ANTHONY DINGLE, Plaintiff, - against - THE CITY OF NEW YORK, THE NEW YORK CITY HOUSING AUTHORITY, and DEMETRICE GADSON, Defendants.
Case 1:10-cv-00004-SAS
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
April 17, 2012
SHIRA A. SCHEINDLIN, U.S.D.J.
10 Civ. 4 (SAS); Document 104
SHIRA A. SCHEINDLIN, U.S.D.J.:
I. INTRODUCTION
Anthony Dingle brought suit, pursuant to
II. BACKGROUND
A. The Underlying Litigation
In 1990, plaintiff began working for the NYCHA which provides public housing to thousands of low income tenants in New York City. Plaintiff was promoted to the position of Superintendent in 2004. In 2006, plaintiff began reporting to Gadson who was and is a Deputy Director in the Authority‘s Manhattan Management Department. In early 2007, plaintiff was assigned to a NYCHA development known as the Polo Grounds Towers (the “Polo Grounds“) where he continued to report to Gadson. Upon returning from his leave of absence in September 2010, plaintiff was laterally transferred to a different NYCHA development where he no longer reports to Gadson.
Beginning in June 2007, and continuing until May 2009, plaintiff repeatedly began complaining about, inter alia, the understaffing problems at the Polo Grounds. Plaintiff made these complaints to Gadson and her supervisors, his Union, and the New York City Employee Assistance Program (“NYC EAP“). As a result of these complaints, Gadson issued, or ordered to be issued, six Counseling Memoranda to plaintiff (June 15, 2009, July 8, 2009, July 13, 2009, August 26,
Plaintiff sought redress for Gadson‘s alleged retaliation. In his Complaint, Dingle sought the following relief:
- Preliminary and permanent injunctions against Defendants and their officers, owners, agents, successors, employees, representatives, and any and all persons acting in concert with them, from engaging in each of the unlawful practices, policies, customs, and usages set forth herein;
- A judgment declaring that the practices complained of herein are unlawful and in violation of the aforementioned laws protected by the United States Constitution as well as New York State;
- Advancement for Plaintiff who has lost position as a result of the Defendants[‘] illegal conduct;
- A transfer to an Authority building i[n] the Bronx area so as to better accommodate Mr. Dingle‘s care o[f] his disabled son;
- Granting an order restraining Defendants from any retaliation against any Plaintiff for participation is any form in this litigation;
- All damages which Plaintiff has sustained as a result of Defendants’ conduct, including back pay, front pay, punitive damages, general and special damages for lost compensation and job benefits he would have received but for Defendants’ conduct, and for emotional distress, humiliation, embarrassment,
foreclosure of liberty and anguish; - Removal from Mr. Dingle‘s Personnel File of all Counseling Memoranda, disciplinary write-ups, false accusations, and any and all other documents that were spuriously filed based on Gadson‘s retaliatory victimization of Mr. Dingle;
- Exemplary and punitive damages in an amount commensurate with Defendants’ ability and so as to deter future malicious, reckless and/or intentional conduct;
- Awarding Plaintiff costs and disbursements incurred in connection with this action, including reasonable attorneys’ fees, expert witness fees and other costs;
- Pre-judgment and post-judgment interest, as provided by law; and
- Granting Plaintiff other and further relief as this Court finds necessary and proper.1
On February 4, 2010, plaintiff voluntarily withdrew his claims against the City. The remaining two defendants subsequently moved for judgment on the pleadings pursuant to
Gadson then filed a motion for summary judgment which was granted in part and denied in part in an Opinion and Order dated July 7, 2011.5 This Court dismissed plaintiff‘s First Amendment retaliation claim to the extent that it was based upon plaintiff‘s complaints to his supervisors and to his Union.6 Then, ruling on Gadson‘s motion in limine, plaintiff‘s First Amendment retaliation claim was further narrowed because I found that his complaint to the NYC EAP in September 2009 was not speech protected by the First Amendment. His only remaining claims concerned the Counseling Memoranda issued between June 15, 2009 and November 20, 2009, and the two Notices of Hearing issued on July 2, 2009 and February 2, 2010.
