award of punitive damages, costs and prejudgment interest.
Plaintiff's motion was granted insofar as it requested
prejudgment interest and denied in all other respects by Opinion
and Order dated January 13, 1999.
On January 18, 1999, Raishevich filed Notice of Appeal from
this Court's Order dated January 13, 1999. On February 24, 1999,
the appeal was withdrawn without prejudice to reinstatement after
this Court decides the pending issue of attorney fees.
Accordingly, currently before the Court is plaintiff's motion for
The facts in this case are set forth in full in Raishevich v.
Foster. Familiarity with that opinion is presumed.
The Civil Rights Attorney's Fees Awards Act of 1976 authorizes
the district courts to award a reasonable attorney's fee to
prevailing parties in civil rights litigation. See
42 U.S.C. § 1988. A prevailing plaintiff should recover an attorney's fee
"unless special circumstances render such an award unjust."
S.Rep. No. 94-1011, at 4 (1976), reprinted in 1976 U.S.C.C.A.N.
5912. In order to determine whether to award attorney's fees to
the plaintiff in this case, this Court must consider (1) whether
plaintiff was a "prevailing party" and (2) whether special
circumstances exist that would render the award unjust.
I. Prevailing Party
To qualify as a prevailing party, "a civil rights plaintiff
must obtain at least some relief on the merits of his claim."
Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d
494 (1992). A plaintiff does not have to obtain an enforceable
judgment on the merits of the case, but may obtain relief through
a settlement. See id. If the settlement directly benefits the
plaintiff at the time of the settlement, it can be said to
"affect the behavior of the defendant toward the plaintiff."
Id. (quoting Rhodes v. Stewart, 488 U.S. 1, 4, 109 S.Ct. 202,
102 L.Ed.2d 1 (1988)).
In this case, plaintiff did not obtain the Court's
determination on the merits of the case because defendant
conceded liability. The trial determined damages only. The
settlement did directly benefit plaintiff because it entitled
plaintiff to some amount of damages. Defendant argues that his
admission of liability was made as an expedient means of
resolving plaintiff's damages claim. In Texas State Teachers
Ass'n v. Garland Indep. Sch. Dist., the court cited the
settlement of nuisance claims as a type of case in which success
does not render the plaintiff a prevailing party. 489 U.S. 782,
792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). However, there is
little evidence that plaintiff's case was merely a nuisance
claim, particularly in light of defendant's concession of
A settling plaintiff may be entitled to an award of attorney's
fees as a prevailing party. The court should compare the relief
sought by the plaintiff with the relief obtained as a result of
the suit. See Lyte v. Sara Lee Corp., 950 F.2d 101, 104 (2d
Cir. 1991). In Lyte, the plaintiff sought monetary relief and
received $9,500 as the result of a settlement. Id. Because the
relief obtained was "of the same general type" as the relief
sought, the plaintiff was a prevailing party. See id. (quoting
Koster v. Perales, 903 F.2d 131, 134 (2d Cir. 1990)). Here, as
in Lyte, plaintiff sought monetary compensation and he received
monetary compensation. The relief obtained through the settlement
and trial on damages was "of the same general type" as the relief
sought in plaintiff's complaint. Plaintiff should be considered a
Defendant argues that because plaintiff sought much more
monetary relief than received, plaintiff achieved at most a
partial success.*fn1 A party who achieves
partial success in his or her suit may be considered a prevailing
party where he or she "succeeds on any significant issue in
litigation which achieves some of the benefit . . . sought in
bringing suit." Ruggiero v. Krzeminski, 928 F.2d 558, 564 (2d
Cir. 1991). A party who wins nominal damages only can be
considered a prevailing party. See Farrar, 506 U.S. at 112, 113
S.Ct. 566; LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d
Cir. 1998). "A judgment for damages in any amount . . . modifies
the defendant's behavior for the plaintiff's benefit by forcing
the defendant to pay an amount of money he otherwise would not
pay." Farrar, 506 U.S. at 113, 113 S.Ct. 566. Even though
plaintiff was awarded significantly lesser damages than
originally sought, defendant was forced to pay $12,000, thereby
modifying defendant's behavior for plaintiff's benefit.
