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Deferio v. Bd. of Tr. of State Uni

United States District Court, N.D. New York

January 27, 2014

JAMES DEFERIO, Plaintiff,
v.
BD. OF TR. OF THE STATE UNI
v.
OF NEW YORK; NANCY L. ZIMPHER, in her official capacity as Chancellor of the State Univ. of New York; GEORGE M. PHILIP, in his official capacity as President of State Univ. of New York at Albany; and STACY STERN, individually and in her official capacity as assistant to the Vice President at State Univ. of New York at Albany, Defendants.

ALLIANCE DEFENDING FREEDOM, JONATHAN A. SCRUGGS, ESQ., NATHAN W. KELLUM, ESQ., Counsel for Plaintiff, Memphis, TN.

LAW OFFICE OF PHILIP J. VECCHIO, P.C., PHILIP J. VECCHIO, ESQ., Co-counsel for Plaintiff, East Greenbush, NY.

HON. ERIC T. SCHNEIDERMAN, ADRIENNE J. KERWIN, ESQ., Assistant Attorney General, Attorney General for the State of New York, Counsel for Defendants, Albany, NY.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this civil rights action filed by James Deferio ("Plaintiff") against the Board of Trustees of the State University of New York, Nancy L. Zimpher, George M. Philip, and Stacy Stern (together "Defendants"), is Plaintiff's motion for attorneys' fees and costs. (Dkt. No. 53.) For the reasons stated below, Plaintiff's motion is granted in part and denied in part.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint and the Procedural History

Because the parties have (in their motion papers) demonstrated an adequate understanding of Plaintiff's claims and the relevant procedural history of this action, the Court will not recite those facts in detail in this Decision and Order, which is intended primarily for the review of the parties. Rather, the Court will discuss those facts only where necessary in this Decision and Order.

On or about May 19, 2011, Plaintiff filed his Complaint in this civil rights action. (Dkt. No. 1.) Generally, Plaintiff's Complaint asserts a free-speech claim under the First Amendment and a due process claim under the Fourteenth Amendment, arising from his unsuccessful attempt to freely express his religious beliefs on the campus of the State University of New York at Albany ("SUNY Albany") on October 13, 2008, and April 21, 2009, for which he seeks declaratory judgment, preliminary injunction, permanent injunction, nominal damages, attorneys' fees and cost. ( Id. )[1] At the time he commenced this action, Plaintiff filed a motion for a preliminary injunction, seeking an order enjoining Defendants from applying the challenged policy so as to prevent Plaintiff or other speakers from "engaging in their desired and constitutionally protected speech activities." ( See generally Dkt. No. 4.)

On August 9, 2011, the day before the hearing on Plaintiff's motion for preliminary injunction was scheduled to occur, Defendants filed a letter stating that "SUNY Albany is no longer enforcing its policy that is the subject of this proceeding." (Dkt. No. 20.) On August 10, 2011, the Court held a hearing on Plaintiff's motion for preliminary injunction. During the hearing, Defendants' counsel represented that an interim policy was "going into effect today." (Hrg. Tr. at 1-2.) On December 9, 2011, the Albany University Council approved and adopted the new policy. (Dkt. No. 28, at 2.) The new policy is more permissive and reasonable than was the challenged SUNY Albany policy. (Dkt. No. 34, at 7 & n.4.)

On January 12, 2012, the Court issued a Decision and Order denying Plaintiff motion for a preliminary injunction. (Dkt. No. 34, at 2.) In its Decision and Order, the Court found, inter alia, that Plaintiff did not establish "a likelihood of irreparable harm if the requested relief was denied." ( Id. at 10.) More specifically, the Court found that, in light of the changed policies, "it [was] not likely that Plaintiff would again experience either the First Amendment violation or the Fourteenth Amendment violation that he allege[d] in his Complaint if he again attempted to speak at SUNY-Albany in the future." ( Id. at 9.)

While Plaintiff's requests for injunctive relief were rendered moot by the Court's Decision and Order of January 12, 2012, Plaintiff's underlying constitutional claim for nominal damages and attorneys' fees remained pending before the Court. The parties thereafter explored settlement options. (Dkt. No. 55, at ¶ 13 [Affirm. of Kerwin].)

On approximately April 12, 2012, pursuant to Fed.R.Civ.P. 68, Defendants served Plaintiff with an Offer of Judgment, offering to allow judgment to be taken against them in this action for the sum of $1.00 plus reasonable attorneys' fees and allowable costs and disbursements (to be determined by the Court upon motion), but expressly disclaiming any admission of liability or wrongdoing on the part of Defendants. (Dkt. No. 55, Attach. 1, at 1-4.) After Plaintiff asserted that the Offer of Judgment was invalid because of a purported defect in the caption, Defendants served Plaintiff with an identical Offer of Judgment, with an amended caption, on April 27, 2012. (Dkt. No. 55, Attach. 1, at 5-8.) On approximately May 14, 2012, Plaintiff rejected Defendants' Offer of Judgment. (Dkt. No. 53, Attach. 7, at 7; Dkt. No. 55, at ¶ 16.)

