MEDIA

February 10, 2012

Court Approves Attorney’s Fees Under §1988 Despite Low Damages

Published in: New York Law Journal | volume 247

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Raymond J. Dearie found no merit to plaintiffs’ claims that the Department of Education had improperly refused a mother’s requested special dietary accommodations for her diabetic son. Judge Jack B. Weinstein adopted Magistrate Judge Roanne L. Mann’s report recommending nearly $90,000 in attorney fees and expenses, and rejected the defense claim that such an award was unreasonable in light of the $500 awarded in compensation by the jury. Magistrate Judge A. Kathleen Tomlinson confirmed the validity of an Offer of Judgment sought by defendant before judgment was entered. And Judge Arthur D. Spatt cited various grounds to deny an out-of-time motion for reconsideration by a pro se plaintiff.

Accommodation Under ADA

In A.M. v. NYC Department of Education, 08 CV 1962 (EDNY, Jan. 17, 2012), Judge Dearie, granting summary judgment to defendants, dismissed a pro se complaint by A.M., a diabetic student’s mother, on behalf of herself and J.M., her son, alleging a failure to accommodate the son’s special dietary needs at school, in violation of the Americans with Disabilities Act and other statutes.

Plaintiffs brought claims against the New York City Department of Education, School District 29, her son’s school, the superintendent, the principal and various other New York City agencies. She alleged that when her son was newly diagnosed with diabetes, defendants "unreasonably" refused to heat up his homemade food and supervise his food intake. J.M. participated in the normal school educational program and school activities, including gym class and after-school activities, with no restrictions. The school nurses daily monitored his glucose pursuant to his doctor’s orders and called A.M. to report the results. Although for a time the assistant principal, pursuant to A.M.’s request, did direct that her son’s food be heated, the superintendent discontinued the practice.

A.M. requested a hearing, which occurred over five days and resulted in 500 pages of testimony transcript. In November 2007, the hearing officer concluded that the requested accommodation was reasonable but unnecessary. The school continued to monitor J.M.’s glucose levels, but did not heat his food. In March 2008, A.M. brought this action.

As Judge Dearie determined, A.M., as J.M.’s parent, had standing to appear pro se on her own behalf under Winkelman ex. Re. Winkelman v. Parma City School District, 550 U.S. 516 (2007), but Winkelman did not alter "the longstanding rule that ‘a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child.’" Slip op. 20. The court declined to appoint counsel and dismissed all claims brought by J.M., because he had no "substantial claim" under any theory of law.

J.M.’s claims had many defects. First, the request for an injunction directing the Education Department to heat up J.M.’s lunches was moot. According to plaintiff’s own evidence, this measure was necessary only for newly diagnosed diabetics; as J.M.’s diagnosis was nearly five years old, there was no reasonable expectation of a continuing wrong. Second, plaintiffs’ claims on behalf of similarly situated students were foreclosed by the pro se proceedings. Nor did plaintiffs put forward any evidence that other diabetic students had ever requested the same accommodation. Also, plaintiffs’ request for an injunction to direct the Education Department to comply with state procedures to accommodate children with Type 1 diabetes pursuant to federal law was not specific enough under Federal Rule of Civil Procedure 65(d), which requires that injunctions describe in detail the acts to be restrained. Slip op. 21-24.

Judge Dearie turned next to plaintiffs’ monetary claims. The court determined that the Education Department was the real party in interest and dismissed all claims against individual and other defendants, because §504 of the Rehabilitation Act does not allow individual capacity claims and the other claims were duplicative of the claims against the Education Department. To recover monetary damages, a plaintiff must make a showing of an intentional violation.

As the court found, the accommodation requested by plaintiffs was not "necessary" to J.M.’s receipt of a well-balanced lunch. There was no evidence that J.M.’s ability to have a healthy lunch either from home or at school was blocked or that his participation in academic and extracurricular activities at school was curtailed in any way. Finally, plaintiffs failed "to proffer sufficient admissible evidence to persuade a reasonable jury that the defendants acted with deliberate indifference" in refusing the accommodation sought by plaintiffs. Slip op. 35.

