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Carol Konits v. Dean Karahalis

February 2, 2011

CAROL KONITS, PLAINTIFF-APPELLANT,
v.
DEAN KARAHALIS, INDIVIDUALLY AND AS DISTRICT COORDINATOR, DEFENDANT-APPELLEE, VALLEY STREAM CENTRAL HIGH SCHOOL DISTRICT,
BOARD OF EDUCATION OF THE VALLEY, RONALD D. VALENTI, INDIVIDUALLY AND AS DISTRICT SUPERINTENDENT,
ROBERT E. KAUFOLD, INDIVIDUALLY AND AS PRINCIPAL OF MEMORIAL JUNIOR HIGH SCHOOL,
GRACE KERR, INDIVIDUALLY AND AS CHAIRPERSON, DEFENDANTS.*FN1



10-2157-cv

Konits v. Karahalis

SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUM M ARY ORDER"). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 2nd day of February, two thousand eleven.

PRESENT: RALPH K. WINTER, ROBERT D. SACK, DEBRA ANN LIVINGSTON, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED.

Plaintiff-Appellant Carol Konits ("Konits" or "Plaintiff") obtained a favorable jury verdict against defendant Dean Karahalis ("Karahalis") on her claim of retaliation in violation of the First Amendment, brought pursuant to 42 U.S.C. § 1983. Konits's other claims, however-for violation of her rights to equal protection and due process, as well as for claims under New York state law-were dismissed prior to trial, and the jury did not find in her favor as to her First Amendment retaliation claim against any of the other defendants against whom she brought suit (including the Valley Stream Central High School District, its Board of Education, and Valley Stream Central High School administrators Robert D. Vilante, Robert E. Kaufold, and Grace Kerr, each in their individual and official capacities). Following the judgment, Konits moved for an award of attorneys' fees as a prevailing party pursuant to 42 U.S.C. § 1988. Konits now appeals from a May 19, 2010, order of the United States District Court for the Eastern District of New York (Wexler, J.), awarding her attorneys, Dennis A. Bengels ("Bengels") and Sharon C. Konits ("Sharon Konits"), $500,123 in fees. We assume the parties' familiarity with the underlying facts, procedural history of the case, and issues on appeal.

We review a district court's award of attorneys' fees for abuse of discretion, Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47 (2d Cir. 2000), which "occurs when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision-though not necessarily the product of a legal error or a clearly erroneous factual finding-cannot be located within the range of permissible decisions," Kickham Hanley P.C. v. Kodak Ret. Income Plan, 558 F.3d 204, 209 (2d Cir. 2009) (internal quotation marks omitted). Moreover, "'abuse of discretion'-already one of the most deferential standards of review-takes on special significance when reviewing fee decisions," Goldberger, 209 F.3d at 47, since "the district court, which is intimately familiar with the nuances of the case, is in a far better position . . . than is an appellate court, which must work from a cold record," In re Bolar Pharm. Co. Sec. Litig., 966 F.2d 731, 732 (2d Cir. 1992) (per curiam). We defer to the discretion of the district court here even though it had limited involvement in the case, although we pay particular attention to its explanation of fee reductions related to proceedings over which it did not preside. In any event, "the question before us is not whether we would have awarded a different fee, but rather whether the district court abused its discretion in awarding this fee." In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 134 (2d Cir. 2008).

I. Reduction for Limited Success

First, Konits asserts that the district court erred in imposing a 25% reduction for her limited success, in that she prevailed against only one of the six defendants against whom she brought suit. "Although full fees may be awarded to a partially prevailing plaintiff when the underlying claims" on which that plaintiff did not succeed "are intertwined" with the claims on which the plaintiff did succeed, "the court retains substantial discretion to take into account the specific procedural history and facts of each case." Green v. Torres, 361 F.3d 96, 99 (2d Cir. 2004). "[T]he most critical factor in a district court's determination of what constitutes a reasonable attorney's fee in a given case is the degree of success obtained by the plaintiff." Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008) (internal quotation marks omitted). As the Supreme Court has recognized, if "a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount," which may "be true even where the plaintiff's claims were interrelated, non-frivolous, and raised in good faith." Hensley v. Eckerhart, 461 U.S. 424, 436 (1983).

Furthermore, we have held that a district court, in reviewing a fee application, should "examine[] the particular hours expended by counsel with a view to the value of the work product of the specific expenditures to the client's case," and if it "concludes that any expenditure of time was unreasonable, it should exclude these hours" from the calculation of the reasonable fee. Luciano v. Olsten Corp., 109 F.3d 111, 116 (2d Cir. 1997). Finally, we are mindful of the Supreme Court's observation that in many civil rights cases "the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories, . . . making it difficult to divide the hours expended on a claim-by-claim basis." Hensley, 461 U.S. at 435. Since "[s]uch a lawsuit cannot be viewed as a series of discrete claims, . . . the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended." Id.

On the basis of the record presented, we locate no error in the district court's decision to impose a 25% reduction based on Konits's limited success. The district court considered, and rejected, Konits's assertion that her lack of success was attributable to "constraints placed by the Court" regarding the number of trial days to be devoted to the matter, noting that "she did not withdraw her claims against the other defendants." Konits v. Valley Stream Cent. High Sch. Dist., No. CV-01-6763(LDW), 2010 WL 2076949, at *3 (E.D.N.Y. May 19, 2010). The court found, moreover, that "[a]lthough [Konits] maintains that all of the defendants were united in interest, the jury's finding in favor of the other individual defendants demonstrates otherwise, and was supported by trial testimony and other evidence reflecting distinctions in defendants' conduct." Id. Under these circumstances, the district court did not abuse its broad discretion by imposing a reduction to reflect Konits's limited success. Cf. Webb v. Sloan, 330 F.3d 1158, 1169 (9th Cir. 2003) ("Plaintiff initially sued several defendants, but prevailed against only one . . . . A discretionary reduction to reflect that kind of limited success is appropriate."); see also Barfield, 537 F.3d at 152 ("A district court's assessment of the 'degree of success' achieved in a case is not limited to inquiring whether a plaintiff prevailed on individual claims," but rather, "[b]oth the quantity and quality of relief obtained, as compared to what the plaintiff sought to achieve as evidenced in her complaint, are key factors in determining the degree of success achieved." (internal quotation marks omitted)). Nor do we locate error in the district court's imposition of a percentage reduction, rather than disallowance of specific billing entries. The court's decision in this regard was appropriately based on its conclusion that, since Plaintiff's billing entries did not "differentiate the hours spent in pursuing this action against Karahalis from those hours spent on the other defendants," it could not "make a specific, calculated reduction for success against only one of several defendants." Konits, 2010 WL 2076949, at *3; see Hensley, 461 U.S. at 436-37 (noting district court's discretion to "attempt to identify specific hours that should be eliminated, or [to] . . . simply reduce the award to account for the limited success.").

II. The Appropriate Hourly Rate

Next, Konits contends that the district court erred in its determination of the appropriate hourly rate for Bengels and Sharon Konits. In sum, she asserts that the district court "used historical rates going back to the year 2000" in determining the prevailing market rate for attorneys of like skill and experience in the Eastern District, "rather than current hourly rates." Appellant's Br. 26. Attorneys' fees are determined in this Circuit by reference to the "presumptively reasonable fee," Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 190 (2d Cir. 2008), which "boils down to what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively," Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. ...


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