United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn, U.S. District Judge
the Court in this civil rights action filed by plaintiff
James Deferio is his motion for $194, 001.89 in
attorneys' fees and nontaxable expenses pursuant to 42
U.S.C. § 1988(b) and Federal Rule of Civil Procedure
54(d). Dkt. Nos. 131-7 (“Motion”) at 1, 150-1
(“Reply”) at 2. Defendants have opposed the
Motion. Dkt. No. 147 (“Response”). As detailed
below, the Motion is granted in part. Plaintiff has also
moved pursuant to 28 U.S.C. § 1920 for a bill of costs
totaling $3, 145, to which Defendants have no objection. Dkt.
Nos. 133 (“Motion for Bill of Costs”), 146
(“Response to Motion for Bill of Costs”). That
motion is granted in full.
with the Court's January 31, 2018 memorandum-decision and
order is presumed. Dkt. No. 128 (“January 2018
Order”). Plaintiff started this action on March 31,
2016 against the City of Syracuse and three of its police
department personnel-Captain Joseph Sweeny, Sergeant Jamey
Locastro (collectively, the “Officers”), and
Chief of Police Frank Fowler, in his official
capacity-pursuant to 42 U.S.C. § 1983, alleging
violations of his First Amendment and due process rights.
Dkt. No. 1 (“Complaint”). Generally,
Plaintiff's allegations arise out of his efforts to
express his religious beliefs on public sidewalks at the
Central New York Pride Parade and Festival in 2014 and 2015.
Id. He claimed that his free speech rights were
infringed when the Officers, pursuant to a municipal policy,
barred Plaintiff from demonstrating immediately adjacent to
the festival's entrance, forcing him to move across the
street-away from pedestrian traffic into and out of the
Complaint, Plaintiff sought declaratory relief, preliminary
injunction, a permanent injunction, nominal damages,
attorneys' fees, and costs. Compl. at 18-20. Five days
after filing his Complaint, Plaintiff moved for a preliminary
injunction concerning the then-upcoming 2016 Pride Parade and
Festival. Dkt. Nos. 6-1 (“Preliminary Injunction
Motion”), 6-15 (“Preliminary Injunction
Memorandum”). In a June 8, 2016 memorandum-decision and
order, the Court granted Plaintiff's Preliminary
Injunction Motion and enjoined Defendants “from
excluding Plaintiff from or restricting his ability to
demonstrate in the areas surrounding the entrances to the
2016 CNY Pride Event based on the establishment of a buffer
zone.” Dkt. No. 24 (“June 2016 Order”) at
20. Plaintiff attended the Pride Parade and Festival in 2016
and 2017 without incident. Dkt. No. 116-25
(“Plaintiff's Statement of Material Facts”)
extensive discovery, Defendants moved for summary judgment on
June 30, 2017. Dkt. No. 109 (“Defendants' Motion
for Summary Judgment”). Plaintiff cross-moved for
summary judgment on July 31, 2017. Dkt. Nos. 116-1
(“Cross-Memorandum”). In addition to nominal
damages, Plaintiff sought permanent injunctive relief and a
declaratory judgment. Cross-Mot. at 2; Cross-Mem. at 26-29.
January 31, 2018, the Court granted Plaintiff's
Cross-Motion as to Plaintiff's First Amendment claims
against Defendants Locastro and Sweeny, awarding the
requested $1 in nominal damages. Jan. 2018 Order at 44. The
Court denied Plaintiff's requests for injunctive and
declaratory relief. Id. The Court also granted
Defendants' Motion for Summary Judgment as to
Plaintiff's due process and Monell municipal
liability claims, dismissing Syracuse and Chief Fowler as
defendants. Jan. 2018 Order at 44. The Court deferred ruling
on attorneys' fees and costs until further briefing.
Id. at 43. Both parties have since filed notices of
the appeal to the Court of Appeals for the Second Circuit.
Dkt. Nos. 132 and 134.
the fees and costs briefing now in hand, the Court turns to
Jurisdiction Over Collateral Matters
preliminary matter, the Court will address an issue not
raised by either party, but is relevant to the procedural
posture of the case. While both parties have filed notices of
appeal, “a district court retains residual jurisdiction
over collateral matters, including claims for attorneys'
fees.” Tancredi v. Metro. Life Ins. Co., 378
F.3d 220, 225 (2d Cir. 2004) (citations omitted). Moreover,
when presented with a motion for attorney's fees while an
appeal is pending, a district court, in its discretion, may
“rule on the claim for fees, . . . defer its ruling on
the motion, or . . . deny the motion without prejudice[
].” Id., at 226. To defer a ruling on the
attorneys' fee issue until resolution of the pending
cross-appeals, however, could prompt a second appellate
challenge and, accordingly, run contrary to the Second
Circuit's teaching that Rule 54(d) and its time limit for
submitting fee applications are intended to avoid
“piecemeal appeals” by consolidating appellate
resolution of fee award disputes with other, substantive
arguments raised on appeal. Id. at 227. While
additional motion practice to address the issue of additional
attorneys' fees incurred in connection with the pending
appeal and any subsequent proceedings in this court may well
be unavoidable, this possible eventuality does not provide a
basis to defer ruling upon the pending fee application.
