation expenses,

including expert fees, which total $44,285.49. Defendants claim that Plaintiff is not a “prevailing party” as

that term is defined by the statutes in question and, as such, they argue that she is entitled to no additional

recovery. If costs and fees are awarded, Defendants also challenge the amounts claimed by Plaintiff, which

they allege are excessive considering the nature of the litigation.1 

III. DISCUSSION

A. Beardshear qualifies as a Prevailing Party

The Court may award a reasonable attorney's fee, including litigation expenses and costs, to a

“prevailing party” under the ADA. 42 U.S.C. § 12205; Barrios v. California Interscholastic Federation,

277 F.3d 1128, 1134 (9th Cir. 2002). In fact, a plaintiff who prevails under the ADA “should ordinarily

recover an attorney's fee unless special circumstances would render such an award unjust.” Id. (quoting

Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)). 

A plaintiff is considered a prevailing party under the ADA when she obtains actual relief on the

merits of her claim, meaning that she “materially alters the legal relationship between the parties by

modifying the defendant's behavior in a way that directly benefits the plaintiff.” Barrios, 277 F.3d at 1134

(quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)). The alteration of the legal relationship may be

accomplished through a judgment, consent decree, or settlement enforceable against the defendant.2 Id. 

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 The twelve Kerr factors are: (1) the time and labor required, (2) the novelty and difficulty of the

questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other

employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed

or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the

results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the 'undesirability' of the case,

(11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.

Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976).

These considerations are consistent with Washington Rule of Professional Conduct 1.5.

4

 Ms. Chaney’s fees were billed to Schwartz Zweben, LLP and are included as “costs” in that firm’s

fee application. This is of no consequence, because the Court finds both her requested hourly rate ($150) and

billed number of hours (less than 1.2) reasonable. 

ORDER - 3

Similarly, a plaintiff who prevails under WLAD is entitled to recover her costs of suit, including

reasonable attorneys' fees. RCW 49.60.030(2); Wheeler v. Catholic Archdiocese of Seattle, 124 Wn.2d

634, 642-43, 880 P.2d 29 (1994). Washington Courts look to federal authority when construing WLAD’s

provisions, including the statute’s fees and costs provision. See Blair v. Washington State University, 108

Wn.2d 558, 572, 740 P.2d 1379 (1987). Thus, a plaintiff “prevails” under WLAD when she succeeds on

any significant issue and achieves some benefit sought by the plaintiff in bringing the suit. Id. (citing

Hensley, 461 U.S. at 433). 

While the Settlement Agreement itself is not before the Court, Defendants concede that its terms

require them to “address some of the issues the Plaintiff raised in her Complaint.” [Campbell Declaration,

Dkt. #46, p.3] Plaintiff is therefore the “prevailing party” under both ADA and WLAD. See Barrios, 277

F.3d at 1134 (ADA); Blair, 108 Wn.2d at 572 (WLAD). Thus, the Court must calculate a reasonable fee

award. See Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). 

B. The Amount of Attorneys’ Fees Requested is Unreasonable 

The Court determines the amount of attorneys’ fees to be awarded using a two-step process. See

Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006); McGrath v. County of Nevada, 67 F.3d

248, 252 (9th Cir. 1995). The first step is to calculate the “lodestar figure” by taking the number of hours

reasonably expended on the litigation and multiplying it by a reasonable hourly rate. Ballen, 466 F.3d at

746; McGrath, 67 F.3d at 252; Chuong Van Pham v. City of Seattle, Seattle City Light, 159 Wn.2d 527,

538, 151 P.3d 976 (2007). The court should then decide whether to adjust the lodestar figure up or down

based on any Kerr factors which have not already been subsumed in the lodestar calculation.3 Ballen, 466

F.3d at 746; McGrath, 67 F.3d at 252.

Plaintiff’s fee application is summarized as follows:4

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 The actual amount requested in Plaintiff’s fee application is $29,747.50, a difference which can be

accounted for by correcting the clerical error in the April 4, 2006, billing entry (effective rate of $1,500 per

hour). 

6

 For example, many of Ms. McGrady’s billings consists of time spent receiving this Court’s orders for

extensions of deadlines, and then placing those new deadlines on the firm’s calendar.

ORDER - 4

Attorney/Staff Member Requested Rate Requested Hours Requested Fee

Schwartz $280 per hour 1.6 $448.00 

Zweben $280 per hour 0.9 $252.00

Nitz $265 per hour 108 $28,620.00

McGrady $95 per hour 1.9 $180.50

TOTAL 112.4 $29,500.505

1. Reasonable Hourly Rate

 In determining hourly rates, the Court must look to the “prevailing market rates in the relevant

community.” Bell v. Clackamas County, 341 F.3d 858, 868 (9th Cir. 2003). The rates of comparable

attorneys in the forum district are usually used. See Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir.

1992). In making its calculation, the Court should also consider the experience, skill, and reputation of the

attorney requesting fees. Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895, 906 (9th Cir. 1995). 

