1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Peter Strojnik, State Bar No. 6464

STROJNIK P.C.

2375 East Camelback Road Suite 600

Phoenix, Arizona 85016

Telephone: (602) 524-6602

ADA@strojnik.com 

Attorneys for Plaintiff 

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

FERNANDO GASTELUM,

Plaintiff, 

vs.

MIDTOWN HOTEL GROUP LLC

Defendant.

Case No: 2:17-cv-04542-BSB

PLAINTIFF’S APPLICATION FOR 

FEES, COSTS AND EXPENSES

Oral Argument Requested

Pursuant to the terms of the Notice of Acceptance of Offer of Judgment, Doc 20, 

Plaintiff now files his application for Attorney’s Fees, Costs and Expenses.

I.

INDEX

Section Title of Section Page

I Index 1

II Introduction 2

III Summary of Relief Requested 5

IV Discussion 5

1 General Discussion 5

2 Attorneys’ Fees: LRCivP 54.2 Discussion 6

3 LRCivP 54(d) – Supporting Documentation 10

4 Costs and Expenses: LRCivP 54.1(d) and 42 USC 12205 11

# Exhibits

1 Judge Talamante Order

2 AG Motion to Intervene

Case 2:17-cv-04542-DJH Document 23 Filed 03/08/18 Page 1 of 11
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 Hernandez v. El Grullense (N.D. Cal., 2014) $645hr accepted as 

reasonable

4 John Doran Fees $575/hr.

5 Declaration of Peter Strojnik with Addenda

6 Statement of Consultation

II.

INTRODUCTION

As the Court is aware from relentless media coverage and the hostile attitude by 

the Arizona Legislature and the Executive Branch, ADA civil rights Plaintiffs must be 

careful not to offend their discriminatory sensibilities. While the rest of the country has 

progressed in the advancement of equality for all, including the disabled, Arizona’s 

disabled have been subjected to a mindless stampede of discrimination.

It is perhaps for this reason that of the numerous places of lodging Mr. Gastelum 

attempted to stay during the past year, not even one was ADA compliant. Arizona’s 

lodging industry’s non-compliance with ADAAG is pervasive and industrywide. 

Arizona stands a lone holdout to the discriminatory practices of the past. As the 9th

Circuit noted in Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir.2007), 

Most ADA suits are brought by a small number of private plaintiffs who 

view themselves as champions of the disabled...For the ADA to yield its 

promise of equal access for the disabled, it may indeed be necessary and 

desirable for committed individuals to bring serial litigation advancing the 

time when public accommodations will be compliant with the ADA.

Yet in the Enlighted Society the champions for the disabled, or “testers” are 

constantly met with hostility. As he Court lamented in Gilkerson v. Chasewood Bank, 1 

F.Supp.3d 570, 596-97 (S.D. Tex., 2014):

Testers have been an accepted and successful means of enforcing civil rights 

statutes under the Fair Housing Act and Title VII of the Civil Rights Act of 

1964, although a number of courts addressing Title III cases have been 

skeptical, and even hostile. See Lee, Giving Disabled Testers Access to 

Federal Courts, 19 Va. J. Soc. Pol'y & L. at 321–23; Johnson, Testers 

Standing up for Title III of the DA, 59 Case W. Res. L.Rev. at 689–702. 

“As a result of both the Attorney General's limited resources and the limited 

remedies available to Title III plaintiffs, ‘most ADA suits are brought by a 

small number of private plaintiffs who view themselves as champions of the 

disabled.’ ” Betancourt v. Federated Dept. Stores, 732 F.Supp.2d 693, 701 

Case 2:17-cv-04542-DJH Document 23 Filed 03/08/18 Page 2 of 11
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(W.D.Tex.2010) Betancourt, 732 F.Supp.2d at 701, quoting Molski v. 

Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir.2007).

The Arizona Legislative and Executive Branches along with the media have been 

particularly hostile to ADA Plaintiffs. Arizona legislature recently eviscerated the 

Arizona version of the ADA by requiring notice prior to filing suit with the resultant 

effect that AzDA has been completely neutered. The Arizona Attorney General Mr. 

Brnovich intervened in more than 1,500.00 cases seeking not only a dismissal of 

legitimate claims but sanctions against the undersigned pro bono counsel. All of 

Brnovich’s sanctions motions have been dismissed with prejudice because the State 

Court recognized that a continuing persecution of civil rights pro bono counsel would 

not “advance the cause of justice”. Exhibit 1. 

