THE HANSEN FOUNDATION, INC. v. CITY OF ATLANTIC CITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

THE HANSEN FOUNDATION, INC.

No. 1:19-cv-18608 (NLH/AMD)

et al.,

Plaintiffs,

OPINION

v.

CITY OF ATLANTIC CITY,

Defendant.

APPEARANCES:

CHRISTOPHER S D'ESPOSITO

JESSICA R. WITMER

KEITH ALAN DAVIS

NEHMAD PERILLO DAVIS & GOLDSTEIN, P.C.

4030 OCEAN HEIGHTS AVENUE

EGG HARBOR TOWNSHIP, NJ 08234

Attorneys for Plaintiffs.

JOHN J. MURPHY, III

STRADLEY, RONON, STEVENS & YOUNG, LLP

LIBERTYVIEW

457 HADDONFIELD ROAD, SUITE 100

CHERRY HILL, NJ 08002-2223

MARK DAVID VILLANUEVA

ROBERT J. NORCIA

STRADLEY RONON STEVENS & YOUNG, LLP

2005 MARKET STREET

SUITE 2600

PHILADELPHIA, PA 19103

Attorneys for Defendant.

HILLMAN, District Judge

This case comes before the Court on motion of Plaintiffs

seeking attorneys’ fees from Defendant City of Atlantic City.

Plaintiffs had brought suit against the City alleging a series

of violations under federal and state antidiscrimination laws

related to two provisions of Atlantic City’s City Code and the

City’s actions in an ongoing zoning dispute between the parties

regarding the operation of a residence for women recovering from

addiction. For the reasons expressed below, Plaintiffs’ motion

will be granted in part and denied in part, and Defendant will

be ordered to reimburse Plaintiffs in the amount of $25,646.78.

BACKGROUND

The Court outlined the relevant factual and procedural

background of this case in substantial detail in an Opinion and

Order issued on December 3, 2020. (ECF No. 32 and 33). As the

Court writes primarily for the parties here and assumes their

familiarity with the case, it will only restate those facts

necessary for the disposition of the motion presently before the

Court.

Plaintiff Hansen House, LLC (“Hansen House”) is a New

Jersey limited liability corporation and subsidiary of Plaintiff

Hansen Foundation, Inc., a nonprofit organization whose mission

is to provide affordable, long-term, safe recovery residences,

access to treatment, community programs. In March 2019, Hansen

House purchased a single-family home located at 16 South

Tallahassee Avenue, Atlantic City, New Jersey. Hansen House

sought to make the property, which it named “Serenity House,”

available to women in recovery from alcoholism and substance

abuse. Serenity House is located within Atlantic City’s R-2

Zoning District.

On March 7, 2019, the City notified Hansen House that

Serenity House was in violation of City Ordinance § 194-1(B)

requiring a certificate of occupancy prior to the establishment

of a new occupation. Over two months later, on May 30, 2019,

Hansen House moved residents of another of its residences to

Serenity House, which it alleges was necessary after the

residential lease at the other property lapsed. By Hansen

House’s admission, it did not apply for or obtain a certificate

of occupancy before its residents moved into Serenity House.

(ECF No. 25-2 at ¶ 9).

In June 2019, Hansen House received a notice of a violation

from the City’s Department of Licensing and Inspections

following an inspection of the house, because it had begun to

install an H.V.A.C. system without first obtaining a

construction permit as required by N.J.A.C. 5:23-2.16.

Accordingly, the City’s Department of Licensing & Inspections

issued a “stop work order” pursuant to N.J.A.C. 5:23-2.14.

Then, on July 10, counsel for Hansen House sent a letter to the

City’s Building and Subcode Official, Anthony Cox. (ECF No. 1-

1, Compl. Ex. F). The letter laid out arguments similar to

those Plaintiffs would later make in this lawsuit.

Specifically, the letter asserted that Serenity House was

properly classified as a “single-family residence,” argued that

if it were not, a “reasonable accommodation” in the form of a

waiver or modification of the City’s zoning ordinances and a

corresponding certificate of occupancy must be granted, and

stated that if the City did not permit Serenity House to operate

as planned, the City faced liability from suit under federal

anti-discrimination law.

On July 15, 2019, almost two months after Hansen House

moved residents into Serenity House without obtaining a

certificate of occupancy and a few days after Plaintiffs sent

the letter described above, the City filed a municipal complaint

against Serenity House for “Failure to Obtain an ‘Occupancy

Permit’ Before New Occupancy Occurred” in violation of City Code

§ 194-1B. (ECF No. 1-1, Complaint Ex. G). Plaintiffs responded

to this complaint by submitting an application for a Certificate

of Land Use Compliance (“CLUC”) on July 18, which sought to

register the house as a single-family home. Under the City

Code, a CLUC is a prerequisite for certain forms of housing to

receive a certificate of occupancy.

That same day, Plaintiffs received an order to vacate

Serenity House. The order was sent by Dale Finch, Director of

the City’s Department of Licensing and Inspections, and stated

that it was based on both “a pattern of disregard for code

requirements,” and the “absolute prohibition against a community

residence at this specific location” under City Code § 152-1.

(ECF No. 1-1, Compl. Ex. J). Section 152-1 governs “(family)

community residence[s],” which the provision makes clear is the

City Code’s term for “housing for persons with disabilities,”

and mandates that “[c]ommunity residences, except as required by

state law, . . . be at least 660 linear feet in any direction

from the closest existing community residence.” Plaintiffs have

not been forced to actually vacate the residence.

The next day, July 19, 2019, Serenity House’s CLUC

application was denied by City Zoning Officer Barbara Woolley-

Dixon. The parties met to discuss the situation on August 16,

at which meeting representatives for Hansen House were provided

with the denied CLUC application. (ECF No. 1-1, Compl. Ex. I).

The application listed multiple procedural requirements for the

CLUC form that had not been fulfilled, and also included a note

stating that Serenity House was in violation of § 152-1’s

distance requirement. The parties dispute whether the

procedural violations, or § 152-1, were the actual reason for

the denial.

Two weeks later, on July 30, Hansen House filed an appeal

and a request for an interpretation of the City’s zoning

provisions with the City’s Zoning Board of Adjustment. The

filing appealed what they characterized as the City’s denial of

their CLUC because of a determination that Serenity House was a

community residence governed by the distance requirement of

§ 152-1, argued that Serenity House was in fact a group family

household under § 163-66, and alternatively requested an

interpretation by the Zoning Board as to exactly what form of

housing Serenity House constituted. (ECF No. 1-1, Compl. Ex.

L).

At some point after submitting their appeal and request for

an interpretation, Plaintiffs apparently realized that pursuant

to § 163-66B, group family households are barred from the R-2

district that Serenity House is located in, and filed a

supplement to their appeal on September 5. (ECF No. 1-1. Compl.

Ex. M). That supplement again requested that the CLUC denial be

overturned, arguing that the denial had occurred because of the

City’s determination that Serenity House was a community

residence governed by § 152-1, and again argued that Serenity

House was and should be characterized as a single-family home

permitted in the R-2 district.

A few weeks later, on September 24, the Zoning Board sent

Plaintiffs a letter regarding the deficiencies in their appeal

and request for an interpretation. (ECF No 1-1, Compl. Ex. N).

The letter made clear that the Zoning Board was unable to review

their application based purely on procedural grounds: Plaintiffs

had failed to pay the filing fee and attach multiple documents

providing information related to the ownership of the house as

required under New Jersey law and the City Code. It further

explicitly stated that “the City lacks sufficient information to

characterize the use of the property and takes no position on

same.”

Only two days later, on September 26, Plaintiffs filed

their complaint in this action in New Jersey Superior Court.

(ECF No. 1-1), which was eventually removed by the City to this

Court. The Complaint asserted both facial challenges to §§ 152-

1 and 163-66B and multiple as-applied challenges and claims

based on Defendant’s actions throughout this process, under The

Fair Housing Act (“FHA”), 42 U.S.C. § 3602 et. seq. (Counts I-

III); the Americans with Disabilities Act (“ADA”), 42 U.S.C. §

12132 et. seq. (Count IV); the Rehabilitation Act of 1973

(“RHA”), 29 U.S.C. § 791 et. seq. (Count V); 42 U.S.C. § 1983

(Count VI); the Fourteenth Amendment of the United States

Constitution (Count VII); the New Jersey Law Against

Discrimination (“NJLAD”), N.J.S.A. 10:5-1 et. seq. (Count VIII);

and the New Jersey Civil Right Act (“NJCRA”), N.J.S.A. 10:6-1

et. seq. (Count IX).

Both parties ultimately filed cross motions for summary

judgment. The Court issued an Opinion and Order granting in

part and denying in part both motions on December 3, 2020. (ECF

No. 32 and 33). The Court specifically granted Plaintiffs

summary judgment on their disparate treatment claim attacking

City Code § 152-1 under the FHA, ADA, and RHA. The Court

“easily [found] that § 152-1 is explicitly discriminatory,”

noting that the provision’s language made clear it governed only

the location of housing for persons with disabilities and

therefore “ensur[ed] there is no confusion regarding which

population of people § 152-1 is intended to restrict.” (ECF No.

32 at 16-17). The Court found that this was therefore a “clear

example of explicit discrimination,” and that the City had

entirely failed to put forward any justification for this

disparate treatment. Id. at 17-19.

It also rejected the City’s main argument for dismissal of

this claim: the Court held that, although the City had promised

during the course of this litigation that it would not again

enforce § 152-1’s distance requirement against Hansen House or

any other party, the claim was not moot because “‘[t]he timing

of Defendant[’s]’ promise not to enforce § 152-1, after

litigation had already begun, ‘as well as the ease by which

Defendant[] could conceivably re-institute the ban, convince the

Court that the alleged injury could reasonably recur absent the

requested relief.’” Id. at 15-16 (quoting Cottrell v. Good

Wheels, No. 08–1738 (RBK/KMW), 2009 WL 3208299, at *5 (D.N.J.

Sept. 28, 2009)). Therefore, the Court entered summary judgment

for Plaintiffs on their claims targeting § 152-1 under the FHA,

RHA, and ADA.1 Since section 3613 of the FHAA provided explicit

authority to enter permanent injunctive relief for a violation

of that statute, the Court therefore permanently enjoined

Atlantic City “from enforcing the distance requirement of City

Code § 152-1.” Id. at 19.