Defendants do not allege that Plaintiff’s attorneys lack skill or experience; on the contrary, they

seem to complain that Plaintiff’s counsel has too much experience bringing ADA claims. [Saade

Declaration, Dkt. #45, ¶5 & Ex. B] With regard to the prevailing market rates in the relevant community,

the parties have submitted judicial opinions and orders from other cases setting rates between $160 and

$500 per hour. The Court takes particular note of the order authored by The Honorable Roger A.

Bennett, Clark County Superior Court, No. 06-2-02812-4. [Saade Declaration, Dkt. #45, Ex. J] Judge

Bennett noted that “[h]ighly experienced, highly skilled and immensely competent attorneys” were

available in Clark County for “$225 per hour, or less.” [Id.] 

The Court therefore sets reasonable hourly rates of $225 per hour for partners Gregory Schwartz

and Gene Zweben and $175 per hour for associate Stephan Nitz. The Court finds the requested hourly

rate of $150 for Seattle-based local counsel Catherine Chaney more than reasonable. However, because

the tasks completed by Ms. McGrady appear to be administrative in nature, and because no evidence is

supplied describing her qualifications, the Court will award $50 per hour for her time.6

 

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7

 Washington law also allows the court to consider adjusting the lodestar award to take two additional

factors into account: the contingent nature of success and the quality of work performed. Chuong Van Pham, 159 Wn2d at 541. However, under Washington law, “[t]he party requesting a deviation from the lodestar bears

the burden of justifying it.” Id. Neither party has made such a showing here. 

ORDER - 5

2. Reasonable Number of Hours

In determining the reasonable number of hours, the Court may exclude those hours that are

excessive, redundant, or otherwise unnecessary. Hensley, 461 U.S. at 434; Welch v. Metropolitan Life

Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007). Review of the Plaintiff’s fee application reveals that a

significant amount of time was spent unnecessarily or was used inefficiently. Examples of such

unnecessary billing include, but are not limited to: multiple calls discussing counsel’s upcoming trip to

Washington for a site visit, excessive time spent reviewing the Court’s scheduling orders, stipulations for

continuances, and proposed settlement agreements, and time spent traveling from Florida to Washington

and attending the hotel site visits. In addition, many of the billing entries are not descriptive enough to

allow the Court to assess their propriety: “draft correspondence to expert and client,” “draft

correspondence to opposing counsel,” and “exchange emails with client and expert,” to name a few. 

After reviewing the entire record, the Court finds that approximately thirty-five percent of the

billings submitted by Mr. Nitz are either unnecessary or insufficiently documented, and the Court reduces

his proffered number of hours by that amount. See Hensley, 461 U.S. at 437 (fee applicant bears the

burden of documenting the appropriate hours expended). The Courts therefore awards attorneys’ fees as

follows: 

Attorney/Staff Member Reasonable Rate Reasonable Hours Awarded Fee

Schwartz $225 per hour 1.6 $360.00

Zweben $225 per hour 0.9 $202.50

Nitz $175 per hour 70.2 $12,285.00

McGrady $50 per hour 1.9 $95.00

TOTAL 74.6 $12,942.50

3. Upward or Downward Adjustment 

The Court must now decide whether to enhance or reduce this lodestar figure based on its

evaluation of those Kerr factors not subsumed in the lodestar calculation. See Ballen, 466 F.3d at 746;

McGrath, 67 F.3d at 252.7

 The Court’s lodestar takes many of the relevant factors into account, and after

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ORDER - 6

reviewing those remaining factors not subsumed by the lodestar, the Court concludes that no departure

from the lodestar outlined above is warranted or necessary. The Court therefore AWARDS Plaintiff her

reasonable attorneys’ fees in the amount of $12,942.50. 

C. The Amount of Expert Fees Requested is Unreasonable

The Court may also award reasonable litigation expenses and costs to a prevailing party under the

ADA. See 42 U.S.C. § 12205; Lovell v. Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002). A plaintiff who

prevails under WLAD is also entitled to “liberal recovery of costs,” including reasonable expenses incurred. 

See Blair, 108 Wn.2d at 573. This award may include items such as expert witness fees and travel

expenses. Lovell, 303 F.3d at 1058. Implicit is the limitation that the Court may only award those costs

and litigation expenses which are reasonably incurred. 

The Defendants argue that it was not necessary for the Plaintiff to retain an Alabama based ADA

expert and to then have that individual travel to Washington twice to inspect the same two hotels. The

Court agrees. Accordingly, the Court will not award Plaintiff the $1,250.00 in expert fees billed for travel

to and from Vancouver, Washington. The Court therefore AWARDS Plaintiff reasonable costs and

litigation expenses of $2,337.99 and reasonable expert fees of $10,950.00. 

IV. CONCLUSION

As the prevailing party, Plaintiff is entitled to an award of reasonable fees and costs. Therefore, IT

IS HEREBY ORDERED that Plaintiff’s motion for attorneys’ fees, costs, and litigation expenses [Dkt.

#41] is GRANTED in part. The Court awards Plaintiff reasonable attorneys’ fees of $12,942.50,

reasonable expert fees of $10,950.00, and reasonable litigation expenses of $2,337.99.

DATED this 1st day of April, 2008.

ARONALD B. LEIGHTON

UNITED STATES DISTRICT JUDGE

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