Similarly, any procedural violations did not interfere with J.M.’s rights or deprive him of any educational benefits. Nor had plaintiffs submitted any proof that the Education Department retaliated against them by not admitting J.M.’s sister to the same school where admission was based on a lottery. Slip op. 41.

Attorney’s Fees

In Brown v. Starrett City Associates, 09 CV 3282 (EDNY, Jan. 6, 2012), Judge Weinstein adopted a report and recommendation by Magistrate Judge Mann finding plaintiff entitled to $80,610 in attorney fees and $8,619 in expenses, even though the jury had awarded plaintiff only $500 in compensatory damages in this §1983 case.

At trial plaintiff sought to prove that defendants Starrett City and Officer Rupert Newman violated her constitutional rights and New York law when they arrested her near her residential housing complex. Starrett City, a private corporation, operates a security force deputized by the New York City Police Department. As part of that force, Officer Newman had the power to make arrests. The jury found against plaintiff on her false arrest claim, but in favor of plaintiff on her claim that defendants had used excessive force in executing the arrest. The jury awarded plaintiff $500.

Pursuant to 42 U.S.C. §1988, plaintiff, as the prevailing party in a §1983 action, sought $82,710 in fees and $11,198 in disbursements.

Noting that "excessive force" was the "main issue" in the case, Judge Weinstein held that plaintiff was entitled to attorney fees, and referred the matter to Judge Mann for specific recommendations.

In a 19-page memorandum and order, Judge Mann made the following findings (among others):

  • Contrary to defendants’ argument, the record shows that the $500 award was for compensatory, rather than nominal, damages. Judge Weinstein’s instructions to the jury make this clear. That the award was modest does not make it "nominal." Moreover, the fee statute here was enacted in part to create an incentive for attorneys to take cases involving constitutional injury where the expected monetary recovery would otherwise be too small
  • In setting a "presumptively reasonable" fee, the court must determine a reasonable hourly rate, multiplied by the reasonable number of hours expended — and may not reduce the fee award simply because it would be "disproportionate" to the damages. Plaintiff’s counsel has practiced law for 12 years, with a concentration for seven years in civil rights actions. The case involved "at least one unusual issue concerning the vicarious liability of private entities where employees violate the U.S. Constitution." Slip op. 10-11. Plaintiff’s counsel handled the case well, and after the trial Judge Weinstein called him "an excellent attorney." Counsel’s current rate of $300 per hour was therefore "reasonable."
  • Though plaintiff prevailed on only one claim, excessive force, there was a "common core of facts" here, all arising from a single incident, plaintiff’s arrest. Thus, the "division of counsel’s hours between the claims would be particularly difficult." Slip op. 13.
  • The hours detailed by counsel were reasonable "for the most part." As to the 11.2 hours spent by attorneys other than counsel of record, there was not enough supporting information for an award of attorney fees. In addition, the amount requested for the fee application itself was excessive by seven hours. Multiplying 268.70 in reasonable hours by the $300 rate yields a fee of $80,610.
  • Plaintiff never submitted records for the costs of assembling the fee application. Certain other expenses (including the filing fee, statutory witness fees, and preparing deposition transcripts before trial) were part of the costs set forth in 28 U.S.C. §1920 — a category of costs that Judge Weinstein already disallowed. Subtracting such items from the claimed expenses resulted in a reduced award of $8,619.
  • The "contingency fee" retainer agreement between plaintiff and her counsel — authorizing counsel to keep one-third of the sum recovered — does not alter plaintiff’s right to Section 1988 fees. In other words, the fees are not limited to one-third of the $500 jury award.
  • The recommended fee award belongs to plaintiff and "is then subject to whatever private contractual arrangement exists" between plaintiff and her counsel. Slip op. 17.

In approving the recommendation, Judge Weinstein noted that the hourly rate for counsel was "modest" and the time spent "necessary."

