FLAMINI v. VELEZ et al
Filing
51
OPINION. Signed by Judge Renee Marie Bumb on 1/23/2015. (drw)
NOT FOR PUBLICATION
[Docket No. 41]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ELIZABETH FLAMINI,
Plaintiff,
Civil No. 12-7304 (RMB/JS)
v.
JENNIFER VALEZ et al.,
OPINION
Defendant.
APPEARANCES:
Jane M. Fearn-Zimmer
The Rothkoff Law Group
911 Kings Highway South
Cherry Hill, NJ 08034
Attorneys for Plaintiff
Jennifer Lauren Finkel
State of New Jersey
Office of the Attorney General
P.O. Box 112
25 Market Street
Trenton, NJ 08625
Attorneys for Defendant
BUMB, UNITED STATES DISTRICT JUDGE:
Plaintiff Elizabeth Flamini has moved for attorney’s fees
pursuant to Local Civil Rule 54.1 [sic]. 1
For the reasons set
forth below, Plaintiff’s motion is denied.
1
Local Rule 54.1 deals with costs and Local Rule 54.2 deals
1
I.
Background:
The facts underlying this matter are well known to the
parties.
For purposes of the instant motion, the Court will
recite only those facts relevant for its resolution.
In 2010, Plaintiff entered a skilled nursing care facility
in Cherry Hill, New Jersey for various medical conditions.
(Docket No. 17, p. 2.)
When Plaintiff entered the facility, her
and her husband’s assets included two individual retirement
accounts and a tax-qualified savings account, all in the name of
Mr. Flamini. (Id.)
On February 28, 2011, Mr. Flamini liquidated
these accounts and used the proceeds to purchase a single
individual retirement annuity from Genworth Life Insurance
Company for $215,256.51, (the “Annuity”). (Id. at pp. 2-3.)
The
Annuity was issued in Mr. Flamini’s name and calls for monthly
income payments of $3,596.35 for a term of five years, beginning
on March 28, 2011, (Docket. No. 1, pp. 28.)
On June 2, 2011, Plaintiff applied for Medicaid with the
Camden County Welfare Agency (the “CWA”). (Docket No. 41 at 2.)
In determining Medicaid eligibility for a married individual
that is institutionalized, like Plaintiff, the CWA considers the
with attorney’s fees.
2
individual’s own income and the couple’s joint resources.
U.S.C. § 1396r-5.
42
On January 22, 2013, Plaintiff filed a motion
for a preliminary injunction with this Court, seeking to enjoin
Defendants from: (1) treating the Annuity as a disposal of
assets for less than fair market value; and (2) considering the
Annuity in its asset calculation.
(Docket No. 6.)
On January 23, 2013, Flamini was issued a determination
that she was not eligible for Medicaid based on her available
resources level. (Docket No. 43 at 2-3.)
The denial stated that
the Annuity was being counted as an available asset.
(Id.)
On July 19, 2013, this Court granted Plaintiff’s motion for a
preliminary injunction in part and enjoined Defendants from
counting the Annuity as an available resource. 2
In so doing,
this Court held that “[b]ecause Plaintiff has demonstrated a
likelihood of success on her claim that the Annuity is not an
available resource, Plaintiff has demonstrated a likelihood of
success on the merits.” (Docket No. 23 at 11.)
In drawing the conclusion of likelihood of success on the
merits, this Court did not resolve the ultimate issue of whether
2
The Court denied the motion to the extent Plaintiff sought
to enjoin the Defendants from treating the Annuity as a disposal
of assets for less than fair market value, finding that the
issue was not yet ripe for adjudication. (Docket No. 23 at 56.)
3
or not the Annuity should be treated as an available resource
under 42 U.S.C. § 1396p(c)(1)(G), finding that it “need not
resolve this issue at this time . . . [and] [w]hether the
provision applies, or not, Plaintiff ha[d] demonstrated a
likelihood of success on the merits.”
(Docket No. 23 at 8.)
No
determination on the merits of Plaintiff’s claim regarding the
Annuity as an available resource was provided by this Court in
its preliminary injunction decision.
After the preliminary injunction issued, Plaintiff received
a notice from the CWA, dated August 7, 2013 stating, in relevant
part, that “[p]ursuant to the Federal District Court decision
enjoining defendants from treating the annuity as a resource, in
order to continue processing your Medicaid application, we
require additional information from you . . . .”
50, Pl.’s Sur-reply Br. at 11.)
(Docket No.
On September 6, 2013, the CWA
issued another Medicaid denial determination, finding that
Plaintiff was still ineligible for Medicaid even when the
Annuity was not counted. 3
(Pl.’s Br., Docket No. 41 at 5; Defs.’
Br., Docket No. 43 at 5)(emphasis added).
