Waronker v. Hempstead Union Free School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SHIMON WARONKER, ORDER ADOPTING IN PART

REPORT AND

RECOMMENDATION

Plaintiff,

- against - 2:18-cv-393 (DRH) (SIL)

HEMPSTEAD UNION FREE SCHOOL

DISTRICT, BOARD OF EDUCATION OF THE

HEMPSTEAD SCHOOL DISTRICT, DAVID B.

GATES, in his individual and official capacity,

RANDY STITH, in his individual and official

capacity, LAMONT E. JACKSON, in his

individual and official capacity as Clerk of the

Hempstead School District,

Defendants.

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HURLEY, Senior District Judge:

INTRODUCTION

Presently before the Court is the Report and Recommendation of Magistrate

Judge Steven I. Locke, dated January 14, 2021 (the “R&R”) [DE 73], recommending

that the Court deny the captioned Defendants’ motion for attorneys’ fees. Defendants

filed objections on January 28, 2021, Plaintiff responded on February 25, 2021, and

Defendants replied on March 4, 2021. For the reasons stated below, Defendants’

objections are OVERRULED IN PART, the R&R is ADOPTED IN PART and

Defendants’ motion for attorneys’ fees is GRANTED IN PART and DENIED IN

PART.

BACKGROUND

The Court adopts the R&R’s Background Section, to which no objection is

lodged. (R&R at 1–2). In brief, Plaintiff alleged Defendants’ retaliation against him

violated his constitutional rights and his New York state whistleblower protections,

as well as breached their contract. (Id.). Plaintiff sought a temporary restraining

order (“TRO”) simultaneously with the filing of his Complaint. (R&R at 2 (citing [DE

3])). The Court denied the TRO and later granted Defendants’ motion to dismiss for

failure to state a claim upon which relief could be granted. (Id. (citing Memorandum

& Order dated Jan. 16, 2019 (“MTD Order”) [DE 47]1)). Plaintiff appealed to the

Second Circuit, who affirmed the Court’s dismissal in its entirety, and later

unsuccessfully petitioned for a writ of certiorari to the Supreme Court. (See id.).

Defendants seek to recover attorneys’ fees incurred in defeating Plaintiff’s case. [DE

68].

Magistrate Judge Locke found Plaintiff’s claims not “so frivolous as to warrant

the relief Defendants seek” and therefore recommends the Court deny the request in

its entirety. (R&R at 6). Defendants raise five objections: the R&R (1) applied the

wrong standard; (2) “ignored this Court’s holding following argument” on the TRO;

(3) disregarded documentary evidence of frivolousness; (4) relied on “incomplete or

inappropriate statements”; and (5) failed to “address the costs awarded to the

1 The MTD Order is published at Waronker v. Hempstead Union Free Sch.

District, 2019 WL 235646 (E.D.N.Y. Jan. 16, 2019).

Defendants from the Second Circuit.” (See Def.’s Objections to the R&R (“Def. Obj.”)

[DE 74]).

DISCUSSION

Federal Rule of Civil Procedure 72(b) provides that when a magistrate judge

issues a report and recommendation on a matter “dispositive of a claim or defense of

a party,” the district court judge shall make a de novo determination of any portion

of the magistrate judge’s disposition to which specific written objection has been

made. Fed. R. Civ. P. 72(b).

I. Standard for Attorneys’ Fees

Defendant argues “the R&R should be overruled for failing to examine all of

the required bases” applicable to an award of attorneys’ fees pursuant to 42 U.S.C.

§ 1988. Def. Obj. at 4. Specifically, Defendant states that the R&R “did not address

the ‘groundless’ standard.” Id. To the contrary, the R&R specifically addressed and

rejected Defendants’ argument on groundlessness: “Defendants’ argument that

Plaintiff should have withdrawn his claims upon the denial of his request for a TRO

because such denial established the groundlessness of his claims also fails.” R&R at

8–9. Moreover, the Supreme Court has “point[ed] out that the term ‘meritless’ is to

be understood as meaning groundless or without foundation.” Christianburg

Garment Co. v. E.E.O.C., 434 U.S. 412, 421–22 (1978) (holding plaintiff’ action must

be “frivolous, unreasonable, or without foundation”). Hence, the R&R uses

“groundless,” “frivolous,” and the like interchangeably. E.g., R&R at 5.

