Neroni v. Coccoma et al

Filing 77

MEMORANDUM-DECISION and ORDER - That defendants' 62 Motion for Attorney Fees and 63 Motion for Attorney Fees are GRANTED. That Neroni is liable for defendants' costs and attorneys' fees totaling $10,502 to HHK and $5,967.50 to LGT. Signed by Chief Judge Gary L. Sharpe on 8/6/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
FREDERICK J. NERONI,
Plaintiff,

3:13-cv-1340
(GLS/DEP)

v.
ELLEN L. COCCOMA et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Frederick J. Neroni
Pro Se
203 Main Street
Delhi, NY 13753
FOR THE DEFENDANTS:
Hinman, Howard & Kattell, LLP
Hinman, Howard Law Firm
P.O. Box 5250
80 Exchange Street
700 Security Mutual Building
Binghamton, NY 13902-5250
Levene, Gouldin and Thompson, LLP,
Margaret Fowler
Hiscock, Barclay Law Firm
One Park Place
300 South State Street
Syracuse, NY 13202-2078
Gary L. Sharpe
Chief Judge

JAMES S. GLEASON, ESQ.

ROBERT A. BARRER, ESQ.

MEMORANDUM-DECISION AND ORDER
I. Introduction1
Plaintiff pro se Frederick J. Neroni commenced this action against,
among others, defendants Hinman, Howard & Kattell, LLP (HHK), Levene,
Gouldin and Thompson, LLP, and Margaret Fowler, (Levene, Gouldin and
Thompson, LLP and Fowler are collectively referred to as LGT), 2 pursuant
to 42 U.S.C. 1983, alleging violations of his Fourth, Fifth, and Fourteenth
Amendment rights. (Compl., Dkt. No. 1.) Pending are HHK and LGT’s
motions for costs and attorneys’ fees. (Dkt. Nos. 62, 63.) HHK seeks
costs and fees in the amount of $10,502, and LGT seeks costs and fees in
the amount of $5,967.50. (Dkt. No. 62, Attach. 1 at 2; Dkt. No. 63, Attach.
1 at 2.) For the reasons that follow, the motions are granted.
II. Background
On December 4, 2013, defendants moved to dismiss Neroni’s
complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6), and also requested
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Although Neroni filed a Notice of Appeal, (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).
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Although not relevant to this motion, Neroni also named as defendants several current
and former state court judges and officials, including Ellen L. Coccoma, Michael V. Coccoma,
Robert Mulvey, A. Gail Prudenti, Kevin Dowd, Eugene Peckham, Karen Peters, Thomas
Mercure, and Kelly Sanfilippo. (See generally Compl., Dkt. No. 1.)

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attorneys’ fees. (Dkt. Nos. 29, 30.) In a June 5, 2014 MemorandumDecision and Order, the court granted defendants’ motions to dismiss, but
denied defendants’ request for attorneys’ fees and costs, with leave to
renew.3 (Dkt. No. 59)
III. Legal Standard
Generally, the so-called “American Rule” mandates “each party to
bear his own litigation expenses, including attorney’s fees, regardless
whether he wins or loses.” See Fox v. Vice, 131 S. Ct. 2205, 2213 (2011).
“Notwithstanding the American Rule, however, [the Supreme Court has]
long recognized that 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 v. Gen. Revenue Corp., 133 S. Ct.
1166, 1175 (2013).
In addition to the court’s inherent power, Congress has enacted fee
shifting provisions which permit a prevailing party to recoup costs in certain
types of cases. See Fox, 131 S. Ct. at 2213 (citing Burlington v. Dague,
505 U.S. 557, 562 (1992)). To this end, 42 U.S.C. § 1988(b) authorizes

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Familiarity with the underlying facts, Neroni’s claims, and the court’s June 5, 2014
Memorandum-Decision and Order is presumed.

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courts to award “a reasonable attorney’s fee as part of the costs” to the
prevailing party in any action brought under § 1983. Although available to
both parties, attorneys’ 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.4
IV. Discussion
Neroni raises several arguments opposing defendants’ motions, most
of which relate to the court’s authority to impose fees and the
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The court notes that, in addition to 42 U.S.C. § 1988, “which shifts attorneys’ fees
from one party to another,” Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986), 28 U.S.C.
§ 1927 provides that, “[a]ny attorney or other person admitted to conduct cases in any court of
the United States . . . who so multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally the excess costs, expenses, and
attorneys’ fees reasonably incurred because of such conduct.” Although the Second Circuit
has held that § 1927 is not applicable to non-lawyers, Sassower v. Field, 973 F.2d 75, 80 (2d
Cir. 1992), it is unclear whether that is still the rule in this Circuit, see Davey v. Dolan, 292 F.
App’x 127, 128 (2d Cir. 2008) (affirming district court’s imposition of sanctions on pro se, nonattorney plaintiff pursuant to § 1927). This question, however, is of no moment, as the court is
authorized to award attorneys’ fees pursuant to § 1988 and its inherent power. See 42 U.S.C.
§ 1988(b); Marx, 133 S. Ct. at 1175.

