Messier, et al v. Southbury Training, et al

Filing 1310

ORDER denying 1205 Motion for Reconsideration. Signed by Judge Victor A. Bolden on 8/31/2018. (Riegel, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

RICHARD MESSIER et al.,
Plaintiffs,
v.

No. 3:94-cv-01706 (VAB)

SOUTHBURY TRAINING SCHOOL et al.,
Defendants.

RULING AND ORDER ON MOTION TO CORRECT RULING ON ATTORNEY’S
FEES, COSTS, AND EXPENSES TO BE AWARDED TO PLAINTIFFS COUNSEL
Residents of Southbury Training School, an institution for the mentally disabled in
Connecticut, brought this class-action case against Southbury Training School, the Director of
Southbury Training School, and the Commissioner of the Connecticut Department of
Developmental Services1 (collectively “Defendants”), seeking injunctive relief for alleged
constitutional and statutory violations relating to the conditions, services, and programs at
Southbury Training School, the appropriateness of individual placements in a more integrated

1

Although the caption of this case names the Commissioner of the Connecticut Department of
Mental Retardation as a Defendant, the Court takes judicial notice that title of the Department
has since changed to the Department of Developmental Services. DMR Changes Name October
1st, www.ct.gov, http://www.ct.gov/dds/cwp/view.asp?Q=395946&A=2645 (last visited June
28, 2018); see also Fed. R. Evid. 201 (“The court may judicially notice a fact that is not subject
to reasonable dispute . . . .”); Reed Const. Data Inc. v. McGraw-Hill Companies, Inc., 638 Fed.
App’x 43, 47 (2d Cir. 2016) (taking judicial notice under Fed. R. Evid. 201(b) that a
incorporated and headquartered in Georgia because the fact was “capable of accurate and ready
determination” by way of the Georgia Secretary of State’s website (quoting Reed Const. Data
Inc. v. McGraw-Hill Companies, Inc., 638 Fed. App’x 43, 47 (2d Cir. 2016))); cf. Apotex Inc. v.
Acorda Therapeutics, Inc., 823 F.3d 51, 60 (2d Cir. 2016) (taking judicial notice under Fed. R.
Evid. 201(b) of a new Guidance for Industry issued by the U.S. Food and Drug Administration
“because the Guidance is publicly available and its accuracy cannot reasonably be questioned.”
(citing Fed. R. Evid. 201(b))).
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setting (“community placement”), and the right to be free of discrimination with respect to
having such placements made.
One of the attorneys for Plaintiffs, David C. Shaw, has moved for the Court to correct
certain alleged errors in its March 27, 2015 Ruling on the amount of attorney’s fees, costs, and
expenses that Plaintiffs’ counsel is to be awarded. ECF No. 1205.
For the following reasons, the motion is DENIED.
I.

BACKGROUND
The Court assumes familiarity with the factual background of the case and provides the

procedural background that is necessary to decide this motion.
In 1994, Plaintiffs sued Defendants. ECF No. 1. After a bench-trial that lasted 123 days,
in 1999, the Court ruled that Defendants had deprived class members of their procedural due
process and statutory rights to professional judgment regarding the appropriateness of
community placements, as well as their statutory right to be free of discrimination with respect to
such placements. See Messier v. Southbury Training Sch., 562 F. Supp. 2d 294 (D. Conn. 2008).
Plaintiffs did not prevail on their remaining three claims. Id. at 303–04. Based on the Court’s
finding of liability on Plaintiffs’ community placement claim, the parties reached a settlement on
the issue of remedies. ECF No. 1054. Plaintiffs’ motion for attorneys’ fees and costs followed.2
ECF No. 1067. The petition, as supplemented through October 2014, sought a total award of
$7,676,839.09.
The Court ruled on Plaintiffs’ motion in two parts. The first ruling addressed Plaintiffs’
“degree of success” on the merits. With respect to the claim on which they prevailed—i.e., the

