Carter et al v. Incorporated Village of Ocean Beach et al
OPINION & ORDER: SO ORDERED that Hesse's and the Village defts' motions forattorney's fees and costs pursuant to 42 U.S.C. § 1988 and Rule 54 of the Federal Rules of Civil Procedure, respectively, are denied in their entirety; the County defts' motion for attorney's fees and costs pursuant to 42 U.S.C. § 1988 and Rule 54 of the Federal Rules of Civil Procedure, respectively, is granted; and the County is awarded attorney's fees in the total amount of sixty-three thousand nine hundred ninety dollars ($63,990.00) and costs in the total amount of three thousand four hundred twenty-four dollars and fifty cents ($3,424.50). Ordered by Judge Sandra J. Feuerstein on 3/4/2013. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
EDWARD CARTER, FRANK FIORILLO,
KEVIN LAMM, JOSEPH NOFI, and
OPINION AND ORDER
07 CV 1215 (SJF)(ETB)
IN CLERK'S OFFlCE
US DISTRICT COURT E 0 NY
INCORPORATED VILLAGE OF OCEAN
BEACH, MAYOR JOSEPH C. LOEFFLER,
JR., individually and in his official capacity,
FORMER MAYOR NATALIE K. ROGERS,
individually and in her official capacity,
OCEAN BEACH POLICE DEPARTMENT,
ACTING DEPUTY POLICE CHIEF GEORGE
B. HESSE, individually and in his official
capacity, SUFFOLK COUNTY, SUFFOLK
COUNTY POLICE DEPARTMENT,
SUFFOLK COUNTY DEPARTMENT OF
CIVIL SERVICE and ALISON SANCHEZ,
individually and in her official capacity,
:; -i Z013
LONG ISLAND OFFICE
On March 21,2007, plaintiffs Edward Carter, Frank Fiorillo, Kevin Larnm, Joseph Nofi
and Thomas Snyder (collectively, "plaintiffs") commenced this action against defendants
Incorporated Village of Ocean Beach, Mayor Joseph C. Loeffler, Jr., Former Mayor Natalie K.
Rogers and Ocean Beach Police Department (collectively, "the Village defendants"); defendant
George B. Hesse ("Hesse"), acting deputy police chief for the Ocean Beach Police Department
("OBPD"); and defendants Suffolk County, Suffolk County Police Department, Suffolk County
Department of Civil Service and Alison Sanchez (collectively, "the County defendants"),
pursuant to, inter alia, 42 U.S.C. §§ 1983 and 1985, alleging claims for retaliation in violation of
the First Amendment to the United States Constitution and the New York Constitution and
violation of plaintiffs' due process rights, as well as state law claims for violation of New York
Civil Service Law§ 75-b; defamation per se; negligent retention of an unfit employee; civil
conspiracy; and tortious interference with a business relationship. By order dated February 19,
20 I 0, 1: (I) granted the branches of defendants' motions seeking summary judgment dismissing
plaintiffs' federal and state free speech retaliation and due process claims and dismissed those
claims with prejudice; and (2) declined to exercise supplemental jurisdiction over the remaining
state law claims and dismissed those claims pursuant to 28 U.S.C. § 1367(c). Judgment was
entered in favor of defendants on February 22, 2010. By summary order dated March 18, 2011,
the United States Court of Appeals for the Second Circuit affirmed the judgment in favor of
defendants. Carter v. Incomorated Village of Ocean Beach, 415 Fed. Appx. 290 (2d Cir. Mar.
18, 2011). Pending before the Court are defendants' motions for attorney's fees and costs
pursuant to 42 U.S.C. § 1988 and Rule 54 of the Federal Rules of Civil Procedure, respectively.'
For the reasons stated herein, the County defendants' motion is granted and Hesse's and the
Village defendants' motions are denied.
During a telephone conference before me on March 29,2012, the Village defendants
and Hesse withdrew their motions for attorney's fees with leave to renew within ninety (90) days
thereafter as a result of ongoing settlement negotiations in a then-pending state court action to
which they and plaintiffs were parties. By letters dated May 18,2012 and June I, 2012, the
Village defendants and Hesse, respectively, request leave to renew their motions for attorney's
fees. Those applications (Doc. Nos. 265 and 266) are granted.
Rule 54( d)(l) of the Federal Rules of Civil Procedure permits courts "to award costs to
prevailing defendants '[u]nless a federal statute ... provides otherwise."'' Marx v. General
Revenue Com.,- S. Ct.-, 2013 WL 673254, at* 2 (Feb. 26, 2013). "Rule 54( d)(!) codifies a
venerable presumption that prevailing parties are entitled to costs." Id. at 4. "Notwithstanding
this presumption, * * * the decision whether to award costs ultimately lies within the sound
discretion of the district court." Id.; see also Taniguchi v. Kan Pacific Saipan. Ltd., 132 S. Ct.
