AKSANOV v. HARRAH'S CASINO HOTEL ATLANTIC CITY et al

Filing 141

OPINION. Signed by Judge Noel L. Hillman on 1/29/2016. (drw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ALEXANDER AKSANOV,
HONORABLE NOEL L. HILLMAN
Plaintiffs,

CIVIL ACTION NO. 10-5883

v.

OPINION

HARRAH’S CASINO HOTEL ATLANTIC
CITY, et al.,
Defendants.

APPEARANCES:
TOMPKINS, MCGUIRE, WACHENFELD & BARRY, LLP
By: Grant W. McGuire, Esq.
3 Becker Farm Road, Suite 402
Roseland, New Jersey 07068-1726
Counsel for Plaintiff
LAW OFFICES OF RILEY & RILEY
By: Michael E. Riley, Esq.
The Washington House
100 High Street, Suite 302
Mount Holly, New Jersey 08060
Counsel for Defendants Logan, Palamaro, and City of
Atlantic City

HILLMAN, United States District Judge:
Presently before the Court is Defendants’ attorneys’ fees
application pursuant to 42 U.S.C. § 1988(b).

Senior United States

District Judge Irenas previously determined that some of
Plaintiff’s claims were frivolous, while others were not, and

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therefore held that Defendants were entitled to fees on the
frivolous claims only.
Judge Irenas also held that Defendants’ original fee
application made no effort to parse work done on claims found to
be frivolous versus work done on all other claims.

Defendants

were therefore ordered to revise their application “to provide a
claim-by-claim accounting of the work performed on this case.”
(Order of October 1, 2015, Docket Entry 136)

That revised

application is the subject of this opinion. 1

The question

presently before the Court is not whether Defendants are entitled
to an award of attorneys fees, but rather, how much fees should
the Court award?
For the reasons set forth herein, the Court holds that the
revised fee application still fails to adequately distinguish
between work done on claims found to be frivolous versus all other
work.

Defendants will be given one last opportunity to revise

their fee application.

I.
The underlying facts of this suit are set forth in the
previous opinion granting summary judgment to the moving
Defendants on all remaining claims. See Aksanov v. Harrah's Casino

After Judge Irenas’ death in October, 2015, the case was
reassigned to the undersigned.
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1

Hotel Atl. City, 109 F. Supp. 3d 709 (D.N.J. 2015).

The Court

assumes familiarity with that opinion.

II.
A prevailing defendant may be awarded attorneys’ fees under §
1988(b) only “‘upon a finding that the plaintiff’s action was
frivolous, unreasonable or without foundation.’” Barnes Found. v.
Twp. of Lower Merion, 242 F.3d 151, 158 (3d Cir. 2001) (quoting
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)).

III.
To place the current dispute in the proper perspective, the
Court begins with the following excerpt from Judge Irenas’
original opinion granting recovery of fees on certain claims.
After setting forth the procedural posture and legal standard to
be applied, Judge Irenas began his discussion: “[t]he core of
Plaintiff’s suit against the individual officers-- the 14th
Amendment Due Process failure to intervene claims against the
officers in their individual capacities-- were not frivolous. . .
. However, many of the peripheral claims had little to no factual
support in the summary judgment record, or were otherwise
frivolous.”

(Docket Entry 129)(emphasis added)

As the summary judgment opinion in this case demonstrates,
most of this litigation focused on what the individual officers
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did, or did not, do.

Thus, while only encompassed in one legal

claim, the claim required substantial work.

It is that claim

which Judge Irenas identified as the “core” of this case.
Yet, in an attempt to recover the largest amount of fees
possible, Defendants emphasize quantity over quality.

In

particular, Defendants have created a chart-- Defendants’ Ex. C-that lists in one column all of the claims determined to be
frivolous, and in another-- much shorter-- column, lists the
claims determined to be nonfrivolous.

The chart is accurate

insofar as it correctly identifies which claims were held to be
frivolous and nonfrivolous.

Critically, however, the chart

erroneously assumes equal weight of each claim, and therefore
ignores Judge Irenas’ observation that most, if not all, of the
claims held to be frivolous were “peripheral claims.”
Defendants’ current application is fundamentally flawed in
that it takes the approach that the vast majority of this
litigation was frivolous.