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Plaintiffs amended the fees petition once and supplemented it a total of five times. ECF Nos.
1083, 1100, 1101, 1162, 1180, 1190.
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community placement claim—Plaintiff’s achieved “excellent results,” but, because those claims
were both factually and legally distinct from Plaintiffs’ unsuccessful claims—i.e., the medical
care, protection, and rehabilitation claims—the Court determined that the lodestar calculation
must be limited to the time Plaintiffs’ counsel expended solely on the claim on which Plaintiffs
prevailed. ECF No. 1146. The second ruling addressed what award of attorneys’ fees, costs, and
expenses was reasonable in light of Plaintiffs’ limited success in this case. Having considered a
number of factors, including time reasonably expended on successful claims, excessive,
redundant or unnecessary time and expenses, excessiveness in rates sought, and loss in the timevalue-of-money that an award of interest would cover, the Court awarded Plaintiffs an aggregate
award of $2,724,763.28. ECF No. 1201.
The Public Interest Law Center of Philadelphia (“PILCO”) and Mr. Shaw separately
moved for the Court to correct what they alleged were errors in the Court’s ruling awarding
Plaintiffs attorneys’ fees, costs, and expenses. ECF Nos. 1203, 1205. PILCO subsequently settled
its portion of the fees award. See ECF No. 1282.
On the Court heard oral argument on July 3, 2018, at which the Court granted leave for
the parties to file post-hearing submissions. ECF No. 1301. The parties submitted additional
filings on July 20, 2018, ECF No. 1306, and on August 3, 2018, ECF. No. 1309, respectively.
The Court now addresses Mr. Shaw’s motion.
II.

STANDARD OF REVIEW
“The standard for granting [a motion for reconsideration] is strict, and reconsideration

will generally be denied unless the moving party can point to controlling decisions or data that
the court overlooked—matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).

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“The major grounds justifying reconsideration are an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest
injustice.” Virgin Atlantic Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.
1992) (internal citations omitted). A motion for reconsideration generally does not allow the
moving party to revisit arguments that have already been presented before the court. See
Shrader, 70 F.3d at 257 (“a motion for reconsideration should not be granted where the moving
party seeks solely to relitigate an issue already decided.”).
III.

DISCUSSION
Under 42 U.S.C. § 1988, “a court has discretion to ‘allow the prevailing party, other than

the United States, a reasonable attorney’s fee’ in a civil rights lawsuit.” James v. City of Boise,
Idaho, __ U.S. __, 136 S. Ct. 685, 686 (2016) (per curiam) (quoting 42 U.S.C. § 1988(b)). “The
Supreme Court has held that a ‘prevailing party’ is one who has favorably effected a ‘material
alteration of the legal relationship of the parties’ by court order.” Garcia v. Yonkers Sch. Dist.,
561 F.3d 97, 102 (2d Cir. 2009) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598, 604 (2001)); see also Farrar v. Hobby, 506 U.S. 103, 111
(1992) (“Therefore, to qualify as a prevailing party, a civil rights plaintiff must obtain at least
some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against
the defendant from whom fees are sought.”).
The court may reach a presumptively reasonable fee by calculating the lodestar figure:
the product of the reasonable number of hours spent and the “prevailing market rates in the
relevant community.” Perdue v. Kenny A ex rel. Winn, 559 U.S. 542, 551 (2010). The prevailing
market rates should take into account the rate for attorneys of “comparable skill, experience and
reputation.” Blum v. Stenson, 465 U.S. 886, 895 (1984).

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There is a strong presumption that the lodestar figure is a reasonable fee, although a
district court has discretion to enhance or lower the lodestar based on several different
factors. See Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999); see also Perdue, 559
U.S. at 551 (2010) (listing factors courts may consider in deciding whether to enhance fee
amounts); Genn v. New Haven Bd. of Educ., No. 3:12-cv-00704 (CSH), 2017 WL 3022321, at *2
(D. Conn. July 17, 2017) (listing several factors that could merit reduction in fees, including
vague, redundant, excessive or unnecessary time entries). “This presumption reflects the view
that, because the lodestar calculation approximates a lawyer’s compensation from a paying
client, such a sum is ‘sufficient to induce a capable attorney to undertake the representation of a
meritorious civil rights case.’” Watrous v. Borner, 995 F. Supp. 2d 84, 87 (D. Conn. 2014)
(quoting Perdue, 559 U.S. at 552)). “In light of this presumption, if the court excludes claimed
hours from the calculation of the lodestar figure or ‘augments or reduces th[at] figure it must
state its reasons for doing so as specifically as possible.’” LeBlanc-Sternberg v. Fletcher, 143
F.3d 748, 764 (2d Cir. 1998) (quoting Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 99 (2d
Cir. 1997).
To “prevent manifest injustice,” Virgin Atlantic Airways, Ltd., 956 F.2d at 1255, the
Court allegedly must address three errors: (1) the failure to take into consideration dormant
periods of time in the case; (2) the failure to use the most recent rate across all hours Mr. Shaw
spent litigating this matter; and (3) the failure to take into consideration a substantial number of
hours expended on the fee petition, which, when taken together, unduly reduce Mr. Shaw’s
award. The Court addresses each of these arguments in turn.

