Anania et al v. United States of America et al

Filing 101

MEMORANDUM AND ORDER: For the reasons set forth above, the Countys motion 96 is granted to the extent that it is awarded $19,135.35 in attorneys fees expended as to the First Amendment claim and denied in all other regards. Granted in part and denied in part. SEE ATTACHED ORDER FOR FURTHER DETAILS. So Ordered by Judge Sandra J. Feuerstein on 1/8/2021. (Cubano, Jazmin)

Case 2:16-cv-03542-SJF-ARL Document 101 Filed 01/08/21 Page 1 of 11 PageID #: 3335

UNITED STATES DISTRICT COURT
FILED 
EASTERN DISTRICT OF NEW YORK
CLERK 
---------------------------------------------------------------------X

10:51 am, Jan 08, 2021

JOSEPH ANANIA, JAMES ANNING, WILLIAM
U.S. DISTRICT COURT 
BUSCHMANN, MICHAEL FISHER, NANCY
EASTERN DISTRICT OF NEW YORK 
HASKELL, GERODETTE MACWHINNIE, KEITH
LONG ISLAND OFFICE 
MARRAN, MICHAEL MCPHERSON, ROLAND
MICHELY, GARY SACKS, ROBERTA TERZO,
SARA WIDDICOMBE, JOSEPH CLINTON, MARY
MEMORANDUM & ORDER
ELLEN MANNING, ALISON AMRON, JUAN F.
16-CV-3542 (SJF) (ARL)
PUNCHIN, DAVID SAHAGIAN, and GREGG
SPANGLER,
Plaintiffs,
v.
UNITED STATES OF AMERICA, UNITED STATES
ARMY CORPS OF ENGINEERS, COLONEL
DAVID A. CALDWELL, and COUNTY OF SUFFOLK,
Defendants.
---------------------------------------------------------------------X
FEUERSTEIN, District Judge:
Currently before the Court is a motion for attorneys’ fees filed by Defendant County of
Suffolk (the “County”) pursuant to 42 U.S.C. § 1988. See Motion, Docket Entry (“DE”) [96].
For the reasons set forth below, the motion is granted in part and denied in part.
I.

BACKGROUND
Familiarity with the facts of this matter is assumed.1 The facts set forth herein are

repeated to the extent necessary to address the pending motion.
Plaintiffs own waterfront property in the Cherry Grove community on Fire Island and
claimed that the Defendants violated their rights in connection with the design and
implementation of the Fire Island Inlet to Moriches Inlet Fire Island Stabilization Beach
1

A comprehensive recitation of the facts can be found in prior orders including Magistrate Judge Arlene
R. Lindsay’s Report and Recommendation (the “R56 Report”) dated March 21, 2019, see DE [86], 2019
WL 6388847, as well as this Court’s Order of August 14, 2019, adopting the Report’s recommendation of
dismissal. See DE [93], 2019 WL 3811899.

Case 2:16-cv-03542-SJF-ARL Document 101 Filed 01/08/21 Page 2 of 11 PageID #: 3336

Restoration Project (the “FIMI Project”). Plaintiffs asserted various claims including, inter alia,
claims of violations of the United States Constitution. As to the County, they claimed that it
violated: (1) their rights to equal protection under the Fourteenth Amendment (the “Equal
Protection claim”); (2) their rights to procedural due process under the Fourteenth Amendment
(the “Due Process claim”); and (3) their rights under the First Amendment (the “First
Amendment claim”). The Equal Protection claim alleged that the County required Plaintiffs to
grant perpetual easements over their property despite those properties having been allegedly
excluded from the dune restoration provisions of the FIMI Project, while the Due Process claim
alleged that the County failed to notify them about critical information about the project, thus
depriving them of the opportunity to object at various points of the project’s approval process.
The First Amendment claim, parenthetically entitled “Chilling of First Amendment
Rights,” was added when the complaint was amended in December 2016. See Amended
Complaint (“Am. Compl.”), ¶¶ 93-97. DE [29]. This claim was premised upon the assertion that
Cherry Grove is “the first openly gay, lesbian, bisexual and transgender town in the United
States,” id. ¶3, and that Plaintiffs are members “of a segment of society that has been historically
discriminated against, including by and through acts of government repression and regulation of
conduct.” Id. ¶95. They went on to claim, by way of a partial, incomplete statement, that they
had a “genuine fear that the easements being imposed upon them unnecessarily confer upon the
governmental easement holders.” Id. ¶96. As a result, they claimed their “rights to freely
associate, to free expression, and to privacy . . . are threatened and injured by the defendants’
contemplated government actions.” Id. ¶97.
This Court declined to sign Plaintiffs’ proposed temporary restraining order, see Minute
Entry, DE [55], and denied their motion for a preliminary injunction. See Order, DE [63].