However, that was the only relief this Court granted to

Plaintiffs. The Court proceeded from there to grant Defendant’s

cross-motion for summary judgment as to every other claim

besides Plaintiffs’ NJLAD claim, which it remanded back to state

court for lack of subject matter jurisdiction. First, the Court

found that Plaintiffs had failed to put forward sufficient

measured proof to state a prima facie case that City Code § 163-

66B is discriminatory. Id. at 24. Second, it found that

Plaintiffs’ reasonable accommodation claims under the FHA, RHA,

and ADA were not yet ripe, because Plaintiffs had failed to seek

a zoning variance through the City’s process for seeking

1 In its opposition brief, Defendant appears to assert that the

Court only granted summary judgment on Plaintiffs’ FHA or RHA

claims here, stating that “[n]o finding was made relative to the

ADA.” But the Court made clear in its analysis of Plaintiffs’

disparate treatment claim regarding § 152-1 that it was

conducting a joint analysis under all three statutes, “[s]ince

the requirements of the FHAA, ADA and Rehabilitation Act are

essentially the same, [and] courts have concluded that the FHAA

analysis can be applied to ADA and Rehabilitation Act claims as

well in such cases where claims are brought under all three

statutes.” Id. at 11 (quoting Yates Real Estate, Inc. v.

Plainfield Zoning Board of Adjustment, 404 F. Supp. 3d 889, 914

(D.N.J. 2019)).

variances prior to filing this lawsuit. Id. at 28-29.

The Court next held that Plaintiffs’ substantive due

process claims and claims under § 1983 and the NJCRA were

similarly not properly before this Court at that time, because

under both parties’ theories of the facts of the case it was

“clear to the Court that Atlantic City’s zoning authorities have

not had the ‘opportunity to arrive[] at a final, definitive

position regarding how [they] will apply the regulations at

issue to the particular land in question’ necessary for

Plaintiffs’ claims to have become ripe.” Id. at 35 (quoting New

Jersey Chinese Community Center v. Township of Warren, 712 F.

App’x. 196, 199 (3d Cir. 2017)). Finally, the Court found that

it did not have subject matter jurisdiction over Plaintiffs’

claim for violation of N.J.S.A. § 10:5–12.5 and remanded that

claim back to state court. Id. at 31.

A few weeks after the Court issued its Opinion and Order,

Plaintiffs filed the present motion for attorneys’ fees, seeking

reimbursement for the fees and costs they incurred litigating

this action. (ECF No. 37). Defendant, unsurprisingly, has

opposed the motion. (ECF No. 42). Plaintiff has not filed any

reply brief in further support of their motion, and the time for

filing such briefs has since passed. Plaintiffs’ motion is

therefore ripe for adjudication.

DISCUSSION

I. Subject Matter Jurisdiction

This Court has jurisdiction over this action pursuant to 28

U.S.C. § 1331.

II. Analysis

Plaintiffs here are seeking to recover $105,159 in

attorneys’ fees and $424.28 in related costs that they claim

they are entitled to under both the FHA and the ADA. Plaintiffs

are correct that the Court has the discretion to award

attorneys’ fees and costs to the “prevailing party” under both

the FHAA, 42 U.S.C. § 3613(c)(2) (“[T]he court, in its

discretion, may allow the prevailing party ... a reasonable

attorney's fee and costs”), and the ADA, 42 U.S.C. § 12205

(“[T]he court ..., in its discretion, may allow the prevailing

party ... a reasonable attorney's fee, including litigation

expenses, and costs”). Defendant’s opposition brief argues both

that Plaintiffs are not entitled to any fees or costs, and that

to the extent they are, the amount of fees awarded should be

dramatically reduced from the amount requested.

A. Plaintiffs Are Prevailing Parties

As the FHA and ADA provisions cited above make clear, to

obtain an award of attorneys’ fees and costs under either

statute, Plaintiffs must first demonstrate that they were

prevailing parties in this action. “The Supreme Court has given

a ‘generous formulation’ to the term ‘prevailing party,’ stating

that ‘plaintiffs may be considered “prevailing parties” for

attorney's fees purposes if they succeed on any significant

issue in litigation which achieves some of the benefit the

parties sought in bringing suit.’” Truesdell v. Philadelphia

Housing Authority, 290 F.3d 159, 163 (3d Cir. 2002) (quoting

Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76

L.Ed.2d 40 (1983)).

However, “to be considered a prevailing party ... the

plaintiff must be able to point to a resolution of the dispute

which changes the legal relationship between itself and the

defendant . . . The touchstone of the prevailing party inquiry

must be the material alteration of the legal relationship of the

parties.” Texas State Teachers Association v. Garland

Independent School District, 489 U.S. 782, 792–93, 109 S. Ct.

1486, 103 L.Ed.2d 866 (1989). And the Supreme Court has further

clarified that a plaintiff “must obtain [either] an enforceable

judgment against the defendant from whom fees are sought, or

comparable relief through a consent decree or settlement, ...

[and] [w]hatever relief the plaintiff secures must directly

benefit him at the time of the judgment or settlement.” Farrar

v. Hobby, 506 U.S. 103, 111, 113 S. Ct. 566, 121 L.Ed.2d 494

(1992) (internal citations omitted).

Plaintiffs’ argument for why they qualify as prevailing

parties is straightforward: they brought suit claiming that the

distance requirement of City Code § 152-1 violated the FHA, RHA,

and ADA and seeking an injunction blocking the City from

enforcing that requirement, and the Court granted them summary

judgment on their claims and entered an Order permanently

enjoining the City from enforcing that requirement. Defendant’s

counterargument is only marginally more complicated, as it

contends that “[t]here has been no direct benefit to Hansen

House from this Court’s decision” because Plaintiffs are no

closer to being in compliance with the City’s zoning laws than

they were before instituting this action.

While Defendant’s argument is not without some persuasive

value, the Court ultimately finds that Plaintiffs achieved

sufficient success in this action to qualify as prevailing

parties. In arguing that there has been no “material

alteration” to the legal relationship between the parties,

Defendant is essentially taking the 10,000-foot view of the

case, viewing its purpose and goals in the most general, over-

arching manner. From Defendant’s perspective, the singular

focus of this action for Plaintiffs was to ensure their

compliance with the City’s zoning laws and therefore be able to

operate Serenity House at the 16 South Tallahassee Avenue

location in the manner they intended. And, as a general rule,

that is clearly the case here — the ultimate end goal of

Plaintiffs in filing this lawsuit was unquestionably to achieve

that specific outcome, as Plaintiffs’ own prayer for relief

makes clear. (See ECF No. 1-1 at 19-20) (requesting that the

Court “Enter a temporary restraining order and/or preliminary

and permanent injunctions enjoining the Defendant, the City of

Atlantic City, its officers, employees, agents, attorneys and

successors, and all persons in active concert or participating

with any of them, from interfering with the operation of

Serenity House as a home for recovering alcoholics and substance

abusers, and/or from interfering in any way with the rights of

the Plaintiffs to reside in those premises”).

However, when viewed more discretely, Plaintiffs individual

claims had their own discrete goals which Plaintiffs undoubtedly

hoped would also result in obtaining their larger desired

result. Plaintiffs therefore brought claims under three

separate federal anti-discrimination statutes for the direct

purpose of having the distance requirement of § 152-1 declared

illegal and ensuring the City could never again attempt to

enforce it against either Hansen House or any other party.

Defendant, for its part, jumps over this individual goal and

looks only to the desired result of the litigation writ large.

It argues that because the Court did not strike down the other

zoning provisions attacked by Plaintiffs due to Hansen House’s

failure to first pursue a zoning variance through the City’s

prescribed procedures, and the continuing validity and

enforceability of those other provisions presumably means that

Plaintiffs’ operation of Serenity House is not in compliance

with the City Code, that Plaintiffs achieved no material

alteration to the parties’ legal relationship.

To the contrary, the Court finds that Plaintiffs certainly

“succeed[ed] on [a] significant issue in [this] litigation which

achieve[d] some of the benefit the parties sought in bringing

suit.’” Truesdell, 290 F.3d at 163 (quoting Hensley, 461 U.S.

at 433). Plaintiffs’ Complaint here had multiple discrete

targets. They sought injunctions against the enforcement of two

specific City Code provisions, §§ 152-1 and 163-66B, and

additional orders from this Court essentially directing the City

to grant Serenity House a reasonable accommodation and enjoining

the City from interfering with Plaintiffs’ operation of Serenity

House moving forward.

Although Plaintiffs unquestionably hoped that achieving the

first goal, an injunction against the enforcement of the

distance requirement of § 152-1, would help aid them in their

pursuit of their other goals, that does not mean that the

legality and enforceability of that provision was not still a

significant issue in this litigation. While the City argues

that the Court’s permanent injunction merely ensures the City is

“not enforcing an ordinance section that it already refrained

from enforcing as to Hansen House (or which may not have applied

to Serenity House),” (ECF No. 47 at 10-11), the factual record

here makes clear that the City actively cited this provision as

potentially blocking Plaintiffs’ ability to operate Serenity

House at multiple points prior to the filing of the Complaint.

It is undisputed that the initial order to vacate Serenity House

issued by Dale Finch, Director of the City’s Department of

Licensing and Inspections, explicitly pointed to the “absolute

prohibition against a community residence at this specific

location” under City Code § 152-1 as one of its bases. (ECF No.

1-1, Compl. Ex. J). And while the parties disagree on the

ultimate basis for the City’s subsequent denial of their CLUC

application, there is no dispute that the copy of the

application on which City representatives listed the issues with

the operation of Serenity House and the CLUC application also

included a note stating that Serenity House was in violation of

§ 152-1’s distance requirement. (ECF No. 1-1, Compl. Ex. I).

Defendant’s argument that Plaintiffs achieved no true

success here because they were not going to enforce the distance

requirement anyway is simply a retread of the exact mootness

argument this Court rejected in its previous Opinion. It is

true that, in cases where a defendant has truly mooted certain

issues through its voluntary actions and therefore avoided an

enforceable judgment on the merits being entered against it, the

plaintiffs would not be considered a prevailing party entitled

to a fee award. See Singer Management Consultants, Inc. v.

Milgram, 650 F.3d 223, 231 (3d Cir. 2011) (holding that the

plaintiff was not a prevailing party because the defendant’s

voluntary actions had mooted certain issues and no judgement was

issued on the merits). But the Supreme Court has been clear

that “[i]f a case is not found to be moot, and the plaintiff

later procures an enforceable judgment, the court may of course

award attorney’s fees.” Buckhannon Bd. and Care Home, Inc., 532

U.S. 598 at 609.

