Bloothoofd v. Danberg et al
MEMORANDUM. Signed by Judge Sue L. Robinson on 4/29/2015. (fms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
) Civ. No. 09-179-SLR
AMERICAN CIVIL LIBERTIES
DEPARTMENT OF CORRECTION,
STATE OF DELAWARE,
At Wilmington this?day of April, 2015, having reviewed defendant's motion for
reargument and the papers submitted in connection thereto; the court will deny the
motion (D.I. 167), based on the following reasoning.
1. Procedural background. By order dated July 23, 2013, the court referred to
Magistrate Judge Fallon plaintiffs motion to compel enforcement of order and
agreement dated September 19, 2011 (D. I. 124), which order involved defendant's
compliance with, inter alia, the Prison Rape Elimination Act. (D.I. 132) Magistrate
Judge Fallon was to issue a Report and Recommendation in this
on or before
October 23, 2013, pursuant to 28 U.S.C. § 636(b).
2. Judge Fallon in fact issued her Report and Recommendation on October 23,
2013. (D.I. 144) The defendant timely filed objections thereto (D.I. 145), and plaintiff
responded to the objections. (D.I. 146) The court issued its ruling on January 10,
2014, adopting in part and overruling in part the Report and Recommendation. (D.I.
147, 148) The court ordered defendant to comply with the recommendations contained
in the Report and Recommendation as revised, and required that Magistrate Judge
Fallon maintain jurisdiction to monitor defendant's compliance.
3. Plaintiff thereafter filed a motion for attorney fees, along with supporting
declarations. (D.I. 149-154) Defendant opposed. (D.I. 155) Magistrate Judge Fallon
issued her ruling on September 17, 2014, recommending that the cou1t grant the
motion for fees, albeit for only 80% of the fees requested. (D. I. 162) Defendant timely
filed objections to the Report and Recommendation. (D.I. 163) Of significance is the
fact that, while defendant objected to the award of fees, the only observation defendant
made with respect to the amount of fees (if awarded) was the
contained in a
DOC has not waived the right to challenge the calculation of any fee
awarded, and, as noted by the Magistrate Judge, DOC cited the fee
demand as "outrageously excessive." R&R at 10, footnote 8. This
Court retains full authority to examine de nova the amount of the fee
claim. In particular, the award of 80% of fees claimed cannot be
sustained, where the plaintiff ultimately failed to prevail on mor,e than
90% of the claims set forth in the motion, and did not even bother to
pursue claims of so-called "bad faith" on the part of DOC and BWCI
officials. Any fee award must be based on the scope of the plaintiffs
success, if any. Hensley v. Eckerhart, 461 U.S. 424, 433-435 (1983).
(Id. at 2, n.2) The court overruled the objection and adopted the recommendation,
concluding that plaintiffs "motion to compel motivated DOC to push ahead more
energetically with its efforts to comply with the Order." (D.I. 165 at 5) In other words,
the only reason defendant was ultimately compliant was because plaintiff brought
defendant into court. With respect to the reasonableness of the fee award, the court
[Defendant] did not address in its objections the amount of the requested
fee, instead reserving the right to challenge such at a later time. I am not
confident that the rules contemplate a bifurcated objection process. In
any event, I will not address the merits of the fee award on the record
(D.I. 165 at 5)
4. On December 22, 2014, 28 days after the above order issued, defendant filed
a paper captioned "Defendant's Motion for Reargument and to Amencl or Alter
Judgment." (D.I. 167) Defendant moved for relief from the payment of the fees
awarded ($125,269) pursuant to "Local Rule 7.1.5 and Rule 59(e) of the Federal Rules
of Civil Procedure." (Id. at 1) Defendant argues that it properly preserved its right to
contest the amount of the fees awarded, and that "[a] ruling that fails t:o consider factors
such as lack of success in argument and an excessive hourly rate in awarding attorney
fees would not be sustainable on appeal. . . . The present Motion affords the Court an
opportunity to reduce the gross fee award and substitute therefore a new fee award,
and to make a record of the consideration of those factors." (Id. at 2) Defendant
[t]he record developed for purposes of the fee award would ... support
an award of either:
• 25% of the total fees sought (reflecting the complianc;e issues
originally raised by the plaintiff, compared to the uncontested
areas of full compliance by DOC) or $31,317.25;
• 35% of the total fee claim (representing the percentage of
issues raised in the motion on which the ACLF ultimately prevailed)
or $43,844.15; or
• 53% of the total fee claim (representing the degree of success
achieved, on the issues actually submitted to the Court for
determination) or $66,392.57.