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reasonableness of the fees themselves. (See generally Dkt. Nos. 69, 71.)
After a thorough review of the record, the court concludes that all of
Neroni’s arguments are unpersuasive and warrant little discussion. In fact,
in determining whether Neroni has proceeded with this litigation in bad
faith, as the court must, it need look no further than the assertions made in
Neroni’s most recent submissions. Indeed, the arguments adduced in
Neroni’s briefs epitomize, and may even surpass, the level of frivolity that
generally warrants the imposition of attorneys’ fees. 5
A.

Prevailing Party and Finding of Bad Faith
First, Neroni contends, without citing any authority, that defendants

are not the prevailing parties because “[l]ack of state action only means
that an Article III court does not have authority to review a claim.” (Dkt. No.
69 at 14-15.) The court disagrees. “[I]n order to be considered a
‘prevailing party’ . . . , a [party] must not only achieve some material

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For instance, citing no authority, Neroni contends that awarding attorneys’ fees is
inappropriate because punishment for frivolous conduct of civil rights plaintiffs contradicts the
anti-majoritarian rule of the Supreme Court, violates the Supremacy Clause of the United
States Constitution, and runs contrary to the congressional intent and purpose of § 1983. (Dkt.
No. 69 at 9-12.) Again without citation, Neroni further argues that the court lacks authority to
impose attorneys’ fees “because such imposition will be an unconstitutional viewpoint
discrimination not meeting strict scrutiny.” (Id. at 13-14.) Finally, despite the fact that
defendants have not filed a Rule 11 motion, Neroni raises several arguments concerning the
court’s authority to impose sanctions pursuant to Rule 11. (Id. at 15-17.) The court has
considered, and rejects, each of Neroni’s arguments.

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alteration of the legal relationship of the parties, but that change must also
be judicially sanctioned.” Roberson v. Giuliani, 346 F.3d 75, 79 (2d Cir.
2003) (internal quotation marks omitted). Here, the court granted
defendants’ motions to dismiss, and defendants then became the
prevailing parties. See Tornheim v. Eason, 363 F. Supp. 2d 674, 678
(S.D.N.Y. 2005) (awarding attorneys’ fees to defendants after defendants
prevailed on motion to dismiss), aff’d 175 F. App’x 427 (2d Cir. 2006).
Second, in an attempt to convince the court that his claims were
neither frivolous nor brought in bad faith, Neroni again argues the merits of
his claims. (Dkt. No. 69 at 1-9.) The court, however, declines to further
entertain these contentions. The court has already concluded that the
complaint was “frivolous, baseless, and vexatious.” (Dkt. No. 59 at 36.)
Further, defendants point out, and the court agrees, that Neroni, a former
attorney, had no plausible basis for joining private law firms and a private
attorney to federal civil rights litigation pursuant to 42 U.S.C. § 1983, as it
was clear that there was no state action. (Dkt. No. 29, Attach. 2 at 12; Dkt.
No. 30, Attach. 3 at 18.)
Moreover, Neroni’s history of filing meritless lawsuits in this District
further elucidates his bad faith. Indeed, in addition to this case, Neroni has
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filed four other lawsuits, many of which involve similar factual backgrounds.
All of these lawsuits have been dismissed, at least in part, and in many of
these cases, the court noted that Neroni’s claims were baseless. 6
Additionally, in Neroni v. Becker, No. 3:12-cv-1226, 2013 WL 5126004, at
*3 (N.D.N.Y. Sept. 12, 2013), this court granted defendants’ motion for
costs and attorneys’ fees, and noted that it agreed that the “‘action, and the
arguments adduced in opposition to [d]efendants’ [m]otion to [d]ismiss,
were baseless, without foundation, and vexatious.’” See Davey v. Dolan,
292 F. App’x 127, 128 (2d Cir. 2008) (noting that sanctions were
appropriate “because plaintiff, having adequately been warned of the
possibility of sanctions, has nonetheless repeatedly pursued meritless
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See Neroni v. Zayas, No. 3:13-CV-0127, 2014 WL 1311560, at *1, *12 (N.D.N.Y. Mar.
31, 2014) (dismissing, in part, Neroni’s complaint alleging “various constitutional violations
related to his disbarment”); Neroni v. Grannis, No. 3:11-CV-1485, 2013 WL 1183075, at *1,
*14-15 (N.D.N.Y. Mar. 21, 2013) (dismissing action against “a number of New York State
officials” regarding the legality of a pond constructed on the Neronis’ property, noting that the
factual allegations upon which the complaint was based were “lengthy and convoluted,” and
describing the claims as “lacking in legal merit as well as being improperly brought,” “legally
deficient,” and “conclusory and unsupported by any facts on the record”); Bracci v. Becker, No.
1:11-cv-1473, 2013 WL 123810, at *1, *30-31 (N.D.N.Y. Jan. 9, 2013) (dismissing action
brought against three New York state judges and the state of New York, based on “a
continuous and vicious pattern of retaliation by an obviously disqualified judge against an
attorney and her clients and family members,” and noting that the action was “frivolous and
groundless” and that many of the plaintiffs’ assertions were “baseless” (internal quotation
marks and citations omitted)), aff’d 2014 WL 2210761 (2d Cir. May 29, 2014); Neroni v.
Becker, No. 3:12-cv-1226, 2012 WL 6681204, at *1, *4 (N.D.N.Y. Dec. 21, 2012) (dismissing
action “predicated on purported personal vendettas, judicial improprieties, and the
unconstitutional application of New York statutes in an underlying civil action in which Neroni is
presently a defendant” filed against a state Supreme Court justice and the state of New York),
aff’d in part, vacated in part by 555 F. App’x 118 (2d Cir. 2014).

