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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

SHERIE WHITE,

NO. CIV. S-04-0620 WBS KJM

Plaintiff,

v. MEMORANDUM AND ORDER RE: 

PLAINTIFF’S MOTION FOR

RECONSIDERATION

GMRI, INC., dba Red Lobster,

Defendant.

----oo0oo----

Pursuant to Federal Rule of Civil Procedure 59(e),

plaintiff Sherie White moves for reconsideration of and relief

from the court’s January 19, 2006 order regarding attorneys’

fees, litigation expenses, and costs. 

I. Factual and Procedural Background

Plaintiff filed suit in March, 2004, seeking injunctive

and declaratory relief, statutory damages, $100,000 in general

and special damages, attorneys’ fees, interest, and punitive

damages under the Americans with Disabilities Act (“ADA”), 42

U.S.C. §§ 12101-12300, and California law. (Compl.) On November

15, 2005, the parties filed a settlement agreement and the case

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Plaintiff included in her motion for reconsideration a 1

request that the court sanction defense counsel and Max Arnold

for the declaration filed by Arnold regarding Alisha Petras’

qualifications as a paralegal. This motion was not noticed as

required by Federal Rule of Civil Procedure 11(c)(1) and it was

improperly embedded in the brief for another motion. See Fed. R.

Civ. P. 11(c)(1) (“A motion for sanctions under this rule shall

be made separately from other motion or requests . . . .”). In

the alternative, plaintiff requests that the court issue an Order

to Show Cause. (Pl.’s Mot. for Recons. 9.) 

Regardless of the veracity of Mr. Arnold’s declaration, the

court did not consider the declaration as part of its finding

regarding Petras. Moreover, although Arnold’s declaration now

appears questionable in light of the documents subsequently

compiled by plaintiff after a “long and arduous review” of

filings in a suit between Petras and Arnold, no evidence suggests

that defendant’s attorneys had reason to doubt Arnold (other than

the fact that his license to practice law has been suspended in

the past). 

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was dismissed. (Stipulated Req. for Dismissal and Order.)

Subsequent to the settlement and dismissal, plaintiff filed a

motion for attorneys’ fees seeking fees and costs in the amount

of $26,736.94. (Pl.’s Mot. for Attys’ Fees 2.) 

This court awarded a reduced amount of fees, expenses,

and costs after, among other things, (1) denying the request of

plaintiff’s attorneys Lynn and Scottlynn Hubbard (hereinafter

referred to as “the Hubbards”) for a cost of living increase in

their attorneys’ fees and awarding them, respectively, $250 and

$150 an hour as reasonable rates, and (2) denying of all fees

billed for Alisha Petras. After the deductions, the court

awarded plaintiff a total of $15,013.19. (Jan. 19, 2006 Order

16.) Plaintiff filed this motion for reconsideration on February

2, 2006. Plaintiff now moves the court to reconsider its

findings as to (1) the reasonable hourly rate for the Hubbards

and (2) the denial of all fees billed for Ms. Petras.1

///

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II. Discussion

A. Legal Standard

Although not expressly provided for in the Federal

Rules of Civil Procedure, a “motion for reconsideration” may

properly be brought under Rule 59(e) and Local Rule 78-230(k). 

In re Arrowhead Estates Dev. Co., 42 F.3d 1306, 1311 (9th Cir.

1994); Healy v. MCI Worldcom Network Serv., Inc., Civ. S-02-1575,

2005 WL 2000862 (E.D. Cal. Aug. 18, 2005); Fed. R. Civ. P. 59(e);

E.D. Cal. R. 78-230(k). In accordance with those rules,

reconsideration of a judgment is appropriate “if the district

court (1) is presented with newly discovered evidence, (2)

committed clear error or the initial decision was manifestly

unjust, or (3) if there is an intervening change in controlling

law.” Sch. Dist. No. 1J, Multnomah Co., Or. v. ACandS, Inc., 5

F.3d 1255, 1263 (9th Cir. 1993). The district court has

considerable discretion in deciding a motion for reconsideration,

however, the standards should be applied to “reflect district

courts’ concern for preserving dwindling resources and promoting

judicial efficiency.” Healy, 2005 WL 2000862, at *1 (quoting

Costello v. U.S. Government, 765 F. Supp. 1003, 1009 (C.D. Cal.

1991)) (alteration in original).

B. Cost of Living Increase

The hourly rate at which attorneys are compensated for

their services is not the product of some benevolent desire to

assure that lawyers’ quality of life keeps up with inflation. It

is determined by the cold, hard forces of the marketplace, i.e.

by the law of supply and demand. To put it simply, where there

are few lawyers available to perform legal services in high

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demand, they may command high hourly rates. But when others see

the opportunity to compete with them for their clients and cases,

the effect will be to reduce the hourly rates which they may

successfully charge.