District courts may award attorneys’ fees to a prevailing defendant “upon a

finding that the plaintiff’s action was frivolous, unreasonable, or without foundation,

even though not brought in subjective bad faith.” Christianburg, 434 U.S. at 421.

Defendants’ first objection here merely restates its motion to dismiss arguments. Def.

Obj. at 6. For example, because Plaintiff was “placed on administrative leave of

absence with pay,” and not terminated, no liberty interest was implicated. Id. at 6.

While this contention succeeded on the dismissal motion, it alone is not enough to

win attorneys’ fees. To hold otherwise is to say “that because a plaintiff did not

ultimately prevail, his action must have been unreasonable or without foundation.”

Christianburg, 434 U.S. at 421–22. The Supreme Court expressly warns against

engaging in this kind of “post hoc reasoning.” Id. Defendants’ first objection is

overruled.

II. The Court’s Holding Following Argument on the TRO

Defendant next objects that the R&R failed to recognize that Plaintiff

continued to litigate his claim despite being told, with the denial of the TRO, that he

had no federal claims. Def. Obj. at 7–8. Boiled down: “the Plaintiff was told his claims

were groundless on January 30, 2018 (the date the Plaintiff’s application for [a TRO]

was denied), yet he pursued discovery, forced the Defendants to make a motion to

dismiss, appealed the Court’s decision to the Second Circuit, and filed a Writ of

Certiorari with the United States Supreme Court.” Id. at 8.

Defendants overread the Court’s ruling on the TRO. The transcript

demonstrates that the Court’s decision was for “the purposes of the present [TRO]

motion” only. Tr. of Proceedings at 57:23–24, 59:14–15, 62:19–20, 78:21–22, Ex. 33

(“TRO Hearing Tr.”) [DE 68-33] to Aff. of Jonathan L. Scher, Esq. [DE 68-1]. That is,

the Court made no “specific determination as to the merits” beyond a likelihood of

success. LaRouche v. Kezer, 20 F.3d 68, (2d Cir. 1994).

The Court’s denial of the TRO did not have any preclusive effect on the

subsequent motion to dismiss – neither as law of the case or otherwise. The standard

on a TRO and the standard on a motion to dismiss are very different. Oneida Grp.

Inc. v. Steelite Int’l U.S.A. Inc., 2017 WL 6459464, at *8 (E.D.N.Y. Dec. 15, 2017)

(“The showing required for [a TRO] is higher than one to overcome a motion to

dismiss.”). For example, the Court must “accept as true the well-pleaded allegations

in” the Complaint on a motion dismiss, but not for a TRO. KDH Consulting Grp. LLC

v. Iterative Cap. Mgmt., 2020 WL 2554382, at *5 (S.D.N.Y. May 20, 2020). TROs

require “a showing of the likelihood of success on the merits,” which is “a more

rigorous standard than [the] plausibility” standard on a motion to dismiss. Kraus

USA, Inc. v. Magarik, 2020 WL 2415670, at *6 n.7 (S.D.N.Y. May 12, 2020). To say

“the Court denied the Plaintiff’s [TRO] because . . . the Plaintiff had no federal claims,

as a matter of law” misunderstands the Court task on a TRO. Def. Obj. at 9. The

Court’s TRO denial does not mark a point in time beyond which continued litigation

is frivolous, and Defendants cite no case with such a holding.

The Court reiterates with approval Judge Locke’s final thoughts in the R&R’s

Discussion Section:

Defendants’ argument that Plaintiff should have withdrawn his claims

upon the denial of his request for a TRO because such denial established

the groundlessness of his claims also fails. Were this Court to accept

Defendants’ assertions in this context, all plaintiffs who believe their

claims will be bolstered by discovery despite the denial of a TRO would

be at risk of being responsible for their adversaries’ fees.

R&R at 8–9. The law is not as unforgiving as Defendants would have it. Defendants’

second objection is overruled.