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A.

Dormant Periods During the Litigation

Mr. Shaw does not take issue with the “appropriateness” of the Court’s “overall
approach” in calculating his attorney’s fee award, including the various deductions the Court
assessed or the Court’s decision to use the litigation phase as a proxy for hours expended on
Plaintiffs’ successful claim and weighing the time expended accordingly. Shaw Reply Br. at 1.
Rather, he argues that the case was “entirely dormant” for a number of years—approximately
6.3—and this time therefore should be excluded from the liability phase of the litigation.
Excluding these years would reduce the liability phase of the litigation from 85% to 75% of the
overall case, and his award would increase by $485,654.59 accordingly. Adding this amount to
the award of $2,724,763.28 would increase the total award to $3,210,417.87, which is 41.8% of
the $7,676,839.09 requested.
Defendants, on the other hand, argue that the Court is not required to come up with a
precise formula or calculation, especially where, such as here, Plaintiffs’ counsel was not able to
disaggregate time it spent on successful claims from the time it expended on claims on which
they did not prevail. The Court agrees.
It is well-settled that once it is determined that a party is entitled to fees, “[i]t remains for
the district court to determine what fee is ‘reasonable.’” Hensley, 461 U.S. at 433. In other
words, “the determination of how much to trim from a claim for fees is committed to the
[district] court’s discretion.” Okla. Aerotronics, Inc. v. United States, 943 F.2d 1344, 1347 (D.C.
Cir. 1991) (quoting Washington All. of Tech. Workers v. United States Dep’t of Homeland Sec.,
857 F.3d 907, 910–11 (D.C. Cir. 2017)). With “no precise rule or formula for making these
determinations,” a district court may engage in a retail-level inquiry of specific hours that should

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be eliminated, or, “it may simply reduce the award to account for the limited success.” Hensley,
461 U.S. 436–37.
The Court chose the latter approach. Noting that the parties’ submissions exceeded 1,500
pages, the Court used “broad strokes” in reaching its “reasonableness” determination. March 27,
2015, Ruling at 3–4. To structure the fees award, the Court, consistent with the parties’
submissions, divided the cases into three phrases: (1) the “liability phase,” which went from
approximately July 1, 1994, to June 5, 2008, the date on which the Court entered its ruling on
liability; (2) the “remedial phase,” which went from approximately June 6, 2008, to November
18, 2010, the date on which the Court approved the parties settlement regarding remedies; and
(3) the “fee petition phase,” which went from November 19, 2010, to October 1, 2014, which is
the date of the last supplement to the fees petition. The Court used “[t]he relative weights of
these phases”—i.e. seventy, fifteen, and fifteen percent, respectively—to determine a reasonable
fee award under the circumstances.
In doing so, the Court exercised its “equitable judgment.” Hensley, 461 U.S. at 437. Mr.
Shaw asks whether “it makes sense to count 6.3 years during which no litigation occurred at all”
toward to the time it took to litigate this case, Shaw Reply Br. at 3, but the inquiry here is
whether the Court “overlooked controlling decisions or factual matters that were put before it on
the underlying motion.” Eisemann v. Greene, 204 F.3d 393, 395 n.2 (2d Cir. 2000) (per curiam)
(citation omitted). And he has not made such a showing. Reconsideration is inappropriate if it is
merely a “second bite at a fully briefed and considered underlying ruling whose outcome
disappointed one of the litigants. Bouchard v. DHL Exp. (USA), Inc., No. 3:09-cv-01222 CSH,
2012 WL 32953, at *3 (D. Conn. Jan. 6, 2012).
The Court therefore declines to reconsider the matter.

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B.

