Taylor v. Harbour Pointe Homeowners Association et al
Filing
61
DECISION AND ORDER granting attorneys' fees to Defense Counsel in the amount of $107,3200. The Clerk is directed to enter final judgment accordingly. (Clerk to follow up.) Signed by Hon. John T. Curtin on 12/5/2012. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SUZANNE K. TAYLOR,
Plaintiff,
-vs-
09-CV-257-JTC
HARBOUR POINTE HOMEOWNERS
ASSOCIATION and CANDACE GRASER,
Defendants.
In a decision and order entered February 17, 2011, this court granted defendants’
motion for summary judgment dismissing in its entirety plaintiff’s complaint seeking
declaratory judgment, injunctive relief, and damages pursuant to the Fair Housing Act
(“FHA”), 42 U.S.C. § 3601 et seq., and New York State common law, based on allegations
of disability discrimination, trespass, and conversion against the Harbour Pointe
Homeowners' Association (“HPHA”) and one of its officers, Candace Graser. Taylor v.
Harbour Pointe Homeowners Ass’n, 2011 WL 673903 (W.D.N.Y. Feb. 17, 2011).
Subsequently, in a decision and order entered May 6, 2011, the court denied defendants’
request for an award of reasonable attorneys’ fees under 42 U.S.C. § 3613(c)(2), finding
that although plaintiff had failed to make out a prima facie case for disability discrimination
under the FHA, her claim was not “entirely ‘unreasonable or without foundation.’ ” Taylor
v. Harbour Pointe Homeowners Ass'n, 2011 WL 1792766, at *3 (W.D.N.Y. May 6, 2011)
(quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)). The parties
filed cross-appeals, with plaintiff challenging the court's determination on the merits and
defendants challenging the court's denial of their application for attorneys' fees.
On August 2, 2012, the Second Circuit issued a written opinion in which it dismissed
plaintiff’s appeal for failure to comply with the requirements of the Federal and Local Rules
of Appellate Procedure governing the content of appellate briefs. Taylor v. Harbour Pointe
Homeowners Ass'n, 690 F.3d 44, 47-48 (2d Cir. 2012). The circuit court also granted
defendants’ cross-appeal, reversed the denial of defendants’ application for attorneys’
fees, and remanded the matter to this court “to determine the proper amount of that
award.” Id. at 51.
On remand, defendants have submitted an updated attorney’s declaration in support
of the fee application, which the court has now had the opportunity to review. The
application is made under the FHA’s fee-shifting provision, which states:
In a civil action [for relief with respect to discriminatory housing practices], the
court, in its discretion, may allow the prevailing party . . . a reasonable
attorney’s fee and costs.
42 U.S.C. § 3613(c)(2).
As noted by the circuit court in its August 2, 2012 opinion, while prevailing plaintiffs
are regularly awarded fees under this provision when they obtain some significant measure
of relief, “they are not routinely awarded to prevailing defendants ‘unless a court finds that
[the plaintiff’s] claim was frivolous, unreasonable, or groundless, or that the plaintiff
continued to litigate after it clearly became so.’ ”
Taylor, 690 F.3d at 50 (quoting
Christiansburg Garment Co., 434 U.S. at 422). Upon examining the merits of plaintiff’s
FHA claim as presented on the summary judgment record, the circuit court found it to be
“groundless and frivolous …,” “meritless” (“To be clear, by ‘meritless’ we mean ‘groundless
or without foundation,’ and not merely that [plaintiff] ultimately lost her case.”), “baseless,”
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and finally, “manifestly without merit and that an award of counsel fees to the defendants
is appropriate.” Id. at 50-51.
Considering these findings, this court’s task on remand is clearly limited to
determining what constitutes a reasonable attorney’s fee to be awarded to defendants
under the circumstances of this case. In this regard, both the Supreme Court and the
Second Circuit have held that the “lodestar”—a reasonable hourly rate multiplied by the
reasonable number of hours required by the case—creates a “presumptively reasonable
fee.” Arbor Hill Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany, 522 F.3d 182,
183 (2d Cir. 2008); see also Millea v. Metro–North R. Co., 658 F.3d 154, 166 (2d Cir. 2011)
(citing Perdue v. Kenny A. ex rel. Winn, ___U.S.___, 130 S.Ct. 1662, 1673 (2010)).
While the lodestar is not always conclusive, its presumptive reasonability
means that, absent extraordinary circumstances, failing to calculate it as a
starting point is legal error. A detailed explanation of the lodestar calculation
is unnecessary, but compliance with the Supreme Court's directive that fee
award calculations be “objective and reviewable,” implies the district court
should at least provide the number of hours and hourly rate it used to
produce the lodestar figure.
Millea, 658 F.3d at 166-67 (quoting Perdue, 130 S.Ct. at 1674).
Hourly rates charged for legal services are generally considered to be reasonable
where they “are in line with those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465
U.S. 886, 895 n. 11 (1984). “[C]urrent rates, rather than historical rates, should be applied
in order to compensate for the delay in payment.” LeBlanc–Sternberg v. Fletcher, 143
F.3d 748, 764 (2d Cir. 1998).
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As set forth in the billing records attached as exhibits to the supporting declarations
of Minryu Kim, an attorney associated with the law firm of Phillips Lytle LLP, nine different
attorneys rendered a combined total of 557.4 hours of legal services on behalf of
defendants at both the trial and appellate levels in this matter, all billed at a negotiated rate
of $180 per hour. See Item 45, Exh. C; Item 56, Exh. E. The lion’s share of the hours
(451.6) were billed by Ms. Kim, who served as lead counsel throughout the course of
proceedings in federal court. Three partners—Alan J. Bozer, Ronald S. Shubert, and
Timothy W. Hoover, whose ordinary hourly rates currently range from $325 to $370—billed
a combined total of 72 hours, and five different associates billed the remaining 33.7 hours.