The December 3, 2020 Opinion in this case was clear: the

City’s voluntary actions did not moot Plaintiffs’ claims related

to § 152-1, the Court reached a decision on the merits on the

provision’s legality, and the Court’s accompanying Order and

permanent injunction was an enforceable judgment against

Defendant. The City here actively cited § 152-1’s distance

requirement in issuing a vacate order to Serenity House on that

basis, later cited it again in a denial of their CLUC

application, and now wishes to avoid the consequences of their

actions simply because they later made an entirely non-binding

“promise” not to enforce it again later. Short of a Court Order

legally prohibiting them from doing so, there is simply no basis

by which Plaintiffs could have been confident that the City

would not again raise that exact restriction if they attempted

to move forward with the City’s prescribed processes for

ensuring their operation of Serenity House was in compliance

with the City Code.

Plaintiffs, by filing this action, have obtained an

enforceable order which permanently ensures that the clearly

discriminatory restrictions of § 152-1 will not be enforced

against them or any other parties in the future. The Court

fully understands that other provisions of the City Code may

still keep Plaintiffs from obtaining the full results they

sought in filing this lawsuit — and, as will be discussed below,

Plaintiffs’ failure to obtain their other desired goals should,

and will, play a role in the Court’s assessment of the amount of

fees and costs they will be awarded here. But the Court finds

that Plaintiffs were, on this one significant issue, prevailing

parties in this action.

But before beginning its assessment of what amount of fees

and costs Plaintiffs should recover here, the Court must first

address Defendant’s second, related argument: that “special

circumstances” in this action warrant a finding that, even

though Plaintiffs qualify as prevailing parties, they should

nonetheless receive no fees or costs. The “special

circumstances” exception to the general rule that prevailing

parties should recover attorneys’ fees “is an extremely narrow

one applied only in unusual circumstances and then only upon a

strong showing by the party asserting it.” Arc of N.J., Inc. v.

Twp. of Voorhees, 986 F. Supp. 261, 267 (D.N.J. 1997) (citing

Ashley v. Atlantic Richfield Co., 794 F.2d 128, 131, 134 n.9 (3d

Cir. 1986)). The Third Circuit has noted that “a finding of

such special circumstances is very rare, and the Supreme Court

has offered little guidance as to what situations qualify”

beyond indicating that the special circumstances exception

applies when “it is clear that the reasonable fee is no fee at

all.” Ward v. Philadelphia Parking Authority, 634 F. App’x.

901, 906 (3d Cir. 2015) (citing Farrar, 506 U.S. at 118).

Defendant argues that this is such a case. But Defendant

has failed to point the Court to any similar cases in which a

court has declined to award attorneys’ fees to a prevailing

party, and has further failed to demonstrate why this case

presents such special and unusual circumstances as to justify a

full withholding of any recovery. Defendant’s arguments

regarding the extent to which Plaintiffs’ own actions led to the

dismissal of many of their claims and their apparent ongoing

inability to bring Serenity House into compliance with the

City’s zoning laws are valid. But the Court views them as more

relevant to its analysis of how far Plaintiffs’ award of costs

and fees should be reduced — and whether Plaintiffs should

recover any of the fees they sustained in litigating the claims

that were dismissed, or recover only for the fees they sustained

in litigating the legality of § 152-1’s distance requirement —

not as a sufficiently special circumstance warranting the

withholding of any award at all. Defendant may believe

Plaintiffs have “unclean hands” here, but the Court has now

found twice that Plaintiffs achieved success on a significant

issue in this action, and notes here that their lawsuit helped

achieve a genuine social good via the invalidation of a nakedly

discriminatory zoning restriction that the City declined to even

offer a non-discriminatory justification for. The Court will

therefore move forward with assessing what amount Plaintiffs

will be awarded.

B. Plaintiffs Will Be Awarded Reduced Fees and Costs

The Court, having found that Plaintiffs are a prevailing

party, turns next to the question of exactly what amount of the

fees and costs they seek in their motion must be reimbursed by

Defendant. Plaintiffs here are seeking to recover $105,159 in

attorneys’ fees and $424.28 in related costs. While the Court

will grant Plaintiffs a fee award here, it will grant Plaintiffs

an award that is dramatically reduced from the full amount their

motion seeks.

When calculating an attorney's fee award under the ADA and

similar statutes, the “lodestar” method provides the starting

point for determining reasonable attorney's fees. Lanni v. New

Jersey, 259 F.3d 146, 149 (3d Cir. 2001). See also McKenna v.

City of Philadelphia, 582 F.3d 447, 455 (3d Cir. 2009) (“The

starting point for determining the amount of a reasonable fee is

the lodestar approach.”) (quoting Hensley v. Eckerhart, 461 U.S.

424, 433 (1983)). Under the lodestar approach, “court[s]

determine[] an attorney's lodestar award by multiplying the

number of hours he or she reasonably worked on a client's case

by a reasonable hourly billing rate for such services given the

geographical area, the nature of the services provided, and the

experience of the lawyer.” S.S. Body Armor I., Inc. v. Carter

Ledyard & Milburn LLP, 927 F.3d 763, 773 (3d Cir. 2019) (quoting

Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n.1 (3d Cir.

2000)).

A district court may discount any hours that it deems

unreasonable, including those considered to be “excessive,

redundant, or otherwise unnecessary.” See Hensley, 461 U.S. at

433. Although the Court has substantial discretion to determine

what constitutes a reasonable rate and reasonable hours, once

the lodestar is determined, it represents the presumptive

reasonable fee. Lanni, 259 F.3d at 149. “The prevailing party

bears the burden of establishing by way of satisfactory

evidence, in addition to [the] attorney's own affidavits ...

that the requested hourly rates meet this standard.” School

District of Philadelphia v. Kirsch, 722 F. App’x. 215, 229 (3d

Cir. 2018) (quoting Maldonado v. Houstoun, 256 F.3d 181, 184 (3d

Cir. 2001)).

“[O]nce the fee petitioner ‘submit[s] evidence supporting

the hours worked and rates claimed,’ the party opposing the fee

application has the burden to challenge the reasonableness of

the requested fee.” J.L. v. Harrison Township Bd. of Educ., No.

14-2666 (RMB/JS), 2017 WL 1954535, at *2 (D.N.J. May 11, 2017)

(quoting McKenna, 582 F.3d at 459). If sufficiently specific

objections to the requested fees are raised, “a district court

‘has a great deal of discretion to adjust the fee award in light

of those objections.’” Id. (quoting Taylor v. USF-Red Star

Exp., Inc., 212 F. App’x. 101, 111 (3d Cir. 2006)).

1. Reasonableness of counsels’ hourly rates

To calculate Plaintiffs’ lodestar, the Court must first

assess the hourly rates claimed for Plaintiffs’ counsel.

Plaintiffs have put forth the following hourly rates used in

their lodestar calculations: $410 per hour for Keith A. Davis, a

partner, $300 per hour for Jessica R. Witmer, Michael J. Lario,

Jr., and Chris D’Esposito, all associates, $325 for a Matt

Sykes, a fourth associate, and $400 for Steve Polin. In support

of these rates, they point the Court to rates published by

Community Legal Services, which demonstrate that these rates are

either average or below average for attorneys with the numbers

of years of experience they each have.

Defendant here does not challenge Plaintiffs’ requested

hourly rates, and “[t]he fee schedule established by Community

Legal Services, Inc. (“CLS”) ‘has been approvingly cited by the

Third Circuit as being well developed and has been found ... to

be a fair reflection of the prevailing market rates.’”

Maldonado v. Houstoun, 256 F.3d 181, 187 (3d Cir. 2001) (quoting

Rainey v. Philadelphia Housing Auth., 832 F. Supp. 127, 129

(E.D. Pa. 1993)). See also Rhodes v. Marix Servicing, LLC, No.

CV121636MASDEA, 2020 WL 5760455, at *5 (D.N.J. Sept. 28, 2020)

(approving hourly rates based on CLS fee schedule). The Court,

therefore, is satisfied that Plaintiffs’ hourly rates are

reasonable here.

2. Reasonableness of hours billed

“After a court ascertains a reasonable hourly rate, it must

then determine whether the hours that the attorney expended are

reasonable.” Machado v. Law Offices of Jeffrey H. Ward, No. 14-

7401, 2017 WL 2838458, at *2 (D.N.J. June 30, 2017) (citing

Hensley, 461 U.S. at 433–34). The Court must “review the time

charged, decide whether the hours set out were reasonably

expended for each of the particular purposes described and then

exclude those that are ‘excessive, redundant, or otherwise

unnecessary.’” Maldonado, 256 F.3d at 184. The Court will

exclude any hours that “were not reasonably expended” from the

fee calculation. Hensley, 461 U.S. at 434 (citation omitted).

“Hours are not reasonably expended if they are excessive,

redundant, or otherwise unnecessary.” Rode v. Dellarciprete,

892 F.2d 1177, 1183 (3d Cir. 1990). To determine whether the

hours expended in this matter are reasonable, “it is necessary

that the Court ‘go line, by line, by line’ through the billing

records supporting the fee request.” Evans v. Port Auth. of

N.Y. & N.J., 273 F.3d 346, 362 (3d Cir. 2001) (emphasis in

original).

“The party seeking attorney[s’] fees has the burden to

prove that its request for attorney[s’] fees is reasonable.”

Rode, 892 F.3d at 1183. “When the fee petitioner has produced

satisfactory evidence for a fee award, the burden shifts to ‘the

party opposing the fee to contest the reasonableness of the

hourly rate requested or the reasonableness of the hours

expended.’” Rhodes, 2020 WL 5760455, at *3 (quoting Apple

Corps. Ltd. v. Int'l Collectors Soc'y, 25 F. Supp. 2d 480, 485

(D.N.J. 1998)). “If the party opposing the fee petition meets

its burden of proving that an adjustment is necessary, the

[C]ourt has wide discretion to adjust the attorneys’ fee ....”

Apple Corps. Ltd., 25 F. Supp. at 480 (citation omitted); see

also Hensley, 461 U.S. at 433 (noting that determining

reasonableness of fees is within the trial court's discretion).

In cases such as this, the Court “has wide discretion to

adjust the attorneys’ fee for a variety of reasons such as

inadequate documentation of hours spent, reasonableness of hours

expended or duplication of efforts.” Apple Corps. Ltd., 25 F.

Supp. 2d at 485 (citing Ursic v. Bethlehem Mines, 719 F.2d 670,

677 (3d Cir. 1983)). “The Court, however, must be prompted by

the opposing party to review specific charges and cannot make

any adjustments sua sponte.” Machado, 2017 WL 2838458, at *2

(citing Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d

694, 711 (3d Cir. 2005)). “The lodestar calculation is presumed

reasonable, but the ‘[C]ourt can adjust the lodestar downward if

the lodestar is not reasonable in light of the results

obtained.’” Id. (quoting Washington v. Phila. Cty. Court of

Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996)).

