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Cole-Hoover v. State of New York Department of Correctional Services

United States District Court, W.D. New York

February 12, 2014



JEREMIAH J. MCCARTHY, Magistrate Judge.

Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to conduct all proceedings before a Magistrate Judge [20].[1] Before me are two motions by plaintiff's former attorneys for an award of attorneys' fees: a motion by Brian Fitzgerald and Anna Marie Richmond [341], and a motion by Anthony Pendergrass [353]. For the following reasons, the first motion is granted in part and denied in part, and the second motion is reluctantly denied.


Plaintiff commenced this employment discrimination action on November 21, 2002 [1]. At that time, she was represented by attorney Gregory Mattacola of Rome, New York. In the Fall of 2005, plaintiff retained Brian Fitzgerald and Anna Marie Richmond to replace Mr. Mattacola [104-2]. On October 27, 2005 they filed an Amended Complaint [40] seeking relief under 42 U.S.C. §§ 1981, 1983, 1985 and 2000e, et seq. (Title VII), as well as the New York State Human Rights Law (Executive Law § 290 et seq. ).

In January 2008 Mr. Fitzgerald and Ms. Richmond moved for leave to withdraw as plaintiff's attorneys, citing "fundamental differences of opinion between us and Dr. Cole Hoover concerning the best approach to litigating her case, which make it impossible for us to continue as her counsel". Richmond Affirmation [104], ¶ 6. After plaintiff failed to appear at an April 10, 2008 hearing on that motion (having previously been warned [117] that her failure to appear would cause me to grant the motion), on April 11, 2008 I granted their motion to withdraw as unopposed [119].

Mr. Pendergrass first appeared with plaintiff at a status conference on April 17, 2008 [120], and entered a formal appearance in this action on May 1, 2008 [122]. Thereafter, he performed numerous services on her behalf, including appearing with her at settlement conferences [134, 270], successfully opposing portions of defendants' motion for summary judgment [154, 189], filing a pretrial statement [198], obtaining reconsideration and modification of my summary judgment decision [205], and filing a Supplemental Complaint [284].

At a conference on July 9, 2012, I scheduled jury selection and trial to commence on November 1, 2012, and required final pretrial statements by August 31, 2012 [299, 300]. On August 21, 2012 plaintiff filed a pro se motion requesting "the Honorable Court to schedule a trial date within 30 days by October 1, 2012 or Court to Order Total Summary Judgment against the Defendants" [301]. By Text Order issued that same day, I denied plaintiff's motion, stating that "unless and until plaintiff's attorney is granted leave to withdraw or a stipulation is filed memorializing his withdrawal or termination, all filings should come through him" [302].

By letter dated September 24, 2012 [355-1], plaintiff terminated Mr. Pendergrass as her attorney, stating:

"Since July 9, 2012 I have had the most difficult time attempting to move forward and to allow you to represent me as my attorney. I feel very strongly that your conduct on that date made it impossible for me to confidently continue our attorney-client relationship, your failure to request documents I persistently requested of you. I believe that our differences are beyond reconciliation! I must regrettably inform you that after careful and painstaking consideration I must terminate your services as my Attorney. This termination is effective immediately. I have secured the services of Prathima Reddy, Esquire.... Please forward immediately to Ms. Reddy and all files pertaining to each of the cases that you have represented me as my attorney. I wish to extend my thanks and gratitude for the work you have done on my behalf. Please acknowledge my letter with a release. Thank you for your attention to this matter."

On November 5, 2012, shortly before jury selection, plaintiff (now represented by Ms. Reddy) placed on the record the settlement of this and three other actions for the sum of $750, 000 [337, 338]. When the parties were unable to agree on the exact language of the settlement documentation, I directed that judgment be entered in favor of plaintiff in the amount of $750, 000, and that of that amount the sum of $360, 915.05 be placed in escrow, pending resolution of these motions [394]. Defendants have appealed from that judgment [401], and their appeal remains pending.[2]


A. Fitzgerald/Richmond Motion [341]

The Retainer Agreement between plaintiff, Mr. Fitzgerald and Ms. Richmond called for payment of a $10, 000 retainer ([341-2], § I) plus a one-third of contingency fee, to be reduced by any attorney's fees awarded by the court (id., § II(A), (B)). It further stated that "[i]n the event that during the litigation the client... causes to be terminated, without good cause, representation by the attorneys, she will pay the attorneys from any sum paid by the defendants... for hours spent in the litigation at the attorneys then usual rate for federal court litigation, currently $250 per hour.... In the event that no remedy is obtained by the client, the attorneys will receive no compensation other than the initial retainers described above" (id., § II(C), (D)).

Mr. Fitzgerald claims entitlement to compensation of $51, 500.00 for 206 hours at $250.00 per hour, plus outstanding disbursements of $245.30, for a total of $51, 745.30 ([341-4], pp. 7-14 of 25).[3] Ms. Richmond claims entitlement to compensation of $63, 492.25 for 280.39 hours, [4] plus an outstanding disbursement of $2.50, for a total of $63, 494.75 (id., pp. 15-25 of 25), against which she ...

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