Waronker v. Hempstead Union Free School District et al
Filing
78
ORDER ADOPTING IN PART 73 Report and Recommendation and GRANTING IN PART AND DENYING IN PART 68 Motion for Attorney Fees: For the reasons discussed in the attached, Defendants objections are OVERRULED IN PART. The Court ADOPTS IN PART the reasoni ng in the Report & Recommendation. Defendants' motion for attorneys' fees is GRANTED IN PART and DENIED IN PART. The Clerk of Court is directed to amend the judgment and award Defendants $245.00 in costs. Ordered by Judge Denis R. Hurley on 3/16/2021. (Ready, John)
Case 2:18-cv-00393-DRH-SIL Document 78 Filed 03/16/21 Page 1 of 11 PageID #: 3811
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SHIMON WARONKER,
Plaintiff,
- against -
ORDER ADOPTING IN PART
REPORT AND
RECOMMENDATION
2:18-cv-393 (DRH) (SIL)
HEMPSTEAD UNION FREE SCHOOL
DISTRICT, BOARD OF EDUCATION OF THE
HEMPSTEAD SCHOOL DISTRICT, DAVID B.
GATES, in his individual and official capacity,
RANDY STITH, in his individual and official
capacity, LAMONT E. JACKSON, in his
individual and official capacity as Clerk of the
Hempstead School District,
Defendants.
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HURLEY, Senior District Judge:
INTRODUCTION
Presently before the Court is the Report and Recommendation of Magistrate
Judge Steven I. Locke, dated January 14, 2021 (the “R&R”) [DE 73], recommending
that the Court deny the captioned Defendants’ motion for attorneys’ fees. Defendants
filed objections on January 28, 2021, Plaintiff responded on February 25, 2021, and
Defendants replied on March 4, 2021. For the reasons stated below, Defendants’
objections are OVERRULED IN PART, the R&R is ADOPTED IN PART and
Defendants’ motion for attorneys’ fees is GRANTED IN PART and DENIED IN
PART.
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BACKGROUND
The Court adopts the R&R’s Background Section, to which no objection is
lodged. (R&R at 1–2). In brief, Plaintiff alleged Defendants’ retaliation against him
violated his constitutional rights and his New York state whistleblower protections,
as well as breached their contract. (Id.). Plaintiff sought a temporary restraining
order (“TRO”) simultaneously with the filing of his Complaint. (R&R at 2 (citing [DE
3])). The Court denied the TRO and later granted Defendants’ motion to dismiss for
failure to state a claim upon which relief could be granted. (Id. (citing Memorandum
& Order dated Jan. 16, 2019 (“MTD Order”) [DE 47] 1)). Plaintiff appealed to the
Second Circuit, who affirmed the Court’s dismissal in its entirety, and later
unsuccessfully petitioned for a writ of certiorari to the Supreme Court. (See id.).
Defendants seek to recover attorneys’ fees incurred in defeating Plaintiff’s case. [DE
68].
Magistrate Judge Locke found Plaintiff’s claims not “so frivolous as to warrant
the relief Defendants seek” and therefore recommends the Court deny the request in
its entirety. (R&R at 6). Defendants raise five objections: the R&R (1) applied the
wrong standard; (2) “ignored this Court’s holding following argument” on the TRO;
(3) disregarded documentary evidence of frivolousness; (4) relied on “incomplete or
inappropriate statements”; and (5) failed to “address the costs awarded to the
The MTD Order is published at Waronker v. Hempstead Union Free Sch.
District, 2019 WL 235646 (E.D.N.Y. Jan. 16, 2019).
1
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Defendants from the Second Circuit.” (See Def.’s Objections to the R&R (“Def. Obj.”)
[DE 74]).
DISCUSSION
Federal Rule of Civil Procedure 72(b) provides that when a magistrate judge
issues a report and recommendation on a matter “dispositive of a claim or defense of
a party,” the district court judge shall make a de novo determination of any portion
of the magistrate judge’s disposition to which specific written objection has been
made. Fed. R. Civ. P. 72(b).
I.
Standard for Attorneys’ Fees
Defendant argues “the R&R should be overruled for failing to examine all of
the required bases” applicable to an award of attorneys’ fees pursuant to 42 U.S.C.