Defendants’ counsel starts from the

premise that he should be compensated for all work, and then
carves out 1.63% of all billed work as nonfrivolous work for which
he should not receive compensation.
Irenas’ opinion on its head.

This approach flips Judge

Judge Irenas started from the

premise that a majority of this litigation was not frivolous; that
the frivolous claims were peripheral-- i.e., not central-- to this
case.

Thus, Defendants’ present application, which implicitly
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asserts that 98.37% of this litigation was frivolous, is simply
inconsistent with Judge Irenas’ prior holding.
Moreover, the application assumes only two categories of work
performed: work on frivolous claims and work on non-frivolous
claims.

Yet Defendants’ billing records (Defs’ Ex. E) reveal at

least one other category of work: work apparently related to
Plaintiff’s claims asserted against Defendants’ Co-Defendant,
Harrah’s Casino 2-- claims which this Court has neither ruled
frivolous, nor nonfrivolous.
Because Defendants’ current application only subtracts out
work on nonfrivolous claims, and seeks compensation for the
remainder, the application assumes that Defendants are entitled to
compensation for all of this third category of work.
however, fail to explain why this should be so.

Defendants,

Indeed, the

statute provides for recovery of attorneys’ fees “only ‘upon a
finding that the plaintiff’s action was frivolous, unreasonable or
without foundation.’” (Order of July 8, 2015, Docket Entry 129)
(quoting Barnes Found. V. Twp. of Lower Merion, 242 F.3d 151, 158
(3d Cir. 2001)).

Thus, Defendants may only recover fees

associated with this third category of work if that work can be

See, e.g., Defendants’ Ex. E, Billing entry for August 21, 2011:
“Review deps of Harrah’s personnel”; Billing entry for June 25,
2011: “Receipt and review of materials from Casino Control –
Harrahs”; Billing entry for July 9, 2011: “Review of complaints
made to Casino Control.”
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2

specifically connected to work performed on claims this Court has
found to be frivolous.

Defendants’ current application does not

do so.
Judge Irenas ordered a claim-by-claim fee application.

By

logical extension, a billing entry-by-billing entry accounting is
also warranted so that the fee application accounts for-- with
some reasonable measure of accuracy-- the weight of various
claims, as well as the category of work performed.

See generally

Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694, 713
(3d Cir. 2005) (“we have stressed that ‘it is necessary that the
[District] Court go line, by line, by line through the billing
records supporting the fee request.’”)(quoting Evans v. Port Auth.
of N.Y. & N.J., 273 F.3d 346, 362 (3d Cir. 2001)).
In performing such an entry-by-entry accounting, Defendants
will undoubtedly encounter many entries for which the vague work
descriptions alone do not allow for a determination as to which
claim(s) the work pertained. 3

In such instances, the Court will

not assume, as Defendants’ current application does, that
Defendants are entitled to recover 100% of the fees incurred for
that particular work.

It is Defendants’ fee application,

therefore, it is their burden to adequately demonstrate that

See, e.g., Defendants’ Ex. E, Billing entry for April 19, 2011:
“Preparation for depositions”; Billing entry for October 11, 2011:
“Receipt and review of deposition transcripts”; Billing entry for
September 13, 2012: “Review of statements.”
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3

specific fees incurred were related to claims held to be
frivolous.

See generally Barley v. Fox Chase Cancer Ctr., 54 F.

Supp. 3d 396, 405 (E.D. Pa. 2014) (“the party who seeks payment
must keep records in sufficient detail that a neutral judge can
make a fair evaluation of the time expended, the nature and need
for the service, and the reasonable fees to be allowed.”)(internal
citation and quotation omitted).
Based on the foregoing, the Court holds that Defendants’
revised fee application is over-inclusive.

IV.
In light of the foregoing, Defendants will be directed to
revise their revised fee application consistent with the above
discussion.

Dated:

An appropriate Order accompanies this Opinion.

January 29, 2016
At Camden, New Jersey

s/ Noel L. Hillman
Noel L. Hillman, U.S.D.J.

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