1997, 2001, 182 L. Ed. 2d 903 (2012) ("Federal Rule of Civil Procedure 54( d) gives courts the
discretion to award costs to prevailing parties.") "Rule 54( d)(!) does not require courts to award
costs to prevailing defendants." Marx,- S. Ct.-, 2013 WL 673254 at 9, n. 9 (emphasis in
original); see also Crawford Fitting Co. v. J.T. Gibbons. Inc., 482 U.S. 437,442, 107 S. Ct. 2494,
96 L. Ed. 2d 385 (1987) ("***Rule 54( d) generally grants a federal court discretion to refuse to
tax costs in favor of the prevailing party."); Wilder v. GL Bus Lines, 258 F.3d 126, 129-30 (2d
Cir. 200 I) ("Rule 54( d)(l) * * * permits a court to refuse to impose costs on the losing party at
Since, as set forth more fully below, the Village defendants and Hesse did not prevail in
this Court on all of plaintiffs' claims against them, i.e., on plaintiffs' state law claims against
them, over which I merely declined to exercise supplemental jurisdiction, and likely would have
"A statute 'provides otherwise' than Rule 54( d)(!) if it is 'contrary' to the Rule."
Marx,- S. Ct.-. 2013 WL 673254, at* 4. "[A] statute is contrary to the Rule if it limits th[e]
[court's] discretion [to award costs]." Id. "A statute providing that 'the court may award costs to
the prevailing party,' for example, is not contrary to the Rule because it does not limit a court's
incurred substantially the same costs in defending against only plaintiffs' state law claims against
them,' I decline to award costs to those defendants. Accordingly, the branches of the Village
defendants' and Hesse's motions seeking an award of costs pursuant to Rule 54(d)(l) of the
Federal Rules of Civil Procedure are denied without prejudice to seeking costs in the state court,
To the contrary, the County defendants ultimately prevailed upon all of plaintiffs' claims
against them, i.e., plaintiffs voluntarily dismissed some of the claims, summary judgment was
granted dismissing the federal claims that were not voluntarily dismissed and plaintiffs' state law
claims against the County defendants, over which I declined to exercise supplemental
jurisdiction, were dismissed at the pleadings stage in the state court. Accordingly, the branch of
the County defendants' motion seeking an award of costs pursuant to Rule 54 of the Federal
Rules of Civil Procedure is granted and the County defendants are awarded taxable costs in the
amount of three thousand four hundred twenty-four dollars and fifty cents ($3,424.50). See
Whitfield v. Scully, 241 F.3d 264,271-72 (2d Cir. 2001); Rule 54.1(c)(2) ofthe Local Civil
Rules of the United States District Courts for the Southern and Eastern Districts of New York.
"The opposite presumption [than the one applicable to an award of costs] exists with
respect to attorney's fees." Marx,- S. Ct.-, 2013 WL 673254, at* 6. "Under the bedrock
Indeed, defendants, in their respective motions for summary judgment, argued for
dismissal of both the federal and state law claims against them. Thus, they would have utilized
the deposition transcripts, and incurred costs for copying and binding their motions, even absent
the federal law claims.
principle known as the 'American Rule,' each litigant pays his own attorney's fees, win or lose,
unless a statute or contract provides otherwise." Id. (alterations, quotations and citation omitted);
see also Fox v. Vice, 131 S. Ct. 2205,2213, 180 L. Ed. 2d 45 (2011); Perdue v. Kenny A. ex rei.
Winn, 559 U.S. 542, 130 S.Ct. 1662, 1671, 176 L.Ed.2d 494 (2010). "Notwithstanding the
American Rule, however,* • • federal courts have inherent power to award attorney's fees in a
narrow set of circumstances, including when a party brings an action in bad faith." Marx,- S.
Ct.-, 2013 WL 673254, at* 6.
"Federal law authorizes a court to award a reasonable attorney's fee to the prevailing
party in certain civil rights cases," Fox, 131 S. Ct. at 2211; see 42 U.S.C. § 1988, including suits
brought under Section 1983, id. at 2213; see also Lefemine v. Wideman, 133 S. Ct. 9, 11, 184 L.
