Anania v. United States of America

UNITED STATES DISTRICT COURT FILED

EASTERN DISTRICT OF NEW YORK CLERK

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10:51 am, Jan 08, 2021

JOSEPH ANANIA, JAMES ANNING, WILLIAM

BUSCHMANN, MICHAEL FISHER, NANCY U.S. DISTRICT COURT

HASKELL, GERODETTE MACWHINNIE, KEITH EASTERN DISTRICT OF NEW YORK

MARRAN, MICHAEL MCPHERSON, ROLAND LONG ISLAND OFFICE

MICHELY, GARY SACKS, ROBERTA TERZO,

SARA WIDDICOMBE, JOSEPH CLINTON, MARY MEMORANDUM & ORDER

ELLEN MANNING, ALISON AMRON, JUAN F. 16-CV-3542 (SJF) (ARL)

PUNCHIN, DAVID SAHAGIAN, and GREGG

SPANGLER,

Plaintiffs,

v.

UNITED STATES OF AMERICA, UNITED STATES

ARMY CORPS OF ENGINEERS, COLONEL

DAVID A. CALDWELL, and COUNTY OF SUFFOLK,

Defendants.

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FEUERSTEIN, District Judge:

Currently before the Court is a motion for attorneys’ fees filed by Defendant County of

Suffolk (the “County”) pursuant to 42 U.S.C. § 1988. See Motion, Docket Entry (“DE”) [96].

For the reasons set forth below, the motion is granted in part and denied in part.

I. BACKGROUND

Familiarity with the facts of this matter is assumed.1 The facts set forth herein are

repeated to the extent necessary to address the pending motion.

Plaintiffs own waterfront property in the Cherry Grove community on Fire Island and

claimed that the Defendants violated their rights in connection with the design and

implementation of the Fire Island Inlet to Moriches Inlet Fire Island Stabilization Beach

1 A comprehensive recitation of the facts can be found in prior orders including Magistrate Judge Arlene

R. Lindsay’s Report and Recommendation (the “R56 Report”) dated March 21, 2019, see DE [86], 2019

WL 6388847, as well as this Court’s Order of August 14, 2019, adopting the Report’s recommendation of

dismissal. See DE [93], 2019 WL 3811899.

Restoration Project (the “FIMI Project”). Plaintiffs asserted various claims including, inter alia,

claims of violations of the United States Constitution. As to the County, they claimed that it

violated: (1) their rights to equal protection under the Fourteenth Amendment (the “Equal

Protection claim”); (2) their rights to procedural due process under the Fourteenth Amendment

(the “Due Process claim”); and (3) their rights under the First Amendment (the “First

Amendment claim”). The Equal Protection claim alleged that the County required Plaintiffs to

grant perpetual easements over their property despite those properties having been allegedly

excluded from the dune restoration provisions of the FIMI Project, while the Due Process claim

alleged that the County failed to notify them about critical information about the project, thus

depriving them of the opportunity to object at various points of the project’s approval process.

The First Amendment claim, parenthetically entitled “Chilling of First Amendment

Rights,” was added when the complaint was amended in December 2016. See Amended

Complaint (“Am. Compl.”), ¶¶ 93-97. DE [29]. This claim was premised upon the assertion that

Cherry Grove is “the first openly gay, lesbian, bisexual and transgender town in the United

States,” id. ¶3, and that Plaintiffs are members “of a segment of society that has been historically

discriminated against, including by and through acts of government repression and regulation of

conduct.” Id. ¶95. They went on to claim, by way of a partial, incomplete statement, that they

had a “genuine fear that the easements being imposed upon them unnecessarily confer upon the

governmental easement holders.” Id. ¶96. As a result, they claimed their “rights to freely

associate, to free expression, and to privacy . . . are threatened and injured by the defendants’

contemplated government actions.” Id. ¶97.