§ 1988. Def. Obj. at 4. Specifically, Defendant states that the R&R “did not address
the ‘groundless’ standard.” Id. To the contrary, the R&R specifically addressed and
rejected Defendants’ argument on groundlessness: “Defendants’ argument that
Plaintiff should have withdrawn his claims upon the denial of his request for a TRO
because such denial established the groundlessness of his claims also fails.” R&R at
8–9. Moreover, the Supreme Court has “point[ed] out that the term ‘meritless’ is to
be understood as meaning groundless or without foundation.”
Christianburg
Garment Co. v. E.E.O.C., 434 U.S. 412, 421–22 (1978) (holding plaintiff’ action must
be “frivolous, unreasonable, or without foundation”).
Hence, the R&R uses
“groundless,” “frivolous,” and the like interchangeably. E.g., R&R at 5.
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District courts may award attorneys’ fees to a prevailing defendant “upon a
finding that the plaintiff’s action was frivolous, unreasonable, or without foundation,
even though not brought in subjective bad faith.” Christianburg, 434 U.S. at 421.
Defendants’ first objection here merely restates its motion to dismiss arguments. Def.
Obj. at 6. For example, because Plaintiff was “placed on administrative leave of
absence with pay,” and not terminated, no liberty interest was implicated. Id. at 6.
While this contention succeeded on the dismissal motion, it alone is not enough to
win attorneys’ fees. To hold otherwise is to say “that because a plaintiff did not
ultimately prevail, his action must have been unreasonable or without foundation.”
Christianburg, 434 U.S. at 421–22. The Supreme Court expressly warns against
engaging in this kind of “post hoc reasoning.” Id. Defendants’ first objection is
overruled.
II.
The Court’s Holding Following Argument on the TRO
Defendant next objects that the R&R failed to recognize that Plaintiff
continued to litigate his claim despite being told, with the denial of the TRO, that he
had no federal claims. Def. Obj. at 7–8. Boiled down: “the Plaintiff was told his claims
were groundless on January 30, 2018 (the date the Plaintiff’s application for [a TRO]
was denied), yet he pursued discovery, forced the Defendants to make a motion to
dismiss, appealed the Court’s decision to the Second Circuit, and filed a Writ of
Certiorari with the United States Supreme Court.” Id. at 8.
Defendants overread the Court’s ruling on the TRO.
The transcript
demonstrates that the Court’s decision was for “the purposes of the present [TRO]
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motion” only. Tr. of Proceedings at 57:23–24, 59:14–15, 62:19–20, 78:21–22, Ex. 33
(“TRO Hearing Tr.”) [DE 68-33] to Aff. of Jonathan L. Scher, Esq. [DE 68-1]. That is,
the Court made no “specific determination as to the merits” beyond a likelihood of
success. LaRouche v. Kezer, 20 F.3d 68, (2d Cir. 1994).
The Court’s denial of the TRO did not have any preclusive effect on the
subsequent motion to dismiss – neither as law of the case or otherwise. The standard
on a TRO and the standard on a motion to dismiss are very different. Oneida Grp.
Inc. v. Steelite Int’l U.S.A. Inc., 2017 WL 6459464, at *8 (E.D.N.Y. Dec. 15, 2017)
(“The showing required for [a TRO] is higher than one to overcome a motion to
dismiss.”). For example, the Court must “accept as true the well-pleaded allegations
in” the Complaint on a motion dismiss, but not for a TRO. KDH Consulting Grp. LLC
v. Iterative Cap. Mgmt., 2020 WL 2554382, at *5 (S.D.N.Y. May 20, 2020). TROs
require “a showing of the likelihood of success on the merits,” which is “a more
rigorous standard than [the] plausibility” standard on a motion to dismiss. Kraus
USA, Inc. v. Magarik, 2020 WL 2415670, at *6 n.7 (S.D.N.Y. May 12, 2020). To say
“the Court denied the Plaintiff’s [TRO] because . . . the Plaintiff had no federal claims,
as a matter of law” misunderstands the Court task on a TRO. Def. Obj. at 9. The
Court’s TRO denial does not mark a point in time beyond which continued litigation
is frivolous, and Defendants cite no case with such a holding.
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The Court reiterates with approval Judge Locke’s final thoughts in the R&R’s
Discussion Section:
Defendants’ argument that Plaintiff should have withdrawn his claims
upon the denial of his request for a TRO because such denial established
the groundlessness of his claims also fails. Were this Court to accept
Defendants’ assertions in this context, all plaintiffs who believe their
claims will be bolstered by discovery despite the denial of a TRO would
be at risk of being responsible for their adversaries’ fees.