Ed. 2d 313 (2012), and Section 1985, see LeBlanc-Sternberg v. Fletcher, 143 F.3d 765,769 (2d
Cir. 1998). Different standards for awarding attorney's fees pursuant to Section 1988 apply
depending upon whether the prevailing party is the plaintiff or the defendant. See Fox, 131 S. Ct.
Under Section 1988, a prevailing defendant may recover attorney's fees only "when the
suit is vexatious, frivolous, or brought to harass or embarrass defendant."4 Hensley v. Eckerhart,
461 U.S. 424,429 n. 2, 103 S.Ct. 1933,76 L.Ed.2d 40 (1983); see also Fox, 131 S. Ct. at 2211
("[A] defendant may receive*** an award [of attorney's fees] if the plaintiffs suit is
frivolous."); Panetta v. Crowley, 460 F.3d 388, 399 (2d Cir. 2006) ("[A] plaintiff should not be
To the contrary, if a p1aintiffis the prevailing party, he "should ordinarily recover an
attorney's fee from the defendant- the party whose misconduct created the need for legal action.
• • * Fee shifting in such a case at once reimburses a plaintiff for what it cost him to vindicate
civil rights,* * *and holds to account a violator of federal law* * *." Fox, 131 S. Ct. at 2213
(alterations, quotations and citations omitted).
assessed his opponent's attorney's fees unless a court finds that his claim was frivolous,
unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so."
(quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 541 L.Ed.2d
648 (1978))). "A prevailing defendant need not show bad faith by a plaintiff to be entitled to
attorneys' fees, though such a showing provides an even stronger basis for the award." Panetta,
460 F.3d at 399 (internal quotations and citation omitted). In applying the standard for an award
of attorney's fees to prevailing defendants, "courts must take care not to engage in post hoc
reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have
been unreasonable or without foundation." LeBlanc-Sternberg. 143 F.3d at 770.
When a plaintiff asserts both frivolous and non-frivolous claims, "a court may grant
reasonable fees to the defendant
* * *, but only for costs that the defendant would not have
incurred but for the frivolous claims." Fox, 131 S. Ct. at 2211, 2218 "The defendant
* * * is not
entitled to any fees arising from the non-frivolous charges. • • • But the presence of reasonable
allegations in a suit does not immunize the plaintiff against paying for the fees that his frivolous
claims imposed." Id. at 2214 (citation omitted). "Fee-shifting to recompense a defendant***
is not aU-or-nothing: A defendant need not show that every claim in a complaint is frivolous to
quality for fees." Id. In sum, "Section 1988 allows a defendant to recover reasonable attorney's
fees incurred because of, but only because of, a frivolous claim.
* * * [In other words,] Section
1988 permits the defendant to receive only the portion of his fees that he would not have paid but
for the frivolous claim." Id. at 2215 (emphasis added). "[T]he dispositive question is not
whether attorney costs at all relate to a non-frivolous claim, but whether the costs would have
been incurred in the absence of the frivolous allegation." Id. at 2216.
Courts have "wide discretion" in applying the standard for an award of attorney's fees to
a prevailing defendant so long as they "call the game by the right rules," Fox, 131 S. Ct. at
2216, i.e., they "determine whether the fees requested would not have accrued but for the
frivolous claim," id., and "may take into account their overall sense of a suit, and * * * use
estimates in calculating and allocating an attorney's time," id. at 2216. The party seeking
attorney's fees must "submit appropriate documentation to meet the burden of establishing
entitlement to an award." Fox, 131 S. Ct. at 2216 (quotations and citation omitted).
Although plaintiffs voluntarily dismissed many of their claims only late in the
proceeding, i.e., upon the filing of summary judgment motions and on the eve of trial, and
defendants were successful in getting plaintiffs' remaining federal claims dismissed on summary
judgment, none of the defendants have met their burden of establishing the amount of fees they
would not have accrued but for the voluntarily dismissed claims, and it cannot be said that the
claims against Hesse and the Village defendants that were ultimately dismissed on summary
judgment were unreasonable or without any basis in fact from the outset of the litigation so as to
be deemed frivolous.