Plaintiff then
reapplied for benefits.
3
This notice was later corrected on October 1, 2013 and
October 17, 2013 due to errors irrelevant to the current
analysis.
4
By November 1, 2013, Plaintiff’s husband had spent the
couple’s assets down below the Medicaid limit.
(Id.)
On
January 4, 2014, the CWA approved Plaintiff’s Medicaid
eligibility effective November 1, 2013.
(Id. at 6.)
Because
Plaintiff had been found eligible for Medicaid, this Court
entered an Order dismissing the case as moot on September 30,
(Docket No. 49.) 4
2014.
Following this dismissal, Plaintiff filed the current
motion for attorney’s fees arguing that she is the prevailing
party and entitled to an award under 42 U.S.C. § 1988.
II.
Applicable Standard:
It is the tradition of American courts that fees and costs
are normally not awarded to the prevailing party in civil
litigation.
Polonski v. Trump Taj Mahal Ass’n, 137 F.3d 139,
145 (3d Cir. 1998).
However, such awards may be authorized by
statute, contract, or other exceptional circumstances.
Id.
One
statute authorizing fee awards, 42 U.S.C. § 1988, provides that,
“In any action or proceeding to enforce [certain federal
4
During the September 30, 2014 hearing on this matter, the
Court found that Plaintiff had not pled a claim for a continuing
delay in the processing of Plaintiff’s Medicaid application.
See Sept. 30, 2014 Tr. at 3:20-4:8. Plaintiff has conceded this
point. Id.
5
statutes including 42 U.S.C. § 1983], 5 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).
A “prevailing party” is not necessarily a lawsuit’s winner.
Texas State Teachers Ass’n v. Garland Independent School Dist.,
489 U.S. 782, 790, 792-93 (1989)(“the touchstone of the
prevailing party inquiry must be the material alteration of the
legal relationship of the parties.”)
Rather, a party is
considered “prevailing” “when actual relief on the merits of his
claim materially alters the legal relationship between the
parties by modifying the defendant’s behavior in a way that
directly benefits the plaintiff.”
Lefemine v. Wideman, 133 S.
Ct. 9, 11 (2012)(quoting Farrar v. Hobby, 506 U.S. 103, 111-12
(1992)).
In other words, “parties are considered prevailing
parties if ‘they succeed on any significant issue in litigation
which achieves some of the benefit the parties sought in
bringing suit.’”
J.O. ex rel. C.O. v. Orange Tp. Bd. of Educ.,
287 F.3d 267, 271 (3d Cir. 2002) (quoting Hensley v. Eckerhart,
461 U.S. 424, 433 (1983)); see also Singer Mgmt. Cons'ts, Inc.
5
Plaintiff’s Complaint seeks relief pursuant to 42 U.S.C. §
1983. See Docket No. 1 at ¶ 35.
6
v. Milgram, 650 F.3d 223 (3d Cir. 2011).
The Third Circuit has held that “relief on the merits
achieved in the form of a preliminary injunction can confer
‘prevailing party’ status . . . under appropriate circumstances
. . . .”
People Against Police Violence v. City of Pittsburgh,
520 F.3d 226, 232 (3d Cir. 2008)(“PAPV”).
The Third Circuit has
found, however, that “the ‘merit’s requirement is difficult to
meet in the context of TROs and preliminary injunctions, as the
plaintiff in those instances needs only to show a likelihood of
success on the merits (that is, a reasonable chance, or
probability of winning) to be granted relief.”
at 229.
Singer, 650 F.3d
“[A] court’s finding of ‘reasonable probability of
success on the merits’ is not a resolution of ‘any merit-based
issue.’”
Id. (quoting John T. v. Del. County, 318 F.3d 545, 559
(3d Cir. 2003)).
Moreover, the catalyst theory, “whereby attorneys’ fees
could be awarded in circumstances where defendants voluntarily
changed their behavior to eliminate the complained-of conduct”
is no longer governing law.
UNITE HERE, Local 54 v. City of
Atlantic City, No. 11-6273, 2012 U.S. Dist. LEXIS 58405, at *8
(D.N.J. Apr. 26, 2012); see Singer, 650 F.3d at 231-32 (noting
that the catalyst theory is no longer good law).
7
Instead, “the
Third Circuit, like the Supreme Court, has ‘identified two
resolutions that establish prevailing party status eligibility:
(1) judgments on the merits, and (2) court-ordered consent
decrees (including settlement agreements enforced through
consent decrees).’” Id. (quoting Singer, 650 F. 3d at 228).
III. Analysis:
Plaintiff contends that she is the prevailing party under
42 U.S.C. § 1988 because of her success in obtaining the
preliminary injunction which, she argues, materially altered the
legal relationship of the parties.
44 at 3.)