2

The

Case 2:16-cv-03542-SJF-ARL Document 101 Filed 01/08/21 Page 3 of 11 PageID #: 3337

County moved for judgment on the pleadings, see DE [40], which motion was referred to
Magistrate Judge Lindsay for report and recommendation. Magistrate Judge Lindsay
recommended, inter alia, that the County’s motion be converted to a motion for summary
judgment. See Report and Recommendation, DE [64].
Plaintiffs’ lone objection to the Magistrate Judge’s report concerned the recommendation
that no additional discovery was necessary to address the motions. Plaintiffs’ Objections, ¶3, DE
[67]. Plaintiffs acknowledged that a substantial number of documents had been submitted, but
argued that documents procured through FOIL/FOIA requests and through publicly available
sources do not constitute “the same targeted extraction of relevant materials that the Federal
Rules contemplate and provide for in the ordinary course of litigation.” Id. They did not,
however, identify any specific items of discovery that they wished to pursue.
This Court adopted the report and recommendation, see Memorandum & Order, DE [69],
and the County was directed to resubmit its motion as one for summary judgment. The County’s
motion for summary judgment, DE [78], was referred to Magistrate Judge Lindsay for report and
recommendation. The Magistrate Judge recommended that the motion be granted. See R56
Report.
Plaintiffs filed objections to the R56 Report. Plaintiffs’ Objections, DE [88]. Plaintiffs’
objections, which were summarized in this Court’s order of August 14, 2019, see Order DE [93],
addressed, inter alia, their Due Process and Equal Protection claims. Plaintiffs did not, however,
object to the recommendation that the First Amendment claim be dismissed. This Court

3

Case 2:16-cv-03542-SJF-ARL Document 101 Filed 01/08/21 Page 4 of 11 PageID #: 3338

overruled Plaintiffs’ objections and adopted the R56 Report in its entirety. See Order, DE [93].2
The County’s instant motion for attorneys’ fees followed.
II.

APPLICABLE LAW
Pursuant to §1988, a court may, in an exercise of its discretion, award attorneys’ fees to a

“prevailing party” in an action brought under § 1983. While defendants may be awarded
attorneys’ fees under §1988, such an award is appropriate “only if the plaintiff’s claim was
frivolous, unreasonable, or groundless, or the plaintiff continued to litigate after it clearly became
so.” Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir. 1994) (internal quotation marks, alteration,
and citations omitted). “A claim is frivolous where it lacks an arguable basis either in law or in
fact.” Shakur v. Selsky, 391 F.3d 106, 113 (2d Cir. 2004) (internal quotation marks and citation
omitted). “The fact that a plaintiff may ultimately lose his case is not in itself a sufficient
justification for the assessment of fees.” Hughes v. Rowe, 449 U.S. 5, 14, 101 S. Ct. 173, 66 L.
Ed. 2d 163 (1980). The Supreme Court has cautioned that “it is important that a district court
resist the understandable temptation 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. This kind of hindsight logic could discourage all but the most airtight claims, for
seldom can a prospective plaintiff be sure of ultimate success.” Christiansburg Garment Co. v.
E.E.O.C., 434 U.S. 412, 421-22, 98 S. Ct. 694, 54 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 v. Crowley, 460 F.3d 388, 399
(2d Cir. 2006) (internal quotation marks and citation omitted).