Therefore, even if plaintiff's success is considered to be
partial, plaintiff was a prevailing party in this case.
II. Special Circumstances
Once the threshold of being a prevailing party is met,
plaintiff is entitled to attorney's fees unless special
circumstances exist that would render the award unjust. See
Newman v. Piggie Park Enters., 390 U.S. 400, 402, 88 S.Ct. 964,
19 L.Ed.2d 1263 (1968). This is a narrow exception and defendant
has the burden of demonstrating the existence of special
circumstances. See Clay v. Harris, 583 F. Supp. 1314, 1320
(N.D.Ind. 1984). The first step in determining whether special
circumstances exist is to consider whether, at the time the case
was brought, the merits of the claim were obviously strong and
the probable damage award was high. See Kerr v. Quinn,
692 F.2d 875, 877 (2d Cir. 1982). If this initial determination is made, a
district court may exercise its discretion to deny fees if it
believes an award would work an injustice. See id. at 878.
Special circumstances may exist where the plaintiff's case
would have been perceived as likely to succeed at the time
counsel is sought. In Kerr, the plaintiff's claim had major
weaknesses at the time counsel was sought, therefore, even though
the case grew stronger throughout the trial, no special
circumstances existed that would render the award unjust. Id.
at 879. Similarly in DiFilippo v. Morizio, special
circumstances did not exist because the facts in the case were
disputed and damage awards in housing discrimination cases are
generally low. 759 F.2d 231, 234 (2d Cir. 1985). In contrast, the
facts in this case were so favorable to plaintiff that defendant
had conceded liability at the time counsel was retained. In
addition, an expert had opined that plaintiff suffered up to
$522,000 in damages. The fact that defendant had conceded
liability so that plaintiff's counsel would have to litigate only
the issue of damages, further establishes the special
circumstances in this case.
This Court has the discretion to deny attorney's fees to
plaintiff if special circumstances would render the award unjust.
In Naprstek v. City of Norwich, the plaintiffs succeeded in
their constitutional attack upon a municipal ordinance
establishing a juvenile curfew, but the court denied plaintiffs'
application for attorney's fees. 433 F. Supp. 1369, 1370 (N.D.N Y
1977). The court denied the award of fees because the plaintiffs
were challenging "an antiquated, poorly-drafted, rarely-enforced
juvenile curfew ordinance," and the defendants had offered to
settle the case by redrafting the ordinance. Id. at 1370-71.
The court opined that Congress did not "intend to reward
attorneys for burdening federal courts with unnecessary
litigation when they have not even attempted to remedy their
clients' grievances by talking out their differences . . ." Id.
Like the plaintiffs in Naprstek, the plaintiff in Clay
refused a realistic offer of settlement early in the case. 583
F. Supp. at 1320 (denying attorney's fees). In contrast, the court
in Mid-Hudson Legal Services v. G & U, Inc. found that no
special circumstances existed because the plaintiff initiated
settlement discussions and behaved reasonably throughout.
465 F. Supp. 261, 267 (S.D.N.Y. 1978). Plaintiff here, like the
plaintiffs in Naprstek and Clay, had the opportunity to
settle the case, but refused. At a settlement conference on March
25, 1998, two months before trial, the Court, after being
informed that defendant would pay up to $25,000 to settle the
case and that plaintiff would accept not less than $35,000,
proposed a compromise at $30,000 and asked the attorneys to
discuss the proposal with their clients and inform the Court as
to their decision. Plaintiffs rejected the proposal. Plaintiff's
ultimate recovery was less than the amount proffered in
settlement. Thus the trial turned out to be a wholly unjustified
expense for plaintiff.
In light of the strength of plaintiff's case at the outset,
defendant's concession of liability, and plaintiff's refusal to
accept a settlement offer for significantly more than ultimately
recovered, special circumstances exist in this case that would
render an award of attorney's fees unjust.
For the reasons discussed above, plaintiff's application for
attorney's fees is denied.