Chabad Lubavitch of Litchfield County Inc et al v. Litchfield et al

Filing 345

RULING: For the reasons stated above, the Chabads Motion for Attorney Fees (Doc. No. 329 ) is granted. The court awards a total of $611,662.09 in attorney fees, which reflects the lodestar calculation above, see supra Section II(D), divided in half to account for the partial success of the Chabad, see supra Section II(B). In addition, the court awards $105,281.36 in costs, for a total monetary award of $717,405.95. The Defendants Motion for Permission to File Supplemental Information (Doc. No. 343 ) is denied. Signed by Judge Janet C. Hall on 5/23/2018. (Attachments: # 1 Appendix A) (Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHABAD LUBAVITCH OF
LITCHFIELD COUNTY, INC., et al.,
Plaintiffs,
v.
BOROUGH OF LITCHFIELD,
CONNECTICUT, et al.,
Defendants.

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CIVIL ACTION NO.
3:09-CV-1419 (JCH)

MAY 23, 2018

RULING RE: MOTION FOR ATTORNEY FEES AND COSTS (DOC. NO. 329)
I.

INTRODUCTION
This action arose out of a denial of an application for a Certificate of

Appropriateness made by Chabad Lubavitch of Litchfield County (“the Chabad”) to the
Historic District Commission of the Borough of Litchfield (the “Commission”). The
Chabad alleged that the Commission’s denial substantially burdened its religious
exercise, in violation of the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), title 42 section 2000cc et seq. of the United States Code. The defendants,
the Commission and the Borough of Litchfield, denied this allegation.
In its initial Complaint, the Chabad asserted Free Exercise, Free Speech, and
Freedom of Association claims under the First and Fourteenth Amendments; Due
Process and Equal Protections claims under the Fourteenth Amendment; and
Substantial Burden, Nondiscrimination, and Equal Terms claims under RLUIPA. The
Chabad also alleged Civil Conspiracy under title 42 section 1985(3) of the United States
Code; Failure to Prevent Violations and Civil Conspiracy under title 42 section 1986 of
the United States Code; claims under the Connecticut State Constitution; and a Free

1

Exercise claim under the Connecticut Religious Freedom Act, Connecticut General
Statutes section 52-571b.
The original suit was brought by the Chabad and Rabbi Joseph Eisenbach,
founder and current leader of the Chabad Lubavitch of Litchfield County, against the
Commission, the Town of Litchfield, several members of the Commission in their
individual and official capacities, and several Doe defendants. By the Third Amended
Complaint, however, the plaintiffs had dropped their claims against the Town of
Litchfield and the Doe defendants.
This court granted summary judgment in favor of the defendants on all claims.
See Chabad Lubavitch v. Borough of Litchfield, 796 F. Supp. 2d 333 (D. Conn. 2011).
The Chabad appealed that judgment, and the Second Circuit remanded the case,
vacating the judgment with respect to two of the claims: the Substantial Burden claim
and the Nondiscrimination claim. See Chabad Lubavitch of Litchfield Cty., Inc. v.
Litchfield Historic Dist. Com’n, 768 F.3d 183 (2d Cir. 2014).
The Second Circuit dismissed all claims against one of the Commission
members, Wendy Kuhne. See id. at 187 n.1. The plaintiffs subsequently voluntarily
withdrew all claims against the other two Commission members, Glenn Hillman and
Kathleen Crawford. On the eve of trial, Rabbi Eisenbach voluntarily withdrew from the
case as a plaintiff, following the court’s Ruling on a Motion in Limine that evidence of
damages was inadmissible. Because that Ruling eliminated all legal claims, the
remaining plaintiff, the Chabad, had no right to a trial by jury. Therefore, by the time trial
commenced, the case had evolved from a two-plaintiff, twelve-defendant, twelve-count

2

action to an action by a single plaintiff against two defendants on one claim for
injunctive relief: Substantial Burden under RLUIPA.
The case was tried to the court over a three day period. At trial, the Chabad
argued that all the uses of the proposed construction were religious exercise, at least in
part, and that its proposal represented the minimum size necessary to accommodate its
religious exercise. Furthermore, the Chabad argued that the Commission was
disingenuous in articulating conditions under which a revised proposal would be
accepted, and that the denial should therefore be interpreted as an absolute denial of
any construction or modification of property at 85 West Street.
In a Bench Ruling issued on November 2, 2017, the court found that the
Chabad’s religious exercise was substantially burdened by the Commission’s denial of
its application for a certificate of appropriateness, specifically because the first floor
footprint that the denial would have permitted was not large enough to accommodate
the Chabad’s religious needs. See Bench Ruling (Doc. No. 325) at 46–47. The court
granted the Chabad’s prayer for relief in part. Id. at 70–71. Specifically, the court
issued a mandatory injunction as follows:
[T]he court issues a mandatory injunction ORDERING the
Historic District Commission of the Borough of Litchfield (the
“Commission”) to approve forthwith an application of the
Chabad Lubavitch of Litchfield County (the “Chabad”) for a
certificate of appropriateness based on the court’s conclusion
that the denial substantially burdened the Chabad’s religious
exercise without a compelling governmental interest
exercised in the least restrictive means, in violation of the
Religious Land Use and Institutionalized Persons Act, title 42,
section 2000cc et seq, of the United States Code, within the
following parameters:
First, the conditions in the Commission’s Decision that do not
relate to the size of the addition are still in effect, because
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those conditions were not challenged by the Chabad. See
supra p. 22 & note 7.
Second, given the needs of the Chabad with respect to the
proposed religious uses of the first and basement floors of the
proposed structure, the Chabad is entitled to a first floor and
basement level as proposed in the Boe plans.
Third, because the Chabad’s religious exercise will not be
substantially burdened if the rabbi’s residence is not inside the
Chabad House, the application should be modified to remove
what is currently the second story of the Boe plans.
The Chabad is hereby ordered to submit an amended
application consistent with these conditions, or a modified
application if agreed to by the parties without the approval of
the court, within thirty days of the date of this Ruling. Upon
receipt of said application, the Commission is ordered to
approve said application within thirty days.
Id. In a footnote to the mandatory injunction section, the court stated:
The court notes that, because the sub-basement is located
entirely below-grade and is therefore beyond the purview of
the Commission, the court knows of no reason why the
Commission would have the authority, much less the reason,
to deny the Chabad the ability to construct the sub-basement
level as proposed. In addition, given that removal of the
rabbi’s residence level from the application will significantly
decrease the mass and roofline of the addition, the court is of
the view that the staff residential level, either as proposed or
with modifications to incorporate / connect it to the second
story of the original Deming House, will not conflict with the
Commission’s stated goals of protecting the residential
character of the area and not overwhelming the original
structure.
Id. at 71 n.21. In sum, the court agreed with the Chabad’s position that its religious
exercise was substantially burdened, but disagreed with the Chabad’s position as to the
extent of the burden.
On November 16, 2017, the Chabad moved for the award of attorney fees and
costs. See generally Plaintiff’s Motion for Attorney Fees and Costs (“Pl.’s Mot.”) (Doc.