Not having found a receptive ear in the State Court, Mr. Brnovich recently filed a 

Motion to Intervene in one of Judge Wake cases, Advocates for Individuals with 

Disabilities v. MidFirst Bank, 2:16-cv-01969-NVW, Exhibit 2, in which he seeks to 

designate the undersigned pro bono counsel for Plaintiff a “vexatious litigant”.

Because of these regressive governmental policies and discriminatory social 

stigma, Plaintiff and counsel have undertaken extraordinary due diligence before filing 

even one lawsuit based on 28 CFR §36.302(e) and the ADAAG. Plaintiff and counsel 

concluded that every case must be trial ready even prior to filing suit. Thus, for example, 

Plaintiff and Counsel personally conduct factual and legal due diligence, collect 

signatures and Declarations, hire an ADA compliance reviewer who reviews every place 

of lodging subject to litigation and documents the findings with contemporaneous 

photographs1. Third party, first party and in-house booking agent’s information is 

collected and documented. Plaintiff hires a cyberspace vendor who, through a complex 

but time and money saving effort, logistically compiles the photographs in an ADA 

 

1 Counsel personally trained Eric Gastelum, Plaintiff’s son, to conduct this part of prefiling due diligence and pays him $200 per investigation. Included in this fee is the 

preparation of a website and non-compliance report which is submitted to counsel.

Case 2:17-cv-04542-DJH Document 23 Filed 03/08/18 Page 3 of 11
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Report2. Counsel then gathers all due diligence investigations and reports and prepares 

the MIDP Initial Disclosure which is served on a defendant along with the service of the 

Summons and the Verified Complaint. 

Plaintiff lives in Casa Grande and travels to Phoenix for sporting and other events, 

including regularly scheduled meetings with counsel. In order to accommodate his 

disability, he seeks a place of lodging that accommodates his disability according to the 

ADAAG. He reviews the websites for compliance with 28 CFR § 36.302(e). He calls 

the hotel’s in house booking agent. He inquires whether the hotel is ADA compliant. He 

visits the hotel to determine whether accessible routes are barrier free. He prepares 

reports and submits them to counsel. Plaintiff either books a room or visits the hotel to 

determine whether the professed compliance is true. 

In this case, Defendant reviewed the booking websites. The booking websites 

were non-compliant. See Doc 1 at ⁋⁋ 26-32. Plaintiff then spoke with hotel’s in-house 

reservations clerk, Jaime. Id.at ⁋ 34. The booking clerk told him that the was not sure if 

the hotel was ADA compliant. See id. at ⁋⁋ 33-35. Plaintiff then visited the hotel to 

determine the veracity of booking clerk’s assurance of ADA compliance. Plaintiff found 

innumerable instances of non-compliance. See id. at ⁋ 37. These and other relevant 

documents were gathered, counsel prepared MIDP initial disclosures, and served the 

disclosures along with the Summons and the Verified Complaint. See Doc 9.

///

///

///

///

 

2 Counsel is not clear how the cyberspace vendor accomplishes the task of transmitting 

the photographs from Eric Gastelum’s phone into a Report which ends up in the case Due 

Diligence folder; but it does. Cyberspace vendor also investigates ownership and control 

elements of litigation and, again, the findings end up in the Due Diligence folder. 

Cyberspace vendor further files corporate information regarding the Defendant in the 

same folder.

Case 2:17-cv-04542-DJH Document 23 Filed 03/08/18 Page 4 of 11
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

III.

SUMMARY OF RELIEF REQUESTED

Plaintiff seeks a recovery of:

1. Attorneys’ fees in the amount of $10,432.50 (not including post 2018-03-03

fees yet to be incurred, see Gametech Intern., Inc. v. Trend Gaming Systems, 

LLC, 380 F. Supp. 2d 1084, 1101 (D. Ariz. 2005) (allowing fees in connection 

with fee application) in connection with this Application)); and

2. ADA costs and expenses in the amount of $2,882.00 pursuant to LRCivP 

54.1(d) and 42 USC 12205 which includes the amount of $1,362.40 for 

common Pre-Filing Due Diligence; and

3. The amount of $1,362.40 amount falls either under the attorney’s Fees 

category or the expense category.

IV.