As mentioned above, Plaintiffs here are seeking attorneys’

fees in the amount of $105,159 for 324.6 hours billed by six

different attorneys, as well as $424.28 in related costs.

Defendants, for their part, have raised numerous arguments for

why different aspects of Plaintiffs’ fee requests are deficient

or inappropriate here and should be denied.

The Court has therefore engaged in a searching and detailed

review of the billing records submitted by Plaintiffs. It notes

up front that, as Defendant has pointed out, Plaintiffs’ billing

records are far from a model of clarity; they not only include

substantial numbers of time entries with vague work

descriptions, but are also not in chronological order and appear

to involve multiple different internal file numbers and matter

names, all of which complicate this Court’s attempt to perform

the line-by-line review of the records required of it. Nor does

Plaintiffs’ moving brief do much to assist the Court with its

efforts. Despite having submitted 81 pages of billing records

and seeking an award of over $100,000 in attorneys’ fees,

Plaintiffs’ have put forward only a brief, conclusory three-page

argument for why the Court should find their claimed hours were

reasonably expended, and has not filed a reply brief responding

to Defendant’s specific objections.

On the other side, Defendant has put forward several

pinpointed, detailed attacks on the specific time entries they

think should be disregarded, and has helpfully provided the

Court with a number of exhibits breaking those entries down into

separate charts for easier review. For the sake of efficiency

and clarity, the Court will largely cite to Defendant’s summary

exhibits here in discussing individual billing entries,

particularly those that will be excluded. However, the Court

has directly reviewed Plaintiffs’ own submission in great

detail, and for each example where the Court cites to

Defendant’s exhibit, the Court has cross-checked Defendant’s

representations regarding those entries with the relevant time

entries in the billing records submitted by Plaintiffs at ECF

No. 37-2, and ensured their accuracy. The Court now turns to

its calculation of the number of hours reasonably expended on

this litigation, and to the specific attacks raised by

Defendant.

a. Work performed prior to this litigation

First, Defendant challenges over $6,000 in fees that were

billed for work done prior to the filing of this lawsuit,

arguing that Plaintiffs are not entitled to an award of those

fees. Defendant’s central argument is that “the discretionary

work performed by Hansen House’s counsel prior to drafting the

Complaint was not ‘both useful and of a type ordinarily

necessary’ to the advancement of the litigation.”

In making this argument, Defendant largely relies upon Webb

v. Board of Ed. of Dyer Cty., 471 U.S. 234 (1985), in which the

Supreme Court addressed a parties’ pursuit of attorneys’ fees

pursuant to 42 U.S.C. § 1988 for work done prior to the

initiation of the lawsuit and in a prior, but related,

administrative proceeding. Defendant cites Webb for the

proposition that a plaintiff is only entitled to an award of

such fees if the pre-litigation work is shown to have been “both

useful and of a type ordinarily necessary to advance the civil

rights litigation to the stage it reached before settlement.”

(ECF No. 42 at 20) (quoting Webb, 471 U.S. at 243). But while

the quoted language is an accurate description of how courts

analyze requests for fees for pre-litigation administrative

proceedings and related litigation actions, the Webb Court

further made clear that attorneys’ fees should be awarded for

work done “on the litigation” and “some of the services

performed before a lawsuit is formally commenced by the filing

of a complaint are performed ‘on the litigation.’ Most obvious

examples are the drafting of the initial pleadings and the work

associated with the development of the theory of the case.”

Webb, 471 U.S. at 243. See, e.g., Jimenez v. Best Behavioral

Healthcare, Inc., No. 18-1003, 2019 WL 6528766, at *6 (E.D. Pa.

Dec. 3, 2019) (awarding fees in FLSA case for pre-litigation

work described as “initial research, investigation, and client-

interview work performed prior to the filing of the complaint”).

The question before the Court then is whether the work

conducted by Plaintiffs’ counsel prior to the filing of their

Complaint on September 26, 2019, falls into this category.

Defendant, as it has for each of its objections, has submitted a

chart listing the specific time entries from before September

26, 2019, that it believes should be excluded from Plaintiffs’

award. While Defendant believes that none of the work performed

prior to September 26 meets the standard for reimbursement, the

Court finds that several of Plaintiffs’ time entries are

sufficient on their face to be included in their award of fees

and costs. Specifically, the Court finds that counsels’ time

entries, listed below, which (1) describe work performed on the

July 9, 2019 letter to Anthony Cox of the Building Department,

which outlined the requirements of the ADA and FHA, provided

relevant case law, and discussed potential violations of those

statutes by the City (ECF No. 1-1, Ex. F); and (2) describe

research on legal topics that were directly addressed and

analyzed on the parties cross-motions for summary judgment, are

sufficiently “associated with the development of the theory of

the case” and involved work that was sufficiently useful for

Plaintiffs’ eventual lawsuit so as to warrant an award of fees:

Page Time Hourly Fee

Date D te

Prepare

correspondence to

7/9/2019 P 1.5 $410 S605

Anthony Cox-

Bldg. Dept.

Miscellaneous

activity research re:

7/31/2019 | time limit } $300 $300

to challenge

ordinance

Miscellaneous

activity analysis to

KAD re:

7/31/2019 Cie TWEE ES 1 $300 $300

challenge ordinance &

exceptions

Analyze & research

re: ripeness of claim

8/8/2019 | against distance 1.2 $300 $360

limitation in

Atlantic City

Review Easter Seals

of NJ v. Twp. of N.

8/9/2019 | Bergen 0:5 $300 $150

re: exhaustion of

remedies

29

Plaintiffs also seek fees for the time their counsel spent

preparing for and attending the August 16, 2019, meeting with

the City’s representatives regarding the denial of their CLUC

application, and for preparing their eventual appeal of that

denial. But while Plaintiffs devote nearly a fully page of

their moving brief to arguing that Defendant’s actions regarding

that meeting and the eventual denial are the only reason a

lawsuit was needed, they have failed to put forward any basis

for the Court to find that time spent by their counsel on those

activities was sufficiently related to their eventual lawsuit as

to justify an entitlement to an award of fees here.

The Court does acknowledge that, as it outlined in its

prior Opinion, Plaintiffs were required here to pursue their

claims through the administrative process until the City issued

a final decision prior to instituting this action. Under normal

circumstances, this would almost certainly entitle a party to

fees for the work their counsel did on preparing documents to

appeal an initial denial of an application, as Plaintiffs’

counsel did here. But as the Court made clear in its December

3, 2020 Opinion, Plaintiffs’ appeal was denied by the City due

to several separate procedural deficiencies, including a failure

to even pay the required filing fee; while Plaintiffs’ brief

supporting their fee requests characterizes this denial as

having been made on “tenuous grounds,” (ECF No. 37-1 at 15), the

Court noted in its prior Opinion that “Plaintiffs do not appear

to dispute [that] the Zoning Board’s September 24 letter

informed Hansen House, according to the letter for the second

time, that their appeal was procedurally deficient due to Hansen

House’s failure to pay the filing fee, or attach multiple

documents related to the ownership of the house as required

under New Jersey law and the City Code.” (ECF No. 32 at 35).

Instead, Plaintiffs argued in their motion for summary

judgment that further pursuing their appeal or pursuing a zoning

variance under the City’s policies for variances would have been

futile. The Court entirely rejected that argument, holding that

Plaintiffs had entirely “failed to provide sufficient evidence

to demonstrate that the City’s proscribed process for handling

zoning disputes is so demonstrably futile as to render their

claims ripe for adjudication by this Court.” Id. at 36.

Plaintiffs themselves short-changed the administrative process

here by initiating this action without exhausting the City’s

processes or receiving a final decision on their compliance with

the City’s zoning regulations, and had the majority of their

claims dismissed because they chose to do so. The Court will

not reward them for those actions by granting them an award of

fees for insufficient and incomplete actions taken in a doomed

administrative appeal prior to the date this lawsuit was filed.

The Court will further deduct the amounts requested for the

remainder of the time entries listed in Defendant’s Exhibit 1

for work done prior to September 26, 2019. As stated above, it

is Plaintiffs’ burden at this stage to demonstrate their

entitlement to an award of fees and costs. But numerous of

Plaintiffs’ pre-September 26th time entries make it entirely

impossible for the Court to assess whether the time billed could

be considered sufficiently spent “on the litigation” or whether

it was unrelated and must be excluded. This includes entries

with such vague descriptions as “Prepare correspondence to

client Dave Goddard (Tallahassee),” numerous descriptions

essentially identical to “Prepare correspondence to Cathy Ward,”

“Telephone call to opposing counsel Anthony Swan (ofc),”

“Telephone call to client Goddard/Lentz re: Tallahassee Ave.,”

and more. (ECF No. at 42-1, Ex. 1 at 2-3). With Plaintiffs

having failed to provide further context on these entries in

either the billing records themselves or their briefing on this

present motion, the Court simply cannot assess what this time

was spent on and therefore will exclude these hours and the

amounts requested for this work from Plaintiffs’ award. As

explained above, the Court finds that the 5.2 hours listed above

was time billed on research and drafting that ultimately

benefited Plaintiffs’ pursuit of their claims, and will not

exclude those hours or deduct the $1,725 of corresponding fees.

Defendant challenged 16.9 hours spent on pre-litigation work,

totaling $6,016 fees. The Court finds that the remaining 11.7

hours were not reasonably expended on this litigation, and the

Court will exclude those hours challenged by Defendant from its

calculation of Plaintiffs’ lodestar, totaling $4,291 in

deductions.

b. Work performed on municipal court matters

Plaintiffs’ billing records make clear that they similarly

seek reimbursement for fees incurred in litigating the separate

municipal court matter initiated by the City against Hansen

House in July 2019. Their argument for why an award of these

fees is appropriate is only one sentence and directly follows

their argument outlined above for why they should receive fees

for work performed prior to this litigation: they simply assert

that “[i]n a similar vein, Plaintiffs should be awarded all fees

incurred by having to defend in municipal court the violations.”

(ECF No. 37-1 at 15).

The Third Circuit, in Gulf Stream III Assoc., Inc., v.

Gulfstream Aerospace Corp., 995 F.2d 414 (3d Cir. 1993),

explained that plaintiffs may be entitled to an award of

attorneys’ fees incurred in separate, but related litigation

under certain specific circumstances: “if the plaintiff can

prove that the fees and expenses incurred in the other

litigation resulted in work product that was actually utilized

in the instant litigation, [and] that the time spent on the

other litigation was ‘inextricably linked’ to the issues raised

in the present litigation, ..., then the district court may

include those fees and expenses in its fee award.” Id. at 420

(quoting Keenan v. City of Philadelphia, 983 F.2d 459, 474 (3d

Cir. 1992)). But once again, “[t]he burden is upon the

prevailing party to establish that the services for which it

seeks fees actually advanced the civil rights litigation.”