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No. 329). The defendants oppose the Chabad’s Motion. See Objection re Motion for
Attorney Fees (“Def.’s Response”) (Doc. No. 338). Subsequently, on May 16, 2018, the
defendants moved for permission to file supplemental exhibits. Specifically, the
defendants assert that the Chabad submitted a significantly revised application to the
HDC which was approved by the HDC in May 2018. Motion for Permission to File
Supplemental Information (“Def.’s Mot. to Supplement”) (Doc. No. 343). The Chabad
asserts that the revised application and approval “does not in any manner moot
attorneys fees” and should not be considered by this court. Plaintiff’s Response to
Defendant’s Request for Supplemental Briefing (“Pl.’s Obj. to Supplement”) (Doc. No.
344).
For the reasons set forth below, the Chabad’s Motion for Attorney Fees and
Costs is granted in the amount of $717,405.95.
II.

DISCUSSION
In their Motion for Attorney Fees and Costs, the Chabad requests a total

monetary award for attorney fees and costs in the amount of $1,640,110.36, broken
down as follows:
Attorney fees for Herbst & Herbst and
Robinson & Cole (underlying
administrative proceeding)

$214,095.00

Attorney fees for the American Liberties
Institute

$685,384.00

Attorney fees for Halloran & Sage (local
counsel)

$410,935.50

Attorney fees for Dalton & Tomich, LLC

$223,419.50

Costs

$106,276.36

5

The Chabad makes its Motion pursuant to section 1988 of title 42 of the United
States Code, which provides, in pertinent part, as follows:
In any action or proceeding to enforce a provision of . . . the
Religious Land Use and Institutionalized Persons Act of 2000
. . . the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee as
part of the costs . . . .
42 U.S.C. § 1988(b).
In this case, the defendants assert that the Chabad is not entitled to attorney fees
at all because the Chabad is not a “prevailing party” within the meaning of section 1988.
See Def.’s Response at 12–17. The defendants further argue that the Chabad is not
entitled to reimbursement for expenses such as “airfare, car rentals, fuel, tolls, and
meals.” Id. at 17–18. In addition, the defendants raise specific challenges to the
Chabad’s particular fee claims, including: (1) that the Chabad is not entitled to fees for
the proceeding before the Commission that underlies this action, id. at 18–21; (2) that
much of the work performed by local counsel and out-of-state counsel was duplicative,
id. at 21–23; (3) that the Chabad wasted money by hiring out an out-of-state expert in
RLUIPA litigation, Attorney Daniel Dalton, id. at 24–25; and, finally, (4) that the court
should cap the number of compensable hours devoted to the fee application to five
percent of the number of hours devoted to the main case, id. at 26–27.
A.

Whether the Chabad “Prevailed”

As the statutory language makes clear, a threshold determination for the court is
whether the Chabad is a “prevailing party.” 42 U.S.C. § 1988(b) (“[T]he court, in its
discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . .”)
(emphasis added); see LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir. 1998)
(“The question of whether a plaintiff is a ‘prevailing party’ within the meaning of the fee6

shifting statutes is a threshold question that is separate from the question of the degree
to which the plaintiff prevailed.”). The Supreme Court has held that a plaintiff “prevails”
within the meaning of section 1988 “when actual relief on the merits of [its] claim
materially alters the legal relationship between the parties by modifying the defendant’s
behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103,
111–12 (1992). Thus, in Rhodes v. Stewart, 488 U.S. 1 (1988), the Supreme Court
denied the plaintiff’s motion for attorney fees awarded based on a declaratory judgment
that prison officials had violated the plaintiffs’ First and Fourteenth Amendment rights.
“By the time the District Court entered judgment, ‘one of the plaintiffs had died and the
other was no longer in custody.’” Farrar, 506 U.S. at 110 (quoting Rhodes, 488 U.S. at
2). “Under these circumstances,” the Supreme Court held “neither plaintiff was a
prevailing party” because “[w]hatever ‘modification of prison policies’ the declaratory
judgment might have effected ‘could not in any way have benefited either plaintiff, one
of whom was dead and the other released.’” Id. (quoting Rhodes, 488 U.S. at 4).
The defendants argue that the Chabad did not “prevail” within the meaning
established by the Supreme Court in Farrar. The defendants assert that, after the court
issued the Judgment in this case, the Chabad did not file an amended application for a
certificate of appropriateness as the court’s Ruling required. See Def.’s Response at 6
(“[The Chabad] never filed a revised set of the Boe plans, and it never asked for an
agreement with the Defendants, much less reach one.”). Based on the Chabad’s failure
to file a revised application as directed by the court, the defendants assert that the
Chabad’s “own actions have rendered the injunction against the Defendants moot.” Id.

