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Lee v. Charles A. Glessing and Palatine Nursing Home

August 30, 2006


The opinion of the court was delivered by: Howard G. Munson Senior United States District Judge


Currently before the Court is Defendants' motion seeking an order awarding Defendants costs of the action, including: (1) reasonable attorneys' fees pursuant to Rule 54(d) of the Federal Rules of Civil Procedure and 42 U.S.C. §§ 1988 and 2000e-5(k); (2) disbursements incurred during litigation, including statutory costs ordinarily taxable under Rule 54(d)(1) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1920; and, (3) other out-of-pocket expenses. See Dkt. No. 73, Defs.' Notice of Mot. Plaintiff opposes Defendants' motion. For the reasons that follow below, Defendants' motion is GRANTED.


Plaintiff, William R. Lee, furnished physical therapy services to patients at Palatine Nursing Home ("Palatine") between May 17, 1995, and February 7, 1997, at which time Palatine notified plaintiff that it was terminating its contract with him. On June 5, 1999, Plaintiff filed a complaint against Defendants alleging that he was Palatine's employee, that Defendants created a sexually hostile environment for his work, and that Defendants discharged him on the basis of his gender or his perceived disability or in retaliation for his protected complaints. See Dkt No. 81, Summ. Order. The Court presided over a jury trial that began on September 17, 2001. On September 27, 2001, at the conclusion of Plaintiff's case-in-chief, Defendants moved for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. See Dkt. No. 80, Index to the R. on Appeal. The Court granted Defendants' motion and dismissed Plaintiff's case in its entirety, finding that Plaintiff was an independent contractor rather than Palatine's employee and, even assuming that he was an employee, he could not prevail on any of his claims. On October 26, 2001, Plaintiff appealed the Court's ruling, and on November 6, 2002, the Second Circuit Court of Appeals affirmed holding that Plaintiff was not an employee for purposes of Title VII of the Civil Rights Act of 1964.*fn1 See Dkt. No. 69, Notice of Appeal; Dkt. No. 81, Summ. Order. Defendants brought their motion for attorneys' fees while Plaintiff's appeal was pending. See Dkt. No. 73, Defs.' Notice of Mot. At Plaintiff's behest, Defendants, with the Court's approval, stayed their motion while plaintiff's appeal was pending before the Second Circuit. See Dkt. No. 77, Stay of Mot.

From the outset of his action through his appeal to the Second Circuit, Plaintiff was represented by Lewis B. Oliver, Jr., Esq. As of January 7, 2003, however, Plaintiff substituted Iseman, Cunningham, Riester & Hyde, LLP as counsel of record and Brian M. Culnan, Esq., has represented plaintiff in opposing Defendants' motion. See Dkt. No. 82, Consent to change Attorney.


In the United States, under the so-called "American Rule," the prevailing party is not entitled to recover attorneys' fees as costs or otherwise from the losing party, and, therefore, litigants generally must pay their own attorneys' fees. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975); see also Christianburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 415, 98 S.Ct. 694, 697, 54 L.Ed.2d 648 (1978). There are, however, exceptions to this general rule, including one found in Title VII.

I. Attorneys' Fees Under Title VII

Title VII provides in pertinent part that: "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person." 42 U.S.C. § 2000e-5(k). In Christianburg Garment Co., the Supreme Court observed that "in enacting § 706(k) [of Title VII] Congress did not intend to permit the award of attorney's fees to a prevailing defendant only in a situation where the plaintiff was motivated by bad faith in bringing the action." 434 U.S. at 419, 98 S.Ct. at 699. Rather, "Congress intended to deter the bringing of lawsuits without foundation by providing that the prevailing party--be it plaintiff or defendant--could obtain legal fees." Id. 434 U.S. at 420, 98 S.Ct. 700 (internal quotations and citation omitted); see Edwards v. Interboro Inst., 840 F.Supp. 222 (E.D.N.Y. 1994).*fn2 Thus, under Christianburg Garment Co., a district court may award attorneys' fees to a prevailing defendant in a Title VII action only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." 434 U.S. at 421, 98 S.Ct. at 700 (1978); cf. LeBlanc-Sternberg v. Fletcher, 143 F.3d 765, 770 (2d Cir. 1998) ("The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees in favor of the defendant.") (internal quotations and citation omitted). Application of this standard is entrusted to the sound discretion of the trial court. See American Fed'n of State, County and Mun. Employees, AFL-CIO (AFSCME) v. County of Nassau, 96 F.3d 644, 650 (2d Cir. 1996). The Supreme Court, however, cautioned restraint in applying this standard and implored district courts to resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.

Christianburg Garment Co., 434 U.S. at 421-22, 98 S.Ct. at 700-01.

A plaintiff's subjective reliance on his attorney's advice does not preclude an award of attorneys' fees to a prevailing defendant in Title VII actions. See Davidson v. Keenan, 740 F.2d 129, 134 (2d Cir. 1984) (Mansfield, J., concurring). "[A]n attorney is his client's agent and representative; the client retains ultimate authority over the conduct of the litigation . . . Whether or not [plaintiffs'] reliance on their attorneys' judgment was misplaced, they are legally responsible for the filing of these actions. The consequences of their attorneys' mistakes should not be visited on the [other side] . . . ." Davidson, 740 F.2d at 133 (quoting Prate v. Freedman, 583 F.2d 42, 48 (2d Cir. 1978)). Thus, plaintiff's professed reliance on the advice of his former counsel, Mr. Oliver, with regard to whether he was an employee under Title VII, and as to his likelihood of success in pursuing his claims, is of little consequence to the Court in determining whether to award Defendants attorneys' fees. See Dkt. No. 84, Lee Aff. at ¶ 7.

II. Costs Under Title VII

The Second Circuit does not apply the Christianburg standard in determining the assessment of costs in Title VII actions. In Cosgrove v. Sears, Roebuck & Co., 191 F.3d 98 (2d Cir. 1999), the Second Circuit declined to extend to the Christianburg standard to costs assessment. In so declining, the Second Circuit explained that "[w]hereas the magnitude and unpredictability of attorney's fees would deter parties with meritorious claims from litigation, the costs of the suit in the traditional sense are predictable and, compared to the costs of attorney's fees, small." Cosgrove, 191 F.3d at 101 (citing Poe v. John Deere Co., 695 F.2d 1103, 1108 (8th Cir. 1982)). The Second Circuit, therefore, held that the decision of whether to award costs to a defendant under Rule 54(d) of the Federal Rules of Civil Procedure was "committed to the sound discretion of the district court." Id. at 102 (quoting ARP Films, Inc. v. Marvel Entm't Group, Inc., 952 F.2d 643, 651 (2d Cir. 1991)).

III. Entitlement to Award

A. Prevailing Party

The parties do not dispute that Defendants prevailed against Plaintiff on both his Title VII retaliation claim and his gender discrimination and sexual harassment claims. The Court granted defendants' motion in limine to dismiss Plaintiff's Title VII retaliation claim and granted Defendants' motion for judgment as a matter of law at the conclusion of ...

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