Trial commenced on November 28, 2011. Plaintiff sought damages against Gadson for her alleged acts of retaliation. Plaintiff testified as to his damages, stating that the presence of Counseling Memoranda in an employee‘s
By letter dated December 19, 2011, plaintiff asked the Court to set aside the jury award. By letter dated December 27, 2011, plaintiff‘s counsel noted that they had spoken with plaintiff about that letter; that plaintiff had sent this letter to the Court without their knowledge; and that plaintiff wanted the Court to disregard the letter in its entirety.
B. The Instant Motion for Attorneys’ Fees and Costs
Plaintiff seeks an award of attorneys’ fees for the work of seven attorneys (based upon hourly rates of $300, $350 and $400) and six office staff (including four paralegals at the hourly rate of $125). Plaintiff seeks $436,270.00 for 1,358.85 hours of work by seven attorneys and $17,762.50 for 142.10 hours of work by paralegals and law clerks. In total, plaintiff requests attorneys’ fees in the amount of $454,032.50. Plaintiff also seeks an award of costs and expenses in the amount of $15,301.65.
District courts are afforded considerable discretion in determining the amount of reasonable attorneys’ fees in any given case.7 In addition, “the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.”8
A. Prevailing Party
A “prevailing party” in a civil rights action is entitled to an award of attorneys’ fees and costs.9 Furthermore, a prevailing party is also entitled to reimbursement for time reasonably expended in preparing his attorneys’ fee application.10 A “prevailing party” is a party who achieves a “‘material alteration
B. Lodestar
The aim of section 1988 “is to enforce the covered civil rights statutes, not to provide ‘a form of economic relief to improve the financial lot of attorneys.‘”15 Thus, “a ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights
The lodestar is the product of the attorneys’ reasonable hourly rates multiplied by the reasonable number of hours worked by the attorneys.19 “The reasonable hourly rate is the rate a paying client would be willing to pay.”20 In determining the reasonable hourly rates to be applied, courts should look to the
C. Proportionality
There is no rule requiring proportionality between the amount of fees requested and the damages recovered. The Second Circuit has stated:
While a court may, in exceptional circumstances, adjust the lodestar, it may not disregard it entirely. Especially for claims where the financial recovery is likely to be small, calculating attorneys’ fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. The whole purpose of fee-shifting statutes is to generate attorneys’ fees that are disproportionate to the plaintiff‘s recovery. Thus, the district court abused its discretion when it ignored the lodestar and calculated the attorneys’ fees as a proportion of the damages awarded.23
“Reasoning that a rule calling for proportionality between the fee and the monetary
D. Degree of Success
“‘[T]he most critical factor’ in a district court‘s determination of what constitutes reasonable attorney‘s fees in a given case ‘is the degree of success obtained’ by the plaintiff.”25 “Hours spent on unsuccessful fee-shifting claims, like those spent on claims wholly ineligible for fee-shifting, must be excluded from the reasonable hours spent on the case when calculating the lodestar.”26 As recognized by the Supreme Court, where
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 may be an excessive amount. This will be true even where the plaintiff‘s claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it
was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.27
“Where recovery of private damages is the purpose of . . . civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought.”28 As stated by the Supreme Court in Farrar:
In some circumstances, even a plaintiff who formally ‘prevails’ under
§ 1988 should receive no attorney‘s fees at all. A plaintiff who seeks compensatory damages but receives no more than nominal damages is often such a prevailing party.* * *
When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all.29
Justice O‘Connor concurred with the Farrar judgment but wrote separately to further explain why an award of fees was not appropriate.