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at 13. Therefore, the defendants argue that their “behavior has not, in the least, been
modified.” Id. at 15.
Although this argument is interesting, the court agrees with the Chabad that it is
a prevailing party. The court declines to adopt the reasoning of the defendants for three
reasons.
First, in Farrar, the Supreme Court held that, for a party to prevail, “[w]hatever
relief the plaintiff secures must directly benefit him at the time of the judgment or
settlement.” Farrar, 506 U.S. at 111 (emphasis added). Thus, the Supreme Court has
defined the operative question is not whether the legal relationship between the parties
is altered at the time of a ruling on a motion for attorney fees, but rather whether that
relationship was altered at the time the judgment issued. Thus, in Rhodes, for example,
the operative moment was the moment when the judgment issued, at which time the
plaintiffs were either dead or released from prison. See Rhodes, 488 U.S. 1.
This legal standard is sensible. To look, instead, at the status of the legal
relationship between the parties at the time a ruling on a motion for attorney fees issued
might permit any number of otherwise irrelevant variables to determine the outcome of
the attorney fees motion. For example, a party who lives to see a judgment enter
enjoining behavior by the defendants against him but then passes away before a motion
for attorney fees issues would not be eligible for attorney fees, regardless of the impact
of the judgment on the behavior of the defendants before his death. In a case like
Rhodes, on the other hand, the plaintiff could have been transformed into a prevailing
party by returning to correctional custody. The facts of this case further illustrate the
degree to which the standard urged by the defendants would create arbitrary results: if

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this court had given the Chabad a year instead of thirty days to submit a revised
application, the defendants could not raise this argument. In addition to introducing
irrelevant variables into the determination of attorney fees, looking to the date of a ruling
on attorney fees would further create troubling incentives for an opponent of an attorney
fees motion to delay a decision, and make attorney fee awards subject to the schedule
and celerity of the judge deciding the motion.
Second, the injunction issued in its Bench Ruling and Judgment was
unequivocally directed at the defendants such that it “modif[ied] the defendant’s
behavior in a way that directly benefits the plaintiff.” Farrar, 506 U.S. at 109. Although
the defendants argue that their behavior was not modified because the Chabad did not
submit an amended application, that argument overlooks the fact that the Judgment
created a legal obligation on the part of the defendants to the Chabad, whether or not
the defendants were called to act on that obligation. Therefore, the injunction altered
the legal relationship between the parties.
Third, although the Chabad did not comply with the court’s order to submit a
revised application within a specific time period, the court concludes that its Bench
Ruling nevertheless bars the defendants from denying an application consistent with the
court’s Bench Ruling if the Chabad submits such an application in the future.1 The court
concluded that the denial issued by the defendants in 2007 substantially burdened the
religious exercise of the Chabad, and based its injunctive relief on that conclusion. See
Bench Ruling at 70–71. The court’s conclusions with respect to the application of

1

The court notes that the 30-day deadline in the Bench Ruling and Judgment in this case was
imposed in an effort to move the action along, given that the matter was filed in September 2009.

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RLUIPA to the parties in this case are still in effect––and would have either res judicata
or collateral estoppel effect––irrespective of the deadlines articulated in the Bench
Ruling.
For these three reasons, the court concludes that the Chabad is a “prevailing
party” for the purposes of section 1988, despite the Chabad’s failure to submit a revised
application within the timeline stated in the Bench Ruling.
In their Motion for Permission to File Supplemental Information, the defendants
assert that, since the Motion for Attorney Fees was filed, the Chabad and the HDC have
agreed on an alternative plan. See Def.’s Mot. to Supplement at 3. On that basis, the
defendants argue that “[t]he court’s decision in this case did not affect the behavior of
the Defendants toward the Plaintiff, but rather affected the behavior of the Plaintiffs
toward the Defendants.” Id. at 4. The Chabad argues, on the other hand, that “the
issuance of a mandatory injunction against Defendants is a ‘judicially sanctioned
change in the legal relationship of the parties,’” and renders the Chabad a prevailing
party without regard for what happens between the parties after the injunction issues.
Pl.’s Obj. to Supplement at 3.
The court agrees with counsel for the Chabad that, for the same reason the court
has declined to consider whether the Chabad submitted an application within the thirty
days allowed in the Bench Ruling, it is similarly of no relevance to the Motion for
Attorney Fees whether the Chabad entered into an alternative agreement with the HDC.
The question, as the court has concluded, is the effect of the Judgment at the time the
Judgment issues. See Farrar, 506 U.S. at 111. Therefore, the court declines to
consider the events that the defendants assert took place in May 2018. The

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Defendant’s Motion for Permission to File Supplemental Information (Doc. No. 343) is
denied.
B.

Partial Success

The court’s conclusion that the Chabad is a “prevailing party” within the meaning
of section 1988 does not necessarily mean that the Chabad is entitled to attorney fees.
See LeBlanc-Sternberg, 143 F.3d at 758 (“A plaintiff who has ‘prevail[ed]’ in the
litigation has established only his eligibility for, not his entitlement to, an award of
fees.”). In Farrar, for example, the Supreme Court concluded that the plaintiff was a
“prevailing party” within the meaning of section 1988, but nevertheless affirmed the
circuit court’s judgment that attorney fees were not appropriate where the plaintiff
sought $17 million in compensatory damages and was awarded only nominal damages.
Farrar, 506 U.S. at 115–16 (“In some circumstances, even a party who formally
‘prevails’ under § 1988 should receive no attorney’s fees at all. A plaintiff who seeks
compensatory damages but receives no more than nominal damages is often such a
party.”). In reaching this conclusion, the Supreme Court noted that “‘the most critical
factor’ in determining the reasonableness of a fee award ‘is the degree of success
obtained.’” Id. at 114 (quoting Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)).
The defendants urge the court to conclude that the Chabad, like the plaintiff in
Farrar, did not achieve a significant degree of success. See Def.’s Response at 16–17.
In support of this position, the defendants note that the Chabad failed to comply with the
timeline established in the court’s Bench Ruling, noting that, because “the [Chabad] has
simply ignored the court” it has “made it quite clear that it finds no benefit from the
court’s order.” Id. at 17.