(Pl.’s Reply Br., Docket No.
Plaintiff states that “[i]n its July 19, 2013 Opinion
and Order, the Court ordered the State to process the Medicaid
application of Elizabeth Flamini and enjoined the State from
treating the annuity as a countable resource.”
Docket No. 41 at 8.)
(Pl.’s Br.,
Nowhere in the prior Opinion, however, did
this Court direct the State to “process the Medicaid application
of Elizabeth Flamini” or provide a timeline for doing the same.
Instead, this Court only held that Plaintiff was entitled to a
preliminary injunction with respect to treating the Annuity as a
countable resource. 6
6
Any arguments regarding the timeline and/or delays in
8
Plaintiff contends that “[w]ithout the July 19, 2013
determination, the . . . notice that Mrs. Flamini was ineligible
for Medicaid due to her husband’s ownership of the . . .
[A]nnuity, would never have been set aside, and the [P]laintiff
could never have been determined eligible for Medicaid on any
Medicaid application . . . .”
at 6.)
(Pl.’s Reply Br., Docket No. 44
Plaintiff further contends that any assertion by
Defendants that they “voluntarily” determined Plaintiff’s
Medicaid eligibility on January 4, 2014 is inconsistent with the
record, as the July 19, 2013 injunction Order was responsible
for “tipp[ing] the balance in favor of the award of Medicaid to
Elizabeth Flamini.”
(Pl.’s Sur-reply, Docket No. 50 at 7.) 7
processing Plaintiff’s Medicaid application are misplaced as
Plaintiff never included a count in her Complaint regarding the
alleged delay in processing the Complaint. Again, Plaintiff
admitted this at oral argument. See Sept. 30, 2014 Tr. at 3:204:8. As such, any arguments presented by Plaintiff regarding
the impact of this Court’s July 19, 2013 Order on the timeline
for processing Plaintiff’s application are irrelevant for
purposes of the instant motion.
7 The Court hastens to note that during the oral argument
held on October 24, 2013, Plaintiff admitted that even without
counting the Annuity, she was still $16,000 over the Medicaid
eligibility limit. In other words, even without the Court’s
ruling, Plaintiff was still ineligible, thus undermining
Plaintiff’s argument that the Court’s injunction Order was
pivotal in tipping the balance in favor of Plaintiff. Moreover,
Plaintiff’s counsel admitted at oral argument that she believed
at the time of the filing of the Complaint that Plaintiff would
be eligible for Medicare if the Annuity were not counted.
Plaintiff’s counsel, however, was mistaken, as she candidly
9
Plaintiff appears to embrace a catalyst theory, stating that
there was no “voluntary” action on the part of the Defendants,
who only issued the January 4, 2014 Medicaid eligibility
determination because of the preliminary injunction.
Citing Singer, the Defendants argue that, to sustain a fee
award, there must be a determination on the merits in addition
to a change in the parties’ legal relationship as a result of
judicial action.
(Defs.’ Br. at 12-13.)
Defendants oppose
Plaintiff’s request for fees, arguing that “the CWA’s voluntary
actions mooted the relief sought in [P]laintiff’s Complaint and
there was never a final adjudication on the merits granting the
relief sought in her Complaint.”
(Id. at 9.)
Finally,
Defendants argue that the Court’s preliminary injunction “did
not cause a material alteration of the legal relationship of the
parties as CWA voluntarily decided to reevaluate plaintiff’s
eligibility and found that notwithstanding the annuity contract
the Flaminis had resources in excess of the eligibility limit.”
(Id. at 14.)
Even assuming that this Court were to agree with Plaintiff
that this Court’s Opinion and Order granting, in part, her
admitted to the Court. Instead, it was Plaintiff’s own proper
recalculation and spending of her excess resources that
ultimately led to a finding of eligibility.
10
request for a preliminary injunction changed the legal
relationship between the parties in a material way, she has,
nevertheless, failed to prove prevailing party status; there was
no judgment on the merits contained in the injunction Opinion.
While this Court’s Opinion and Order granting the preliminary
injunction with respect to the Annuity may have resulted in a
finding of Medicaid eligibility once the Plaintiff spent down
her resources, the fact remains that this Court never made a
determination on the merits of Plaintiff’s claims.
Because
Plaintiff did not obtain a judgment on the merits of her claim,
she is not entitled to attorney’s fees.
Singer, 650 F.3d at 230
n.5 (“As we have explained, [plaintiff] did not obtain a
judgment on the merits of its claim.
Without that, it is simply
not entitled to attorney’s fees.”)
Because this Court had made no merits determination, it
specifically requested that the Plaintiff address the holding in
Singer and its impact on her fees application at the September
30, 2014 hearing in this case.
