Hernandez v. Berlin Newington Associates, LLC
Filing
140
ORDER granting in part and denying in part 131 MOTION for Attorney Fees, Related Expenses, Delay Enhancement, and Post-Judgment Interest for the reasons set forth in the attached decision. Signed by Judge Vanessa L. Bryant on 07/27/2018. (Lee, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MODESTO HERNANDEZ,
Plaintiff,
v.
BERLIN NEWINGTON ASSOCIATES,
LLC,
Defendant.
:
:
:
:
:
:
:
:
CIVIL ACTION NUMBER:
3:10-cv-01333 (VLB)
July 27, 2018
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR ATTORNEYS’
FEES, RELATED EXPENSES, DELAY ENHANCEMENT, AND POST-JUDGMENT
INTEREST [DKT. 131]
Before this Court is Plaintiff’s Motion for Attorneys’ Fees, Related
Expenses, Delay Enhancement, and Post-Judgment Interest. [Dkt. 131-1]. This
motion was filed after the Second Circuit affirmed this Court’s initial award of
attorneys’ fees and expenses. In addition to affirming the award, the Second
Circuit remanded the case for this Court to decide in the first instance Plaintiff’s
request for reasonable attorneys’ fees for defending the appeal and Plaintiff’s
requests for a delay enhancement and post-judgment interest.
Defendant failed to timely respond to the motion—not only did it fail to
respond within 21 days, but it failed to respond after the Court sua sponte
granted additional time and instead twice requested an extension on the
deadline without demonstrating good cause.
The Court deems the response
waived.
The Court finds Plaintiff has met its burden to establish attorneys’ fees are
reasonable. Plaintiff seeks attorneys’ fees for four attorneys and one paralegal
1
at the same rates the Court previously approved and the Second Circuit upheld.
See [Dkt. 120 (Order on Atty Fees) at 16; Dkt. 131-1 at 8]. The Second Circuit also
upheld the Court’s use of the lodestar method for which Plaintiff advocates the
Court use for a second time. In reviewing the hours billed by each attorney, the
Court notes that Plaintiff took steps to “exercise[ ] strict billing judgment: (a)
counsel billed 50% of the time spent on reviewing each other’s work; (b) only
one attorney billed for co-counsel communications; (c) administrative tasks were
not billed; and (d) billing adjustments were made according the Court’s previous
order. See [Dkt. 131-1 at 7]. The Court has reviewed the itemized bills and finds
the number of hours billed for each attorney to be reasonable and satisfactory.
The Court also finds the costs and fees to be reasonable for an appeal.
The Court grants Plaintiff’s request for post-judgment interest on the Final
Judgment award in light of his entitlement to interest under 28 U.S.C. § 1961(a).
See 28 U.S.C. § 1961(a) (“Interest shall be allowed on any money judgment in a
civil case recovered in a district court.”); Greenway v. Buffalo Hilton Hotel, 143
F.3d 47, 55 (2d Cir. 1998) (awarding post-judgment interest in an ADA case under
28 U.S.C. § 1961(a)). Post-judgment interest shall be calculated pursuant to 28
U.S.C. § 1961(a).
A district court may award an enhancement on reasonable attorneys’ fees
“to compensate for delay in payment of fees previously earned.” Huntington
Branch, N.A.A.C.P. v. Town of Huntington, N.Y., 961 F.2d 1048, 1049 (2d Cir.
1992) (citing Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274, 282–84 (1989).
Enhancement of reasonable attorneys’ fees may be permitted only in “rare and
2
exceptional cases supported by both specific evidence on the record and
detailed findings by the lower courts.” Id. at 1050; see Perdue v. Kenny A. ex rel.
Winn, 559 U.S. 542, 553 (2010) (addressing fee enhancements in general where
the plaintiffs requested an enhancement for superior performance and results);
Gray ex rel. Alexander v. Bostic, 613 F.3d 1035, 1044–45 (11th Cir. 2010)
(explaining circumstances in which a delay enhancement may be awarded).
Where the reason for enhancing attorneys’ fees is based on the delay in
payment, the delay must be exceptional and compensation “is generally made
either by basing the award on current rates or by adjusting the fee based on
historical rates to reflect its present value.” Perdue, 559 U.S. at 556 (internal
quotation marks omitted). It is also possible for an enhancement to be awarded
“where an attorney assumes these costs in the fact of unanticipated delay,
particularly where the delay is unjustifiably caused by the defense.” Id. In this
situation, the court should calculate the enhancement in “using a method that is
reasonable, objective, and capable of being reviewed on appeal. . . .” Id. at 555–
56.
Plaintiff seems to be arguing that he is entitled to a delay enhancement
from the date of Final Judgment to present on the basis that Defendant
“unjustifiably delayed payment of attorney’s fees and costs” from the beginning
of the case through the “meritless appeal.” See [Dkt. 131-1 at 12]. The Court
acknowledges this case took more than five years to resolve the merits, but
Plaintiff has not met its burden of providing specific evidence warranting an
unanticipated or unjustifiable delay. See Perdue, 559 U.S. at 553. Indeed, the
3
Court’s initial award of attorneys’ fees contemplated the extensive litigation and
additional compensation that stemmed from it. [Dkt. 120 at 11–12].
With respect to the appeal, Plaintiff argues it was meritless and “based
simply on mischaracterizations of the record and this Court’s Fee Brief
analysis.”
[Dkt. 131-1 at 12].
Plaintiff cannot show Defendant caused an
unjustifiable delay by appealing the Court’s fee order.
It is true the Second
Circuit explicitly ruled that three of Defendant’s arguments were “wholly without
merit.” See [Dkt. 129 (Summary Order) at 3]. It did not, however, say this about
two other arguments, as it discussed and affirmed this Court’s legal analysis.
The Court therefore finds the appeal was not wholly frivolous and without more it
cannot find the filing was a delay tactic warranting a fee enhancement under a
method “reasonable, objective, and capable of being reviewed on appeal.”
Perdue, 559 U.S. at 555–56.
Although some of Defendant’s claims on appeal had merit, Plaintiff also
argues that it is entitled to a delay enhancement because Defendant has failed to
pay the Final Judgment since it was upheld by the appellate court.
Plaintiff
seeks compensation based on historical rates plus a prime rate enhancement.
To the extent Plaintiff seeks compensation based on historical rates plus a prime
rate enhancement, the purpose of the delay enhancement is to reflect the
present value of the fee. See Perdue, 559 U.S. at 556; Gray, 613 F.3d at 1044
(highlighting the purpose of the delay enhancement is to “reflect present value”).
Given that the current rate appears to be the same as the rate when final
judgment was entered, an enhancement calculated at the historic rate plus a
4
prime rate enhancement would yield a greater enhancement than the present
value of the fee.
Therefore, it is hereby ORDERED AND ADJUDGED that said Motion is
GRANTED IN PART AND DENIED IN PART. Defendant is ordered to pay Plaintiff
$50,655 in attorneys’ fees plus $1,216.31 in related expenses. Further,
Defendant is ordered to pay Plaintiff those amounts previously awarded by this
Court in its Final Judgment. See [Dkt. 122]. Finally, Defendant is ordered to
pay Plaintiff a per diem post-judgment interest as calculated under 28 U.S.C. §
1961(a). The per diem period began on October 18, 2016, and will continue up
until Defendant fully satisfies the October 18, 2016 Final Judgment, including all
interest ordered to be paid herein.
All payments due to Plaintiff shall be made within thirty (30) days of entry
of this Order.
IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 27, 2018
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?