This Court declined to sign Plaintiffs’ proposed temporary restraining order, see Minute

Entry, DE [55], and denied their motion for a preliminary injunction. See Order, DE [63]. The

County moved for judgment on the pleadings, see DE [40], which motion was referred to

Magistrate Judge Lindsay for report and recommendation. Magistrate Judge Lindsay

recommended, inter alia, that the County’s motion be converted to a motion for summary

judgment. See Report and Recommendation, DE [64].

Plaintiffs’ lone objection to the Magistrate Judge’s report concerned the recommendation

that no additional discovery was necessary to address the motions. Plaintiffs’ Objections, ¶3, DE

[67]. Plaintiffs acknowledged that a substantial number of documents had been submitted, but

argued that documents procured through FOIL/FOIA requests and through publicly available

sources do not constitute “the same targeted extraction of relevant materials that the Federal

Rules contemplate and provide for in the ordinary course of litigation.” Id. They did not,

however, identify any specific items of discovery that they wished to pursue.

This Court adopted the report and recommendation, see Memorandum & Order, DE [69],

and the County was directed to resubmit its motion as one for summary judgment. The County’s

motion for summary judgment, DE [78], was referred to Magistrate Judge Lindsay for report and

recommendation. The Magistrate Judge recommended that the motion be granted. See R56

Report.

Plaintiffs filed objections to the R56 Report. Plaintiffs’ Objections, DE [88]. Plaintiffs’

objections, which were summarized in this Court’s order of August 14, 2019, see Order DE [93],

addressed, inter alia, their Due Process and Equal Protection claims. Plaintiffs did not, however,

object to the recommendation that the First Amendment claim be dismissed. This Court

overruled Plaintiffs’ objections and adopted the R56 Report in its entirety. See Order, DE [93].2

The County’s instant motion for attorneys’ fees followed.

II. APPLICABLE LAW

Pursuant to §1988, a court may, in an exercise of its discretion, award attorneys’ fees to a

“prevailing party” in an action brought under § 1983. While defendants may be awarded

attorneys’ fees under §1988, such an award is appropriate “only if the plaintiff’s claim was

frivolous, unreasonable, or groundless, or the plaintiff continued to litigate after it clearly became

so.” Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir. 1994) (internal quotation marks, alteration,

and citations omitted). “A claim is frivolous where it lacks an arguable basis either in law or in

fact.” Shakur v. Selsky, 391 F.3d 106, 113 (2d Cir. 2004) (internal quotation marks and citation

omitted). “The fact that a plaintiff may ultimately lose his case is not in itself a sufficient

justification for the assessment of fees.” Hughes v. Rowe, 449 U.S. 5, 14, 101 S. Ct. 173, 66 L.

Ed. 2d 163 (1980). The Supreme Court has cautioned that “it is important that a district court

resist the understandable temptation to engage in post hoc reasoning by concluding that, because

a plaintiff did not ultimately prevail, his action must have been unreasonable or without

foundation. This kind of hindsight logic could discourage all but the most airtight claims, for

seldom can a prospective plaintiff be sure of ultimate success.” Christiansburg Garment Co. v.

E.E.O.C., 434 U.S. 412, 421-22, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978). “A prevailing

defendant need not show bad faith by a plaintiff to be entitled to attorneys’ fees, though such a

showing provides an even stronger basis for the award.” Panetta v. Crowley, 460 F.3d 388, 399

(2d Cir. 2006) (internal quotation marks and citation omitted).

2 Magistrate Judge Lindsay’s recommendation that the claims against the federal defendants be

dismissed was also accepted.

In practice, “it is very rare that victorious defendants in civil rights cases will recover

attorneys’ fees.” Sista v. CDC Isix N. Am., Inc., 445 F.3d 161, 178 (2d Cir. 2006); see also

Nardoni v. City of New York, No. 17 CIV 2695, 2019 WL 542349, at *7 (S.D.N.Y. Feb. 12,

2019) (noting that the Supreme Court “has discouraged the awarding of attorney fees and costs

where the defendant is the prevailing party”), adopted by 2019 WL 952333 (S.D.N.Y. Feb. 27,

2019); Jones v. Bay Shore Union Free Sch. Dist., No. 12-CV-4051, 2017 WL 9512405, at *2

(E.D.N.Y. Aug. 22, 2017) ( “[t]he cases set a high bar for recovery of attorneys’ fees by a

prevailing defendant in the civil rights context”), adopted by 2017 WL 3981298 (E.D.N.Y. Sept.