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The court disagrees with the defendants’ apparent view that the measure of a
party’s success is necessarily reflected in its actions post-judgment. In this case, for
example, the Chabad’s actions, or lack thereof, could reflect that the Chabad now lacks
funding to build the addition that the court approved, or even to obtain revised
architectural plans for the purposes of a revised application. Particularly in light of how
long this action pended, extrapolating from a party’s failure to take advantage of a legal
right accorded to them in a judgment could be the product of any number of factors that
may be entirely irrelevant to the “significance of the overall relief obtained.” Hensley,
461 U.S. at 435. Furthermore, in the context of an motion for attorney fees, the
Supreme Court has held the mental state of the parties irrelevant:
[F]ocusing on the subjective importance of an issue to the
litigants . . . asks a question which is almost impossible to
answer. Is the ‘primary relief sought’ in a disparate treatment
action under Title VII reinstatement, backpay, or injunctive
relief? This question, the answer to which appears to depend
largely on the mental state of the parties, is wholly irrelevant
to the purposes behind the fee shifting provisions.
Texas State Teachers Ass’n v. Garland Independent Sch. Dist., 489 U.S. 782, 791
(1989). The court concludes that the defendants’ reliance on the Chabad’s actions after
the Judgment issued in this case raises the same issues that the “primary relief sought”
inquiry raises and is, therefore, precluded by Texas State Teachers Ass’n.
That said, the Chabad clearly achieved only partial success in this case.
Therefore, the court must consider the partial nature of the Chabad’s success in crafting
an award. See Hensley, 461 U.S. at 437 (“When an adjustment is requested on the
basis of either the exception or limited nature of the relief obtained by the plaintiff, the
district court should make clear that it has considered the relationship between the
amount of the fee awarded and the results obtained.”).
12

In Hensley, the Supreme Court engaged in a lengthy discussion of cases in
which less than complete success was accorded, and the appropriate relationship
between the relief granted and awards for attorney fees. As a general matter, the Court
noted that, in cases with “a common core of facts” or “related legal theories,” a district
court need not “divide the hours expended on a claim-by-claim basis.” Id. at 435. The
Court went on to describe the relevance of the degree of success obtained in an action
as follows:
Where a plaintiff has obtained excellent results, his attorney
should recover a fully compensatory fee. Normally this will
encompass all hours reasonably expended on the litigation,
and indeed in some cases of exceptional success an
enhanced award may be justified. In these circumstances the
fee should not be reduced simply because the plaintiff failed
to prevail on every contention raised in the lawsuit. Litigants
in good faith may raise alternative legal grounds for a desired
outcome, and the court’s rejection of or failure to reach certain
grounds is not a sufficient reason for reducing a fee. The
result is what matters.
If, on the other hand, a plaintiff has achieved only partial or
limited success, the product of hours reasonably expended on
the litigation as a whole times a reasonable hourly rate may
be an excessive amount. This will be true even where the
plaintiff’s claims were interrelated, nonfrivolous, and raised in
good faith. Congress has not authorized an award of fees
whenever it was reasonable for a plaintiff to bring a lawsuit or
whenever conscientious counsel tried the case with devotion
and skill. Again, the most critical factor is the degree of
success obtained.
Id. at 435–36 (internal citation omitted). The Court further clarified that the inquiry does
not end upon a finding that the relief accorded was “significant.” Id. at 439–40. Rather,
the district court must place the relief in the context of “the litigation as a whole” to
determine whether the hours expended were reasonable relative to the success
achieved. Id. at 440 (“A reduced fee award is appropriate if the relief, however
13

significant, is limited in comparison to the scope of the litigation as a whole.”). The
Hensley Court also noted that a court should not apply a “mathematical approach” of
simply counting up the number of claims and comparing that to the number of claims on
which the plaintiff prevailed. Id. at 435 n.11. Finally, the Court held that it was not
“necessarily significant” whether the prevailing party received all the relief requested.
Id. “For example, a plaintiff who failed to recover damages but obtained injunctive relief,
or vice versa, may recover a fee award based on all hours reasonably expended if the
relief obtained justified that expenditure of attorney time.” Id.
In this case, there can be no serious dispute that the claims were intertwined
factually. All the claims arose out of a single decision by the Commission to deny the
Chabad’s application for a certificate of appropriateness. Furthermore, as the court’s
lengthy Bench Ruling in this case illustrates, the RLUIPA Substantial Burden inquiry is
broad. The Second Circuit opinion in this case directed the fact-finder to consider a
number of factors in analyzing whether the denial substantially burdened the Chabad’s
religious exercise, including, but not limited to: (1) “whether the denial was conditional;”
if so (2) “whether the conditions attendant to the Commission’s denial of the Chabad’s
application themselves imposed a substantial burden on the Chabad’s religious
exercise[;] [(3)] whether feasible alternatives existed for the Chabad to exercise its
faith[;] and [(4)] whether the Chabad reasonably believed it would be permitted to
undertake its proposed modifications when it purchased the property at 85 West Street;”
as well as (5) “whether the proposed modifications shared a ‘close nexus’ with and
would be consistent with accommodating the Chabad’s religious exercise;” and (6) “the

14

arbitrariness of [the] denial.” Chabad Lubavitch of Litchfield County, Inc., 768 F.3d at
195–96.
In applying the facts of a case to the standard articulated in Hensley, “[t]here is
no precise rule or formula for making these determinations” and district courts have the
discretion to either “attempt to identify specific hours that should be eliminated” or
“simply reduce the award to account for the limited success.” Hensley, 461 U.S. at
436–37. Given the intertwined nature of the claims in this case, the court will evaluate
the success of the litigation as a whole as opposed to on a claim-by-claim basis. See,
e.g., Crawford v. City of New London, No. 3:11-CV-1371 (JBA), 2015 WL 1125491, at
**7, 9 (D. Conn. Mar. 12, 2015) (declining to reduce award based on specific failed
claims because claims were intertwined and applying across-the-board reduction to
account for partial success).
As to the appropriate proportion, the court concludes that an across-the-board
fifty percent reduction of the award is reasonable to account for the Chabad’s partial
success. On one hand, the Chabad achieved a legal victory and was awarded
significant injunctive relief but, on the other hand, the Chabad was denied much of the
disputed injunctive relief it requested and failed to support a claim for money damages.
Therefore, the court will reduce the lodestar figure calculated below by half to reflect the
Chabad’s partial success.
C.