DISCUSSION

1. General Discussion

“The most useful starting point for determining the amount of a reasonable fee is 

the number of hours reasonably expended on the litigation multiplied by a reasonable 

hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This “lodestar” figure 

presumptively provides an accurate measure of reasonable fees. Van Gerwen v. 

Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). “The lodestar amount is 

presumptively the reasonable fee amount, and thus a multiplier may be used to adjust the 

lodestar amount upward or downward only in rare and exceptional circumstances, 

supported by both specific evidence on the record and detailed findings by the lower 

courts that the lodestar amount is unreasonably low or unreasonably high.” Van Gerwen, 

214 F.3d at 1045 (quoting Hensley, 461 U.S. 424) (internal quotation marks omitted). 

To get to the lodestar figure, a plaintiff must submit “satisfactory evidence ... that 

the requested rates are in line with those prevailing in the community for similar services 

by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 

465 U.S. 886, 895-96 n. 11 (1984). The relevant community is that in which the district 

Case 2:17-cv-04542-DJH Document 23 Filed 03/08/18 Page 5 of 11
6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

court sits. Schwartz v. Secretary of Health and Human Servs., 73 F.3d 895, 906 (9th Cir. 

1995). 

Here, Plaintiff’s counsel seeks an hourly rate of $650.00 per hour based on his skill, 

experience and qualifications. Plaintiff’s counsel has been an attorney for thirty-seven (37) 

years and has prosecuted more than one thousand five hundred Title III ADA cases. 

Counsel’s fees are in line with those prevailing in the community for similar services by 

lawyers of reasonably comparable skill, experience, and reputation, to wit, (1) Paul Rein

charges $645/hr, Exhibit 3 and (2) the law firm of Sherman Howard (John Doran), a 

lawyer with much lesser experience and length of practice charges $575.00 per hour for 

ADA defense work, Exhibit 4. Additionally, the number of hours billed is far from 

excessive. Since Plaintiff’s counsel has filed numerous Title III lawsuits, the drafting of 

the complaint and pre-filing research is streamlined. The important part and time-logging 

part of the hours billed is the pre-filing due diligence, which saw Plaintiff’s counsel in fact 

verify the barrier that Plaintiff personally encountered. For reasons stated in this Motion, 

the amount of $13,195.00 is reasonable and compliant with ER 1.5(a) factors 1-8 all of 

which support the reasonableness of this amount3.

2. Attorneys’ Fees: LRCivP 54.2 Discussion

(1) Eligibility. The ADA authorizes a court, in its discretion, to "allow the 

prevailing party, other than the United States, a reasonable attorney's fee, including 

litigation expenses, and costs . . . ." 42 U.S.C. § 12205. Here, the Offer of Judgment 

specifically provides that “This offer is exclusive of reasonable attorney’s fees, costs and 

expenses to which Plaintiff may be entitled, but which Defendant reserves the firth to 

contest and challenge”. See Doc 20-1 at 2:13-16.

 

3

(1) the time and labor required, the novelty and difficulty of the questions involved, and 

the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to 

the client, that the acceptance of the particular employment will preclude other 

employment by the lawyer; (3) the fee customarily charged in the locality for similar legal 

services; (4) the amount involved and the results obtained; (5) the time limitations 

imposed by the client or by the circumstances; (6) the nature and length of the professional 

relationship with the client; (7) the experience, reputation, and ability of the lawyer or 

lawyers performing the services and (8) the degree of risk assumed by the lawyer.

Case 2:17-cv-04542-DJH Document 23 Filed 03/08/18 Page 6 of 11
7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(2) Entitlement. A prevailing plaintiff under a statute "should recover an 

attorney's fee unless special circumstances would render such an award unjust." Hensley

v. Eckerhart, 461 U.S. 424, 429 (1976). Fees incurred in the preparation of this Motion 

are recoverable. Gametech Intern., Inc. v. Trend Gaming Systems, LLC, 380 F. Supp. 2d 

1084, 1101 (D. Ariz. 2005). 

(3) Reasonableness of Requested Award. 

(A) The time and labor required of counsel: Counsel keeps a detailed, 

contemporaneously documenting the time and labor required by counsel reflecting each 

individual task, the time necessary to accomplish the task in accordance with LRCivP 

54.2(e) which is appended hereto as Addendum B to Exhibit 5.