11, 2017). The hesitancy to award defendant attorneys’ fees arises from concerns “about the

potential chilling effect on section 1983 plaintiffs—who are the chosen instrument of Congress

to vindicate a policy of national priority.” Rounseville, 13 F.3d at 631 (internal quotation marks

and citation omitted).

III. DISCUSSION

A. Award of Attorneys’ Fees

Upon review of this case, the Court declines to exercise its discretion to award attorneys’

fees to County arising from its defense of the Equal Protection and Due Process claims, finding

that those claims do not meet the necessary standard supporting an award of such fees. The

Plaintiffs’ First Amendment claim, however, was frivolous and thus an award of attorneys’ fees

necessary to defend that claim is warranted.

Based on their presentation of the First Amendment claim throughout this litigation, it is

clear that the claim was pressed almost as an afterthought with no factual or legal basis. The

claim was not included in the original complaint, and as pled in the Amended Complaint, the

First Amendment claim was speculative and conclusory, lacking any factual allegations. Their

arguments raised in response to the motions were equally perfunctory, lacking in substance and

merit. In both their opposition to the County’s motions under Rule 12(c) and Rule 56, Plaintiffs

submitted a single, identical paragraph constituting their arguments in support of their First

Amendment claim. See Plaintiffs’ Memorandum of Law in Opposition to Suffolk County’s

Rule 12(c) Motion, at 24, DE [41]; Plaintiffs’ Memorandum of Law in Opposition to

[Defendants’] Dispositive Motions, at 32-33, DE [81]. They did not provide legal argument for

their claim, nor did they submit any non-speculative factual content that concerns any of these

particular Plaintiffs. They merely theorized that some unspecified governmental agency might

use the easements to “patrol” their properties and censure their rights, “as members of the LGBT

community,” to privacy, to freely associate, and to free expression. Their generalized basis for

this speculation was (1) the “long history in this country of oppression of the rights of

homosexuals,” and (2) the “longstanding and increasing tension between certain members of the

LGBT community in Cherry Grove and the National Park Service which patrols the neighboring

Fire Island National Seashore and frequently tickets, threatens, or intimidates those engaged in

the activities accepted and celebrated in gay culture.”

Plaintiffs raised no objection to the Magistrate Judge’s recommendation that the First

Amendment claim be dismissed. Finally, in opposition to this motion, Plaintiffs argue, inter

alia, that generally, their claims were “grounded in fact,” and were supported “with expert

proof.” Plaintiffs’ Memorandum of Law in Opposition at 16, DE [98]. These generalities

pertain to the issues of the sand replacement under the FIMI Project and the confusion Plaintiffs

purportedly experienced during the approval process. Plaintiffs make no reference, express or

implied, to the First Amendment claim much less argue that the claim was not frivolous.

While the Court is not insensitive to the history of the treatment of members of the

LGBTQ community in this country, a particular plaintiff must adduce evidence that such

treatment is actually occurring in the case presented by that plaintiff. Plaintiffs here offer only

speculation and, even in opposition to the summary judgment motion, failed to present a single

fact suggesting that they had a viable claim. On this record, the Court finds that the First

Amendment claim was frivolous, unreasonable, and without foundation, and thus an award of

attorneys’ fees is warranted.