Administrative Proceedings

In its Motion for Attorney Fees, the Chabad requests fees for attorneys who
represented the Chabad in proceedings before the Commission in 2007. See Pl.’s Mot.
at 6–7. The defendants argue that section 1988 does not provide for fees for the
administrative proceedings underlying this action. See Def.’s Response at 18–20.
15

The court agrees with the defendants that the Chabad is not entitled to attorney
fees for representation before the Commission. “Section 1988 permits attorney’s fees
‘for time spent on administrative proceedings to enforce the [claim] prior to the
litigation.’” Tsombanidis v. West Haven Fire Dept., 352 F.3d 565, 581 (2d Cir. 2003)
(quoting North Carolina Dep’t of Transp. v. Crest Street Cmty. Council, Inc., 479 U.S. 6,
15 (1986)). However, “[t]o obtain the fees, the administrative proceeding must be
‘useful and of a type ordinarily necessary to secure the final result obtained from the
litigation.’” Id. (quoting Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S.
546, 561 (1986)). The quintessential example of a situation in which administrative
proceedings are “necessary to secure the final result obtained from the litigation” is a
Title VII discrimination suit requiring exhaustion of administrative remedies before prior
to litigation. See Webb v. Bd. of Educ. of Dyer Cty., 471 U.S. 234, 241 (1985) (noting
that attorney fees for administrative proceedings were reasonable where “the statute
that authorized fees, Title VII, also required a plaintiff to pursue available state
administrative remedies”). In contrast, if the plaintiff “could go straight to court” to assert
his rights, administrative proceedings “do not have the same integral function.” Id.
In its Reply, the Chabad argues that the representation of the Chabad for the
administrative proceedings “was essential to creating a record that could be
successfully appealed from in the event of a denial, even though it was hoped and
expected the commission would follow the rule of law and grant the approval.” Pl.’s
Reply at 4. The Chabad further argues that, “[i]n large measure, the evidence
developed in the hearing at the local level became the evidence in the federal action”
and “[i]t mattered not that the development of the evidence preceded the action.” Id.

16

The court concludes that inclusion of fees for the proceeding before the
Commission would violate the standard articulated above, namely that fees are
appropriate for administrative proceedings that are “ordinarily necessary to secure the
final result obtained.” Tsombanidis, 352 F.3d at 581. Although it is true, in a sense, that
the administrative proceeding below necessarily preceded this action, the proceedings
were necessary only insofar as the result of the administrative proceeding constituted
the action giving rise to this case. Thus, compared to a Title VII action, the Commission
proceedings are more akin to an unlawful termination of an employee than to state
administrative proceedings following that termination. A plaintiff is not entitled to
attorney fees for proceedings that take place before a violation of its rights has
occurred. Therefore, the court concludes that the Chabad is not entitled to attorney
fees for the representation before the Commission.
D.

Reasonable Attorney Fees

The Chabad requests attorney fees from three firms who represent the Chabad
in this case: the American Liberties Institute, Halloran & Sage, and Dalton & Tomich,
LLC.2 The American Liberties Institute was lead counsel for the Chabad until
approximately May 2017, at which time it became clear that the attorney who was
planning to represent the Chabad at trial, Attorney Frederick Nelson, would not be
available for trial for personal reasons. Thereafter, the Chabad retained Attorney Daniel
Dalton of Dalton & Tomich, LLC, as lead counsel. Throughout this litigation, the
Chabad has been represented by local counsel at Halloran & Sage.

2

The Chabad also requests attorney fees for two law firms that represented the Chabad in the
course of the administration proceedings before Commission. See Pl.’s Mot. at 6–8. For the reasons
stated above, see supra Section II(C), the court has concluded that the Chabad is not entitled to attorney
fees for that proceeding.

17

In order to determine reasonable attorney fees pursuant to section 1988, a court
must calculate a “lodestar figure,” which is calculated by multiplying a reasonable hourly
rate by the number of hours reasonably expended on a case. See, e.g., Perdue v.
Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010) (“[A] ‘reasonable’ fee is a fee that is
sufficient to induce a capable attorney to undertake the representation of a meritorious
civil rights case. . . . [T]he lodestar method yields a fee that is presumptively sufficient to
achieve this objective.”).
1. Reasonable Hourly Rate
Determining the amount of attorney fees to which the Chabad is entitled requires
the court to set a “reasonable hourly rate, taking account of all case-specific variables.”
Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cty. of Albany, 522 F.3d 182, 189
(2d Cir. 2008). Relevant considerations include: “(1) the time and labor required; (2) the
novelty and difficulty of the questions; (3) the level of skill required to perform the legal
service properly; (4) the preclusion of employment by the attorney due to acceptance of
the case; (5) the attorney’s customary hourly rate; (6) whether the fee is fixed or
contingent; (7) the time limitations imposed by the client or the circumstances; (8) the
amount involved in the case and the results obtained; (9) the experience, reputation,
and ability of the attorney[ ]; (10) the ‘undesirability’ of the case; (11) the nature and
length of the professional relationship with the client; and (12) awards in similar cases.”
Id. at 186 n.3 (citing Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 717–19 (5th
Cir. 1974)). In determining what rate is reasonable, the court may take judicial notice of
the prevailing rates in this District, based on both rates awarded in other cases and the
court’s own familiarity with prevailing rates. See Farbotko v. Clinton Cty. of N.Y., 433

18

F.3d 204, 209 (2d Cir. 2005); M.K. ex rel. K. v. Sergi, 578 F. Supp. 2d 425, 427 (D.
Conn. 2008).
The Chabad requests hourly rates as follows:
Firm

Timekeeper

Hourly Rate

Frederick Nelson
Nicole C. Myers

$350

Heather Dodge

$95

Satu E. Nelson

American
Liberties Institute

$410

$70

Kenneth R. Slater

$350 and $375

Thomas C. Blatchley

$195

Ernesto A. Castillo

$150

Kelly McKeon

$150

Amanda Brosy

$175

Richard Roberts

$300

Enrico Costantini

$200

Daniel Krisch

$300

Daniel P. Dalton

$410

Katharine Brink Harrison

$250

Zana Tomich

$310

Halloran & Sage

Dalton & Tomich,
LLC

In support of these rates, the Chabad submits several Declarations attesting to the
reasonableness of the hourly rates and time expended. See Exh. 5, Pl.’s Mot. (Doc.
No. 329-5) (Declaration of Walter Weber in support of American Liberties Institute
hourly rates); Exh. 6, Pl.’s Mot. (Doc. No. 329-6) (Declaration of Kenneth Slater); Exh. 7,