The court has also considered Ms. Kim’s unchallenged1 declarations as to the
education, expertise, and experience of these attorneys (see Item 45, ¶¶ 9-11; Item 56, ¶
9), and has reviewed several recent decisions in this district awarding attorneys’ fees to
prevailing parties in fee-shifting cases. As those decisions reveal, the hourly rate of $180
is in line with the rates prevailing in this district for similar services by lawyers of reasonably
comparable skill, experience and reputation. See, e.g., Disabled Patriots of America, Inc.
v. Niagara Group Hotels, LLC, 688 F. Supp. 2d 216, 224-26 (W.D.N.Y. 2010) ($240
reasonable hourly rate for attorney experienced in ADA litigation where case was resolved
by unopposed summary judgment motion); Mostiller v. Chase Asset Recovery Corp., 2010
WL 335023, at *4, 5 (W.D.N.Y. Jan. 22, 2010) ($215 for partner and $175 for associate
reasonable hourly rate in FDCPA case in which default judgment was granted when
1
It is noted here that plaintiff did not respond to defendants’ initial fee application, and has
subm itted only a perfunctory challenge to the renewed application on rem and. See Item 60, pp. 3-4
(arguing that, “by unreasonably failing to bring a m otion to dism iss at the outset of this case the defense
has unreasonably and vexatiously increased the cost of the litigation.”).
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defendant failed to appear); Malta v. Slagle, 2008 WL 4147131, at *2 (W.D.N.Y. Sept. 3,
2008) (hourly rates of $240 and $180 reasonable in § 1983 case that proceeded to verdict
in plaintiff’s favor); Pasternak v. Baines, 2008 WL 2019812, at *6-7 (W.D.N.Y. May 8,
2008) ($240 reasonable hourly rate for lead counsel in employment discrimination case
that proceeded to trial).
The billing records further reflect that several paralegals provided a total of 93.2
hours of supportive legal services to the attorneys involved in this litigation, billed at rates
ranging from $100 to $155 per hour, or an average rate of $125 per hour. The court’s
review of recent decisions within this district, however, reveals no case in which fees were
awarded for paralegal work at a rate higher than $75 per hour. See, e.g., Disabled
Patriots, 688 F. Supp. 2d at 227 ($75/hr for paralegal services in ADA case); see also Scott
v. Niagara Credit Solutions, Inc., 2012 WL 729755, at *3 (W.D.N.Y. Mar. 6, 2012) ($50/hr
in debt collection case; citing cases). In the absence of any showing of extraordinary
circumstances warranting a departure from the prevailing rate, the court finds $75 per hour
to be a reasonable rate upon which to base an award of fees for paralegal services in this
case.
With regard to the total number of attorney and paralegal hours billed by
defendants, the court finds that this total became necessary in defense of plaintiff’s
vigorous prosecution of the case before this court and the Court of Appeals, despite the
“baseless nature” of her claims. Taylor, 90 F.3d at 50-51. Indeed, as noted by the Second
Circuit, plaintiff pursued these claims in the federal courts following the dismissal of her
administrative charges by the NYSDHR, which concluded “that there was no probable
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cause to support [her] housing discrimination claim and that there was no evidence to
support a finding that [she] is disabled, that her messy porch was related to any disability,
or that she requested any accommodation.” Id. at 51.
While these conclusions did not preclude further litigation, the full extent of
legal and factual shortcomings laid bare in the administrative proceedings
should have been a powerful clue to Taylor, a licensed attorney, that her
case had no merit. Furthermore, the fact that Taylor told DHR in writing that
she never requested and did not need any special accommodation from the
HPHA should have been an even more potent signal to her that proceeding
with a federal failure to accommodate claim was improper. Nevertheless,
Taylor continued to pursue the claim.
Id.
Moreover, the court’s review of the contemporaneous time records submitted with
defendants’ fee application indicates no evidence of excessive, duplicative, or otherwise
unnecessary entries that would cause this court to question the billing judgment of the
attorneys working on the case, or their ethical obligation to exclude such hours from their
fee submission. See Disabled Patriots, 688 F. Supp. 2d at 226(citing Hensley v. Eckerhart,
461 U.S. 424, 434 (1983)). These records provide sufficient information to satisfy the court
as to the reasonableness of the number of hours required to defend meritless housing
discrimination, trespass, and conversion claims, pursued through the federal trial and
appellate courts by a licensed attorney with experienced retained counsel, against
neighbors who “acted in what is best described as a neighborly manner.” Taylor, 90 F.3d
at 49-50.
Accordingly, under the circumstances presented on defendants’ renewed fee
application, and in the absence of any showing to challenge the presumptive reasonability
of the lodestar, the court finds that the amount of $100,332.00 ($180.00 x 557.4 =
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$100,332.00) represents a reasonable fee for attorney services rendered, and the amount
of $6990.00 ($75.00 x 93.2 = $6990.00) represents a reasonable fee for paralegal services
rendered, for a total award in the amount of $107,322.00, representing the reasonable
attorney’s fee to be allowed to defendants as the prevailing party in this action, pursuant
to 42 U.S.C. § 3613(c)(2) and the remand directive of the United States Court of Appeals
for the Second Circuit.
The Clerk of the Court is directed to enter final judgment accordingly.
So ordered.
JOHN T. CURTIN
United States District Judge
Dated:
, 2012
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