An award in excess of these figures would not be supported by the record.
(Id. at 6-7) Plaintiff's response is two-fold: (1) defendant's motion presents a new
issue, that is, the proper lodestar; and (2) defendant is procedurally barred from
challenging the amount of the fee award. (D.I. 168)
5. Standard of review. A motion for reargument under Local Rule 7 .1.5] is the
"functional equivalent" of a motion to alter or amend judgment under Federal Rule of
Civil Procedure 59(e). See Jones v. Pittsburgh Nat'/ Corp., 899 F.2d ·1350, ·1352 (3d
Cir. 1990) (citing Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir. 1986)).
The standard for obtaining relief under Rule 59(e) is difficult to meet. The purpose of a
motion for reargument is to "correct manifest errors of law or fact or to present newly
discovered evidence." Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999). A court should exercise its discretion to alter or amend its
judgment only if the movant demonstrates one of the following: ( 1) a change in the
controlling law; (2) a need to correct a clear error of law or fact or to prevent manifest
injustice; or (3) availability of new evidence not available when the judgment was
granted. See id. A motion for reargument is not properly grounded on a request that a
court rethink a decision already made and may not be used "as a means to argue new
facts or issues that inexcusably were not presented to the court in the matter previously
decided." Brambles USA, Inc. v. Blocker, 735 F. Supp. 1239, 1240 (D. Del 1990); see
also Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa.
6. Analysis. Although defendant characterizes plaintiff's response as resorting
to "procedural trickery [in order to] prevent fair consideration" of the fe1e awarded (0.1.
169 at 1), the procedural irregularities presented by defendant's papers in fact preclude
substantive consideration of the issues presented. The motion at bar was filed 28 days
after the court's memorandum and order issued. Motions for reargument filed pursuant
to O.Oel. LR 7.1.5 must be filed "within 14 days after the Court issues its opinion or
decision, with the exception of motions filed pursuant [to] Fed. R. Civ. P. 59(e), which
shall be filed in accordance with the [limits] set forth in Fed. R. Civ. P. 59(e)." O.Oel. LR
5.1.5(a). Although motions filed pursuant to Rule 59(e) may be filed as late as "28 days
after the entry of judgment," Rule 59(e) is not applicable to the facts eif record, where
judgment was entered long ago and the remaining issues (motion to compel and motion
for attorney fees) were ancillary to the entry of judgment. Therefore, the motion was
untimely in the first instance.
7. In addition, the issue presented in the motion for reargument was not
appropriately preserved for review. Pursuant to Fed. R. Civ. P. 72(a), when a
nondispositive pretrial matter is referred to a magistrate judge to hear and decide, the
magistrate judge must issue a written order stating the decision.
A party may serve and file objections to the order within 14 days after
being served with a copy. A party may not assign as error a defect in
the order not timely objected to. The district judge in the case must
consider timely objections and modify or set aside any part of the order
that is clearly erroneous or is contrary to law.
Rule 72(a) (emphasis added). Although defendant noted in its objections that it was not
waiving its right to challenge the calculation of any fee actually awarded (0.1. 163 at 2
n.2), it has not been the practice of the court to allow a party to preser.te what amounts
to a conditional objection. 1 Such a bifurcated procedure would be inefficient at best,
and contrary to the spirit (if not the letter) of those rules governing the use of magistrate
judges. Indeed, the thrust of D.Del. LR 7.1.S(b) confirms that a party Beeking review of
a magistrate judge's decision has only one procedural bite of the apph3.
cognizant of defendant's obligation to protect the public's coffers. However, the court
has an equally important obligation to process its cases consistently and efficiently.
8. Conclusion. For the reasons stated above, the court will deny defendant's
motion for reargument as procedurally barred. An order shall issue.
1.e., only if the court determines that a fee should be awarded in the first
instance will defendant share its thoughts about what the amount of the fee should be.
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