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claims despite being warned by courts at every turn to cease the bad faith
litigation”).
Thus, for the reasons articulated in the court’s June 5, 2014
Memorandum-Decision and Order, and because Neroni’s submissions
throughout this litigation have been rife with conjecture, irrelevant personal
accusations, and baseless legal arguments, 7 the court finds that Neroni
brought and pursued this action in bad faith. See United States v. Seltzer,
227 F.3d 36, 41-42 (2d Cir. 2000) (“When a district court invokes its
inherent power to impose attorney’s fees . . . [it] must make an explicit
finding of bad faith.”).
B.

Reasonableness of the Fees
Next, Neroni also attacks the reasonableness of the fees requested.

(Dkt. No. 69 at 18-24; Dkt. No. 71 at 2-11.) Among other things, Neroni
contends that both law firms inflated their legal fees because “the amount

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While by no means exhaustive, Neroni’s treatment of sovereign immunity highlights
the bad faith with which he has continued to litigate cases. To the court’s knowledge, in three
separate actions in this District, Neroni has erroneously argued that the Eleventh Amendment
does not bar claims of citizens against their own states; in each of those cases, that argument
was rejected in favor of well-established legal principles espoused by the Supreme Court over
a century ago. (Dkt. No. 59 at 26 n.16); see Bracci, 2013 WL 123810, at *9 n.5; Becker, 2012
WL 6681204, at *3 n.9; see also Hans v. Louisiana, 134 U.S. 1, 10-11 (1890). The
relentlessness with which Neroni continues to raise this spurious legal argument demonstrates
his utter disregard for both the court’s resources and century-old jurisprudence.

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of legal work claimed by . . . HHK [and] LGT . . . was simply unnecessary.” 8
(Dkt. No. 69 at 18.) Again, the court disagrees.
As a general matter, the “starting point” in analyzing whether claimed
attorneys’ fees are appropriate is “the lodestar—the product of a
reasonable hourly rate and the reasonable number of hours required by the
case.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011).
There is a “strong presumption” that the lodestar represents the
appropriate award. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 546
(2010). The party seeking fees “must provide the [c]ourt with sufficient
information to determine if the fee assessed is reasonable.” Cordero v.
Collection Co., No. 10 CV 5960, 2012 WL 1118210, at *3 (E.D.N.Y. Apr. 3,

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For example, citing no authority, Neroni contends that neither law firm may claim
attorneys’ fees for time expended on the case prior to the date that counsel officially appeared
in the action, or for time spent reviewing documents pertaining to or submitted by other parties,
or for time spent discussing the case with other parties. (Dkt. No. 69 at 23-24; Dkt. No. 71 at
3-7, 10-11.) These arguments are meritless. First, courts routinely award attorneys’ fees that
are incurred from the commencement of the action through the preparation of a § 1988 motion.
See Firetree, Ltd. v. Town of Colonie, No. 1:11-cv-95, 2012 WL 5880663, at *2 (N.D.N.Y. Nov.
21, 2012) (citing 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))); Mastrio ex rel. Prendergast v. Sebelius, No.
3:08 CV 1148, 2011 WL 5078240, at *13 (D. Conn. Oct. 26, 2011) (awarding fees “from the
commencement of th[e] action until the case was . . . ‘settle[d],’” and also including reasonable
fees incurred by counsel for the preparation of their motion for attorneys’ fees). Second, in
considering the number of reasonably expended hours, the court should consider “whether, at
the time the work was performed, a reasonable attorney would have engaged in similar time
expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992) (citations omitted). Here, the
hours billed for time spent reviewing other parties’ submissions and time spent discussing the
case and strategizing with other parties are reasonable time expenditures.