§ 1988, “a court has discretion to ‘allow
the prevailing party, other than the United States, a
reasonable attorney's fee' in a civil rights lawsuit
filed under 42 U.S.C. § 1983.” James v. City
of Boise, Idaho, 136 S.Ct. 685, 686 (2016) (quoting 42
U.S.C. § 1988). “A plaintiff who has prevailed on
a claim under § 1983 should ordinarily recover an
attorney's fee unless special circumstances would render
an award unjust.” Orchano v. Advanced Recovery,
Inc., 107 F.3d 94, 97 (2d Cir. 1997) (citations
omitted). “[P]laintiffs may be considered
‘prevailing parties' for attorney's fees
purposes if they succeed on any significant issue in
litigation which achieves some of the benefit the parties
sought in bringing suit.” Farrar v. Hobby, 506
U.S. 103, 109 (1992). The Supreme Court has described this
standard as “generous, ” such that nominal
damages of one dollar are enough to bring the plaintiff
across the “prevailing party” threshold.
Id. at 112.
stated in the January 2018 Order, Plaintiff is “clearly
the prevailing party in this case.” Jan. 2018 Order at
41. Defendants want to deny him all fees, suggesting that
Plaintiff's victory in this case is purely technical or
de minimis. Resp. at 2-3. While the Court declined to grant
permanent injunctive or declaratory relief, and dismissed the
City and Police Chief as defendants, the Plaintiff succeeded
on a core issue of his case-he proved a violation of his
First Amendment rights, albeit only by the Officers. For this
constitutional violation, Plaintiff sought only $1 in nominal
damages, and has been awarded that $1.
relying primarily on Alvarez v. City of New York,
No. 11-CV-5464, 2017 WL 6033425, at *2 (S.D.N.Y. Dec. 5,
2017), argue that when there are only nominal damages, a
ground-breaking conclusion of law is a necessary condition
for awarding attorney's fees. Resp. at 2. This
requirement, however, applies only to cases where the
Plaintiff initially sought a non-nominal remedy. The
defendant in Alvarez sought considerable
compensatory and punitive damages, and in fact rejected a
settlement offer of $150, 001 on the eve of trial.
Alvarez, 2017 WL 6033425 at *3. In that context, the
$1 awarded to Alvarez could be deemed hollow. Here, however,
Deferio largely got what he asked for. And an award of
nominal damages “recognizes the importance to organized
society that [constitutional] rights be scrupulously
observed.” Memphis Comm. Sch. Dist. v.
Stachura, 477 U.S. 299, 308 n.11 (1986).
Plaintiff was denied permanent injunctive and declaratory
relief, but he obtained the practical effect of such relief.
The January 2018 Order delineates the deficiencies of
Defendants' actions in 2014 and 2015 so they will not be
repeated again. And there is no need for declaratory relief
when the matter was resolved in the context of a claim for
damages. Plaintiff's dismissed Monell and due
process claims were of import in this action, but not so
great as to turn Plaintiff's victory into a pyrrhic one.
his degree of success, Plaintiff is a prevailing party
entitled to attorneys' fees.
Reasonable Attorneys' Fees
the calculation of the attorneys' fees, “the
lodestar-the product of a reasonable hourly rate and the
reasonable number of hours required by the case-creates a
presumptively reasonable fee.” Millea v.
Metro-North R. Co., 658 F.3d 154, 166 (2d Cir. 2011).
“[T]he lodestar method produces an award that roughly
approximates the fee that the prevailing attorney would have
received if he or she had been representing a paying client
who was billed by the hour in a comparable case.”
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551
(2010). The Supreme Court has expressed a preference for the
lodestar method over the twelve factor test enunciated in
Johnson v. Georgia Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974). Perdue, 559 U.S. at 550.
burden is on the party seeking attorneys' fees to submit
sufficient evidence to support the rates claimed and the
hours worked. Hensley v. Eckerhart, 461 U.S. 424,
433 (1983). The Court now ...