19

Pl.’s Mot. (Doc. No. 329-7) (Declaration of Timothy Hollister in support of the hourly
rates of Halloran & Sage); Exh. 8, Pl.’s Mot. (Doc. No. 329-8) (Declaration of Daniel P.
Dalton); Exh. 9, Pl.’s Mot. (Doc. No. 329-9) (Declaration of Noel Sterett in support of the
hourly rates of Dalton & Tomich, LLC). The defendants do not dispute the
reasonableness of any of the hourly rates proposed by the Chabad.
The court has considered the supporting documentation submitted by the
Chabad, as well as the court’s knowledge of attorney fee rates in the District of
Connecticut. The court finds that the requested rates, which range from $300–410 for
partners, $150–250 for associates, and $70–95 for law clerks and paralegals, are
reasonable in light of the experience of the individuals billing and the market rates in the
District of Connecticut. See, e.g., U.S. Bank Tr., N.A. v. Walbert, No. 3:17-CV-991
(CSH), 2017 WL 4613192, at *4 (D. Conn. Oct. 16, 2017) (awarding hourly rates of
$425 for partner, $250 for associate, and $80 for paralegal); Crawford, 2015 WL
1125491, at *3 (awarding hourly rates of $410 for partners and $250 for experienced
associate).
2. Reasonably Expended Hours
The defendants challenge the reasonableness of the hours spent by counsel for
the Chabad on several bases. First, the defendants argue that the Chabad should only
receive attorney fees for time spent on the successful claim, Substantial Burden
pursuant to RLUIPA, and that counsel for the Chabad largely failed to document which
hours were devoted to which claims. See Def.’s Response at 22. However, the court
has already concluded that the claims were sufficiently factually interrelated that it is
neither practical nor necessary to calculate the number of hours devoted to the

20

Substantial Burden claim specifically. Instead, as stated above, the court will reduce
the overall fee by fifty percent to reflect the partial success of counsel for the Chabad.
See supra Section II(B).
The defendants also argue that counsel for the Chabad duplicated their efforts,
first with respect to overlap between the work of lead counsel at the American Liberties
Institute and local counsel at Halloran & Sage, and then with respect to overlap between
previous lead counsel at the American Liberties Institute and new lead counsel at
Dalton & Tomich, LLC. See Def.’s Response at 21, 24. “District courts have ‘ample
discretion’ in ‘assessing the extent of staffing and background research appropriate for
a given case.’” LV v. New York City Dept. of Educ., 700 F. Supp. 2d 510, 524 (S.D.N.Y.
2010) (quoting New York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d
1136, 1146 (2d Cir. 1983)). Although the use of multiple attorneys may be reasonable,
courts should not award fees for duplicative work. Id. District courts faced with
“excessive, redundant, or otherwise unnecessary” hours have the “discretion simply to
deduct a reasonable percentage of the number of hours claimed ‘as a practical means
of trimming fat from a fee application.’” Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173
(2d Cir. 1998) (quoting Carey, 711 F.2d at 1146).
As to overlap between the American Law Institute and Halloran & Sage, upon
review of the billing records in this case, the court concludes that the staffing patterns
were generally reasonable. However, the court agrees that there was some duplication
of work between the two firms, particularly between Attorney Frederick Nelson, partner
at the American Law Institute, and Attorney Kenneth Slater, partner at Halloran & Sage.
For example, both Attorney Nelson and Attorney Slater attended the depositions of

21

individual defendants and a number of other witnesses and potential witnesses, and
devoted significant time to preparing for those depositions beforehand and reviewing
deposition materials after the fact. Therefore, the court will reduce the hours billed by
both Attorney Nelson and Attorney Slater by ten percent to account for the duplicative
work performed by them.
With respect to the overlap between the American Law Institute and Dalton &
Tomich, LLC, the defendants argue that Attorney Dalton “did a significant amount of
work becoming familiar with [this] case which was entirely repetitive of work done by
earlier counsel.” Def.’s Response at 25. As aforementioned, Attorney Dalton was hired
by the Chabad as lead counsel in May 2017, shortly before trial in July 2017, because
Attorney Nelson had a scheduling conflict that made him unavailable for trial. There can
be no question that replacing Attorney Nelson with Attorney Dalton at such an advanced
stage of the case created inefficiencies, including requiring Attorney Dalton to spend
time reviewing materials with which Attorney Nelson was familiar. See Def.’s Response
at 25.
Given that the defendants did nothing to cause the replacement of counsel, it
would be inequitable to leave them to pay the cost of transition. See, e.g., Malarkey v.
Texaco, Inc., 794 F. Supp. 1237, 1247–48 (S.D.N.Y. 1992) (noting that the defendant
was not responsible for duplicative work performed by replacement counsel and
reducing the award for new counsel to account for duplication); Williams v. New York
City Housing Auth., 975 F. Supp. 317, 326 (S.D.N.Y. 1997) (noting that staffing changes
during 16 year litigation were reasonable, but reducing lodestar because “NYCHA alone
should not bear the burden of duplicative work resulting from plaintiffs’ counsel staff

22

changes”). That said, Attorney Dalton voluntarily redacted 47 hours of his own time
(9.2% of his total of 511.6 hours) from his request for attorney fees “in an effort to
mitigate potentially duplicative entries.” Exh. 8, Pl.’s Mot. (Doc. No. 329-8) (Declaration
of Attorney Daniel Dalton). This voluntary reduction of 47 hours amounts to billing
reductions of $19,700. The court concludes that this voluntary reduction is sufficient to
account for duplicative work caused by Attorney Dalton’s assuming the role of lead
counsel late in the litigation.
The defendants also argue that the Chabad unnecessarily hired Attorney Dalton,
who they describe as a “national expert with respect to RLUIPA matters,” to try a case
that was neither factually complex nor legally sophisticated. Def.’s Mem. at 24. The
defendants assert that “Attorney Dalton’s case could easily have been tried by any
number of competent counsel in Connecticut,” which would have eliminated the need to
“spend $45,100 . . . on travel time by an out of state attorney for a three-day trial.” Id.
“[E]xpenses and fees related to travel must be excluded from an award of attorneys’
fees if ‘the hypothetical reasonable client who wishes to spend the least amount
necessary to litigate the matter . . . would have retained local counsel.’” U.S. ex rel.
Feldman v. Van Gorp, No. 03-CV-8135 (WHP), 2011 WL 651829, at *3 (S.D.N.Y. Feb.
9, 2011) (quoting Imbeault v. Rick’s Cabaret Int’l, Inc., 08-CV-5458 (GEL), 2009 WL
2482134, at *8 (S.D.N.Y. Aug. 13, 2009)).
Based on the court’s familiarity with this case, the court does not agree with the
defendants’ characterization of this case as factually and legally straightforward.
Although the defendants point to the court’s mandatory injunction as evidence of the
“final simplicity” of the case, the court notes that the mandatory injunction followed

