Firetree, Ltd. et al v. Town of Colonie et al

Filing 75

MEMORANDUM-DECISION and ORDER - That Colonie defendants' 71 Motion for Attorney Fees and Costs is GRANTED, however the awards requested are reduced to $17,874.43 in attorneys' fees and $1,140.20 in costs. Signed by Chief Judge Gary L. Sharpe on 11/21/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
FIRETREE, LTD. et al.,
Plaintiffs,

1:11-cv-95
(GLS/RFT)

v.
TOWN OF COLONIE et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Shulman, Howard Law Firm
17 Old Route 66
P.O. Box 1000
Averill Park, NY 12018
FOR THE DEFENDANTS:
Friedman, Hirschen Law Firm
100 Great Oaks Blvd.
Suite 124
Albany, NY 12203

FRANKLIN K. BRESELOR, ESQ.

CAROLYN B. GEORGE, ESQ.

Bloomberg, Magguilli Law Firm
109 State Street
Albany, NY 12207

MICHAEL C. MAGGUILLI, ESQ.

Town of Colonie
534 Loudon Road
Newtonville, NY 12128

REBEKAH R.N. KENNEDY, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction1
Plaintiffs Firetree, Ltd. and Orange Stones Company (collectively
“Firetree”) commenced this action under 42 U.S.C. § 1983 against
defendants Town of Colonie, New York, Joseph LaCivita, Michael M.
Rosch, Michael J. Lyons, Michael C. Magguilli and Paula A. Mahan
(collectively “Colonie defendants”), alleging violations of their First, Fifth
and Fourteenth Amendment rights. (See Compl., Dkt. No. 1.)
On October 9, 2012, this court granted Colonie defendants’ motion for
summary judgment, dismissing all of Firetree’s causes of action.2 (See
Dkt. Nos. 69.) Pending is Colonie defendants’ motion for attorneys’ fees
and costs. (See Dkt. No. 71.) For the reasons that follow, the motion is
granted; however the fees requested are reduced.
II. Legal Standard
Generally, the so-called “American Rule” mandates “each party to
bear his own litigation expenses, including attorney’s fees, regardless

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Although Firetree filed a Notice of Appeal, (see Dkt. No. 73), the court maintains
residual jurisdiction over collateral matters such as attorneys’ fees and costs. See Tancredi v.
Metro. Life Ins. Co., 378 F.3d 220, 225 (2d Cir. 2004).
2

The parties’ familiarity with the underlying facts and procedural history is presumed.
The court refers the parties to its discussion thereof in its October 9, 2012 MemorandumDecision and Order. (See Dkt. No. 69 at 2-6.)