Clark v. Bd. of Educ. of Twp. of Neptune, 907 F. Supp. 826, 830

(D.N.J. 1995).

Plaintiffs here have made no attempt to do meet this

burden. As mentioned above, their argument for why they should

be awarded fees associated with the separate municipal court

matter simply refers the Court to their previous argument

regarding pre-litigation work. But the only argument they put

forward there was that they attempted to resolve this issue

prior to the filing of any actions and it was Defendant’s fault

that either litigation was necessary.

The Court first notes that the record in this case shows

clearly that the City’s municipal court filing was solely

focused on the fact that Plaintiffs had moved individuals into

Serenity House and began operations there without having first

applied for or obtained a certificate of occupancy. (ECF No. 1-

1, Ex. G and H) (municipal complaint listing “Failure to Obtain

an ‘Occupancy Permit’ Before New Occupancy Occurred” as the

single offense committed by Hansen House). Plaintiffs openly

conceded at the summary judgment stage that “Hansen House—

admittedly—was late in obtaining an certification of occupancy

for its residents that moved into Serenity House,” and that they

received the municipal complaint on July 15, 2019, (ECF No. 25-2

at ¶¶ 9-11), despite having been notified of the need for an

certification of occupancy by the City months earlier on March

7, 2019. (ECF No. 26-2 at ¶ 34 and ECF No. 30-3 at ¶ 34). But

more importantly, Plaintiffs have entirely failed to show how

any work associated with the municipal court litigation

“resulted in work product that was actually utilized in the

instant litigation,” nor to even try to make such a showing

despite it being their burden to demonstrate their entitlement

to an award of such fees.

The Court will therefore exclude all hours associated with

the municipal court action from Plaintiffs’ award. Defendant

has again put together a chart, Exhibit 2, which lists the time

entries they assert were related to the municipal court

litigation. The majority of those entries are for work clearly

performed for the municipal court proceeding, providing

descriptions such as “Prepare correspondence to Mike re:

Municipal matters & status” and “Telephone call with Municipal

Court re: adjournment.” (ECF No. 42-1, Ex. 2 at 5-6). The

Court notes that some of the entries listed in this exhibit by

Defendant are less clear regarding their nature: for example,

the Court is unable to determine on its own whether entries for

work described as “Review notice from court; email to client

w/notice” or “Prepare correspondence to client w/update re:

upcoming appearance” are related to the municipal court

proceeding or this action, which was underway at the same time,

besides the small hint given by the fact that many of these

entries were performed on the same days as work clearly centered

on the municipal court action.

But, once again, the initial burden here is on Plaintiffs

to demonstrate that they are entitled to an award of these fees.

Plaintiffs here chose to submit a large number of billing

entries for work their counsel performed for a separate court

proceeding, and further chose to not attempt to separate those

time entries out for this Court or to provide it some other

basis by which it can assess which legal proceeding individual

time entries are related to. In other words, the time entries

described here are either clearly of the type that Plaintiffs

are not entitled to receive in a fee award, or are so vague and

general as to make it impossible for the Court to assess whether

they are or are not in that category. Either way, Plaintiffs

have not made a sufficient showing that they are entitled to an

award of the fees listed in Defendant’s Exhibit 2. Accordingly,

the Court finds that the entirety of the 10.5 hours billed in

the time entries listed in Exhibit 2 must also be excluded,

totaling another $3,216 in deductions to the lodestar

calculation.

c. Fees for work unrelated to this litigation

Next, Defendant contends that Plaintiffs are seeking to

recover fees for work that is entirely unrelated to this

litigation. Even the briefest review of Plaintiffs’ submitted

time entries reveals this to be true. The Court will briefly

cite a few examples.

First, Plaintiffs remarkably appear to be seeking an award

of fees for time spent by their counsel talking with a member of

the press on an unknown and undescribed subject. See, e.g., ECF

No. 37-2 at 19 (seeking fees for work described as “Telephone

call with David Danzes/Press of AC”). “[T]he proper forum for

litigation is the courtroom, not the media,” Halderman v.

Pennhurst State Sch. & Hosp., 49 F.3d 939, 942 (3d Cir. 1995),

and “[p]laintiffs may not recover fees for an attorney's time

spent on media and press coverage unless they can show that it

contributed, directly or substantially, to the attainment of

Plaintiffs' litigation goals.” Americans for Prosperity v.

Grewal, No. 3:19-cv-14228-BRM-LHG, 2021 WL 1153194, at *5

(D.N.J. Mar. 26, 2021) (quoting Souryavong v. Lackawanna Cnty.,

159 F. Supp. 3d 514, 537 (M.D. Pa. 2016)). As Plaintiffs have

made no effort to put forth such a showing here, it should come

as no surprised that the Court will not grant them an award of

fees for such activity.

Almost as inexplicably, Defendant’s Exhibit 5 shows that

Plaintiffs’ billing records are replete with time entries that

appear to describe legal work related to other Hansen House

properties besides Serenity House: Plaintiffs seek

reimbursement of fees for things such as “Telephone call with

Jeff Wilson re: 706 No. Ohio,” “Review code re: 600ft limitation

& applicability to Raleigh,” and “Review correspondence from D.

Goddard re: Raleigh Ave & co/licensing.” (ECF No. 42-1, Ex. 5

at 18-19). Similarly, Plaintiffs seek fees for time spent on

communications with the “DCA,” which based on the summary

judgment filings in this case the Court interprets as the non-

party Department of Community Affairs, which appear to have

involved regulatory and licensing issues. See id. (time entries

for work described as “[p]repare correspondence to Jay

Raywood/DCA-c/o issue,” “[p]repare correspondence to Raywood,”

“[p]repare correspondence to Raywood/DCA-permitting,” “Telephone

call with Raywood re: prior residents to continuation boarding

home & triplex v. single & double family,” and “[t]elephone call

with Jay raywood/DCA”). Plaintiffs have made no attempt to

explain to the Court why they believe they are entitled to fees

for this work.

Plaintiffs have further sought to recover fees for work

such as “Prepare response in connection with motion to dismiss;

conduct research in connection w/same,” “Review defendants

argument in motion to dismiss & review motion to dismiss,”

“Legal research conduct research re: federal removal; draft

summary re: same,” and “[p]repare and research motion to

remand,”, id., despite the fact that no motion to dismiss or

motion to remand was ever filed in this action. And while there

are multiple entries discussing work performed on an undescribed

settlement agreement, the Court has found no reference to any

settlement discussions between the parties in either their

briefing on this motion or their briefing on their cross-motions

for summary judgment. See id. (listing time entries described

as “Revise document continue to draft settlement agreement,”

“Prepare correspondence to M. Lentz & team re: settlement

agreement,” “Telephone clal to client re: settlemen” and “Review

settlement agreement”). The Court is unsure whether the time

entries described in this paragraph relate to some other

litigation Hansen House is involved in, or are work for this

action on motions that Plaintiffs ultimately opted not to file

and settlement discussions that ultimately failed. Regardless,

the Court is unable to find with sufficient confidence that

these time entries describe the sort of work for which

Plaintiffs are entitled to receive an award of attorneys’ fees.

Finally, Plaintiffs seek fees for a number of time entries

for work the subject of which this Court simply cannot identify

or assess. The Court is unable to determine whether time

entries for work described as “Review Kurtz video & screen shot

images for file,” “Prepare OPRA Request to AC re: property

records,” “Prepare correspondence to client w/ parking executed

agreement,” “Review correspondence from Leo re: agreement,”

“Review rule regards pursue identifiers,” or “Telephone call

with and email to Mike Lentz; Jessica witmer RE: Bank financing

questions Class F licenses/fines,” amongst others, are related

‐

to this litigation, and in many cases is entirely unsure what

they are referencing altogether. Id. The Court will entirely

exclude the fees associated with such unexplained billing

entries.

Ultimately, the Court agrees with Defendant that Plaintiffs

have not demonstrated their entitlement to a fees award for any

of the work described in the time entries compiled in Exhibit 5.

The Court will therefore exclude the 28 hours billed to work

listed in that exhibit and the corresponding $9,221 in fees

requested for those time entries.

d. Fees for work on summary judgment briefing

Fourth, Defendant asserts that Plaintiffs’ fee award should

be reduced because “The Time Spent on Summary Judgment Briefing

is Excessive and Redundant,” (ECF No. 42 at 24), and because

many of the hours they billed were spent working on claims that

were ultimately unsuccessful. Since the Court must first

calculate Plaintiffs’ lodestar before it considers making

reductions based on lack of success, the Court will address

Defendant’s second argument in a separate discussion at the end

of this Opinion.

As to the first argument, Defendant specifically challenges

the 77.6 hours billed by counsel for work on Plaintiffs’ moving

brief and the 50.1 hours billed on their reply brief, arguing

that these hours should be excluded because Plaintiffs had

already spent a substantial number of hours on research and

drafting related to similar issues in earlier filings in this

litigation. However, while Plaintiffs’ summary judgment

briefing likely overlapped in some ways with earlier filings in

this action, the Court declines to find that Plaintiffs’ counsel

having spent slightly less than 78 hours preparing its motion

for summary judgment was so excessive or redundant as to warrant

a downward reduction of fees on that basis alone. And the Court

similarly declines to find that Plaintiffs’ counsel having spent

approximately 51 hours spent preparing a brief that served as

both a reply brief in further support of their own motion for

summary judgment and as a brief opposing Defendant’s cross-

motion for summary judgment was excessive here. Plaintiffs

claims here were not terribly complex, but this action involved

at least thirteen separate claims and cross motions for summary

judgment. While Plaintiffs’ counsel may have been capable of

working more efficiently on their briefing, the Court does not

find that the hours they billed were excessive enough to warrant

exclusion or a downward reduction.

e. Lack of specificity in billing records

Defendant’s final specific attack on Plaintiffs’ fee

requests is that they are simply too vague and lacking in the

requisite specificity for Defendant or the Court to properly

assess their appropriateness, and therefore the Court should

make reductions to Plaintiffs’ fees award. The Court agrees.

As noted above, Plaintiffs’ billing records submitted along

with their motion are not as clear as the Court would desire in

attempting to engage in a thorough, line-by-line analysis in

response to a party’s fee application. They are filed in no

specific order, associated with multiple different matter names

and file numbers, and include a substantial number of entries

that are so vague and so lacking in specific descriptive

language that the Court has little ability to properly analyze

them in adjudicating the present fee application.