23

seventy pages of factual findings and conclusions of law. See generally Bench Ruling.
Furthermore, the Chabad submits evidence to support that there is a “dearth of plaintiffs
attorneys in Connecticut with sufficient knowledge of RLUIPA and experience
prosecuting a RLUIPA claim.” See Exh. 9, Pl.’s Mot. (Doc. No. 329-9) (Declaration of
Noel W. Sterett). Although the defendants do not agree with that position, they have
provided no evidence to contradict it. Therefore, the court concludes that a hypothetical
reasonable client would not have retained local counsel under the circumstances
presented here.
The defendants also challenge the number of hours for which counsel for the
Chabad billed related to the Motion for Attorney Fees and Costs. The defendants
assert that Dalton & Tomich, LLC, billed $20,475, for time devoted to the petition for
attorney fees, and should only be awarded $2,454.95 for that work. See Def.’s
Response at 26–27.
In support of this argument, the defendants cite the court to Coulter v.
Tennessee, 805 F.2d 146, 151 (6th Cir. 1986), for the proposition that the hours allowed
for preparing and litigating the attorney fee case should not exceed five percent of the
hours in the main case. See Def.’s Response at 26–27. However, the Sixth Circuit
reversed this holding in Coulter in 2016, concluding, among other things, that “the
presumptive cap mostly takes away the discretion afforded to the district court in the
statute” and is “inconsistent with the purpose of § 1988’s fee-shifting provision, which ‘is
to ensure effective access to the judicial process for persons with civil rights
grievances.’” Northeast Ohio Coalition for the Homeless v. Husted, 831 F.3d 686, 720–
25 (6th Cir. 2016) (quoting Hensley, 461 U.S. at 429). More importantly, the Second

24

Circuit has explicitly held that attorneys are entitled to fees for hours reasonably spent
on attorney fee applications. See Gagne v. Maher, 594 F.2d 336, 344 (2d Cir. 1979)
(“[T]ime reasonably spent by plaintiff’s attorneys in establishing their fee [is]
compensable.”); see also Hines v. City of Albany, 862 F.3d 215, 223 (2d Cir. 2017)
(“Prevailing parties under Section 1988 are . . . entitled to recover a reasonable fee for
preparing and defending a fee application.”).
Although the court retains the discretion to reduce or refuse compensation for
claims that are “exorbitant” or hours that are “unnecessarily high,” the defendants have
failed to provide either argument or authority for the proposition that anything in excess
of five percent of the hours in the main case is unreasonable. Gagne, 594 F.2d at 344.
The court concludes that it would be inconsistent with the purpose of section 1988 and
the reasonableness standard established in the Second Circuit to place a five percent
cap on the award for time spent on the fee application. Furthermore, upon review of the
billing records submitted, the court finds that the hours billed for time spent on a fee
application are reasonable. By the court’s calculation, Dalton & Tomich, LLC, devoted
86.6 hours to the Motion for Attorney Fees, which constitutes approximately 13.8
percent of the total 626.6 hours billed by Dalton & Tomich, LLC, attorneys. However,
the court notes that 76.1 of these hours were billed by Attorney Harrison, who billed at a
rate of $150 per hour, while only 10.5 hours were billed by Attorney Dalton who billed at
a rate of $410. The total amount billed for work on the attorney fee petition by Dalton &
Tomich, LLC, is $15,720, which constitutes 7.3% of the total amount billed by Dalton &

25

Tomich, LLC.3 Even relative to the amount billed by Dalton & Tomich, LLC, specifically,
this proportion of the total billed is not exorbitant. Furthermore, the court notes that
Dalton & Tomich, LLC, and Attorney Harrison specifically, billed the majority of the
hours devoted to the petition for attorney fees. Viewing Attorney Harrison’s hours in
light of the litigation as a whole, the total hours devoted and amount billed constitute
significantly less than 5% of the total hours billed in the case. Therefore, the court will
not reduce the award requested on this basis.
The defendants also make specific challenges to a significant proportion of the
billing records submitted by counsel, including arguing that individual line items are
clerical or non-legal work, are duplicates of previous line items, or were devoted to
claims that failed early on in the litigation. Upon review of the billing records and the
challenges raised by the defendants, the court concludes that the billing records of
Halloran & Sage, in particular, bill a small but significant number of hours of clerical or
non-legal work to Attorneys Slater and Blatchley. Furthermore, calculating the precise
number of hours devoted to clerical work is impossible because of the billing records of
Halloran & Sage, which routinely group a series of tasks, including clerical and nonclerical tasks, in single entries. Therefore, the court reduces the hours billed by
Attorney Slater by five percent (in addition to the ten percent reduction applied to
account for duplicative efforts between Attorney Nelson and Attorney Slater) to account
for the clerical or non-legal work for which Attorney Slater billed. In addition, the court

3

The court recognizes that this calculation is different from the defendants’ conclusion as to the
amount billed by Dalton & Tomich, LLC for work devoted to the Motion for Attorneys’ Fees. However,
even if Dalton & Tomich, LLC, did bill a total of $20,475 for work related to an attorney fee petition, the
court would have found that total reasonable for the reasons stated herein.