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2012). To that end, the fee application must be supported by
contemporaneous time records that “specify, 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 determining whether an attorney’s requested hourly rate is reasonable,
the court should consider what “a reasonable, paying client would be willing
to pay,” which varies by practice area and location. Arbor Hill Concerned
Citizens Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d 182, 184, 192
(2d Cir. 2008).
Here, LGT seeks fees in the amount of $5,967.50, for a total of 34.1
hours expended, at an hourly rate of $175, and HHK seeks fees in the
amount of $10,502, for a total of 35.6 hours expended, at an hourly rate of
$295. (Dkt. No. 62, Attach. 1 at 2; Dkt. No. 63, Attach. 1 at 2.) Neroni
notes the disparity among the fees requested, states that, because HHK
“incorporated” the arguments adduced in LGT’s memorandum of law, the
“two firms cannot claim the same legal fee twice for the same work done by
one of the firms,” and argues that HHK’s fees should be less, not more,
than LGT’s. (Dkt. No. 71 at 2.) After reviewing the time and billing records
submitted by both LGT and HHK, however, it is clear that the attorneys for
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each party spent a similar amount of time on this matter: LGT spent 34.1
hours, and HHK’s time records reflect a total of 35.6 hours expended. (Dkt.
No. 62, Attach. 1 at 2; Dkt. No. 63, Attach. 1 at 2.) Further, Neroni
completely ignores that LGT’s fees are lower than HHK’s because Robert
Barrer—counsel for LGT, and a partner at the Hiscock & Barclay law
firm—accepted an hourly rate of $175, “far below [his] standard commercial
rate,” while James Gleason—counsel for, and a partner at, HHK—charged
his customary hourly rate during 2013. 9 (Dkt. No. 62, Attach. 1 at 2; Dkt.
No. 63, Attach. 1 at 2.)
As far as the reasonableness of the hourly rates requested by the
parties, the prevailing hourly rates in this District can reach up to $345 for
the most experienced attorneys. See, e.g., Jimico Enters., Inc. v. Lehigh
Gas Corp., No. 1:07-CV-0578, 2014 WL 1239030, at *7 (N.D.N.Y. Mar. 25,
2014) (awarding fees of $300 per hour for work performed by partners in
action brought pursuant to, inter alia, the Petroleum Marketing Practices

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Neroni also raises objections, (Dkt. No. 71 at 2, 9), to the time expended by a new
associate at HHK, Michael Keenan, who was not admitted to practice when he performed the
relevant work on this matter, (Dkt. No. 63, Attach. 1 at 2). HHK, however, has explicitly stated
that it does not seek to recover the fees for Keenan’s efforts, which totaled 39.3 hours. ( Id.)
After reviewing the time records submitted by HHK, it is clear that HHK does not in fact seek to
recover those costs, but instead requests only the costs incurred by Gleason’s attention to this
matter, which, in some instances, includes meetings with Keenan and review of Keenan’s
work. (Dkt. No. 63, Attach. 1 at 5-12.) Neroni’s arguments are therefore rejected.

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Act, 15 U.S.C. § 2805); Aquent, LLC v. Atl. Energy Servs., Inc., No. 1:09CV-0524, 2012 WL 1005082, at *3 (N.D.N.Y. Mar. 23, 2012) (applying
rates of $135 to $345 per hour for attorneys); Broadcast Music, Inc. v. DFK
Entm’t, LLC, No. 1:10-cv-1393, 2012 WL 893470, at *7 (N.D.N.Y. Mar. 15,
2012) (applying a rate of $270 per hour for a partner). Moreover, the
Second Circuit explicitly stated that “recent surveys in Northern District
cases have indicated that, for a civil rights matter, [attorneys’ fee rates] are
higher than $210 [per hour].” Lore v. City of Syracuse, 670 F.3d 127, 175
(2d Cir. 2012). Thus, HHK and LGT’s hourly rates fit within the prevailing
rates in this District.
Accordingly, the court finds the requested hourly rate and time
expended by HHK’s attorney, James Gleason, and LGT’s counsel, Robert
Barrer, to be reasonable, and the time records provided by them to be
sufficiently detailed. As such, Neroni is liable for defendants’ costs and
attorneys’ fees totaling $10,502 to HHK and $5,967.50 to LGT.
VI. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motions for costs and attorneys’ fees
(Dkt. Nos. 62, 63) are GRANTED; and it is further;
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ORDERED that Neroni is liable for defendants’ costs and attorneys’
fees totaling $10,502 to HHK and $5,967.50 to LGT; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
August 6, 2014
Albany, New York

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