Moreover, plaintiffs' state law claims, which were interrelated with their federal claims
insofar as, inter alia, they arose out of the same transactions or occurrences and their defense
entailed proof or denial of essentially the same facts,' were only dismissed without prejudice to
re-asserting those claims in state court upon my refusal to exercise supplemental jurisdiction over
those claims. Thus, even absent the claims that were voluntarily dismissed or dismissed on
Hesse even admits that the federal and state law claims in this action were
"intertwined." (Memorandum of Law in Support of*** Hesse's Motion for Award of Costs
and Attorney's Fees, at I 0).
summary judgment, counsel for Hesse and the Village defendants would likely have conducted
"similar fact-gathering activities- taken many of the same depositions, produced and reviewed
many of the same documents, and so forth," Fox, 131 S. Ct. at 2217, to defend against the state
law claims over which I declined to exercise supplemental jurisdiction. In other words, due to
the interrelatedness of the federal and state law claims, Hesse and the Village defendants would
have incurred most of their attorney's fees even if plaintiffs had asserted only the ostensibly nonfrivolous state law claims against them. See id. Accordingly, the branches of Hesse and the
Village defendants' motions seeking attorney's fees are denied.6
To the contrary, all of plaintiffs' claims against the County defendants, who did not
employ plaintiffs, or have any legal authority to hire, retain, fire or control employees of the
Village or OBPD, were frivolous from the outset of this litigation, as expressed by me during a
pretrial conference early in the litigation. Accordingly, the branch of the County defendants'
motion seeking attorney's fees pursuant to 42 U.S.C. § 1988 is granted.
Amount of Attorney's Fees Recoverable by the County Defendants
"The most useful starting point for determining the amount of a reasonable [attorney's]
fee is the number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate." Hensley, 461 U.S. at 433, 103 S.Ct. 1933; see also McDonald ex rei. Prendergast v.
Pension Plan of the NYSA-ILA Pension Trust FunQ, 450 F.3d 91,96 (2d Cir. 2006). The
resulting calculation is commonly referred to as the "lodestar" figure, and it is strongly presumed
The branch of the Village defendants' motion seeking sanctions pursuant to 28 U.S.C. §
1927 is likewise denied.
to be a reasonable attorney's fee. Perdue, 130 S.Ct. at 1673; Millea v. Metro-North R. Co., 658
F.3d 154, 166 (2d Cir. 2011). The burden is on the fee applicant to submit evidence to support
the number of hours expended and the rates claimed. Hensley, 461 U.S. at 437, 103 S.Ct. 1933.
In determining the amount of hours reasonably expended, the court must
"examine the hours expended by counsel and the value of the work
product of the particular expenditures to the client's case. Efforts
put into research, briefing and the preparation of a case can expand
to fill the time available, and some judgment must be made in the
awarding of fees as to diminishing returns from such further
efforts. * * * In making this examination, the district court does
not play the role of an uninformed arbiter but may look to its own
familiarity with the case and its experience generally as well as to
the evidentiary submissions and arguments of the parties.
Gierlingerv. Gleason, 160 F.3d 858,876 (2d Cir. 1998).
"[E]xcessive, redundant, or otherwise unnecessary" hours should be excluded from the
"lodestar" calculation. See Hensley, 461 U.S. at 434, 103 S.Ct. 1933; see also Bliven v. Hunt,
579 F.3d 204, 213 (2d Cir. 2009). In reducing the "lodestar" amount, the court may exclude the
excessive and unreasonable hours from its calculation by making an across-the-board reduction,
or percentage cut, in the amount of hours. See McDonald, 450 F.3d at 96; Luciano v. Olsten
109F.3d Ill, 117(2dCir.l997).
The County defendants contend, inter alia, that the Suffolk County Attorneys' Office,
and mainly two (2) assistant county attorneys Rudolph Max Baptiste ("Baptiste") and Arlene S.
Zwilling ("Zwilling"), expended a total of over six hundred thirty-two (632.4) hours defending
plaintiffs' claims against them, plus an additional ten (10) hours of travel time. Upon review of
the billing records, however, some of the hours expended appear redundant, duplicative or
unnecessary. For example, Baptiste and Zwilling billed, inter alia: (I) a total of approximately
two hundred (200) hours for just "review;" (2) a total of over one hundred thirty-five (135) hours
for research in this fairly straightforward civil rights case; and (3) a total of almost one hundred
eighteen (118) hours for telephone calls in this case. (See Affirmation of Arlene S. Zwilling in
Support of Motion for Attorney's Fees and Costs ["Zwilling Aff."],
9 and Exs. C and D). Since
this civil rights case was not overly complex, and, indeed, plaintiffs' claims against the County
defendants were clearly meritless from the outset, and given Zwilling's extensive experience
with federal civil rights litigation, (see Zwilling Aff.,
12), the number of hours claimed to have
been expended by the Suffolk County Attorney's Office is reduced across-the-board by one-third
(1/3), i.e., to four hundred twenty-one and six-tenth (421.6) hours.