The Hubbards were among the first to represent

plaintiffs in ADA cases in this court. What they do is not

overly complex. They represent a few clients, each of whom

brings numerous ADA actions in this court each year. Just as an

example, over the last five years the Hubbards have filed over

165 cases on behalf of just one of their clients, James Sanford,

and over 60 cases on behalf of plaintiff in this case Sherie

White. By the Hubbards’ own account, they have filed “almost

1030 ADA lawsuits” in the last four years. It is not difficult

for their clients to find public accommodations to target as

defendants. Indeed, it would be difficult to find any

restaurant, specialty store, service station, or other public

accommodation between Chico and Sacramento which does not have

some barrier to disabled access under the Americans with

Disabilities Act Accessibility Guidelines (“ADAAG”). 

The complaints in all of the Hubbards’ cases are

substantially similar. Plaintiffs need to allege they were

denied the full and equal enjoyment of the defendant’s public

accommodation as a result of their disability within the meaning

of the ADA. It is not even necessary for them to allege that

they actually visited the defendant’s premises, as long as they

say they were aware of the alleged barriers and were thereby

deterred from visiting or patronizing defendant’s place of

business. See Pickern v. Holiday Quality Foods, Inc., 293 F.3d

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1133 (9th Cir. 2002). The discovery is also substantially

similar in all of their cases, typically consisting of form

interrogatories containing a standard set of definitions,

followed by typical “contention” interrogatories and questions

dealing with such things as prior complaints, insurance, and

whether repairs are readily achievable. Boilerplate requests for

production also accompany the interrogatories.

The Hubbards use the same few experts in most of their

cases, who are able to identify, without much effort, numerous

violations of the ADAAG in each of the establishments they

inspect. Because the Hubbards’ standard complaint contains state

law claims under California Civil Code §§ 54 and 54.1 et seq.,

their clients are also able to seek monetary damages in addition

to the injunctive relief available under the ADA. In all but a

conceivable few of their cases, plaintiffs are the “prevailing

party” and thus entitled to recover their reasonable attorneys

fees and costs, including the fees of their expert witnesses,

from defendants.

By the Hubbards’ own account, “99.8% of their suits

settle before going to trial.” As a result, the Hubbards have

very little trial experience. Yet, if the amount of fees awarded

in this case is even close to typical, they would have recovered

from defendants more than $12 million in fees over the last four

years. No wonder that other attorneys over that period of time

may have decided to compete with them for the business.

The court is unable to determine with certainty what

hourly rate the Hubbards’ clients would now be willing to pay

them, because they have furnished no evidence that any client has

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Plaintiff in this case testified in a deposition, 2

submitted in connection with her original motion for attorneys’

fees, that she is on a fixed income and that she could not recall

having any attorneys’ fee agreement with the Hubbards.

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ever actually paid them. The problem in determining what hourly

rate the market will now bear for the Hubbards’ services is that

they almost never actually bill and collect fees from their

clients. If in fact their clients did have to pay the Hubbards

out of their own pockets, because the kinds of plaintiffs the

Hubbards represent are likely to be on fixed incomes, they might 2

be less inclined to pay an increased hourly rate in times of

inflation.

To support their request reconsideration of the court’s

denial of a cost of living increase the Hubbards must show that

reconsideration is “necessary to correct manifest errors of law

or fact upon which the judgment is based.” McDowell v. Calderon,

197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (quoting 11 Charles Alan

Wright et al., Federal Practice and Procedure § 2810.1 (2d ed.

1995)). A party moving for reconsideration may not simply repeat

arguments already rejected by the court. Martinez v. First Nat’l

Ins. Co., S-04-1446, 2005 WL 3299439, at *1 (E.D. Cal. Dec. 5,

2005.) 

Considering that the Hubbards have still failed to show

that a single paying client has ever paid them more than $150 per

hour for work done by an associate and $250 per hour for work

done by a partner, this court was justified in declining to

depart from those well-settled rates. See Chalmers v. City of

L.A., 796 F.2d 1205, 1210-11 (9th Cir. 1985) (observing that the

relevant standard for determining a reasonable hourly rate is

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Moreover, it is unclear which Mr. Hubbard claims to 3

have such expertise. Plaintiff’s brief appears to jump, without

explanation, between arguments challenging the rate set for Lynn

Hubbard ($250 per hour) and Scott Hubbard ($150 per hour). 

Regardless of which attorney claims to be incapable of being

compared to other local attorneys, plaintiff’s arguments have no

bearing on the reasonable local rate. See Blum v. Stenson, 465

U.S. 886, 898 (1984) (suggesting that courts should only adjust

the reasonable rate based on the special skills of the attorney

when there is evidence that these skills allowed the attorney to

work more efficiently and thus bill fewer hours, since the amount

awarded is the product of the hours worked multiplied by the

reasonable rate).