R&R at 8–9. The law is not as unforgiving as Defendants would have it. Defendants’
second objection is overruled.
III.
Documentary Evidence of Frivolousness
Defendants’ third objection asserts that Plaintiff knew from the outset that the
action was frivolous given “the long-standing precedent binding upon this Court” as
to Plaintiff’s three federal claims. Def. Obj. at 13–22. Defendants are correct that
binding precedent established the insufficiency of Plaintiff’s allegations to state a
claim. See MTD Order. To award attorneys’ fees on this basis, however, would be to
give into the “understandable temptation to engage in post hoc reasoning” noted
above. Christiansburg, 434 U.S. at 421–22.
Even where “[h]indsight proves the plaintiff’s allegation . . . was very weak,”
courts have not awarded victorious defendants attorneys’ fees. Tancredi v. Metro.
Life Ins. Co., 378 F.3d 220, 230 (2d Cir. 2004); see also Sista v. CDC Ixis N.A., Inc.,
445 F.3d 161, 178 (2d Cir. 2006) (“Although the claim of racial discrimination in this
case is very weak, we agree with the District Court that it is not so frivolous as to
warrant an award of attorneys’ fees.” (internal citation and quotation marks
omitted)); Panetta v. Crowley, 460 F.3d 388, 399 (2d Cir. 2006). “’The fact that a
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plaintiff may ultimately lose his case is not in itself a sufficient justification for the
assessment of fees’ in favor of the defendant.” LeBlanc-Sternberg v. Fletcher, 143
F.3d 765, 770 (2d Cir. 1998) (quoting Hughes v. Rowe, 449 U.S. 5, 14 (1980)).
The Supreme Court’s observation here is important: “[T]he course of litigation
is rarely predictable. . . . The law may change or clarify in the midst of litigation.”
Christiansburg, 434 U.S. at 421–22 (emphasis added). Often, that change in the law
may occur as a result of a party’s efforts in litigation – which may sometimes require
inviting Supreme Court review. Def. Obj. at 8 (detailing the Plaintiff’s efforts to
obtain Second Circuit and Supreme Court review); cf. Patterson v. McLean Credit
Union, 485 U.S. 617, 617 (1988) (“It is surely no affront to settled jurisprudence to
request argument on whether a particular precedent should be modified or
overruled.”).
To chill civil rights plaintiffs from doing so (say, by awarding
Defendants’ attorneys’ fees) would only impede “the chosen instrument of Congress
to vindicate a policy of the highest national priority.” Rounseville v. Zahl, 13 F.3d
625, 632 (2d Cir. 1994) (internal quotation marks omitted) (quoting Santiago v.
Victim Servs. Agency of Metro. Assistance Corp., 753 F.2d 219, 221 (2d Cir. 1985)).
Defendants’ reliance on the Fourth Circuit decision in Hutchinson v. Staton,
994 F.3d 1076 (4th Cir. 1993), does not persuade the Court. Def. Obj. at 19. Unlike
here, the Hutchinson plaintiff “alleged a two-county-wide election-rigging conspiracy
worthy of an Oliver Stone screenplay.” Id. at 1081. Defendants’ third objection is
overruled.
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IV.
The R&R’s Reliance on “Incomplete or Inappropriate Statements”
Defendants’ fourth objection targets the R&R’s invocation of this Court’s
closing thoughts on the motion to dismiss as well as reasoning proffered by Plaintiff
in opposition to the motion for attorneys’ fees. See R&R at 8 (quoting MTD Order at
17–18). Defendants suggest the R&R “placed disproportionate emphasis” on “the
equivalent of dicta” and unsworn assertions from “Plaintiff’s counsel, not the
Plaintiff.” Def. Obj. at 22–23. The Court observes that the R&R did not rely on the
Court’s expressed concerns to reach its recommendation; the R&R merely “notes” the
concerns. R&R at 8.
Section 1988(b) affords the Court “discretion” to award attorneys’ fees to a
prevailing party. 42 U.S.C. § 1988(b). This discretion comports with “essential goal
in shifting fees (to either party) [] to do rough justice” and permits the Court to “take
into account [its] overall sense of a suit.” Fox v. Vice, 563 U.S. 826, 838 (2011).