Current Rates

Mr. Shaw also argues that the Court determined that Plaintiffs’ counsel were entitled to
fees at the current rate but failed to use current rates when making the final fee award. Were the
Court to have used a rate of $500 for all of his time, the total fee award would increase by
$172,446. Defendants maintain that Mr. Shaw incorrectly assumes that the Court intended to use
his most recent rate to calculate the entirety of his award, notwithstanding the Court’s clear
intention to award him rates “actually requested” in his various filings. Defs.’ Opp’n Br. at 10.
The Court agrees.
The Court left “intact” the hourly rates provided in counsels’ fee petition “and
amendments thereto.” March 27, 2015, Ruling at 10. The Court specifically noted that Plaintiffs
had amended a number of times their initial fee application and that these amendments “[did] not
each reflect adjustments to the hourly rates for past billing and thus do not account for applicable
changes in prevailing market rates.” Id. at 9–10; see also id. at 3 (citing to the fee petition, its
amendment, and subsequent supplements): id. at 10 (same). The Court determined that, although
the rates Plaintiffs sought—i.e., “varying market rates from over the last four years”—were
excessive and did not reflect the “then-applicable prevailing market rates” at “any particular
time,” it would not make a downward adjustment of twenty percent to correct for inflated rates
because any such adjustment would be offset by the complementary upward adjustment “to all of
counsel’s past billing to the now-higher prevailing market rates” to account for the time-valueof-money that an award of interest would cover. Id. at 10. See Savino v. Computer Credit, Inc.,
164 F.3d 81, 88 (2d Cir. 1998) (“Whenever the district court augments or reduces the lodestar
figure it must state its reasons for doing so as specifically as possible.” (citing Orchano v.
Advanced Recovery, Inc., 107 F.3d 94, 99 (2d Cir. 1997)).

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The Court declined to adjust “all of counsel’s past billing” one way or the other, and the
Court declines to do so now.
C.

Compensable Time on the Fees Petition

Finally, Mr. Shaw argues that the Court erroneously counted approximately 175 hours as
time expended on the liability phase of the litigation when, in fact, these were hour spent on the
fee petition. The Court disagrees.
The Supreme Court has instructed that “[t]he essential goal in shifting fees . . . is to do
rough justice, not to achieve auditing perfection. So trial courts may take into account their
overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.”
Fox v. Vice, 563 U.S. 826, 838 (2011) (citation omitted). As noted above, again, on a motion for
reconsideration, the issue is whether Mr. Shaw can “point to controlling decisions or data that the
[C]ourt overlooked” in giving effect to this principle of rough justice. Shrader, 70 F.3d at 257.
Defendants argue that this argument about the alleged erroneous counting of time does
not merit reconsideration because Mr. Shaw has failed to demonstrate how he reached such a
conclusion, and the Court therefore should not be required to do it. See D. Conn. L. Civ. R.
7(a)(3) (“Nothing in this Rule shall require the Court to review portions of the record in response
to a motion, where the moving and opposition papers do not make specific reference to such
portions of the record.”); Colon v. Metro-N. Commuter R.R. Co., No. 3:13-cv-00325 (JAM),
2018 WL 2316728, at *4 (D. Conn. May 22, 2018) (rejecting the plaintiffs’ argument for a new
trial given on the ground that their “vague complaints” failed to quote or cite any portions of the
argument transcript, consistent with D. Conn. L. Civ. R. 7(a)(3)); Hubert v. Connecticut Dep’t of
Correction, No. 3:14-cv-476 (VAB), 2018 WL 1582508, at *16 (D. Conn. Mar. 30, 2018)

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(declining to consider statements in the plaintiff’s statement of material fact and supporting
affidavit that do not cite to the record to support the proposition the plaintiff asserted).
Absent such a showing and in due regard for her “superior understanding of the
litigation,” the Court declines to reconsider Judge Burns’s ruling. Fox, 563 U.S. at 838.3
The motion therefore is denied.
IV.

CONCLUSION
For the reasons discussed above, the motion is DENIED.
SO ORDERED at Bridgeport, Connecticut, this 31st day of August, 2018.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

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The Court notes that this decision, dated March 27, 2015, one of the last in Judge Burns’s long
and distinguished career with the District of Connecticut, which came to a close when she retired
on March 31, 2015, reflects the judgment and care in which she addressed all of the issues to
come before her.
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