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PUGLISI v. UNDERHILL PARK TAXPAYER ASSOC.

May 13, 1997

JOHN PUGLISI, Plaintiff, against UNDERHILL PARK TAXPAYER ASSOC., RON GALLO, ROBERT DeMEO, MARILYN MORGANTE, "JOHN DOE" AND "JANE DOE," Defendants. JOHN PUGLISI, Plaintiff, -against- RICHARD CARROLL, Individually and as Building Inspector of the VILLAGE OF TUCKAHOE, MATTHEW A. MARINO, SHEILA R. CLARKE and JESSE NICOTERA, Individually and as MEMBERS OF THE BOARD OF TRUSTEES OF THE VILLAGE OF TUCKAHOE, and PHILIP A. WHITE, Individually and as MAYOR OF THE VILLAGE OF TUCKAHOE, Defendants.


The opinion of the court was delivered by: MOTLEY

 BACKGROUND

 Plaintiff commenced the lawsuit, Puglisi v. Underhill Park Taxpayer Associates ("Underhill defendants"), against defendants Ron Gallo, Robert Demeo, and Marion Morganti, *fn1" the alleged Association members, under ss 1981, 1982, 1983 and 1985 of the Civil Rights Act, s 3617 of the Fair Housing Act, and the New York State Human Rights Law. In the complaint, Puglisi alleged that the Underhill defendants conspired to force him to evict three African American tenants from his premises by filing false complaints of housing and zoning violations with the Village of Tuckahoe and by painting the word "NIGGER" on the front of his premises.

 Plaintiff commenced the related action, Puglisi v. Carroll, et al., against the building inspector, mayor and three trustees of the Village of Tuckahoe ("Village defendants") under the same Civil Rights and Fair Housing Act statutes, adding 1985(3) and 1986 claims. Puglisi asserted that the Village defendants discriminated against him because he rented to African Americans and conspired with the Underhill defendants to force him to evict and drive out the African Americans. Puglisi alleged that the Village defendants selectively inspected his premises and cited him for various building and zoning code violations solely due to the race of his tenants. The two actions were consolidated by this court.

 After the completion of discovery, both defendants moved to dismiss the complaints or, in the alternative, for summary judgment. On September 26, 1996, following the parties oral arguments on the motions, this court granted defendants' motions and dismissed plaintiff's complaint. The court informed the parties that a written opinion would be forthcoming. In an opinion rendered on November 12, 1996, this court dismissed plaintiffs ss 1985 and 1986 claims for lack of standing. Although this court found that plaintiff met the standing requirements for his ss 1981, 1982, 1983 and 3617 claims, the court granted defendants' motions for summary judgment and dismissed the complaint in its entirety due to plaintiff's failure to produce sufficient evidence establishing a material issue warranting trial. *fn2" On November 14, 1996, judgment was filed and entered by the Clerk of the Court.

 On November 26, 1996, as prevailing parties in the lawsuit, the Underhill defendants made a motion for attorneys' fees pursuant to 42 U.S.C. s 1988. On November 27, 1996, the Village defendants made a similar motion requesting fees and costs from the date they made an Offer of Judgment to dismissal of the complaint pursuant to Rule 68. In the alternative, the Village defendants requested that total attorneys' fees and costs be awarded pursuant to 42 U.S.C. s 1988.

 Plaintiff submitted no reply papers to defendants' motions and appeared pro se *fn3" at the hearing on attorneys' fees held on April 18, 1997. At the end of the hearing, this court reserved decision and informed both parties that a written decision on attorneys' fees would be forthcoming. *fn4" The sole issue before this court is the determination of whether defendants should be awarded attorneys' fees and, if so, what amount. The court presumes familiarity with the earlier proceedings in this case.

 DISCUSSION

 I. Village Defendant's Rule 68 Motion

 Rule 68 reads in relevant part;

 
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued...If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.

 The Village defendants argue that Rule 68 permits a defendant to recover costs incurred from the date of defendant's Offer of Judgment to the final judgment rendered if such offer is more favorable than the ultimate judgment. Since plaintiff did not prevail on his claims against the defendants, the Village defendants argue that plaintiff has received a less favorable judgment than the offer of settlement they made to plaintiff in 1995. They also assert that the award of costs and fees pursuant to Rule 68 is mandatory and that the district court possesses no discretion on whether to award such costs. Therefore, defendants maintain that they are entitled to $ 13,004.20 which is the total of costs incurred after their offer of judgment.

 The Village defendants' position regarding Rule 68 is clearly erroneous given the Supreme Court's ruling in Delta Air Lines, Inc. v. August, 450 U.S. 346, 67 L. Ed. 2d 287, 101 S. Ct. 1146 (1981) in which the Court considered this very issue. In Delta Air Lines, Inc., the Court held that Rule 68 was not mandatory and that "the plain language of Rule 68 confines its effect to...one in which the plaintiff has obtained a judgment for an amount less favorable than the defendant's settlement offer...[Rule 68] does not apply to judgments in favor of the defendant...". Id. at 351, 354. (emphasis added); see also, Screenlife Establishment v. Tower Video, Inc., 868 F. Supp. 47, 52 n. 1 (S.D.N.Y. 1994). In this case, because this court decided in favor of the Village defendants' on their motion for summary judgment, Rule 68 is inapplicable. Therefore, Village defendants' application for attorneys' fees and costs, pursuant to Rule 68, in the amount of $ 13, 004.30 is denied.

 The court will now consider the Village defendants' alternate request and the Underhill defendants' request for attorneys' fees as ...


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