When the plaintiff‘s success is purely technical or de minimis, no fees can be awarded. Such a plaintiff either has failed to achieve victory at all, or has obtained only a
Pyrrhic victory for which the reasonable fee is zero.30
Consequently, the Court held that
when a plaintiff‘s victory is purely technical or de minimis, a district court need not go through the usual complexities involved in calculating attorney‘s fees. Ante, at [115] (court need not calculate presumptive fee by determining the number of hours reasonably expended and multiplying it by the reasonable hourly rate; nor must it apply the 12 factors bearing on reasonableness). As a matter of common sense and sound judicial administration, it would be wasteful indeed to require that courts laboriously and mechanically go through those steps when the de minimis nature of the victory makes the proper fee immediately obvious. Instead, it is enough for a court to explain why the victory is de minimis and announce a sensible decision to “award low fees or no fees” at all. Ante, at [115].31
Accordingly, the Supreme Court set forth the following three factors to determine whether a plaintiff who has obtained only nominal damages is nonetheless entitled to receive attorneys’ fees: “[1] the difference between the judgment recovered and the recovery sought[,]”32 “[2] the significance of the legal issue on which the plaintiff prevailed, and [3] the public purposes served” by the litigation.33
A. Attorneys’ Fees
There are several reasons that militate against an award of attorney‘s fees in this case. First, there is a substantial difference between the $1.00 in nominal damages plaintiff recovered against one defendant and the relief plaintiff initially sought in his Complaint against three defendants. In fact, initially the jury did not want to award plaintiff any amount of money in nominal damages. It was only after this Court instructed the jury that some amount of money, not to exceed one dollar, had to be awarded as nominal damages that the jury awarded plaintiff $1.00 in nominal damages. Moreover, the jury did not award plaintiff any compensatory or punitive damages. Nor did plaintiff obtain any declaratory or injunctive relief of any type – including a declaratory judgment, restraining order, or any other affirmative injunctive relief – at any point during this litigation. Plaintiff also did not obtain any advancement for positions he allegedly lost as a result of defendant‘s conduct.
Plaintiff argues that his case was always about more than just money and that he, in fact, initiated suit to protect his career.34 But plaintiff‘s reliance on Local 32B-32J, Service Employees International Union, AFL-CIO v. Port
Nonetheless, plaintiff argues that he obtained much of the relief originally requested in the ten categories listed in the “Wherefore” Clause of his Complaint.37 Plaintiff‘s first argument — that he never sought a substantial money damages award as one of the primary goals of this litigation – is belied by that very language of his Wherefore clause, which demanded the following items as part of the judgment against the defendants:
6. All damages which Plaintiff has sustained as a result of Defendants’ conduct, including back pay, front pay, punitive damages, general and special damages fro lost compensation and job benefits he would have received but for Defendants’ conduct, and for emotional distress, humiliation, embarrassment, foreclosure of liberty and anguish; and
8. Exemplary and punitive damages in an amount commensurate with Defendants’ ability and so as to deter future malicious, reckless and/or intentional conduct[.]
Plaintiff‘s expectation of substantial money damages is further evidenced by the statements he made to his psychotherapist (that he hoped for a two million dollar recovery) and the December 19, 2011 post-verdict letter he sent to the Court seeking to set aside the jury award which he describes as “a terrible miscarriage of justice.”38 In that letter, plaintiff states:
I truly believe that I was not only victimized by Ms. Gadson but by the jury as well. The jury apparently did not understand how to reasonably address the issue of my damages and so they denied me both compensatory and punitive damages.39
In addition to not restoring plaintiff‘s accrued pay, the jury award “did not compensate [him] for [his] medical expenses, witness fees, emotional distress, physical injury, being sick 90 day lost wage, lost wages and out of pocket expenses as well.”40 Plaintiff states that the jury‘s refusal to award punitive damages “allows Ms. Gadson to continue to misuse her authority, violate laws and show a total
Plaintiff‘s claim that he successfully obtained much of the original relief requested in the Wherefore Clause does not withstand scrutiny. For example, paragraph two of the Wherefore Clause specifically requested “[a] judgment declaring that the practices complained of herein are unlawful and in violation of the aforementioned laws protected by the United States Constitution as well as New York State.”43 Plaintiff argues that he “obtained that result as it pertained to five (5) separate and distinct employment practices that Gadson took against him,
Nor did plaintiff receive any “advancement for lost positions” given that five specific adverse employment actions taken against him have been adjudged unconstitutional.48 Plaintiff further argues that he received the relief
Plaintiff‘s argument that the jury‘s verdict effectively nullified the three Counseling Memoranda and two Notices of Hearing is nothing but a transparent attempt to obscure the disparity between the relief initially sought and the relief actually obtained. It is not because of the jury‘s determination of liability that the Counseling Memoranda and Notices will no longer have any effect on the remainder of plaintiff‘s career. Rather, as plaintiff himself testified, the age of these documents renders them essentially harmless.50 The three Counseling Memoranda and the two Notices were all issued more than eighteen months prior to the jury‘s verdict on December 8, 2011. Thus, the jury‘s finding of five instances of retaliation, all of which were more than eighteen months old, had no effect on the remainder of plaintiff‘s career. Accordingly, plaintiff did not obtain the benefits sought in paragraphs three and seven of the Wherefore Clause.