In Plaintiff’s sur-reply
addressing the implications of the Third Circuit’s decision in
Singer, Plaintiff points to several cases that ultimately fail
to support her argument that a material change in the legal
11
relationship of the parties will suffice without an adjudication
on the merits. 8
For example, Plaintiff cites to the Third Circuit’s
decision in PAPV as distinguishable from Singer.
In PAPV, an
award of attorney’s fees was upheld, and Plaintiff argues that
the injunctive relief award itself in PAPV constituted a merits
based determination.
In PAPV, however, the District Court that
initially decided the matter concluded that the ordinance at
issue was facially unconstitutional under the Fourth Amendment
in addition to granting temporary injunctive relief.
F.3d at 229.
PAPV, 520
Thus, there was a merits determination in PAPV
unlike the circumstances before this Court.
In other words, the
PAPV Court went beyond just a finding of likelihood of success
on the merits.
Plaintiff’s heavy reliance on the Supreme Court’s decision
in Lefemine v. Wideman, 133 S. Ct. 9 (2012), is similarly
misplaced.
There is a critical distinction between Lefemine and
the instant matter, which Plaintiff fails to draw.
8
In Lefemine,
Several of the cases cited by Plaintiff are outside of the
Third Circuit and, therefore, not binding precedent on this
Court. See e.g., Rogers Group v. City of Fayetteville, 683 F.3d
903 (8th Cir. 2012); Preservation Coalition v. Fed. Transit
Admin., 356 F.3d 444 (2d Cir. 2004). These cases also pre-date
the Supreme Court’s decision in Lefemine, discussed herein.
12
the plaintiff had engaged in protests using graphic signs and
had been threatened by the County police, which caused plaintiff
to cease his activities.
Plaintiff then filed a complaint under
42 U.S.C. § 1983 against the County police alleging violations
of his First Amendment rights.
The District Court ruled on the
parties’ respective motions for summary judgment and “determined
that the defendants had infringed on [plaintiff’s] rights,” but
denied attorney’s fees.
affirmed.
Id. at 10.
The Fourth Circuit
The Supreme Court overturned the decision and awarded
attorney’s fees, finding that plaintiff was the prevailing party
where the Court found the District Court’s ruling “worked the
requisite material alteration in the parties’ relationship.”
Id. at * 11.
Plaintiff relies heavily on this language regarding the
“requisite material alteration”, arguing that a change in the
parties’ relationship is sufficient for a fee award.
It is
critical to note, however, that in Lefemine, unlike this case,
the District Court had ruled on the parties’ respective motions
for summary judgment and “determined that the defendants had
infringed on [plaintiff’s] rights.”
Id. at 10.
The District
Court permanently enjoined the defendants from engaging in
certain restrictions of plaintiff’s behavior.
13
Id.
Thus, there
was an adjudication on the merits of the plaintiff’s claim in
Lefemine that remains absent here; again, an award of attorney’s
fees in favor of Plaintiff is not appropriate.
Id. at 11 (a
party is considered “prevailing” “when actual relief on the
merits of his claim materially alters the legal relationship
between the parties by modifying the defendant’s behavior in a
way that directly benefits the plaintiff.”)(emphasis
added)(quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992));
see Dececco v. UPMC, No. 12-272, 2012 U.S. Dist. LEXIS 179556,
at *8 (W.D. Pa. Dec. 19, 2012)(declining to award attorney’s
fees where the court had not ruled on the merits of plaintiff’s
claims and distinguishing Lefemine, stating that in Lefemine,
the holding “was on the merits and modified the defendants’
behavior in a way that directly benefitted the plaintiff because
he could now engage in protest.”); see also Sixth Angel Shepherd
Rescue, Inc., v. Bengal, No. 10-1733, 2013 U.S. Dist. LEXIS
135385 (E.D. Pa. Sept. 23, 2013)(awarding fees where “[i]n
granting plaintiffs’ motion for a preliminary injunction, th[e]
Court made a merits-based determination that entitles plaintiffs
to attorney’s fees.”)
Again, Plaintiff relies on language in several of the
above-cited cases regarding material change in relationships but
14
ignores portions of those decisions imposing a requirement of an
adjudication on the merits.
In sum, while Plaintiff may have
established that the relationship between the parties changed in
a material way as a result of the preliminary injunction, she
has failed to demonstrate how this Court entered a decision on
the merits as required.
Singer, 650 F.3d at 229 (“a court’s
finding of ‘reasonable probability of success on the merits’ is
not a resolution of ‘any merits-based issue.’”)
Her application
for attorney’s fees is, therefore, denied.
IV.
Conclusion:
For the aforementioned reasons, this Court finds that
Plaintiff’s motion for attorney’s fees will be denied.
An
appropriate Order will issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated:
January 23, 2015
15
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