The opinion of the court was delivered by: ROBERT W. SWEET
The plaintiffs, Luther M. Ragin, Jr., Deborah Fish Ragin, Renaye B. Cuyler, Jerome F. Cuyler (collectively, the "Individual Plaintiffs") and the Open Housing Center, Inc., (the "OHC") (the OHC and the Individual Plaintiffs are referred to collectively as the "Plaintiffs") have moved this Court for an order of attorneys' fees in favor of Plaintiffs pursuant to the opinion and mandate of the Second Circuit on September 29, 1993. See Ragin v. Macklowe, 6 F.3d 898 (2d Cir. 1993).
Plaintiffs' motion for attorney fees is granted, subject to the limitations set forth below.
The facts and prior proceedings in this action are fully set forth in the following cited opinions, familiarity with which is assumed. See Ragin v. Macklowe, 126 F.R.D. 475 (S.D.N.Y. 1989) ("Ragin I"); Ragin v. Macklowe 801 F. Supp. 1213 (S.D.N.Y. 1992) ("Ragin II"); Ragin v. Macklowe, 6 F.3d 898 (2d Cir. 1993) ("Ragin III"). A review of those facts and prior proceedings relevant to this motion is presented below.
The Plaintiffs commenced this action in federal district court for damages and injunctive relief in August of 1988, alleging that defendants The Harry Macklowe Real Estate Co. ("HMRE"), Harry Macklowe ("Macklowe"), and Elfon Realty Co. ("Elfon") (collectively, the "Defendants") violated section 804(c) of the Fair Housing Act, 42 U.S.C. § 3604(c) (1988) (the "FHA" or the "Act"). The gravamen of the Plaintiffs' complaint was that the Defendants' placement of display advertising for residential apartments in The New York Times violated the Act's prohibition against racial discrimination in residential housing advertising because all of the models portrayed in the advertisement were white.
Although the complaint in this case was filed on August 12, 1988, the controversy between the parties began in 1986. At the request of Plaintiffs, Kerry A. Scanlon ("Scanlon") (then counsel at NAACP Legal Defense Fund) ("NAACP-LDF") began preliminary investigations and research to remedy advertising deemed to be discriminatory under the Act.
In 1987, Plaintiffs filed an administrative complaint with the New York Division of Human Rights, alleging that the Harry Macklowe Organization ("HMO") had conducted unlawful discrimination in its advertising campaign. In May of 1988, the Agency found probable cause against HMO and recommended that a public hearing be held. There was no public hearing, and no further action was taken by or before the Division of Human Rights.
Shortly after the Agency finding, this litigation was commenced finally culminating in a fourteen day trial with an advisory jury (See Ragin II). Judgment was entered in favor of the Plaintiffs on August 25, 1992. The court determined that HMRE and Macklowe had violated the Fair Housing Act. Ragin II, 801 F. Supp. at 1230-32. Damages of $ 2,500 were awarded to each individual plaintiff and $ 20,000 in compensatory damages to OHC. Id. at 1233-34. The Court, following the advisory verdict of the jury, declined to award punitive damages. Id. at 1234-35. In addition to compensatory damages, the Court issued a permanent injunction providing broad relief. The injunction enjoins the defendants, their officers, agents, servants and employees from:
making, printing, publishing, or causing to be made, printed, or published . . . any advertisement [of any type] with respect to the sale or rental of housing or a dwelling which violates § 3604(c) of the Fair Housing Act, 42 U.S.C. § 3604(c), and indicates any preference, limitation or discrimination based upon race or color, or an intention to make such a preference, limitation, or discrimination or that the housing or dwelling being advertised is not open to all without regard to race or color.
Judgment, October 19, 1992.
Prior to submission of a formal fee application by Plaintiffs, an order of October 19, 1992 was entered supplementing the findings of fact and conclusions of law, and stating that in view of the "financial ability of the plaintiffs" and "the nature of the action and relief granted," counsel fees were not appropriate to further the purposes of the Fair Housing Act. Order, October 19, 1992.
The Plaintiffs appealed, among other issues, the denial of attorneys' fees. The Court of Appeals affirmed the findings and conclusions of law with respect to liability, compensatory damages and punitive damages, as well as the scope of injunctive relief. Ragin III, 6 F.3d 898, 911. The Court did not agree, however, with the method used by this Court to deny all attorneys' fees and remanded the attorneys' fees issues for further proceedings stating:
. . . the district court improperly declined to apply the amendment in determining whether plaintiffs were entitled to attorney's fees for legal work performed after the effective date of the amendment . . . [A] remand is required also to determine whether the plaintiffs met the criteria established in the unamended ...