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whether he wins or loses.” See Fox v. Vice, 131 S. Ct. 2205, 2213 (2011).
However, Congress has enacted fee shifting provisions which permit a
prevailing party to recoup costs from its adversary in certain types of cases.
See id. (citing Burlington v. Dague, 505 U.S. 557, 562 (1992)). To this end,
42 U.S.C. § 1988 authorizes courts to award “a reasonable attorney’s fee
as part of the costs” to the prevailing party in any action brought under,
inter alia, section 1983. 42 U.S.C. § 1988(b). Although available to both
parties, attorney’s fees may only be awarded to a defendant if either the
entirety, or a part, of the “plaintiff’s action was frivolous, unreasonable, or
without foundation.” Fox, 131 S. Ct. at 2213 (internal quotation marks and
citations omitted). In making this determination, and thereafter calculating
the reasonable fee, trial courts are granted “substantial deference.” Id. at
2216. “[R]ough justice,” and not “auditing perfection” is the goal of the fee
shifting provision. Id. Thus, “trial courts may take into account their overall
sense of a suit, and may use estimates in calculating and allocating an
attorney’s time.” Id.
III. Discussion
Colonie defendants argue that all of Firetree’s causes of action were
frivolous, and thus they, as the prevailing party, are entitled to attorneys’
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fees. (See Dkt. No. 71, Attach. 5 at 1-5.) In response, Firetree claims that
its Complaint alleged “a serious and manifest injustice,” and, while subtly
rearguing its theory of the case, takes exception with each of the bases
Colonie defendants cite in support of their motion. (Dkt. No. 72, Attach. 1
at 5-20.) Furthermore, Firetree claims there are “unresolved issues” with
Colonie defendants’ fee request, though it does contest the
reasonableness of the hourly rates sought. (Id. 20-21.) After considering
the overall record, the court concludes that Firetree’s First and Fifth
Amendment causes of action had no basis in law or fact.
First, Firetree’s takings claim was flawed from its inception. Despite
its assertion that it brought the “claim in good faith, based on pleadings in
other cases,” and “promptly” acknowledged the deficiency therein,
Firetree’s concession was neither prompt nor forthright. (See Dkt. No. 72,
Attach. 1 at 9.) Indeed, it was not until Colonie defendants’ filed their
motion for summary judgment that Firetree “recognize[d]” that there “may”
be a flaw in its Fifth Amendment claim. (Dkt. No. 66, Attach. 1 at 15.)
Notwithstanding its reliance on “pleadings in other cases,” (Dkt. No. 72,
Attach. 1 at 9), the facts of this case—specifically the failure to even seek
compensation through the state’s procedure, (see Dkt. No. 69 at 8)—did
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not support Firetree’s cause of action.
Likewise, its First Amendment retaliation claim was also baseless.
This is so because in order to even state a claim for retaliation, Firetree
had to allege, inter alia, that Colonie defendants’ “action[s] effectively
chilled the exercise of [its] First Amendment rights.” Connell v. Signoracci,
153 F.3d 74, 79 (2d Cir. 1998). Here, there was no evidence that Firetree’s
right to seek judicial redress was chilled. (See Compl. ¶¶ 89-94.) In fact,
after receiving the allegedly retaliatory letter, Firetree not only continued to
prosecute its Article 78 proceeding, but also pursued an appeal. (See id.
¶¶ 49, 67-76.) Thus, based on its own allegations, the court is unable to
discern any basis in law or fact for Firetree’s First Amendment claim.
However, Firetree’s due process claim was not frivolous. Not only
did it present a moderately complex question of law that partially eluded
Colonie defendants, (see Dkt. No. 69 at 6 n.3.), but it also could not have
been resolved on the pleadings alone. Rather, as the docket shows, this
case necessitated multiple consultations with Magistrate Judge Treece to
resolve legitimate discovery disputes on issues such as the attorney-client
privilege. While the claim was ultimately unsuccessful, the court disagrees
that it rose to the level of frivolity.
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In sum, the record unequivocally shows that Firetree’s retaliation and
takings clause causes of action were “frivolous . . . [and] without
foundation.” Fox, 131 S. Ct. at 2213. Although both are recognized claims,
neither the law nor the facts of this case supported Firetree’s assertion of
them. See id. at 2214. It follows that Colonie defendants are entitled to
fees with respect to these claims.
As for the $34,830.15 in fees requested, which represents the total
amount billed for attorneys’ services, the court concurs with Colonie
defendants that its hourly rates are reasonable, (see Dkt. No. 71, Attach. 3
¶ 3), but only finds support in the attached records for $26,811.65 in
attorneys’ fees, (see Dkt. No. 71, Attach. 2), and $1,140.20 in costs, (see
Dkt. No. 71, Attach. 6). See Fed. R. Civ. P. 54(d)(2)(B); Weyant v. Okst,
198 F.3d 311, 316 (2d Cir. 1999) (stating that the cost of preparing a
section 1988 motion “should be granted whenever underlying costs are
allowed”) (internal quotation marks and citation omitted). Moreover, the
fees need to be reduced by one-third to exclude compensation for
Firetree’s due process claim.3 Accordingly, Colonie defendants’ are
3

Firetree’s response includes a cursory discussion of reasonableness, in which it
states that Colonie defendants “should be required to demonstrate how and why the amounts
claimed were directly incurred by” them. (Dkt. No. 72, Attach. 1 at 20-21.) In support of this
assertion, Firetree references the Town’s insurance policy and cites to Fox, presumably to

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awarded $17,874.43 in attorneys’ fees and $1,140.20 in costs.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Colonie defendants’ motion for attorneys’ fees and
costs (Dkt. No. 71) is GRANTED, however the awards requested are
reduced to $17,874.43 in attorneys’ fees and $1,140.20 in costs; and it is
further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
November 21, 2012
Albany, New York

suggest that a defendant cannot recover costs paid by an insurance carrier. (See id.)
However, that is not what Fox, 131 S. Ct. at 2214, stands for. Instead, the Supreme Court
explicitly stated that Section 1988 “serves to relieve a defendant of expenses attributable to
frivolous charges. The plaintiff acted wrongly in leveling such allegations, and the court may
shift to him the reasonable costs that those claims imposed on his adversary.” Id. While the
court rejects Firetree’s contention on the law, it is a moot point as Colonie defendants’ reply
clarifies that it is the Town who is first responsible for the fees. (See Dkt. No. 74 at 11.)

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