Nor have Plaintiffs taken it upon themselves to provide the

Court with anything approaching a summary or breakdown of what

exactly their claimed hours were spent on, instead leaving the

Court and Defendant to comb through 81 pages of billing records

to attempt to piece together what Plaintiffs’ counsel billed

324.6 hours doing. Defendant however, in support of its

assertion that Plaintiffs’ lodestar should be reduced due to the

vagueness of many of their time entries, has provided the Court

with a list of examples in Exhibit 6, which includes eleven

hours’ worth of time entries referencing research, phone calls,

and other forms of “correspondence” that are so vague and so

general that the Court could not even hazard a guess as to the

topic of that research or those conversations. The Court simply

cannot find that these hours were reasonably expended on this

litigation, because it cannot determine what they were spent on

at all, and Plaintiffs have taken no steps to further illuminate

the Court on this topic.

While Defendant requests that the Court apply an across-

the-board reduction to Plaintiffs’ entire fees request, rather

than individually exclude the fees for the time entries they

have listed, the Court will decline to do so. Although the

Court itself has been frustrated by Plaintiffs’ counsels’

oftentimes vague work descriptions, it does not believe that,

given Defendant’s extremely detailed and pointed opposition

brief, it truly hampered Defendant’s ability to oppose the

present motion. And, perhaps more importantly, the Court has

already rejected a number of other time entries under other

categories by noting that they were not sufficiently detailed

for the Court to ensure that they did not fall into categories

of billed work that the Court planned to exclude from its final

calculation of Plaintiffs’ fee award. Accordingly, the Court

will simply exclude the 11 hours associated the undeniably vague

time entries outlined in Defendant’s Exhibit 6, which correspond

with $4,356 in requested fees that will be excluded.

3. Plaintiffs’ fee award will be reduced due to limited

success in this action.

The Court therefore has finished its initial lodestar

calculation. Plaintiffs here submitted fee requests for

$105,159 for 324.6 hours of work billed. (ECF No. 37-1 at 13).

As outlined above, the Court has analyzed Plaintiffs’ billing

entries on a line-by-line basis, with a special focus on the

specific challenges made by Defendant, and has excluded 61.2

hours of work, which corresponds to $21,084 based on the

respective hourly rates of the different attorneys who worked on

this case for Plaintiffs. The Court therefore finds that

Plaintiffs’ counsel reasonably expended 263.4 hours on this

litigation, and based on the respective hourly rates for each

attorney calculates Plaintiffs’ lodestar as $84,075.

But that is not the end of the Court’s analysis here.

Throughout its opposition brief, Defendant has repeatedly pushed

for another, truly substantial reduction of Plaintiffs’ fees

award: Defendant claims that Plaintiffs achieved only a minimal

degree of success in this action, and therefore requests that

the Court make a final reduction of 90% to the lodestar. (See

ECF No. 42 at 18, 26, and 34). Plaintiffs, unsurprisingly,

disagree entirely and believe that they “should be awarded the

full lodestar figure of attorney’s fees.” (ECF No. 37-1 at 14).

Although the lodestar calculation “produces a presumptively

reasonable fee, that ‘does not end the inquiry. There remain

other considerations that may lead the district court to adjust

the fee upward or downward.’” United Auto. Workers Local 259

Social Sec. Dept. v. Metro Auto Center, 501 F.3d 283, 292 (3d

Cir. 2007) (quoting Hensley, 461 U.S. at 434). Instead, the

Supreme Court has explained that when ‘a plaintiff has achieved

only partial or limited success, the product of hours reasonably

expended on the litigation as a whole times a reasonable hourly

rate [i.e., the ‘lodestar’ amount] may be an excessive amount.”

Hensley, 461 U.S. at 436. “In such cases, a reduction in the

fee award is warranted, and ‘[t]he district court may attempt to

identify specific hours that should be eliminated, or it may

simply reduce the award to account for the limited success.’”

A.S. ex rel. V.S. v. Colts Neck Bd. of Educ., 190 F. App’x. 140,

143 (3d Cir. 2006) (quoting Hensley, 461 U.S. at 436).

In other words, a district court “may adjust a requested

legal fee downward based upon the results obtained by counsel

for the prevailing party, particularly ‘where a plaintiff is

deemed “prevailing” even though he succeeded on only some of his

claims for relief.’” School District of Philadelphia v. Kirsch,

722 F. App’x. 215, 230 (3d Cir. 2018) (quoting Hensley, 461 U.S.

at 434). “Indeed, ‘the most critical factor’ in determining the

reasonableness of a fee award ‘is the degree of success

obtained.’” D.O., on Behalf of M.O. v. Jackson Twp. Bd. of Ed.,

No. 17-1581 (TJB), 2019 WL 1923388, at *2 (D.N.J. April 30,

2019) (quoting Farrar, 506 U.S. at 114). Importantly,

“[d]istrict courts have wide discretion to determine whether,

and by how much, fees should be reduced for lack of success.”

D’Orazio v. Washington Tp, 501 F. App’x. 185, 188 (3d Cir.

2012). But as the Supreme Court explained in Hensley, “[w]here

a plaintiff has obtained excellent results, his attorney should

recover a fully compensatory fee ... [and] the fee award should

not be reduced simply because the plaintiff failed to prevail on

every contention raised in the lawsuit.” Hensley, 461 U.S. at

435.

The Court finds here that while neither side’s framing of

the outcome of this litigation is entirely accurate, Defendant

is correct that a substantial reduction to Plaintiffs’ lodestar

is warranted in this action. The Court will address the

parties’ respective arguments on this topic first, before

explaining the specific reduction it finds appropriate.

Defendant, obviously seeking the largest possible

reduction, frames Plaintiffs’ lawsuit as almost a total loss.

It contends that since “Hansen House was only successful on one

out of its 9 causes of action,” and that because the City

promised not to enforce Section 152-1’s distance requirement in

its October 30, 2019, letter to the Court, Plaintiffs’ fee award

should be restricted only to time billed prior to October 30 and

only to time billed specifically to working on their claims

related to Section 152-1. (ECF No. 42 at 17-18). Based on all

of this, Defendant believes that a 90% fee reduction would be

most appropriate here.

The Court finds multiple issues with Defendant’s framing.

First, the claim that Plaintiffs were only successful on one out

of nine causes of action is simply inaccurate. To start, the

Court should note here that while Plaintiffs’ Complaint listed

nine causes of action, it would be more accurate to say that

Plaintiffs pursued thirteen claims in this action: three claims

for violation of the ADA, RHA, and FHA related to § 152-1, three

claims for violation of the ADA, RHA, and FHA related to § 163-

66B, five claims related to Defendant’s alleged failure to

provide Plaintiffs a reasonable accommodation under the ADA,

RHA, FHA, NJLAD, and NJCRA, and claims under 42 U.S.C. § 1983

and the Fourteenth Amendment.

And while Defendant’s brief makes clear in multiple places

that Defendant read the Court’s December 3, 2020, Opinion as

only granting Plaintiffs’ FHA claim as to Section 152-1, this is

simply a misreading of the Opinion on Defendant’s part.

Instead, as the Court noted above, the Court began its

discussion of Plaintiffs’ disparate treatment claims against

Section 152-1 under the FHA, RHA, and ADA by pointing out that

“[s]ince the requirements of the FHAA, ADA and Rehabilitation

Act are essentially the same, courts have concluded that the

FHAA analysis can be applied to ADA and Rehabilitation Act

claims as well in such cases where claims are brought under all

three statutes.” (ECF No. 32 at 11) (quoting Yates Real Estate,

Inc., 404 F. Supp. 3d at 914). The Court then proceeded to

outline the relevant theories of liability plaintiffs have at

their disposal for proving “a violation of the FHA, ADA, or

RHA,” id. at 12, engaged in a joint analysis of Plaintiffs’

disparate treatment claims under all three statutes, and granted

summary judgment on all three. While the Court understands that

Defendant may have been confused by the Court’s reference to

“Section 3613 of the FHAA” alone in the final paragraph of that

analysis, id. at 19, that reference was made simply because that

provision granted the Court the specific authority to enter a

permanent injunction against enforcement of Section 152-1’s

distance requirement. The Court’s emphasis of the FHAA there

served only as an explanation of the statutory authority relied

upon by the Court in granting Plaintiffs the specific relief

they requested, and was not intended to imply that Plaintiffs’

ADA or RHA claims based on Section 152-1 were denied.

Therefore, the Court’s prior Opinion and Order can be more

accurately summarized as having granted Plaintiffs summary

judgment on their three federal disparate treatment claims

related to § 152-1, remanded their NJLAD claim back to state

court for lack of subject matter jurisdiction, and dismissed

their remaining nine claims. In other words, Plaintiffs

succeeded on three out of thirteen claims, rather than one out

of nine.

Second, Defendant’s attempt to cabin Plaintiffs’ fee award

to only fees associated with work done prior to Defendant’s

filing of its October 30, 2019, letter is entirely unavailing.

The City’s argument essentially appears to be that the October

30 letter made clear not only that the City was promising not to

enforce the distance requirement of Section 152-1, but also that

if Plaintiff simply sought a use variance from the City to

operate under a different categorization, that distance

requirement would not apply to them. To the extent that

Defendant is attempting to make the first argument, it must be

rejected for a very simple reason: this Court has already

rejected this framing of this litigation, and the City’s attempt

to use an unenforceable promise to avoid litigation over a

clearly discriminatory regulation, in both its prior Opinion and

in finding above that Plaintiffs qualified as prevailing

parties.

As to the second argument, while the Court does not

necessarily disagree with the letter’s framing of the issues in

this litigation — which is ultimately rather similar to the

Court’s later holding that Plaintiffs’ failure to have sought a

use variance or allowed the City to reach a final decision on

Serenity House’s proper categorization was fatal to many of

their claims — the Court simply does not see how the simple

filing of that letter renders the work performed by Plaintiffs’

counsel after that date unnecessary or unreasonable here. This

contention is largely parallel to Defendant’s attempt,

throughout its opposition brief, to frame this lawsuit as having

been entirely unsuccessful for Plaintiffs. But as the Court

already explained in its prevailing party analysis, a City

employee actively cited the distance requirement of § 152-1, a

provision which this Court held was “clear example of explicit

discrimination,” id. at 17, in ordering Plaintiffs to vacate

Serenity House, and then proceeded to oppose Plaintiffs’ attempt

to obtain a court Order enjoining the City from enforcing it in

the future. The Court simply will not bar Plaintiffs from

recovering attorneys’ fees that very well may have been incurred

working on an important issue that they were successful on

simply based on a letter sent by opposing counsel.