Following this rejection, the parties resumed settlement negotiations. On August 28, 2012, the parties reached a settlement agreement and filed a proposed Consent Order with the Court. (Dkt. No. 51.) On August 30, 2012, the Court signed the proposed Consent Order. (Dkt. No. 52.) A comparison of the Consent Order and the Offer of Judgment reveals two main differences: (1) while the Offer of Judgment expressly disclaimed any admission of liability on the part of Defendants, the Consent Order made no mention of liability; and (2) while the Offer of Judgment contained an agreement to pay attorneys' fees (in an amount to be determined by the Court), the Consent Order did not. ( Compare Dkt. No. 55, Attach. 1, at 1-4 with Dkt. No. 52, at 1-2; see also Dkt. No. 56, at 6 [Plf.'s Reply].)

B. Parties' Briefing on the Current Motion

On September 27, 2012, Plaintiff filed a motion, pursuant to 42 U.S.C. § 1988(b) and Fed.R.Civ.P. 54(d)(2), to recover $56, 057.25 in attorneys' fees, costs and expenses. ( See generally Dkt. No. 53.) In support of his motion, Plaintiff submitted declarations, exhibits detailing the time allocated to particular tasks and the costs incurred, and a memorandum of law in chief. ( Id. )

1. Plaintiff's Memorandum of Law in Chief

Generally, in his memorandum of law in chief, Plaintiff asserts four arguments. ( See generally Dkt. No. 53, Attach. 12 [Plf.'s Memo. of Law].) First, Plaintiff argues, he is entitled to attorneys' fees and expenses under 42 U.S.C. § 1988(b) because he is a "prevailing party" in that, through a Consent Order, he was awarded the maximum amount of damages possible for the violation of his constitutional rights (i.e., $1.00 of nominal damages), thus acknowledging the past violation of Plaintiff's constitutional rights through Defendants' prior policy, and materially altering the legal relationship between Plaintiff and Defendants. ( Id. at 1-4.)

Second, Plaintiff argues, the hourly rates that he requests (i.e., $275 per hour for Attorney Nathan Kellum, $225 per hour for Attorney Jonathan Scruggs, $225 per hour for Attorney Philip Vecchio, and $80 per hour for Paralegal Michael Kane) are reasonable in light of (a) the time and labor required, (b) the novelty and difficulty of the legal issues, (c) the level of skill required to perform the legal services properly, (d) the attorneys' preclusion of other employment, (e) the attorneys' customary hourly rate, (f) the contingent nature of the fee, (g) the time limits imposed by the lawsuit, (h) the resulting vindication of Plaintiff's constitutional rights, (i) the experience and skills of the attorneys, (j) the undesirability of the case to other attorneys, and (k) the amount of awards in similar cases. ( Id. at 4-17.)

Third, Plaintiff argues, the number of hours requested is reasonable in that (a) the hours are substantiated by detailed and contemporaneous billing records, (b) the hours are related to a common set of facts and a common legal theory, and (c) the hours produced a substantial degree of success). ( Id. at 17-22.)

Fourth, Plaintiff argues, the costs and expenses requested (specifically, travel expenses, filing fees, service-of-process fees and admission fees) are reasonable because they are not associated with routine office overhead but are identifiable out-of-pocket disbursements that are ordinarily charged to clients. ( Id. at 22-23.)

2. Defendants' Opposition Memorandum of Law

Generally, in their opposition memorandum of law, Defendants assert essentially four arguments. (Dkt. No. 55, Attach. 2 [Defs.' Opp'n Memo. of Law].) First, Defendants argue, no award of attorneys' fees is warranted in this action at all because, even though Plaintiff has formally prevailed in this action, his overall degree of success has been very limited (in that he pursued an obviously moot motion for a preliminary injunction for five months, lost that motion, and then settled the case for $1.00 on the same terms as offered by Defendant four months before). ( Id. at 6 [attaching page "4" of Defs.' Opp'n Memo. of Law].)

Second, Defendants argue, three of the four hourly rates requested by Plaintiff in his motion are unreasonable because, pursuant to the governing law, while Paralegal Kane is indeed entitled to an hourly rate of $80 per hour, Attorneys Kellum and Vecchio are entitled to an hourly rate of only $210 per hour, and Attorney Scruggs is entitled to an hourly rate of only $150 per hour. ( Id. at 7 [attaching page "5" of Defs.' Opp'n Memo. of Law].)

Third, Defendants argue, the number of hours requested is unreasonable, because (1) Defendants were the "prevailing parties" on Plaintiff's motion for a preliminary injunction and are thus entitled to a "set-off" for the $30, 369 in fees and costs sought by Plaintiff in bringing that motion, (2) in the alternative, the hours spent on the motion should be reduced because the motion was pursued despite the fact that Plaintiff's claims for injunctive relief were moot, (3) Plaintiff is not entitled to attorneys' fees incurred after the making of Defendant's Offer of Judgment (on April 27, 2012), which was identical to the Consent Order in that it did not contain a provision admitting liability, and (4) the remainder of the hours were redundant, unnecessary, or improper (for example, the time spent drafting a "very basic" and "straightforward" First Amendment complaint, the time spent by Paralegal Kane helping Plaintiff establish a cause of ...


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