Where it is determined that there were both frivolous and non-frivolous claims, “Section

1988 permits the defendant to receive only the portion of his fees that he would not have paid but

for the frivolous claim.” Fox v. Vice, 563 U.S. 826, 836, 131 S. Ct. 2205, 180 L. Ed. 2d 45

(2011). Attorney costs related to the drafting of sections seeking dismissal of First Amendment

claim would clearly not have been incurred but for the frivolous claim. Further, the claim is not

intertwined with the other claims such that the County would have incurred those same fees to

defend the non-frivolous claims. Accordingly, the County’s motion for attorneys’ fees is granted

only to the extent of those fees incurred in defending Plaintiffs’ First Amendment claim.

B. Amount of Fee Award

The County seeks a total amount of fees in the amount of $476,878.90 . The Court will

first consider the reasonableness of the fees sought and then determine the extent to which those

fees may be allocated to defense of the First Amendment claim.

The determination of a reasonable fee lies with the Court. In this Circuit, “the lodestar—

the product of a reasonable hourly rate and the reasonable number of hours required by the

case—creates a ‘presumptively reasonable fee.’” Millea v. Metro-North R.R. Co., 658 F.3d 154,

166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of

Albany, 522 F.3d 182, 183 (2d Cir. 2008)). In calculating the presumptively reasonable fee, the

court looks to what a reasonable, paying client would be willing to pay, “bear[ing] in mind that a

reasonable, paying client wishes to spend the minimum necessary to litigate the case

effectively.” Arbor Hill, 522 F.3d at 190. A party seeking an award of attorneys’ fees must

submit contemporaneous time records that indicate “for each attorney, the date, the hours

expended, and the nature of the work done.” N.Y. State Ass’n for Retarded Children, Inc. v.

Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). In support of this motion, the County has provided

an affidavit and the relevant billing records. See Affidavit of Services of John R. Casolaro

(“Casolaro Aff”), DE [96-9].

In recent § 1983 cases, courts in this District have set reasonable hourly rates at

approximately $300-$450 for partners, $200-$325 for senior associates, $100-$200 for junior

associates, and $60-$100 for paralegals. See Murray v. Marshall, No. 15-CV-500, 2020 WL

5899851, at *2 (E.D.N.Y. Mar. 16, 2020), adopted as modified by 2020 WL 3819075 (E.D.N.Y.

July 8, 2020); Haylett v. Sutton, No. 15-CV-223, 2019 WL 8128547, at *3 (E.D.N.Y. Aug. 8,

2019), adopted by 2020 WL 1061406 (E.D.N.Y. Mar. 5, 2020); Martinez v. City of New York,

330 F.R.D. 60, 70 (E.D.N.Y. 2019). Applying these standards, the hourly rates charged by

defense counsel must be adjusted.

While Mr. Casolaro is a partner with many years’ experience, he has presented no

specialized expertise warranting an upward departure from the top rate awarded in this District.

His hourly rate is reduced to $450. Two professionals, Lee Ohliger and Alexander Malyshev,

are “of counsel” to the firm. Mr. Ohliger has practiced law since 1981 and has some

demonstrated some experience in relevant areas of the law. His hourly rate will also be capped

at $450. Mr. Malyshev, however, is described only as “counsel in the litigation department” who

has been “practicing law since 2010.” Casolaro Aff. at ¶5(c). Given the lack of detail, a senior

associate rate of $300 is appropriate.

Two associates billed time on this matter. Michael Bauscher, an associate in the

litigation department, has been practicing law since 2011. Beyond his experience in representing

“a number of condemnors in various matters,” Casolaro Aff. at ¶5(d), the County has provided

no detail suggesting that the upper hourly rate is reasonable. Mr. Bauscher’s hourly rate will be

set at a mid-senior associate level of $250. Another professional, Elaine Nguyen is identified

summarily as “an associate in the litigation department.” Id. at ¶5(e). Absent any information

regarding the length and breadth of Ms. Nguyen’s experience, the lowest hourly rate for a junior

associate, $100, will be used.

Defendants further seek an award of billings made by Managing Attorneys Dennis

Murphy and Antonio Malaspina, as well as paralegal Bill Borenstein. An hourly rate of $100

will be applied for each of these individuals.