In determining a reasonable hourly rate, the court should consider the prevailing rates of
lawyers with comparable skill, experience and reputation in the district in which the action was
commenced and litigated. Missouri v. Jenkins by Agyei, 491 U.S. 274,286, 109 S.Ct. 2463, 105
L.Ed.2d 229 (1989); McDonald, 450 F.3d at 96. Rates should be "current rather than historic
hourly rates." Reiter v. MTA New York City Transit Authority, 457 F.3d 224,232 (2d Cir.
2006) (quoting Gierlinger, 160 F .3d at 882).
The County defendants seek reimbursement for attorney's fees at an hourly rate of one
hundred fifty dollars ($150.00), which they contend is the municipal rate paid by the Suffolk
County Attorney's Office to many outside counsel during the relevant period, and for travel time
at fifty percent (50%) of the hourly rate, i.e., at seventy-five dollars ($75.00) per hour. Since
those amounts are comparable with, or lower, than recent prevailing hourly rates in the Eastern
District of New York,
Cadles of Grassy Meadows II. L.L.C. v. St. Clair, No. 10-cv-
1673, 2012 WL 6617448, at • 2 (E.D.N.Y. Dec. 18, 2012) (finding the prevailing hourly rates in
the Eastern District of New York to be $300-$450 for partners; $200-$300 for senior associates;
and $100-$200 for junior associates); Sacardi v. Green Field Churrascaria, Inc., No. 10 Civ.
5605, 2012 WL 4979195, at* I (E.D.N.Y. Oct. 17, 2012) (finding the prevailing hourly rates in
the Eastern District ofNew York to be $200-$350 for partners; $200-$250 for senior associates;
and $100-$150 for junior associates); Hugee v. Kimso Apartments. LLC, 852 F. Supp. 2d 281,
302 (E.D.N.Y. 2012) (accepting fifty percent (50%) reduction of hourly rate for reimbursement
of travel), the hourly rates sought by the County defendants are reasonable. Accordingly, the
total "lodestar" amount is sixty-three thousand nine hundred ninety dollars ($63,990.00), i.e.,
four hundred twenty-one and six-tenth (421.6) hours at one hundred fifty dollars ($150.00) an
hour, plus ten (I 0) hours at seventy-five dollars ($75.00) an hour.
After the initial "lodestar" calculation is made, the court may adjust the amount upward
or downward. Hensley. 461 U.S. at 434, 103 S.Ct. 1933. The party requesting the adjustment
has the burden of establishing the propriety of a departure from the "lodestar" amount. See
Perdue, 130 S.Ct. at 1673. "[E]nhancements may be awarded in rare and exceptional
circumstances," id. (internal quotations and citations omitted), and "may not be awarded based
on a factor that is subsumed in the lodestar calculation." Id. For example, the novelty and
complexity of a case and the quality of counsel's performance generally may not be used to
enhance the lodestar calculation. See id. In contrast, an enhancement may be appropriate, inter
alia, "if the attorney's performance includes an extraordinary outlay of expenses and the
litigation is exceptionally protracted" or where "an attorney's performance involves exceptional
delay in the payment of fees." Perdue, 130 S.Ct. at 1674-5. The district court should provide "a
concise but clear explanation of its reasons for the fee award," and when an adjustment is made
to the "lodestar" amount, the court "should make it clear that it has considered the relationship
between the amount of the fee awarded and the results obtained." Hensley, 461 U.S. at 437, 103
S.Ct. 1933; see also Perdue, 130 S.Ct. at 1676 ("It is essential that the judge provide a reasonably
specific explanation for all aspects of a fee determination, including any award of an
Neither party has requested a departure from the lodestar amount. In any event, the
lodestar amount itself, as determined above and without adjustment, is reasonable. Accordingly,
the County defendants are awarded attorney's fees in the total amount of sixty-three thousand
nine hundred ninety dollars ($63,990.00).
For the reasons set forth above, Hesse's and the Village defendants' motions for
attorney's fees and costs pursuant to 42 U.S.C. § 1988 and Rule 54 of the Federal Rules of Civil
Procedure, respectively, are denied in their entirety; the County defendants' motion for attorney's
fees and costs pursuant to 42 U.S.C. § 1988 and Rule 54 of the Federal Rules of Civil Procedure,
respectively, is granted; and the County is awarded attorney's fees in the total amount of sixtythree thousand nine hundred ninety dollars ($63,990.00) and costs in the total amount of three
thousand four hundred twenty-four dollars and fifty cents ($3,424.50).7
s/ Sandra J. Feuerstein
SANDRA J. FEUERSTEIN
United States District Judge
Dated: March 4, 2013
Central Islip, New York
The County defendants have not sought interest thereon.
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