(B) The novelty and difficulty of the questions presented: The issues 

relating to 28 CFR 36.302(e) relating to places of lodging and, particularly, the questions 

relating to State Law Claim of Negligence is novel in this District and required extensive 

common pre-litigation due diligence. Counsel was hired by Plaintiff to conduct a 

thorough pre-filing investigations before filing the first ADA enforcement action based 

on 28 CFR §36.302(e) action see Gastelum v. MCPHX17LLC, 2:17-cv-02536-DGC. This 

engagement resulted in Counsel devoting 104.80 hours of common pre-filing due 

diligence. This work resulted in the preparation of a proprietary guide book for use by 

Plaintiff, Plaintiff’s investigators, third party vendors and Counsel. The intent of this 

work was to prepare each case, including this case, to avoid any legal or factual 

challenges to the anticipated enforcement actions and to minimize attorney time in the 

preparation of the actions.4 Both Plaintiff and Defendant have benefitted by this common 

pre-filing due diligence by reducing the amount of time in the investigation, preparation 

and filing of the pleadings, motions and discovery. Notably, the filing of Applications 

for fees, costs and expenses did not constitute a part of this common pre-filing due 

diligence. A portion of the pre-filing due diligence has been allocated to this case and 

stands at $1,362.40. 

 

4 This time may also be treated as “expense”.

Case 2:17-cv-04542-DJH Document 23 Filed 03/08/18 Page 7 of 11
8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(C) The skill requisite to perform the legal service properly: Considering 

the difficulties presented in the Introduction above, any Arizona ADA enforcement 

counsel must exhibit the highest degree of skill and expertise to perform the legal services 

properly. The actions of the Attorney General, death threats, threatening 

communications, baseless bar charges and assaults on clients require not only the highest 

degree of skill but also the courage to take on ADA enforcement actions and he relentless 

abuse that comes with it.

(D) The preclusion of other employment by counsel because of the 

acceptance of the action: For the first 35 years of practice, counsel provided primarily 

commercial litigation services. For the following 11⁄2 years Counsel provided pro bono

ADA litigation services in State Court. Since July of 2017, Counsel devoted 95% of his 

time to completion of pro bono State Court actions and to Federal Court ADA 

enforcement actions focusing on lodging industry. As a result, he does not currently 

accept any other engagement other than engagements by long time commercial clients to 

whom he owes a duty of continued loyalty and friendship. 

(E) The customary fee charged in matters of the type involved: Counsel 

charges at the rate of $650.00 per hours. This hourly rate is based on the range of fees 

customarily charged in ADA Litigation, see, e.g., fee charged by Paul Rein whose hourly 

fee of $645 went unchallenged in the Hermandez litigation, see Exhibit 3 and the fee of 

$575.00 per hour charged by John Doran of Sherman Howard, see Exhibit 4.

(F) Whether the fee contracted between the attorney and the client is fixed 

or contingent: The fee in this matter is pro bono to Plaintiff, but not pro bono to 

Defendant. 

(G) Any time limitations imposed by the client or the circumstances: 

Client, who travels to Phoenix from Casa Grande on a regular basis is anxious to enforce 

his civil right to select any hotel at any time to spend a night here. 

(H) The amount of money, or the value of the rights, involved, and the results 

obtained: Plaintiff achieved primary gist of Plaintiff’s Verified Complaint in full. To 

Case 2:17-cv-04542-DJH Document 23 Filed 03/08/18 Page 8 of 11
9

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

qualify as a "prevailing party," a party must show both a "material alteration of the legal 

relationship of the parties" and a "judicial imprimatur on the change." Buckhannon Bd. 

& Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604-05 (2001) 

(quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 

(1989)). "A litigant need not prevail on every issue, or even on the 'central issue' in the 

case, to be considered the prevailing party." Stivers v. Pierce, 71 F.3d 732, 751 (9th Cir. 

1995).

"The material alteration in the legal relationship of the parties must be relief that 

the would—be prevailing party sought, for '[r]espect for ordinary language requires that 

a plaintiff receive at least some relief on the merits of his claim before he can be said to 

prevail.'" Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 

1030 (9th Cir. 2009) (quoting Hewitt v. Helms, 482 U.S. 755, 760 (1987)). This relief 

need not be in the form of a judgment on the merits or consent order, so long as it awards 

the plaintiff his or her desired relief. Li v. Keisler, 505 F.3d 913, 917 (9th Cir. 2007).