The following summary applies the adjusted hourly rates to the hours billed:

Billing Prof’l Total Hours Adj. Hourly Rate Amount

J. Casolaro 349.80 $450 $157, 410.00

L. Ohliger 317.70 $450 $142,965 .00

M Bauscher 432.70 $250 $108,175.00

A. Malyshev 9.00 $300 $2,700.00

E. Nguyen 99.8 $100 $9,980.00

D. Murphy .90 $100 $90.00

A. Malaspina 11.6 $100 $1,160

B. Borenstein 27.50 $100 $2,850.00

TOTALS: 1149.2 $425,230.00

Turning to whether the hours expended were reasonable, the Court must “use [its]

experience with the case, as well as [its] experience with the practice of law, to assess the

reasonableness of the hours spent . . . in a given case.” Fox Indus., Inc. v. Gurovich, No. 03 Civ.

5166, 2005 WL 2305002, at *2 (E.D.N.Y. Sept. 21, 2005) (quoting Clarke v. Frank, 960 F.2d

1146, 1153 (2d Cir. 1992)). Hours that are excessive, redundant, or otherwise unnecessary to the

litigation should be excluded. See Hensley v. Eckerhart, 461 U.S. 424, x, 103 S. Ct. 1933, 76 L.

Ed. 2d 40 (1983). In addition, the use of block billing, which makes it difficult for a court to

assess the reasonableness of the work billed, may warrant reductions. See Kindle v. Dejana, 308

F. Supp. 3d 698, 704-05 (E.D.N.Y. 2018); see also Bhungalia Family, LLC v. Agarwal, 317 F.

Supp. 3d 727, 742 (S.D.N.Y. 2018) (the use of block billing “hinders this Court’s ability to

understand how much time was devoted to particular tasks, so as to determine whether that time

was reasonably spent.”). To remedy these billing issues, district courts have the authority to

“make across-the-board percentage cuts in hours as a practical means of trimming fat from a fee

application.” Green v. City of New York, 403 F. App’x 626, 630 (2d Cir. 2010) (internal

quotation marks and citation omitted); see also T.S. Haulers, Inc. v. Cardinale, No. 09 CV 0451,

2011 WL 344759, at *3 (E.D.N.Y. Jan. 31, 2011) (the court may exclude “excessive and

unreasonable hours from its calculation by making an across-the-board reduction, or percentage

cut, in the amount of hours.”).

Upon review of the contemporaneous billing records provided, the Court determines that

a 25% across-the-board fee cut is appropriate to address issues including block billing and

duplicate billings created by numerous interoffice consultations between billing professionals.

Making this adjustment, the presumptively reasonable fee is set at $318,922.50.

Having established the amount of the reasonable fee, the portion of that fee that was

attributable to the County’s defense of the First Amendment claim must be determined. The

County did not request its fees on a claim-by-claim basis and the billing records themselves do

not break down the work performed by claim. Looking to the papers submitted by the County on

their motions, it is clear that the defense was understandably focused on Plaintiffs’ viable claims

to a far greater degree than the First Amendment claim. Of the 127 pages of briefing submitted

by the County in support of its motion for judgment on the pleadings and motion for summary

judgment, see DEs [40-1], [42], [78], [82], approximately eight (8) pages, or about 6.3%, were

devoted to Plaintiffs’ First Amendment claim. As the billing records do not support a

determination that the amount of time expended was greater, the Court in its discretion finds that

an award of 6% of the total amounts billed is appropriate. Accordingly, the County is awarded

$19,135.35 in attorneys’ fees.

IV. CONCLUSION

For the reasons set forth above, the County’s motion [96] is granted to the extent that it is

awarded $19,135.35 in attorneys’ fees expended as to the First Amendment claim and denied in

all other regards.

SO ORDERED.

/s/ Sandra J. Feuerstein

Sandra J. Feuerstein

United States District Judge

Dated: Central Islip, New York

January 8, 2021