McCulloch v. Town of Milan et al

Filing 266

MEMORANDUM & ORDER denying 235 Motion for Attorney Fees. For the forgoing reasons, Defendants' motion for attorneys' fees [dkt. no. 235] is DENIED. (Signed by Judge Loretta A. Preska on 9/10/2013) (ja)

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07 Civ. 9780 (LAP)

CARMEN OTERO MCCULLOCH,

MEMORANDUM & ORDER

aintiff,
-againstTOWN OF MILAN, et al.,
Defendants.

Loretta A. Preska, Chief United States District Judge:
Defendants (or the "TownN)

the above referenced matter

bring the instant motion for an award of attorneys' fees after
being granted summary judgment in September 2012.
reasons set forth here

For the

,Defendants' motion [dkt. no. 235] is

DENIED.
1.

Background

Plain

ff Carmen Otero McCulloch ("P

intiffN or "Mrs.

McCullochN) brought the above-referenced matter alleging, in a
nutshell, discriminatory practices perpetrated by the Town and
others on account of Pl
loss to the value of

ntiff's national original resulting
r property.

Plaintiff's federal claims

were based on the Fair Housing Act, 45 U.S.C.
U.S.C

§

1983

("Section 1983 N

state law claims.

).

§

3604, and 42

Plaintiff also alleged various

This case has gone through various stages of litigation,
including surviving a motion to dismiss, requests for injunctive
relief, settlement conferences, and, finally, summary judgment.
The Court and all parties are intimately familiar with the
posture and the facts of this case.

In September 2012, the

Court denied Plaintiff’s motion for summary judgment and granted
summary judgment to Defendants, holding that Plaintiff had
failed to meet her burden of submitting evidence to support her
claims.

[Dkt. No. 233.]

Defendants now move for an award of attorneys’ fees
pursuant to 42 U.S.C. § 1988, 42 U.S.C. § 3613(c)(2), and
against Plaintiff’s husband and attorney, Kenneth McCulloch,
personally pursuant to 28 U.S.C. § 1927.1

After delays in

briefing this motion resulting in several conferences with the
Court on what constitutes acceptable submissions, oral argument
was held before the Court on August 1, 2013.

The Court reserved

judgment at that time.

1

Plaintiff has been represented throughout this litigation
by her husband, Mr. McCulloch, who not only represented
Plaintiff in this matter, but represented her in all
interactions with Defendants during the events that form the
basis of this discrimination lawsuit. Mr. McCulloch, thus, has
always possessed unique knowledge concerning the evidence in
this case, which Defendants assert make him personally liable
for the frivolousness of the case.
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2.

Legal Standard

42 U.S.C. § 1988 (“Section 1988”) authorizes an award of
attorneys’ fees to the prevailing party in any action brought
pursuant to Section 1983 if an action is found to be “frivolous,
unreasonable, or groundless” or if a plaintiff “continued to
litigate after it clearly became so.”

Christiansburg Garment

Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 422
(1978).

42 U.S.C. § 3613(c)(2) authorizes the Court in its

discretion to award attorneys’ fees to the prevailing party in a
civil action alleging, inter alia, a “discriminatory housing
practice.”

28 U.S.C. § 1927 (“Section 1927”) holds an attorney

personally liable for attorneys fees, stating that when that
attorney “so multiplies the proceedings in any case unreasonably
and vexatiously [he] may be required by the court to satisfy
personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.”
3.

Discussion

As all parties are aware, this case has not been litigated
by either side in a way the Court would characterize as a
cooperative, efficient, or considerate manner.

This case has

been fraught with delay since its inception, due in large part
to one or the other or both of the parties’ not complying with
directions of the Court or to each party’s general wish to make
the other’s tasks as difficult as possible.
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As all are familiar

with the trajectory of this litigation, the Court will not
detail those examples here.
However, despite the acknowledged flaws in Plaintiff’s case
and Mr. McCulloch’s recalcitrant demeanor throughout, Defendants
have failed to meet the standard of either Section 1988 or
Section 1927 that would allow for an award of attorneys’ fees
against Plaintiff or against Mr. McCulloch personally.

Firstly,

the Court notes that Defendants’ briefs are just that—brief—and
rely heavily on the declaration of the Town’s attorney, Terry
Rice, who outlines the evidentiary flaws in Plaintiff’s case
instead of providing a considered legal basis for an award.
Second, Defendants failed to provide billing statements and
contemporaneous time records to Plaintiff and the Court until a
conference was held and they were instructed to do so despite
making various privilege and hardship arguments.

When those

records were provided, they were missing entries for several
time periods, including the time period preceding the motion to
dismiss.

As Plaintiff points out, the lion’s share of the

claims that Mr. Rice’s declaration lists as those that he
considers to be frivolous are those that were dismissed in 2008
pursuant to Defendants’ motion.

The remaining claims, by the

very fact that they survived a motion to dismiss, do not rise to
the level of being “frivolous” such that an award pursuant to
Section 1988 is available.
4

The Court will briefly mention that an award of attorneys’
fees imposed against an attorney personally pursuant to Section
1927 is a high standard requiring conduct “akin to bad faith,”
see In re 60 E. 80th St. Equities, Inc., 218 F.3d 109, 115 (2d
Cir. 2000), and thus, such a sanction should not be imposed
lightly, see Mone v. C.I.R., 774 F.2d 570, 574 (2d Cir. 1985).
Defendant argues that because Mr. McCulloch represented Mrs.
McCulloch in all the interactions with the Town constituting the
basis of this action, and thus possessed unique knowledge of the
alleged lack of evidence in this case, he should be held to such
a standard of bad faith.

However, the Town has not met its

burden of establishing actions taken by Mr. McCulloch that would
satisfy this high standard.
4.

Conclusion

For the forgoing reasons, Defendants’ motion for attorneys’
fees [dkt. no. 235] is DENIED.

SO ORDERED.
Dated: New York, New York
September 10, 2013

____________________________
UNITED STATES DISTRICT JUDGE

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