Magistrate Judge Lindsay’s recommendation that the claims against the federal defendants be
dismissed was also accepted.
2

4

Case 2:16-cv-03542-SJF-ARL Document 101 Filed 01/08/21 Page 5 of 11 PageID #: 3339

In practice, “it is very rare that victorious defendants in civil rights cases will recover
attorneys’ fees.” Sista v. CDC Isix N. Am., Inc., 445 F.3d 161, 178 (2d Cir. 2006); see also
Nardoni v. City of New York, No. 17 CIV 2695, 2019 WL 542349, at *7 (S.D.N.Y. Feb. 12,
2019) (noting that the Supreme Court “has discouraged the awarding of attorney fees and costs
where the defendant is the prevailing party”), adopted by 2019 WL 952333 (S.D.N.Y. Feb. 27,
2019); Jones v. Bay Shore Union Free Sch. Dist., No. 12-CV-4051, 2017 WL 9512405, at *2
(E.D.N.Y. Aug. 22, 2017) ( “[t]he cases set a high bar for recovery of attorneys’ fees by a
prevailing defendant in the civil rights context”), adopted by 2017 WL 3981298 (E.D.N.Y. Sept.
11, 2017). The hesitancy to award defendant attorneys’ fees arises from concerns “about the
potential chilling effect on section 1983 plaintiffs—who are the chosen instrument of Congress
to vindicate a policy of national priority.” Rounseville, 13 F.3d at 631 (internal quotation marks
and citation omitted).
III.

DISCUSSION

A. Award of Attorneys’ Fees
Upon review of this case, the Court declines to exercise its discretion to award attorneys’
fees to County arising from its defense of the Equal Protection and Due Process claims, finding
that those claims do not meet the necessary standard supporting an award of such fees. The
Plaintiffs’ First Amendment claim, however, was frivolous and thus an award of attorneys’ fees
necessary to defend that claim is warranted.
Based on their presentation of the First Amendment claim throughout this litigation, it is
clear that the claim was pressed almost as an afterthought with no factual or legal basis. The
claim was not included in the original complaint, and as pled in the Amended Complaint, the
First Amendment claim was speculative and conclusory, lacking any factual allegations. Their

5

Case 2:16-cv-03542-SJF-ARL Document 101 Filed 01/08/21 Page 6 of 11 PageID #: 3340

arguments raised in response to the motions were equally perfunctory, lacking in substance and
merit. In both their opposition to the County’s motions under Rule 12(c) and Rule 56, Plaintiffs
submitted a single, identical paragraph constituting their arguments in support of their First
Amendment claim. See Plaintiffs’ Memorandum of Law in Opposition to Suffolk County’s
Rule 12(c) Motion, at 24, DE [41]; Plaintiffs’ Memorandum of Law in Opposition to
[Defendants’] Dispositive Motions, at 32-33, DE [81]. They did not provide legal argument for
their claim, nor did they submit any non-speculative factual content that concerns any of these
particular Plaintiffs. They merely theorized that some unspecified governmental agency might
use the easements to “patrol” their properties and censure their rights, “as members of the LGBT
community,” to privacy, to freely associate, and to free expression. Their generalized basis for
this speculation was (1) the “long history in this country of oppression of the rights of
homosexuals,” and (2) the “longstanding and increasing tension between certain members of the
LGBT community in Cherry Grove and the National Park Service which patrols the neighboring
Fire Island National Seashore and frequently tickets, threatens, or intimidates those engaged in
the activities accepted and celebrated in gay culture.”
Plaintiffs raised no objection to the Magistrate Judge’s recommendation that the First
Amendment claim be dismissed. Finally, in opposition to this motion, Plaintiffs argue, inter
alia, that generally, their claims were “grounded in fact,” and were supported “with expert
proof.” Plaintiffs’ Memorandum of Law in Opposition at 16, DE [98]. These generalities
pertain to the issues of the sand replacement under the FIMI Project and the confusion Plaintiffs
purportedly experienced during the approval process. Plaintiffs make no reference, express or
implied, to the First Amendment claim much less argue that the claim was not frivolous.

6

Case 2:16-cv-03542-SJF-ARL Document 101 Filed 01/08/21 Page 7 of 11 PageID #: 3341

