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Larry S. Fox, Cynthia Alford, Carl Edwards v. David A. Paterson

April 21, 2011

LARRY S. FOX, CYNTHIA ALFORD, CARL EDWARDS, PLAINTIFFS,
v.
DAVID A. PATERSON, GOVERNOR OF NEW YORK, DEFENDANT.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

This action was commenced in May 2010 by three residents of the Twenty-Ninth New York Congressional District ("29th District"), pursuant to 42 U.S.C. § 1983, seeking a mandatory injunction from this Court directing the Governor of the State of New York ("Governor") to call a special election to fill a vacancy that then existed in the 29th District. On June 4, 2010, this Court issued a Decision and Order, 715 F.Supp.2d 431, granting in part and denying in part plaintiffs' motion for injunctive and declaratory relief.

The Court declared that then-Governor David A. Paterson had a mandatory duty under Article I, § 2, clause 4 of the United States Constitution to proclaim a special election to fill the vacancy in the 29th District, and that the proclamation had to be made on a date which would allow the special election to be held no later than the date of the general election on November 2, 2010. The Court denied the plaintiffs' request to order the Governor--who had indicated his intent to issue a special election proclamation in October 2010, for a special election to be held on November 2--to proclaim a special election sooner than that, so that the special election could be held before November 2.*fn1

Plaintiffs have now moved for an award of attorney's fees, costs and disbursements, pursuant to Rule 54(d)(2) of the Federal Rules of Civil Procedure and 42 U.S.C. § 1988(b), in the amount of $32,135.59. For the reasons that follow, plaintiffs' motion is denied.

DISCUSSION

I. Applicable Standards

Section 1988 of Title 42 provides that "[i]n any action or proceeding to enforce a provision of section[] 1983 ... of this title, ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs ... ." Under Rule 54(d)(2)(B)(i), a motion for attorney's fees and related nontaxable expenses must generally be made by motion "no later than 14 days after the entry of judgment ... ."

"The Supreme Court has held that a 'prevailing party' is one who has favorably effected a 'material alteration of the legal relationship of the parties' by court order." Garcia v. Yonkers School Dist., 561 F.3d 97, 102 (2d Cir. 2009) (quoting Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598, 604 (2001)).). "Thus, for example, the entry of an enforceable judgment, such as a stay or preliminary injunction, may permit the district court to confer prevailing-party status on the plaintiff notwithstanding the absence of a final judgment on the underlying claim." Id. See also Vacchio v. Ashcroft, 404 F.3d 663, 674 (2d Cir. 2005) ("[S]tatus as a prevailing party is conferred whenever there is a court ordered change in the legal relationship between the plaintiff and the defendant or a material alteration of the legal relationship of the parties"); Haley v. Pataki, 106 F.3d 478, 483-84 (2d Cir. 1997) (awarding attorney's fees pursuant to § 1988(b) to party prevailing on preliminary injunction).

"[I]n order to be considered a 'prevailing party' ..., a plaintiff must not only achieve some material alteration of the legal relationship of the parties, but that change must also be judicially sanctioned." Roberson v. Giuliani, 346 F.3d 75, 79 (2d Cir. 2003) (internal quotation marks omitted). "That is, plaintiffs are only eligible for attorneys' fees if they 'achieve some material alteration of the legal relationship' between them and their adversaries, and that change bears a 'judicial imprimatur.'" Perez v. Westchester County Dep't of Corrections, 587 F.3d 143, 149 (2d Cir. 2009) (quoting Roberson v. Giuliani, 346 F.3d 75, 79-80 (2d Cir. 2003)).

The Court of Appeals for the Second Circuit has further stated that [a]lthough "prevailing party" is thus construed broadly, a plaintiff is not a "prevailing party" if he or she "achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct." The Supreme Court has explained that such a voluntary change in defendant's conduct "lacks the necessary judicial imprimatur on the change" to accord prevailing-party status to the plaintiff.

Garcia v. Yonkers School Dist., 561 F.3d 97, 102-03 (2d Cir. 2009) (quoting Buckhannon, 532 U.S. at 601, 605). In addition, "'[w]here the plaintiff's success on a legal claim can be characterized as purely technical or de minimis,' he is not a prevailing party." Jenevein v. Willing, 605 F.3d 268, 271 (5th Cir. 2010) (quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)). See also Farrar v. Hobby, 506 U.S. 103, 119 (1992) ("the practice of denying fees to Pyrrhic victors is one [that Congress, in enacting § 1988] clearly intended to preserve") (O'Connor, J., concurring).

II. Timeliness

Defendant contends that the motion for attorney's fees should be denied as untimely. According to defendant, the fourteen-day period within which to file a motion for attorney's fees under Rule 54(d)(2)(B)(I) began to run here on June 4, 2010, when the Court issued its Decision and Order granting in part ...


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