III. Documentary Evidence of Frivolousness

Defendants’ third objection asserts that Plaintiff knew from the outset that the

action was frivolous given “the long-standing precedent binding upon this Court” as

to Plaintiff’s three federal claims. Def. Obj. at 13–22. Defendants are correct that

binding precedent established the insufficiency of Plaintiff’s allegations to state a

claim. See MTD Order. To award attorneys’ fees on this basis, however, would be to

give into the “understandable temptation to engage in post hoc reasoning” noted

above. Christiansburg, 434 U.S. at 421–22.

Even where “[h]indsight proves the plaintiff’s allegation . . . was very weak,”

courts have not awarded victorious defendants attorneys’ fees. Tancredi v. Metro.

Life Ins. Co., 378 F.3d 220, 230 (2d Cir. 2004); see also Sista v. CDC Ixis N.A., Inc.,

445 F.3d 161, 178 (2d Cir. 2006) (“Although the claim of racial discrimination in this

case is very weak, we agree with the District Court that it is not so frivolous as to

warrant an award of attorneys’ fees.” (internal citation and quotation marks

omitted)); Panetta v. Crowley, 460 F.3d 388, 399 (2d Cir. 2006). “’The fact that a

plaintiff may ultimately lose his case is not in itself a sufficient justification for the

assessment of fees’ in favor of the defendant.” LeBlanc-Sternberg v. Fletcher, 143

F.3d 765, 770 (2d Cir. 1998) (quoting Hughes v. Rowe, 449 U.S. 5, 14 (1980)).

The Supreme Court’s observation here is important: “[T]he course of litigation

is rarely predictable. . . . The law may change or clarify in the midst of litigation.”

Christiansburg, 434 U.S. at 421–22 (emphasis added). Often, that change in the law

may occur as a result of a party’s efforts in litigation – which may sometimes require

inviting Supreme Court review. Def. Obj. at 8 (detailing the Plaintiff’s efforts to

obtain Second Circuit and Supreme Court review); cf. Patterson v. McLean Credit

Union, 485 U.S. 617, 617 (1988) (“It is surely no affront to settled jurisprudence to

request argument on whether a particular precedent should be modified or

overruled.”). To chill civil rights plaintiffs from doing so (say, by awarding

Defendants’ attorneys’ fees) would only impede “the chosen instrument of Congress

to vindicate a policy of the highest national priority.” Rounseville v. Zahl, 13 F.3d

625, 632 (2d Cir. 1994) (internal quotation marks omitted) (quoting Santiago v.

Victim Servs. Agency of Metro. Assistance Corp., 753 F.2d 219, 221 (2d Cir. 1985)).

Defendants’ reliance on the Fourth Circuit decision in Hutchinson v. Staton,

994 F.3d 1076 (4th Cir. 1993), does not persuade the Court. Def. Obj. at 19. Unlike

here, the Hutchinson plaintiff “alleged a two-county-wide election-rigging conspiracy

worthy of an Oliver Stone screenplay.” Id. at 1081. Defendants’ third objection is

overruled.

IV. The R&R’s Reliance on “Incomplete or Inappropriate Statements”

Defendants’ fourth objection targets the R&R’s invocation of this Court’s

closing thoughts on the motion to dismiss as well as reasoning proffered by Plaintiff

in opposition to the motion for attorneys’ fees. See R&R at 8 (quoting MTD Order at

17–18). Defendants suggest the R&R “placed disproportionate emphasis” on “the

equivalent of dicta” and unsworn assertions from “Plaintiff’s counsel, not the

Plaintiff.” Def. Obj. at 22–23. The Court observes that the R&R did not rely on the

Court’s expressed concerns to reach its recommendation; the R&R merely “notes” the

concerns. R&R at 8.

Section 1988(b) affords the Court “discretion” to award attorneys’ fees to a

prevailing party. 42 U.S.C. § 1988(b). This discretion comports with “essential goal

in shifting fees (to either party) [] to do rough justice” and permits the Court to “take

into account [its] overall sense of a suit.” Fox v. Vice, 563 U.S. 826, 838 (2011).

Though both this Court and the R&R reach their conclusions independent of the

concerns, they offer a view into our “overall sense” of the suit. See Fox, 563 U.S. at

838. Such concerns are real. Counting the R&R, this is the fourth time in which the

Court shares them with the parties. TRO Hearing Tr. at 78:17–21 (“I am concerned

as I’m sure everybody in this room is with the progress or the lack of progress that is

being made in the school district in Hempstead . . . .”); MTD Order at 17–18

(“Notwithstanding the deeply troubling allegations brought against the [Defendants],

both with regards to their conduct toward Plaintiff as well as the long history of

apparent corruption and neglect in the discharge of their duties . . . .”); R&R at 8.

