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Difilippo v. Morizio

April 5, 1985

MARIA DIFILIPPO AND RAINA DIFILIPPO, BY HER MOTHER AND NEXT FRIEND MARIA DIFILIPPO, PLAINTIFF-APPELLANTS, CROSS-APPELLEES,
v.
TULLIO MORIZIO, DEFENDANT-APPELLEE, CROSS-APPELLANT



Appeal and cross-appeal from an award of $13,253,73 in attorney's fees under the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988 (1982), by the United States District Court for the District of Connecticut, Jose A. Cabranes, Judge.

Feinberg, Chief Judge, Van Graafeiland and Winter, Circuit Judges.

Author: Winter

WINTER, Circuit Judge:

Plaintiffs, by their attorneys Neighborhood Legal Services, Inc., appeal the award of $13,253.73 in attorney's fees under the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988 (1982) by Judge Cabranes, resulting from a 50 percent reduction of the lodestar amount. Defendant cross-appeals from the award of attorney's fees. We reverse and remand.

BACKGROUND

This appeal and cross-appeal from the award of attorney's fees arises out of a successful housing discrimination lawsuit brought by Maria DiFilippo and her daughter Raina.

We first summarize the facts of the underlying action. In August, 1978, defendant Tullio Morizio agreed to rent an apartment in Hartford to Maria DiFilippo, and accepted a deposit on the rent from her. A few days later Maria, who is white, returned to make a further payment on the rental balance. She was accompanied by her daughter Raina, who is of mixed black and white parentage. Morizio's son accepted the deposit and gave her the keys to the apartment. The next day, Maria was informed by another tenant that Morizio did not want to rent to her and would refund her deposit money upon receiving back the apartment keys. In a later telephone conversation Morizio stated that he wanted to keep the neighborhood white and that, when he had agreed to rent to Maria, he had not known that she was "that kind of girl." In a subsequent meeting, Morizio stated in front of both Maria and Raina that blacks caused building to deteriorate and that he wanted to keep the street white. He offered to rent to the DiFilippos an apartment in another location where the only two black tenants of Morizio's fifty-eight tenants lived, stating that she would be happier there because her daughter and expected child were black. At this meeting, Morizio returned the money and DiFilippo returned the keys.

On August 18, 1978, the DeFilippos brought this housing discrimination action under the Fair Housing Act of 1968, 42 U.S.C. § 3604 (1982) and the Civil Rights Act, 42 U.S.C. § 1982 (1982). In March, 1983, after a one day bench trial, the district court found that Morizio had intentionally discriminated against the plaintiffs in violation of 42 U.S.C. §§ 1982, 3604. After a careful review of compensatory and punitive damage awards in similar housing discrimination cases, Judge Cabranes awarded Maria $750 and Raina $1000 as compensatory damages and $250 each as punitive damages for a total award against Morizio of $2250.00.

Plaintiffs then moved for attorney's fees under the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988 (1982) and the Fair Housing Act of 1968, 42 U.S.C. § 3612(c) (1982).*fn1

attorneys claimed an expenditure of 302 hours on this matter and sought fees in the amount of $27,832.82 (lodestar amount of $26,507.45 plus 5 percent). The district court found the hours to be reasonable in view of the disputed facts, the amount of pretrial discovery, and the legal issues. However, noting the small size of the damage award and the straightforward and non-novel nature of the case, he cut the lodestar amount by 50 percent and awarded $13,253.73 to plaintiffs' attorneys. This appeal and cross-appeal from the award of attorney's fee followed.

Discussion

We reverse and remand. to summarized, the supporting findings of the district court do not support a reduction of the lodestar figure. However, our scrutiny of the record reveals ample reason to question the number of hours upon which the proposed lodestar amount was based, and we remand to the district court for reconsideration.

The Civil Rights Attorney's Fees Award Act of 1976 amended 42 U.S.C. § 1988 to provide that "the court, in its discretion, may allow the prevailing party. . . a reasonable attorney's fee as part of the costs." In exercising its discretion, the district court correctly made an initial inquiry into whether the substantive claim was so strong on the merits and so likely to result in a substantial judgment that private counsel in similar cases could be easily and readily obtained. Kerr v. Quinn, 692 F.2d 875, 878 (2d Cir. 1982). It concluded that "inasmuch as this litigation lasted five years and resulted in a total recovery of $2,250, it is apparent that 'the prospects of success [were not] sufficiently bright to attract competent private counsel on a contingent fee basis,'" DiFilippo v. Morizio, No. H 78-434 (D. Conn. July 27, 1984), op at 2, quoting Zarcone v. Perry, 581 F.2d 1039, 1044 (2d Cir. 1978), cert. denied, 439 U.S. 1072, 59 L. Ed. 2d 38, 99 S. Ct. 843 (1979). While the district court reached the correct conclusion, we note that the analysis should not have been based upon the hindsight afforded by the actual results in the case. Rather, it should have been an ex ante determination of whether the chance of a substantial judgment was sufficiently great when the case was brought to ensure retention of private counsel on a contingency basis whether or not a statutory fee award might be available. Kerr, 692 F.2d at 878. Because the facts in the instant case were disputed and damage awards in housing discrimination cases are generally low, as demonstrated in the district court's review of similar cases in its decision on the merits, an award of attorney's fees was clearly justified in the instant case.

The next step in awarding attorney's fees is to determine the proper amount. While a district court's factual determination of the power award is to be accorded deference, Hensley v. Eckerhart, 461 U.S. 424, 437, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983), the latitude of its discretion is narrowed by a presumption that successful civil rights litigants should recover reasonable attorney's fees unless special circumstances render such an award unjust. S. Rep. No. 1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S. Code Cong. & Ad. News 5908, 5912. Furthermore, where, as here, the party achieves success on the merits, an award of all reasonable hours at a reasonable hourly rate, i.e., the lodestar figure, is presumptively appropriate. We have also stated that "whenever the district court augments or reduces the lodestar figure it must state its reasons for doing so 'as ...


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