Furthermore, the vindication of plaintiff‘s First Amendment right to free speech is of little significance in light of the fact that his retaliation claim was considerably narrowed as a result of the rulings on the summary judgment motion and defendant‘s motions in limine. Ultimately at issue was the potential liability of one individual defendant with regard to the issuance of six Counseling Memoranda and two minor disciplinary proceedings. Yet out of these eight instances of alleged retaliation, the jury found for plaintiff with regard to only five such incidents, further undercutting plaintiff‘s success.
If recovering one dollar from the least culpable defendant and nothing from the rest legitimately can be labeled a victory . . . surely it is a hollow one. [Plaintiff] may have won a point, but the game, set, and match all went to the defendants.51
Indeed, this case established no new law but instead involved the application of settled law to the facts of the case. Thus, this litigation accomplished very little “other than occupying the time and energy of counsel, court, and client.”52
Finally, the verdict in plaintiff‘s favor did not accomplish any laudable public goal or broader purpose as evidenced, in part, by the jury‘s decision to not award punitive damages. Plaintiff argues to the contrary, stating that his case implicated matters of public concern, e.g., alleged chronic understaffing at the Polo Grounds, and that the NYCHA supervisors were forced to listen to his complaints as well as Gadson‘s purported admission of criminal misconduct. Yet plaintiff did not receive redress for any of these matters. Simply put, there is no basis here, legally or factually, in support of plaintiff‘s argument that the jury‘s verdict will have any significance on anyone other than the parties to this action.53
[H]olding that any award of nominal damages renders the victory material would render the concept of de minimis relief meaningless. Every nominal damage award has as its basis a finding of liability, but obviously many such victories are Pyrrhic ones.55
Unfortunately, this type of symbolic victory does not support any award of attorneys’ fees, much less an award in the amount of $454,032.50.
B. Costs
A prevailing party may be entitled to recover reasonable out-of-pocket expenses (costs) incurred during the litigation.56 Generally, recoverable costs include items such as duplicating, postage and court fees; items which are not
Because the discussion in Farrar was basically cabined to attorneys’ fees and did not separately address costs, an issue arises as to whether this Court can award costs, without awarding attorneys’ fees, where a plaintiff received only nominal damages. The answer can be found in
V. CONCLUSION
For the foregoing reasons, plaintiff‘s motion for an award of attorneys’ fees is denied while his motion for costs is granted. Plaintiff is therefore awarded $12,359.15 in costs but no attorneys’ fees. The Clerk of the Court is directed to close plaintiff‘s motion for attorneys’ fees and costs (Docket Entry # 96).
SO ORDERED:
Shira A. Scheindlin
U.S.D.J.
Dated: New York, New York
April 17, 2012
For Plaintiff:
Alexander T. Coleman, Esq.
Borelli & Associates, P.L.L.C.
1 Old Country Road, Suite 347
Carle Place, NY 11514
(516) 248-5550
For Defendant:
Jeffrey Neiderhoffer
Of Counsel to the New York
City Housing Authority
250 Broadway, 9th Floor
New York, NY 10007
(212) 776-5259