While the Court is not insensitive to the history of the treatment of members of the
LGBTQ community in this country, a particular plaintiff must adduce evidence that such
treatment is actually occurring in the case presented by that plaintiff. Plaintiffs here offer only
speculation and, even in opposition to the summary judgment motion, failed to present a single
fact suggesting that they had a viable claim. On this record, the Court finds that the First
Amendment claim was frivolous, unreasonable, and without foundation, and thus an award of
attorneys’ fees is warranted.
Where it is determined that there were both frivolous and non-frivolous claims, “Section
1988 permits the defendant to receive only the portion of his fees that he would not have paid but
for the frivolous claim.” Fox v. Vice, 563 U.S. 826, 836, 131 S. Ct. 2205, 180 L. Ed. 2d 45
(2011). Attorney costs related to the drafting of sections seeking dismissal of First Amendment
claim would clearly not have been incurred but for the frivolous claim. Further, the claim is not
intertwined with the other claims such that the County would have incurred those same fees to
defend the non-frivolous claims. Accordingly, the County’s motion for attorneys’ fees is granted
only to the extent of those fees incurred in defending Plaintiffs’ First Amendment claim.
B. Amount of Fee Award
The County seeks a total amount of fees in the amount of $476,878.90 . The Court will
first consider the reasonableness of the fees sought and then determine the extent to which those
fees may be allocated to defense of the First Amendment claim.
The determination of a reasonable fee lies with the Court. In this Circuit, “the lodestar—
the product of a reasonable hourly rate and the reasonable number of hours required by the
case—creates a ‘presumptively reasonable fee.’” Millea v. Metro-North R.R. Co., 658 F.3d 154,
166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of

7

Case 2:16-cv-03542-SJF-ARL Document 101 Filed 01/08/21 Page 8 of 11 PageID #: 3342

Albany, 522 F.3d 182, 183 (2d Cir. 2008)). In calculating the presumptively reasonable fee, the
court looks to what a reasonable, paying client would be willing to pay, “bear[ing] in mind that a
reasonable, paying client wishes to spend the minimum necessary to litigate the case
effectively.” Arbor Hill, 522 F.3d at 190. A party seeking an award of attorneys’ fees must
submit contemporaneous time records that indicate “for each attorney, the date, the hours
expended, and the nature of the work done.” N.Y. State Ass’n for Retarded Children, Inc. v.
Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). In support of this motion, the County has provided
an affidavit and the relevant billing records. See Affidavit of Services of John R. Casolaro
(“Casolaro Aff”), DE [96-9].
In recent § 1983 cases, courts in this District have set reasonable hourly rates at
approximately $300-$450 for partners, $200-$325 for senior associates, $100-$200 for junior
associates, and $60-$100 for paralegals. See Murray v. Marshall, No. 15-CV-500, 2020 WL
5899851, at *2 (E.D.N.Y. Mar. 16, 2020), adopted as modified by 2020 WL 3819075 (E.D.N.Y.
July 8, 2020); Haylett v. Sutton, No. 15-CV-223, 2019 WL 8128547, at *3 (E.D.N.Y. Aug. 8,
2019), adopted by 2020 WL 1061406 (E.D.N.Y. Mar. 5, 2020); Martinez v. City of New York,
330 F.R.D. 60, 70 (E.D.N.Y. 2019). Applying these standards, the hourly rates charged by
defense counsel must be adjusted.
While Mr. Casolaro is a partner with many years’ experience, he has presented no
specialized expertise warranting an upward departure from the top rate awarded in this District.
His hourly rate is reduced to $450. Two professionals, Lee Ohliger and Alexander Malyshev,
are “of counsel” to the firm. Mr. Ohliger has practiced law since 1981 and has some
demonstrated some experience in relevant areas of the law. His hourly rate will also be capped
at $450. Mr. Malyshev, however, is described only as “counsel in the litigation department” who

8

Case 2:16-cv-03542-SJF-ARL Document 101 Filed 01/08/21 Page 9 of 11 PageID #: 3343

has been “practicing law since 2010.” Casolaro Aff. at ¶5(c). Given the lack of detail, a senior
associate rate of $300 is appropriate.
Two associates billed time on this matter. Michael Bauscher, an associate in the
litigation department, has been practicing law since 2011. Beyond his experience in representing
“a number of condemnors in various matters,” Casolaro Aff. at ¶5(d), the County has provided
no detail suggesting that the upper hourly rate is reasonable. Mr. Bauscher’s hourly rate will be
set at a mid-senior associate level of $250. Another professional, Elaine Nguyen is identified
summarily as “an associate in the litigation department.” Id. at ¶5(e). Absent any information
regarding the length and breadth of Ms. Nguyen’s experience, the lowest hourly rate for a junior
associate, $100, will be used.
Defendants further seek an award of billings made by Managing Attorneys Dennis
Murphy and Antonio Malaspina, as well as paralegal Bill Borenstein. An hourly rate of $100
will be applied for each of these individuals.
The following summary applies the adjusted hourly rates to the hours billed:
Billing Prof’l
J. Casolaro
L. Ohliger
M Bauscher
A. Malyshev
E. Nguyen
D. Murphy
A. Malaspina
B. Borenstein
TOTALS:

