The opinion of the court was delivered by: ROBERT W. SWEET
Plaintiffs Jennifer Loper and William Kaye, on behalf of themselves and the class they represent (collectively the "Plaintiffs"), move for an award of attorney fees and expenses pursuant to 42 U.S.C. § 1988. Defendants New York City Police Department ("NYPD") and Lee Brown, the former Commissioner of NYPD, (collectively, the "Defendants") oppose Plaintiffs' award request.
The parties, facts and prior proceedings in this class action suit are fully set forth in the prior Opinions of this Court, familiarity with which is assumed. See Loper v. New York City Police Dep't, 999 F.2d 699 (2d Cir. 1993) ("Loper VI"); Loper v. New York City Police Dep't, 802 F. Supp. 1029 (S.D.N.Y. 1992) ("Loper V"); Loper v. New York City Police Dep't, 785 F. Supp. 464 (S.D.N.Y. 1992) ("Loper IV"); Loper v. New York City Police Dep't, 90 Civ. 7546, 1991 U.S. Dist. LEXIS 9547 (S.D.N.Y. Jul. 16, 1991) ("Loper III"); Loper v. New York City Police Dep't, 766 F. Supp. 1280 (S.D.N.Y. 1991) ("Loper II"); Loper v. New York City Police Dep't, 135 F.R.D. 81 (S.D.N.Y. 1991) ("Loper I"). A brief review of those facts and prior proceedings relevant to the instant motions is presented below.
The Plaintiffs filed this and a companion state action on November 23, 1990. The parties agreed to stay the state action pending the resolution of this lawsuit. In their Complaint, the Plaintiffs sought a declaration that an anti-loitering statute -- N.Y. Penal Law § 240.35(1) (the "Statute") -- and the Defendants' enforcement of it violated the First, Eighth, and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1983. They also sought relief under the New York State Constitution.
At the time they filed this action, the Plaintiffs requested that it be maintained as a class. Their request was granted on April 2, 1991, provided the Plaintiffs submitted a suitable definition of the term "needy." Loper I, 135 F.R.D. 81, 83 (S.D.N.Y. 1991). On April 8, 1991, the Plaintiffs provided a further definition of "needy," which was accepted subject to modification as the facts developed. Loper III, No. 90 Civ. 7546, 1991 U.S. Dist. LEXIS 9547, at **4-6 (S.D.N.Y. July 15, 1991). Together, Loper I and Loper III define a Plaintiff Class consisting of all those "needy persons who live in the State of New York, who beg on the public streets or in the public parks of New York City," where a "needy person" is defined as "someone who, because of poverty, is unable to pay for the necessities of life, such as food, shelter, clothing, medical care, and transportation." Id. at *5.
Both parties moved for summary judgment in February 1991, before any significant discovery had taken place. Their motions were denied with leave to renew upon further discovery on June 17, 1991. Loper II, 766 F. Supp. 1280 (S.D.N.Y. 1991). On November 19, 1991, the Plaintiffs again moved for summary judgment prior to the close of the discovery period. This motion was denied without prejudice as well, principally on the ground that the City had raised a question of fact concerning its enforcement scheme. Loper IV, 785 F. Supp. 464 (S.D.N.Y. 1992).
The Defendants filed their last motion for summary judgment on April 21, 1992, the Plaintiffs in the meantime having filed a motion for additional discovery. The Plaintiffs' motion was granted in part, and the Defendants were ordered to turn over additional data to the Plaintiffs, primarily concerning the number of summonses the Department has issued under the Statute. The Plaintiffs subsequently filed a cross-motion for summary judgment which was granted in Loper V, 802 F. Supp. 1029 (S.D.N.Y. 1992).
In Loper V, 802 F. Supp. 1029 (S.D.N.Y. 1992), this Court declared that the named Plaintiffs have standing, id. at 1035-36, that begging is entitled to First Amendment protection, id. at 1036-38, and that the Statute is unconstitutional, id. at 1038-47, and permanently enjoined the Defendants from enforcing the Statute, id. at 1048. The Second Circuit affirmed the holding of Loper V in Loper VI, 999 F.2d 699 (2d Cir. 1993).
In light of the Second Circuit's affirmance, the Plaintiffs are "prevailing parties" within the meaning of 42 U.S.C. § 1988. As such, Plaintiffs now seek the following attorneys fees and costs:
Hours Rate Lodestar Upward Adj.
963.84 $ 300.00 $ 289,152 $ 433,728
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