The Court therefore disagrees with Defendant that

Plaintiffs were so unsuccessful here as to warrant a 90%

reduction to their fees or exclusion of all fees incurred after

October 30, 2019. However, it nonetheless agrees with

Defendant’s more general argument that Plaintiffs were largely

unsuccessful in this action and a substantial reduction is

warranted.

The Court must next address Plaintiffs’ own framing of the

outcome of this litigation. Put most succinctly, the Court

simply does not see any basis to accept their assertion that

“the central aim of their lawsuit was achieved” here.

Plaintiffs contend in their moving brief that “the Verified

Complaint contained a single prayer for relief requesting a

court order enjoining Defendant from interfering with the

operation of Serenity House,” and they “succeeded in that regard

. . . [and] achieve total victory on the central aim of their

suit.” (ECF No. 37-1 at 15-16). But Plaintiffs’ framing of the

outcome of this litigation runs into multiple clear problems.

First, the Court must restate that its review of

Plaintiffs’ Complaint and their motion for summary judgment

makes clear that Plaintiffs essentially asserted thirteen claims

here, and succeeded on only three out of those thirteen claims —

put another way, Plaintiffs were unsuccessful on approximately

77% of the claims they pursued in this action. And as the Court

outlined above, the Third Circuit has made clear that “an

attorney's work on unsuccessful claims not related to the claims

on which the attorney succeeded is not compensable, because such

work ‘cannot be deemed to have been expended in pursuit of the

ultimate result achieved.’” McKenna v. City of Philadelphia,

582 F.3d 447, 455 (3d Cir. 2009) (quoting Hensley, 461 U.S. at

434-35). In fact, the Third Circuit has emphasized that “the

District Court has a positive and affirmative function in the

fee fixing process, not merely a passive role” and “should

reduce the hours claimed by the number of hours spent litigating

claims on which the party did not succeed, that were distinct

from the claims on which the party did succeed, and for which

the fee petition inadequately documents the hours claimed.”

Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 178 (3d Cir.

2001).

However, a district court’s decision whether to reduce fees

in this manner “depends upon whether the unsuccessful claims

were, in fact, distinct,” because the Supreme Court’s precedent

on this issue “cautions that courts should not reduce fees

simply because some of a prevailing party's related claims are

unsuccessful.” McKenna, 582 F.3d at 457 (citing Hensley, 461

U.S. at 434-35). “[W]here a plaintiff's claims involve ‘a

common core of facts’ or are based on ‘related legal theories,

... [m]uch of counsel's time will be devoted generally to the

litigation as a whole, making it difficult to divide the hours

expended on a claim-by-claim basis.’” Id. (quoting Hensley, 461

U.S. at 435). But “where a party brings claims that do not

depend on the same sets of facts and legal theories as the

claims on which the party has succeeded, fees should not be

awarded for work on those unrelated claims because the work

‘cannot be deemed to have been expended in pursuit of the

ultimate result achieved.’” Id. (quoting Hensley, 461 U.S. at

435).

As described above, the Court granted Plaintiffs summary

judgment on their claims that § 152-1 violated the ADA, RHA, and

FHA due to its disparate treatment of individuals with

disabilities, but granted Defendant summary judgment as to all

other claims but one and dismissed those claims. Those

additional claims included allegations that City Code § 163-66B

also violated the ADA, RHA, and FHA based on its disparate

impact on individuals with disabilities, that the City had

violated those three federal statutes as well as the NJCRA and

the NJLAD due to its failure to provide Plaintiffs with a

reasonable accommodation and its actions in the dispute leading

up to this litigation, and that its actions further qualified as

violations of § 1983 and the Fourteenth Amendment’s protections

for substantive due process. Plaintiffs did not succeed on any

of those additional claims in this action.

Plaintiffs, for the most part, have failed to do anything

more than put forward the conclusory assertion that their other

claims were all so sufficiently connected and interrelated to

make a reduction unwarranted here, and make almost no attempt to

present an actual argument as to why this is the case. But

despite Plaintiffs’ failure to raise a strong defense of their

fees request, the Court itself recognizes that there is at least

a plausible argument here that the claims were somewhat related

and involved something approaching a “common core of facts.”

The general legal theory here, for all of Plaintiffs’ claims,

was that the City’s zoning laws and actions taken in its dispute

with Hansen House were all discriminatory, and the background

facts of that dispute do exist as the general underpinning of

Plaintiffs’ entire lawsuit.

However, as Defendant persuasively argues, adjudication of

Plaintiffs’ disparate treatment claims attacking § 152-1

ultimately required nothing more than a discrete, purely legal

analysis — the Court simply rejected Defendant’s mootness

argument, and then went on to reach a simple holding: § 152-1

was, on its face, “a clear example of explicit discrimination,”

because it facially applied only to individuals with

disabilities and the City had made no attempt to put forth a

nondiscriminatory justification. (ECF No. 32 at 17).

The Court’s analysis of Plaintiffs’ other claims, on the

other hand, involved detailed discussion of the factual

background referenced above, including which actions the parties

took at different times over the course of the spring and summer

of 2019, and largely focused on questions of ripeness and

whether any final decision had been made by the City regarding

Serenity House’s categorization under the City Code, neither of

which were arguments that were relevant to Plaintiffs’ claims

against § 152-1. Similarly, Defendant did not raise the single

argument it raised in opposition to the claims against § 152-1,

that the claims were moot, as a basis for dismissal of any other

claims, and the Court’s analysis of Plaintiffs’ successful and

unsuccessful does not appear to have ultimately overlapped at

all.

The only attempt Plaintiffs even make to prove that this

was not the case is to point the Court to the parties’

contradictory recollections of Hansen House’s August 16, 2019,

meeting with City officials, and to assert that “it is beyond

dispute that Defendant advised Serenity House to pursue such a

designation while this suit was pending.” (ECF No. 37-1 at 16).

But Plaintiffs fail to explain how exactly they believe this

proves that each of their claims involved a “common core of

facts” and “related legal theories” such that this Court is

incapable of separating out the time spent by their counsel

litigating this matter.

However, the Court does not view these claims as being

completely walled off from each other. First, while the Court’s

analysis of Plaintiffs’ claims against § 152-1 was purely legal

in nature, it must be noted that Plaintiffs had also raised

disparate impact claims attacking that provision that likely

would have required essentially identical analysis as their

disparate impact claims attacking § 163-66B; the Court simply

found it unnecessary to address that theory of liability because

it had already found that a permanent injunction was warranted

by its finding that § 152-1 was facially discriminatory.

Second, while Plaintiffs’ reasonable accommodation claims were

ultimately dismissed on ripeness grounds and for failure to

allow the city to reach a final decision on Serenity House’s

proper categorization under the City Code, the Court has little

trouble imagining how the facts regarding the City’s attempts to

enforce or refer to the distance requirement of § 152-1 could

have come into play had Plaintiffs’ claims progressed further.

However, while it was certainly possible that Plaintiffs’

reasonable accommodations claims could have ultimately involved

consideration of facts that were technically related to

Plaintiffs’ successful disparate treatment claims against § 152-

1, the legal theories were ultimately largely unrelated and

involved different bases for liability. And, perhaps most

importantly, the Court finds that at least some consideration of

these failed claims in fashioning a reduction to their lodestar

is highly appropriate for one simple reason: Plaintiffs’ own

actions were the cause of the dismissal of most of their claims.

The Court here rejected eight of Plaintiffs’ thirteen

theories for liability under six separate statutes and a

constitutional provision; those dismissals were all based in one

way or another on either Plaintiffs’ failure to pursue a zoning

variance despite clear case law requiring them to do so before

pursuing claims under the ADA, FHA, and RHA, or Plaintiffs’

failure to ensure they had given the City the opportunity to

reach a final decision regarding its view of Serenity House’s

proper categorization under the City’s zoning laws. As

Defendant aptly frames it, Plaintiffs here (1) began operation

of Serenity House without even attempting to seek City approval

to do so, (2) decided to seek a shortcut through the system for

receiving City approval by rushing to federal court without

making a true attempt to abide by the City’s procedures for

ensuring compliance with the City Code and zoning laws, and (3)

had their claims dismissed for having done so. With that all

established, they now “now seek[] a windfall from the City

precisely because they wished to play by their own rules despite

the well-developed body of case law establishing the importance

of going through the process.” (ECF No. 42 at 17).

For this reason, the Court declines to allow the mere

theoretical possibility that Plaintiffs’ unsuccessful reasonable

accommodations claims, as well as their unsuccessful § 1983 and

substantive due process claims, could have at some future point

addressed facts that were related to their successful claims

help them avoid reductions to their fee award. But the Court

agrees with Plaintiffs that there was at least some level of

overlap between their claims, and that therefore a full

reduction that corresponds with the specific number of failed

claims is not warranted.

Ultimately, the Court concludes that rather than making a

specific reduction based purely on the number of unsuccessful

claims here, it will instead factor these unsuccessful claims

into its decision-making on the size of the final reduction it

chooses to apply to Plaintiffs’ lodestar amount for overall lack

of success in this action. As courts in this Circuit have

noted, even “where the successful and unsuccessful claims

‘involve a common core of facts’ [and] the lawsuit ‘cannot be

viewed as a series of discrete claims’” a district court should

still “focus on the significance of the overall relief obtained”

and make reductions accordingly. I.W. v. School District of

Philadelphia, 2016 WL 147148, at *20 (E.D. Pa. Jan. 13, 2016)

(quoting Hensley, 461 U.S. at 435).

The Court will take this path for several reasons. First,

it would be extremely difficult for the Court to determine with

any great level of confidence exactly which percentage of

Plaintiffs’ hours expended on this litigation were dedicated to

which claims, given (1) the murky dividing line between some of

Plaintiffs’ claims here, and (2) the fact that Defendant’s own

chart outlining time entries it claims are for time purely spent

on Plaintiffs’ unsuccessful claims includes a number of time

entries that the Court simply does not believe it could

plausibly separate out as having been purely focused on

unsuccessful claims. 2 (ECF No. 42-1, Ex. 3 at 8-9).

Second, while Defendant argues for a reduction that appears

to be tied simply to the ratio of Plaintiffs’ successful claims

to total claims, the Court recognizes that this Circuit’s case

2 As mentioned earlier in this Opinion, Defendant also argues in

its opposition brief that Plaintiffs’ reply brief at the summary

judgment stage was entirely focused on their unsuccessful

claims, and therefore all time billed to working on that motion

should be excluded. This argument appears to be based on a

misreading of a line from the Court’s December 3, 2020 Opinion.