Nevertheless and putting aside its concerns, the Court agrees with the R&R’s

conclusion: Defendants have not met their burden to show Plaintiff’s claims were

frivolous, unreasonable, groundless, or without foundation. R&R at 9. Defendants’

fourth objection is overruled.

V. Costs Awarded by the Second Circuit

Defendants’ fifth objection concerns the R&R’s failure to consider a request,

first made in Defendants’ Reply Memorandum of Law, for “$245.00 due and owing . . .

pursuant to the Second Circuit’s award of costs.” Def. Obj. at 24 (quoting Defs.’ Mem.

of Law in Further Support at 3 [DE 70-12]). Arguments and requests for relief raised

for the first time on reply are considered waived and need not be considered. E.g.,

Castro v. Holder, 597 F.3d 93, 95 n.2 (2d Cir. 2010). As such, Judge Locke

appropriately declined to address the request.

Arguments made for the first time on reply often “preclude[e] the [nonmovant]

from offering a meaningful response.” See Markes v. Metro. Life Ins. Co. 1999 WL

325401, at *3 (internal quotation marks omitted) (quoting Mercer Tool Corp. v.

Friedr. Dick GmbH, 179 F.R.D. 391, 398 (E.D.N.Y. 1998)). Regular consideration of

untimely arguments “would encourage the raising of new arguments in a reply.”

Mayer v. Neurological Surgery, P.C., 2016 WL 347329, at *4–5 (E.D.N.Y. Jan. 28,

2016).

In the same vein, issues not considered by a magistrate are ordinarily not

considered by the district court, even if objections are lodged. E.g., Lombardi v.

Choices Women’s Med. Ctr. Inc., 2017 WL 1102678, at *1 (E.D.N.Y. Mar. 23, 2017)

(“A court will not ‘ordinarily . . . consider arguments, case law and/or evidentiary

material which could have been, but [were] not, presented to the magistrate judge in

the first instance.’” (quoting Santiago v. City of New York, 2016 WL 5395837 at *1

(E.D.N.Y. Sept. 26, 2016))).

Here, Defendants objected on this issue, giving Plaintiff an opportunity to

respond. Plaintiff offers no argument in opposition, mentioning in a footnote that

“Defendants’ last objection is that the [R&R] did not address the costs awarded by

the Second Circuit to the defendants.” Pl. Opp. at 7 n.2. “[W]hen an appeal is

dismissed, or it results in an affirmation of the judgment below, costs are

automatically taxed to the appellant.” Genger v. Sharon, 2014 WL 12935372, at *2

(S.D.N.Y. Nov. 10, 2014) (citing Fed. R. App. P. 39(a)(1)–(2)); e.g., Blue v. Cablevision

Sys., N.Y.C. Corp., 2007 WL 1989258, at *1 (E.D.N.Y. July 5, 2007). “[T]he awarding

of the appellate costs listed in [Federal Rule of Appellate Procedure] 39(e)(1)–(4) to a

prevailing party under (a)(1), (2), or (3) is essentially a ministerial task, specifically

entrusted under the Rule 39 to the lower court.” Chapman v. ChoiceCare Long Island

Long Term Disability Income Plan, 2007 WL 1467146, at *14 (E.D.N.Y. May 16,

2007), aff'd sub nom. 2009 WL 39892 (2d Cir. Jan. 8, 2009). As such, Defendants are

entitled to $245.00. See Statement of Costs [DE 60].

CONCLUSION

For the reasons discussed above, Defendants’ objections are OVERRULED IN

PART. The Court ADOPTS IN PART the reasoning in the R&R. Defendants’ motion

for attorneys’ fees is GRANTED IN PART and DENIED IN PART. The Clerk of Court

is directed to amend the judgment and award Defendants $245.00 in costs. See

Judgment [DE 48].

SO ORDERED.

Dated: Central Islip, New York s/ Denis R. Hurley

March 16, 2021 Denis R. Hurley

United States District Judge