Though both this Court and the R&R reach their conclusions independent of the
concerns, they offer a view into our “overall sense” of the suit. See Fox, 563 U.S. at
838. Such concerns are real. Counting the R&R, this is the fourth time in which the
Court shares them with the parties. TRO Hearing Tr. at 78:17–21 (“I am concerned
as I’m sure everybody in this room is with the progress or the lack of progress that is
being made in the school district in Hempstead . . . .”); MTD Order at 17–18
(“Notwithstanding the deeply troubling allegations brought against the [Defendants],
both with regards to their conduct toward Plaintiff as well as the long history of
apparent corruption and neglect in the discharge of their duties . . . .”); R&R at 8.
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Nevertheless and putting aside its concerns, the Court agrees with the R&R’s
conclusion: Defendants have not met their burden to show Plaintiff’s claims were
frivolous, unreasonable, groundless, or without foundation. R&R at 9. Defendants’
fourth objection is overruled.
V.
Costs Awarded by the Second Circuit
Defendants’ fifth objection concerns the R&R’s failure to consider a request,
first made in Defendants’ Reply Memorandum of Law, for “$245.00 due and owing . . .
pursuant to the Second Circuit’s award of costs.” Def. Obj. at 24 (quoting Defs.’ Mem.
of Law in Further Support at 3 [DE 70-12]). Arguments and requests for relief raised
for the first time on reply are considered waived and need not be considered. E.g.,
Castro v. Holder, 597 F.3d 93, 95 n.2 (2d Cir. 2010).
As such, Judge Locke
appropriately declined to address the request.
Arguments made for the first time on reply often “preclude[e] the [nonmovant]
from offering a meaningful response.” See Markes v. Metro. Life Ins. Co. 1999 WL
325401, at *3 (internal quotation marks omitted) (quoting Mercer Tool Corp. v.
Friedr. Dick GmbH, 179 F.R.D. 391, 398 (E.D.N.Y. 1998)). Regular consideration of
untimely arguments “would encourage the raising of new arguments in a reply.”
Mayer v. Neurological Surgery, P.C., 2016 WL 347329, at *4–5 (E.D.N.Y. Jan. 28,
2016).
In the same vein, issues not considered by a magistrate are ordinarily not
considered by the district court, even if objections are lodged. E.g., Lombardi v.
Choices Women’s Med. Ctr. Inc., 2017 WL 1102678, at *1 (E.D.N.Y. Mar. 23, 2017)
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(“A court will not ‘ordinarily . . . consider arguments, case law and/or evidentiary
material which could have been, but [were] not, presented to the magistrate judge in
the first instance.’” (quoting Santiago v. City of New York, 2016 WL 5395837 at *1
(E.D.N.Y. Sept. 26, 2016))).
Here, Defendants objected on this issue, giving Plaintiff an opportunity to
respond. Plaintiff offers no argument in opposition, mentioning in a footnote that
“Defendants’ last objection is that the [R&R] did not address the costs awarded by
the Second Circuit to the defendants.” Pl. Opp. at 7 n.2. “[W]hen an appeal is
dismissed, or it results in an affirmation of the judgment below, costs are
automatically taxed to the appellant.” Genger v. Sharon, 2014 WL 12935372, at *2
(S.D.N.Y. Nov. 10, 2014) (citing Fed. R. App. P. 39(a)(1)–(2)); e.g., Blue v. Cablevision
Sys., N.Y.C. Corp., 2007 WL 1989258, at *1 (E.D.N.Y. July 5, 2007). “[T]he awarding
of the appellate costs listed in [Federal Rule of Appellate Procedure] 39(e)(1)–(4) to a
prevailing party under (a)(1), (2), or (3) is essentially a ministerial task, specifically
entrusted under the Rule 39 to the lower court.” Chapman v. ChoiceCare Long Island
Long Term Disability Income Plan, 2007 WL 1467146, at *14 (E.D.N.Y. May 16,
2007), aff'd sub nom. 2009 WL 39892 (2d Cir. Jan. 8, 2009). As such, Defendants are
entitled to $245.00. See Statement of Costs [DE 60].
CONCLUSION
For the reasons discussed above, Defendants’ objections are OVERRULED IN
PART. The Court ADOPTS IN PART the reasoning in the R&R. Defendants’ motion
for attorneys’ fees is GRANTED IN PART and DENIED IN PART. The Clerk of Court
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is directed to amend the judgment and award Defendants $245.00 in costs. See
Judgment [DE 48].
SO ORDERED.
Dated: Central Islip, New York
March 16, 2021
s/ Denis R. Hurley
Denis R. Hurley
United States District Judge
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