Total Hours
349.80
317.70
432.70
9.00
99.8
.90
11.6
27.50
1149.2

Adj. Hourly Rate
$450
$450
$250
$300
$100
$100
$100
$100

Amount
$157, 410.00
$142,965 .00
$108,175.00
$2,700.00
$9,980.00
$90.00
$1,160
$2,850.00
$425,230.00

Turning to whether the hours expended were reasonable, the Court must “use [its]
experience with the case, as well as [its] experience with the practice of law, to assess the
reasonableness of the hours spent . . . in a given case.” Fox Indus., Inc. v. Gurovich, No. 03 Civ.
5166, 2005 WL 2305002, at *2 (E.D.N.Y. Sept. 21, 2005) (quoting Clarke v. Frank, 960 F.2d
9

Case 2:16-cv-03542-SJF-ARL Document 101 Filed 01/08/21 Page 10 of 11 PageID #: 3344

1146, 1153 (2d Cir. 1992)). Hours that are excessive, redundant, or otherwise unnecessary to the
litigation should be excluded. See Hensley v. Eckerhart, 461 U.S. 424, x, 103 S. Ct. 1933, 76 L.
Ed. 2d 40 (1983). In addition, the use of block billing, which makes it difficult for a court to
assess the reasonableness of the work billed, may warrant reductions. See Kindle v. Dejana, 308
F. Supp. 3d 698, 704-05 (E.D.N.Y. 2018); see also Bhungalia Family, LLC v. Agarwal, 317 F.
Supp. 3d 727, 742 (S.D.N.Y. 2018) (the use of block billing “hinders this Court’s ability to
understand how much time was devoted to particular tasks, so as to determine whether that time
was reasonably spent.”). To remedy these billing issues, district courts have the authority to
“make across-the-board percentage cuts in hours as a practical means of trimming fat from a fee
application.” Green v. City of New York, 403 F. App’x 626, 630 (2d Cir. 2010) (internal
quotation marks and citation omitted); see also T.S. Haulers, Inc. v. Cardinale, No. 09 CV 0451,
2011 WL 344759, at *3 (E.D.N.Y. Jan. 31, 2011) (the court may exclude “excessive and
unreasonable hours from its calculation by making an across-the-board reduction, or percentage
cut, in the amount of hours.”).
Upon review of the contemporaneous billing records provided, the Court determines that
a 25% across-the-board fee cut is appropriate to address issues including block billing and
duplicate billings created by numerous interoffice consultations between billing professionals.
Making this adjustment, the presumptively reasonable fee is set at $318,922.50.
Having established the amount of the reasonable fee, the portion of that fee that was
attributable to the County’s defense of the First Amendment claim must be determined. The
County did not request its fees on a claim-by-claim basis and the billing records themselves do
not break down the work performed by claim. Looking to the papers submitted by the County on
their motions, it is clear that the defense was understandably focused on Plaintiffs’ viable claims

10

Case 2:16-cv-03542-SJF-ARL Document 101 Filed 01/08/21 Page 11 of 11 PageID #: 3345

to a far greater degree than the First Amendment claim. Of the 127 pages of briefing submitted
by the County in support of its motion for judgment on the pleadings and motion for summary
judgment, see DEs [40-1], [42], [78], [82], approximately eight (8) pages, or about 6.3%, were
devoted to Plaintiffs’ First Amendment claim. As the billing records do not support a
determination that the amount of time expended was greater, the Court in its discretion finds that
an award of 6% of the total amounts billed is appropriate. Accordingly, the County is awarded
$19,135.35 in attorneys’ fees.
IV.

CONCLUSION
For the reasons set forth above, the County’s motion [96] is granted to the extent that it is

awarded $19,135.35 in attorneys’ fees expended as to the First Amendment claim and denied in
all other regards.
SO ORDERED.
/s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: Central Islip, New York
January 8, 2021

11