26

reduces the hours billed by Attorney Blatchley by five percent to account for the clerical
or non-legal work for which he billed.
In addition, counsel at Halloran & Sage reviewed the defendants’ line item
disputes and withdrew several claims, including entries erroneously listed twice and
entries that apply to a different matter. See Pl.’s Reply at 5. Based on these withdrawn
claims, the court has removed 1.2 hours billed by Attorney Slater at his original rate of
$350 per hour and 10 hours billed by Attorney Blatchley from the totals below.
The court has considered the additional challenges raised by the defendants and
finds that they are either unsubstantiated or are adequately addressed through the
reductions applied for duplicative work or partial success.
The totals calculated below are based on the analysis contained herein, as well
as the court’s independent review of the billing records. Where the court’s calculation of
the hours or billing total differed from that laid out in the Motion for Attorney Fees, the
court relied on the records, not the brief. In particular, the court notes that Dalton &
Tomich, LLC, requested $223,419.50 for 673.6 hours of work. However, upon review of
the billing records submitted by Dalton & Tomich, LLC, the court identified records to
support fewer hours––626.6––but, nevertheless, a higher total award, $231,430. As to
the difference in total hours calculated, the court surmises that Dalton & Tomich, LLC,
failed to subtract the 47 hours it offered to redact to account for duplicative work. With
respect to the difference in total fee requested for Dalton & Tomich, LLC, the court has
identified no explanation for the $223,419.50 figure proposed by the Chabad.
Finally, the court notes that, in reaching the conclusions contained herein, the
court has considered its thorough knowledge of the procedural history, governing law,

27

and factual disputes. This court has presided over the case since its filing eight-and-ahalf years ago. During those eight-and-a-half years, counsel for the Chabad opposed
Motions to Dismiss and Motions for Summary Judgment, successfully appealed a
Ruling of this court dismissing this case, and convinced this court through evidence and
oral argument to conclude that the defendants substantially burdened the Chabad’s
religious exercise. Therefore, in addition to the arguments addressed explicitly in this
Ruling, the court notes that it has also relied on its in-depth familiarity with the work of
counsel for the Chabad, the goals of the plaintiff, and the degree to which those goals
were achieved through the litigation that is at issue in this Motion for Attorney Fees.
Appendix A, attached to this Ruling, summarizes the court’s findings in greater
detail. See Appendix A, attached. In sum, the court awards attorney fees as follows:

28

Firm

Hourly Rate

Hours Awarded

Award

Frederick Nelson

$410

1469.7

$602,577.00

Nicole C. Myers

$350

29.5

$10,325.00

Heather Dodge

$95

24.2

$2,323.20

Satu E. Nelson

American
Liberties
Institute

Timekeeper

$70

46.7

$3,269.00

American Liberties Institute Total

$618,494.20

$350 and
$375

367.4 and 167.5

$196,479.75

Thomas C.
Blatchley

$195

850.2

$165,780.23

Ernesto A. Castillo

$150

37.6

$5,640

Kelly McKeon

$150

15.2

$2,280

Amanda Brosy

$175

14.6

$2,555

Richard Roberts

$300

2.4

$720

Enrico Costantini

$200

2.1

$420

Daniel Krisch

$300

1.5

$450

Kenneth R. Slater

Halloran
& Sage

Halloran & Sage Total

$374,324.98

Daniel P. Dalton
Dalton &
Tomich,
LLC

$410

464.6

$190,486

Katharine Brink
Harrison

$250

154.6

$38,650

Zana Tomich

$310

7.4

$2,294

Dalton & Tomich, LLC Total

$231,430

Fee Award Before Accounting for Partial Success

$1,224,249.18

Final Fee Award

$612,124.59

29

E.

Costs

The Chabad seeks $106,276.36 in costs expended during the litigation,
including, for example, filing fees, travel expenses, long distance telephone charges,
deposition expenses, photocopying expenses, and postage. The defendants argue that
the Chabad is only entitled to costs that are permitted by section 1920 of title 28 of the
United States Code, which makes certain costs taxable but does not include many of
the costs requested by the Chabad. See Def.’s Response at 17–18; see also 28 U.S.C.
§ 1920. The court concludes, however, that section 1988 and not section 1920 governs
the Chabad’s request for costs. Courts routinely award costs in excess to those
enumerated in section 1920, pursuant to section 1988. See Kuzma v. I.R.S., 821 F.2d
930, 933–34 (2d Cir. 1987) (“Identifiable, out-of-pocket disbursements for items such as
photocopying, travel, and telephone costs are generally taxable under § 1988 . . . .”);
Tolnay v. Wearing, No. 3:02-cv-1514 (EBB), 2007 WL 3171284, at *1 (D. Conn. Oct. 25,
2007) (noting that costs for travel fees and telephone expenses may be awarded under
section 1988 but not Rule 54).
The court has reviewed the documents submitted by the Chabad in support of its
request for costs, which reflect costs based on “ordinary out-of-pocket expenses such
as travel, postage, and transcriptions.” Payne v. Kirkland, No. 14-CV-7098 (ALC), 2017
WL 5952707, at *5 (S.D.N.Y. Nov. 30, 2017); see Rai v. WB Imico Lexington Fee, LLC,
No. 09-CV-9586 (PGG), 2017 WL 1215004, at **14–15 (S.D.N.Y. Mar. 31, 2017) (fees
including court fees, filing fees, attorney travel expenses, and printing and binding fees
reasonable under fee-shifting provision). The court concludes that those costs are
reasonable, with the exception of costs incurred by counsel for the Chabad in the
administrative proceeding before the Commission, which costs were in the amount of
30

$995.00. See supra Section II(C) (concluding that the Chabad is not entitled to attorney
fees for the administrative proceeding). Therefore, the court awards the Chabad
$105,281.36 in costs.
III.

CONCLUSION
For the reasons stated above, the Chabad’s Motion for Attorney Fees is granted.

The court awards a total of $611,662.09 in attorney fees, which reflects the lodestar
calculation above, see supra Section II(D), divided in half to account for the partial
success of the Chabad, see supra Section II(B). In addition, the court awards
$105,281.36 in costs, for a total monetary award of $717,405.95.
The Defendant’s Motion for Permission to File Supplemental Information (Doc.
No. 343) is denied.
SO ORDERED.
Dated this 23rd day of May 2018 at New Haven, Connecticut.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

31