7

“the rate prevailing in the community for similar work performed

by attorneys of comparable skill, experience, and reputation”);

(Jan. 19, 2006 Order 10-12.) The Hubbards’ self serving

proclamation that “there is no one in the State of California who

has more knowledge on the subject of disabled access laws” does

not speak to the relevant standard, which does not necessarily

depend upon the subject matter of an attorney’s practice or his

expertise in a particular field. (Pl.’s Mot. for Recons. 5.) 3

The standard requires only that the work be similar and the

burden is on plaintiff to identify comparable attorneys. Jordan

v. Multnomah County, 815 F.2d 1258, 1267 (9th Cir. 1987).

The Hubbards’ arguments that the court misinterpreted

the data presented in support of the increase in cost of living

likewise ignore the relevant standard. Strangely, plaintiff

argues that this court erred in considering the 22% cost of

living increase as a nationwide statistic. (See Pl.’s Mot. for

Recons. 4.) This argument overlooks the express language used by

plaintiff in her previous representation to this court, which

guided the court’s prior analysis. Namely, plaintiff’s own brief

stated that “inflation has increased approximately 22%

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(nationwide) since 1998.” (Pl.’s Mot. for Attys’ Fee 4 (emphasis

added).) Regardless of whether the cost of living has increased

in the Sacramento area by 22%, if not more, plaintiff has not

presented any evidence in the form of other attorneys’ billing

rates that would suggest that the $250 and $150 per hour rates

awarded are no longer reasonable. See Jordan, 815 F.2d at 1267

(plaintiff has the burden of “producing satisfactory evidence, in

addition to the affidavits of its counsel, that the requested

rates are in line with those prevailing in the community for

similar services of lawyers of reasonably comparable skill and

reputation”). 

For all their talk about the increase in the cost of

living, the Hubbards have provided little if anything to answer

the critical question – what are their services actually worth in

the open market. In the absence of any evidence that comparable

attorneys in this community are indeed billing and collecting at

a higher rate, it was not clear error for the court to disregard

plaintiff’s cost of living statistics. See id. at n.3 (noting

that the current billing rate assumedly takes into account the

effects of inflation).

C. Fees for Alisha Petras

In the previous order the court also reduced

plaintiff’s fees for paralegal work done by Ms. Petras because

plaintiff failed to provide a written declaration in accordance

with California Business and Professions Code § 6450(c)(4)

(requiring that an alleged paralegal with less than a

baccalaureate degree obtain “a written declaration from [a

supervising] attorney stating that the person is qualified to

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perform paralegal tasks”). (Jan. 19, 2005 Order 12-14.) 

Plaintiff now argues that the declaration of Max Arnold,

submitted with defendants sur-reply, constitutes newly discovered

evidence that mandates reconsideration. (See Pl.’s Mot. for

Recons. 3.)

Before a court can grant a motion for reconsideration

based on newly discovered evidence, the movant must show: “(1)

the evidence was discovered after [judgment], (2) the exercise of

due diligence would not have resulted in the evidence being

discovered in an earlier stage and (3) the newly discovered

evidence is of such magnitude that production of it earlier would

likely have changed the outcome of the case.” Far Out Prods.,

Inc. v. Oskar, 247 F.3d 986, 992-93 (9th Cir. 2001) (quoting

Defenders of Wildlife v. Bernal, 204 F.3d 920, 929 (9th Cir.

2000)). Additionally, the local rules require that the movant

state “why the facts or circumstances were not shown at the time

of the prior motion.” E.D. Cal. R. 78-230(k)(4) (emphasis

added). 

Plaintiff has not provided this court with newly

discovered evidence because the Arnold declaration was submitted

to this Court prior to its judgment on the matter. Moreover, the

evidence on which plaintiff primarily relies to establish that

Ms. Petras was indeed a paralegal, another Arnold declaration

made during Ms. Petras’ malpractice suit against Mr. Arnold, was

available when the court first heard the motion for attorneys’

fees. (Petras Decl. Ex. D (Decl. in Petras v. Arnold, No. 231932

(Cal. Super Ct. filed June 24, 2004)).) Plaintiff took a risk by

not undertaking the “long and arduous” task of unearthing this

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declaration to support her original motion; the fact that she

only appreciated its potential value after the motion was fully

briefed does not justify reconsideration of the court’s prior

order.

IT IS THEREFORE ORDERED that plaintiff’s motion for

reconsideration be, and the same hereby is, DENIED. 

DATED: April 11, 2006

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