In that Opinion, the Court stated that “in their reply brief,

Plaintiffs focus their entire rebuttal on the argument that they

are not required to have waited until a final decision was

issued, as any further involvement with the City and the Zoning

Board’s process would have been futile.” (ECF No. 32 at 36).

But the Court’s statement there was not meant as a summary of

the entirety of Plaintiffs’ reply brief; rather, viewed in the

context of the surrounding pages and discussion, it merely

described the singular argument Plaintiffs had put forward to

rebut Defendant’s contention that certain of their claims were

not ripe because the City had not issued a final decision on

Serenity House’s status under the City Code. That statement was

not intended to characterize Plaintiffs’ entire brief. In fact,

Plaintiffs’ reply brief included an entire section supporting

their ultimately successful claims attacking § 152-1. (See ECF

No. 30 at 17-20).

law has made clear that while such ratios are a good starting

point, doing nothing more than “mathematically deducting fees

proportional to a plaintiff's losing claims is 'too simplistic

and unrealistic.'” McCutcheon v. America's Servicing Co., 560

F.3d 143, 151 (3d Cir. 2009) (quoting W. Va. Univ. Hosps., Inc.

v. Casey, 898 F.2d 357, 363 (3d Cir. 1990)); see also Damian J.

v. School District of Philadelphia, 258 F. App'x. 333 (3d Cir.

2009) (affirming district court's rejection of defendant’s

request to reduce lodestar by 75% because plaintiff prevailed on

only one of four claims). Accordingly, the Court will first

assess what reductions are appropriate here for Plaintiffs’

overall level of success in this litigation, and then adjust

that number as necessary based on the fact that, their concrete

goals aside, Plaintiffs failed on most of claims they pursued

against Defendant.

Defendant here has strenuously argued that Plaintiffs’

overall relief obtained was insignificant enough to justify even

further reductions. The Court once again agrees. While

Plaintiffs’ assert that they “achieved total victory on the

central aim of their suit,” (ECF No. 37-1 at 15-16), the Court

finds that it simply has no basis for agreeing with that view of

this litigation. Instead, it seems highly likely here that

while Plaintiffs did accomplish one goal, they largely failed to

achieve their actual “central aim” in this litigation.

As referenced above, Plaintiffs’ Complaint sought a series

of orders from the Court enjoining the City and its officials

and employees from interfering with Plaintiffs’ operation of

Serenity House on any basis. The Court simply did not issue

such an Order. The injunction issued by this Court did one

thing and one thing only: it permanently enjoined the City from

enforcing the distance requirement of § 152-1. It made no other

reference to the City’s ability or legal right to block the

operation of Serenity House, to take steps to force Plaintiffs

to cease their operations there, or to enforce any other

provision or restriction of the City Code against Plaintiffs and

Serenity House if Plaintiffs’ operation of Serenity House

continued to be in noncompliance with the City Code and zoning

regulations.

Plaintiffs, in briefly attempting to demonstrate that their

central aim truly was accomplished, argue that they “succeeded

in ‘defeating’ the sole basis for Defendant’s denial of Serenity

House’s application for a CLUC, i.e., Section 152-1’s mandatory

distance requirement.” (ECF No. 37-1 at 15). Plaintiffs are

admittedly correct that § 152-1 played a real role in the

parties’ initial dispute. First, the initial order to vacate

that was issued to Serenity House referenced § 152-1 as one of

its bases, along with the fact that Plaintiffs still had not

obtained an certification of occupancy as required by the City

Code, and the property remained subject to a stop construction

order that had been issued two weeks earlier: the order

specifically cited both “the pattern of disregard for cod

requirements . . . and the absolute prohibition against a

community residence at this specific location” under § 152-1 as

the reasons for why Plaintiffs were being directed to vacate

Serenity House. (ECF No. 1-1, Ex. J). And § 152-1’s distance

requirement was again referenced in the City’s denial of

Plaintiffs’ CLUC application.

But while § 152-1 clearly was involved or referenced in

some way in the meeting in the August 16, 2019, meeting in which

Plaintiffs were provided their denied CLUC application,

Plaintiffs simply have not proven in this action that § 152-1

was the “sole basis” for the denial of their CLUC application.

Instead, the Court made clear that this was a point of real

factual dispute that it was not wading into at the summary

judgment stage, and noted that the copy of the CLUC application

denial which Plaintiffs themselves submitted as an exhibit

specifically included notes regarding additional deficiencies in

the information included in the application, although it is

unclear when exactly those notes were added. In other words,

while § 152-1 certainly played a real and not insignificant role

in Plaintiffs’ dispute with the City, they have never actually

proven in this action that it was the “sole basis” for any steps

taken by the City or for Plaintiffs’ failure to obtain the

requisite permits or certifications to bring their operation of

Serenity House into compliance with the City Code.

In fact, Plaintiffs have not even actually contended in

their present motion that they are currently able to operate

Serenity House without concern that the City may again attempt

to shut them down or force them to vacate the property. When

the Court issued its prior Opinion and Order in December 2020,

it was undisputed that Plaintiffs still had not obtained a

certification of occupancy for Serenity House, despite having

been first informed they needed one prior to moving individuals

onto the property in March 2019 — in fact, in the parties’

summary judgment briefs, they appeared to still be fighting over

whether receiving a CLUC, which Plaintiffs have also never

obtained, was a prerequisite for them to receive a certification

of occupancy under the City Code. (See, e.g., ECF No. 30 at 9

n.3).

In other words, the clear record showed at that stage that

although the City had not actually forced Plaintiffs to shut

down Serenity House or vacate the property, they were considered

to be violating the City Code through their activities at that

property and their attempts to ensure they were in compliance

had so far all been denied or otherwise failed. And the Court’s

Opinion made it clear that this was its understanding of the

contemporary situation at that point in time. That Opinion

specifically noted in dismissing many of Plaintiffs’ claims both

that “the Zoning Board has never issued a final decision

regarding the proper application of the City’s zoning

regulations to the Serenity House,” and that despite a lack of

briefing as to the next proper steps for Plaintiffs to take,

“the Court assumes that Plaintiffs continue to have

available avenues for receiving approval for

Serenity House to operate in the manner they

desire” — and went on to point out that even if

Plaintiffs were in fact unable to further pursue a

CLUC or further appeals regarding Serenity House’s

status, the fact that their claims may not be

“simply ‘premature,’ but rather never will ripen,

does not affect the disposition of this case on the

basis of the finality rule.”

(ECF No. 32 at 36, 36 n.4 (quoting New Jersey Chinese Community

Center v. Township of Warren, 712 F. App’x. 196, 199 n.5 (3d

Cir. 2017)).

Plaintiffs have made no attempt to dispel the Court of this

notion in their fee application, nor to put forth evidence

sufficient to demonstrate that the situation has since changed,

or that they are now considered to be in compliance with the

City Code and that this litigation has given them a legal right

to operate in the way they wish to operate free from the City’s

interference. The Court therefore is left to conclude that the

underlying dispute between Plaintiffs and the City remains

ongoing, despite the permanent injunction against enforcement of

§ 152-1’s distance requirement. While Plaintiffs undoubtedly

achieved one of their discrete goals, given their failure to

achieve the true aim of their lawsuit the Court simply cannot

find that Plaintiffs’ counsel achieved “excellent results” here.

As mentioned above, Plaintiffs’ apparent failure to achieve

their central goal here, and some large percentage of the fees

incurred by both sides in litigating their unsuccessful claims,

was caused entirely by Plaintiffs’ own attempt to find a

shortcut through the municipal administrative process that this

Circuit’s clear precedent required them to first navigate.

While the Court has found that Plaintiffs’ success in

invalidating § 152-1 entitles them to an award of fees and costs

here, the Court will not grant them the windfall they seek or

reward them for their actions in pursuing their other claims

without first ensuring they were properly situated and ripe for

adjudication in federal court.

From the Court’s view of this litigation, it appears that

it can only state with any confidence that Plaintiffs have

achieved one of their three goals here: (1) invalidating § 152-

1, (2) invalidating § 163-66B, and (3) ensuring that the City,

either through a reasonable accommodation in the form of a use

variance or through some other means, is legally barred from

attempting to interfere with their operation of Serenity House.

Plaintiffs therefore failed on approximately 66% of their goals

in initiating this lawsuit; given the fact that goal three was

undoubtedly the central one, the Court finds it fair to raise

that percentage to 75%.

The Court next sees two additional considerations as

sitting in almost direct balance to each other: (1) the fact

that Plaintiffs did achieve an unquestionably important result

in ensuring that the City can never again enforce a clearly

discriminatory zoning provision against them or any other party,

after having it wielded as a weapon against them in this very

dispute; and (2) the fact that Plaintiffs ultimately had eight

theories of liability rejected in this action due to their own

impatience and actions. The Court, after having considered

these countervailing factors, finds that Plaintiffs’ success in

invalidating the discriminatory distance requirement of § 152-1

slightly outweighs the sheer number of failed claims here, and

will accordingly lower the reduction percentage from 75% to 70%.

The Court has therefore determined that a 70% total

reduction to Plaintiffs’ lodestar is warranted here based on

Plaintiffs’ lack of success in this action. A reduction of this

level for lack of success is comfortably within the range of

reductions that the Third Circuit has affirmed in previous

cases. See, e.g., C.G. v. Winslow Township Board of Education,

704 F. App’x. 179, 181-82 (3d Cir. 2017) (affirming district

court’s reduction of lodestar by 50% due to limited success);

Spencer v. Wal–Mart Stores, 469 F.3d 311, 317–18 (3d Cir. 2006)

(affirming 75% reduction to fees based upon limited success);

Colts Neck Bd. of Educ., 190 F. App’x. at 143-44 (affirming

district court’s 80% reduction to lodestar due to limited

success); Veneziano v. Long Island Pipe Fabrication & Supply,

379 F. App’x. 506, 511 (3d Cir. 2002) (affirming 50% reduction

to lodestar due to limited success).

The Court had previously calculated Plaintiffs’ lodestar at

$84,075. Accordingly, after applying a final reduction of 70%

and adding in Plaintiffs’ requested fees,3 the Court finds that

Plaintiffs are entitled to an award of fees and costs in the

total amount of $25,646.78.

CONCLUSION

For the reasons expressed above, Plaintiffs’ motion for

attorneys’ fees (ECF No. 37) be granted in part and denied in

part, and Defendant will be ordered to reimburse Plaintiffs in

the amount of $25,646.78.

An appropriate Order will be entered.

Date: August 19, 2021 /s Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

3 Defendant has not opposed Plaintiffs’ application for $424.28

in costs, and the Court finds that Plaintiffs have sufficiently

demonstrated their entitlement to those costs here.