Validity of Offer of Judgment

In Flick v. American Financial Resources Inc., 10 CV 3084 (EDNY, Jan. 3, 2012), Magistrate Judge Tomlinson granted a motion to confirm the validity of an Offer of Judgment that had been filed by defendant American Financial Resources Inc. (AFR) under Fed. R. Civ. P. 68.

AFR’s Offer of Judgment provided for "judgment to be entered against AFR in ‘the sum [of] $5,000 to satisfy all of Flick’s claims for relief’ and ‘hereby additionally offers costs and reasonable attorneys fees if applicable as determined by the Court.’" Plaintiff argued that the Offer of Judgment was ineffective because it failed to specify the costs to be awarded on her employment-related and ERISA claims, or to address plaintiff’s demand for equitable relief.

Magistrate Judge Tomlinson recognized that the motion before her was procedurally unusual, in that it was brought before judgment and the validity of offers of judgment typically is decided upon the filing of a post-judgment application for costs and attorney fees. However, citing cases that resolved plaintiffs’ motions to strike Rule 68 offers of judgment, Judge Tomlinson saw no reason why "a defendant, looking to avail itself of the cost-shifting provisions of Rule 68, cannot petition the Court in order to confirm that its Rule 68 Offer of Judgment is valid." Slip op. 4.

Judge Tomlinson also rejected plaintiff’s two substantive arguments. First, "an offer of judgment is valid whether or not the offer provides a specific monetary figure for costs," provided that it does not preclude the determination of costs by the court. Slip Op. 5. Second, the mere possibility of equitable relief would not defeat the offer: should plaintiff "obtain a judgment that includes some form of equitable relief, the issue of whether that judgment is more or less favorable than the . . . Offer of Judgment will then be ripe for resolution. At this time, however, the exclusion of any equitable relief from the offer of judgment does not render it invalid." Slip op. 8.

Motion for Reconsideration

In Hom v. the Honorable Lawrence Brennan, J.F.C., 03 CV 2198 (EDNY, Dec. 31, 2011), Judge Spatt denied pro se plaintiff’s "motion to ‘renew’ the court’s decision dismissing the action" against various defendants, including two New York Family Court Judges, the Law Department Supervisor, the Family Court Clerk, former Governor George Pataki and the supervising attorney with Nassau-Suffolk Law Services, who had represented plaintiff’s former wife.

Plaintiff was involved in litigation in Nassau County Family Court against his former spouse beginning in 2000. Plaintiff commenced an action in New York Supreme Court, County of Nassau, in April 2003 alleging that Judge Brennan, along with other defendants, conspired to deprive him of his civil rights. Defendants removed the case to the Eastern District in May 2003, and Judge Spatt dismissed the complaint with prejudice. The U.S. Court of Appeals for the Second Circuit dismissed plaintiff’s appeal "because it lacks an arguable basis in fact or law." Slip op 4.

Plaintiff brought his motion to renew under CPLR 2221(e), which Judge Spatt found inappropriate because (1) it applies only to cases brought in New York state courts, and (2) plaintiff did not meet the requirements that any CPLR 2221(e) motion be based on new facts or demonstrate a change in the law and provide justification for failure to present those facts in a prior motion. In short, plaintiff could not use CPLR 2221(e) simply to have his claims reheard.

Judge Spatt also found no redress for plaintiff under the Federal Rules. The motion was untimely under Eastern District Local Rule 6.3, which requires that motions for reconsideration be made within 14 days after entry of the court’s determination of the original motion. Here, plaintiff waited six years. Federal Rules 60(b)(1)(2) and (3) and (c)(1) require that motions be made within a reasonable time and no more than a year after judgment. Under Rule 60(b)(6) relief is available only under "extraordinary circumstances." Plaintiff’s delay was not reasonable and there were no extraordinary circumstances.

Judge Spatt dismissed plaintiff’s criminal conspiracy claim under 18 U.S.C. §371, because plaintiff did not allege that defendants conspired to defraud the United States and there is no private right of action under that statute.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the February 10, 2012, issue of the New York Law Journal. Copyright © 2012 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]