Recent Ninth Circuit precedent details that "relief need not be of 'precisely the 

same character as the relief sought in the complaint' so long as it 'serves the goals of the 

claim' and 'require[s] defendants to do something they otherwise would not have been 

required to do.'" Wood v. Burwell, 837 F.3d 969, 975 (9th Cir. 2016) (quoting Saint 

John's Organic Farm v. Gem Cty. Mosquito Abatement Dist., 574 F.3d 1054, 1059 (9th 

Cir. 2009)). Cf. Carbonell v. I.N.S., 429 F.3d 894, 900 (9th Cir. 2005) (finding it 

irrelevant that the petitioner did not receive affirmative relief in his underlying action 

where he received much of the relief he sought).

(I) The experience, reputation and ability of counsel: Counsel has been 

attorney since 1980. He has litigated hundreds of cases both in Arizona Federal and State 

Courts, New York, New Jersey, Illinois, Canada and elsewhere. He is licensed in 

numerous jurisdictions, including the Colorado District Court, New Mexico District 

Court and the District of Illinois. Counsel’s reputation as a champion of civil rights is 

excellent among those who support civil rights for all.

Case 2:17-cv-04542-DJH Document 23 Filed 03/08/18 Page 9 of 11
10

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(J) The "undesirability" of the case: in the Arizona legal market, the 

enforcement of ADA legislation is highly undesirable because it subjects counsel to 

personal hostility to a real danger to his personal safety. Counsel felt the need to alert the 

Phoenix Police Department of the threats to his safety on two separate occasions. 

(K) The nature and length of the professional relationship between the 

attorney and the client: The nature of professional relationship between counsel and 

Plaintiff is simple: Plaintiff is a committed individual and a “tester”. The relationship 

commenced in July of 2017. 

(L) Awards in similar actions: In Hernandez v. El Grullense (N.D. Cal., 

2014) the Court accepted the $645hourly fee as reasonable

(M) Any other matters deemed appropriate under the circumstances: 

None.

3. LRCivP 54(d) – Supporting Documentation

(1) A Statement of Consultation. A separate Statement of moving counsel is 

attached certifying that, after personal consultation and good faith efforts to do so, the 

parties have been unable to satisfactorily resolve all disputed issues relating to attorneys' 

fees or that the moving counsel has made a good faith effort, but has been unable, to 

arrange such conference. The statement of consultation sets forth the date of the 

consultation, the names of the participating attorneys and the specific results. Exhibit 6.

(2) Fee Agreement. Representation Agreement is attached as Addendum A to 

Exhibit 5, Declaration of Counsel.

(3) Task-Based Itemized Statement of Fees and Expenses. A task-based 

itemized statement of time expended and expenses incurred and prepared in accordance 

with paragraph (e) of this Local Rule is attached as Addendum B to Exhibit 5 –

Declaration of Counsel. 

(4) Affidavit. The declaration of counsel setting forth items A – C is attached as 

Exhibit 5. 

4. Costs and Expenses: LRCivP 54.1(d) and 42 USC 12205

Case 2:17-cv-04542-DJH Document 23 Filed 03/08/18 Page 10 of 11
11

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

42 USC § 12205 provides:

In any action or administrative proceeding commenced pursuant to 

this chapter, the court or agency, in its discretion, may allow the 

prevailing party, other than the United States, a reasonable attorney’s 

fee, including litigation expenses, and costs, and the 

United States shall be liable for the foregoing the same as a private 

individual. (Emphasis supplied)

Plaintiff’s costs and expenses are eminently reasonable under the below chart:

EG Investigation and Photography $200.00

Third Party Generated Due Diligence Report regarding prelitigation due diligence relating to ownership, statutory agent and 

due diligence report of photographic evidence. 

$500.00

Filing Fee $400.00

Service of Process Fee $65.60

FG Expenses $350.00

Common Pre-Filing Due Diligence Apportioned $1,362.40

COSTS AND EXPENSES TOTAL $2,828.00

If the Court declines to award common pre-filing due diligence attorney’s fees in 

the sum of $1,362.40, Plaintiff requests this amount as “litigation expense” for the total 

of $2,882.00 as indicated in the Summary of Relief Requested.

RESPECTFULLY SUBMITTED this 3

rd day of March 2018.

STROJNIK, P.C.

Peter Strojnik, 6464

Attorneys for Plaintiff 

Case 2:17-cv-04542-DJH Document 23 Filed 03/08/18 Page 11 of 11