Opinion
01-CV-0369E(Sr)
October 17, 2003
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
David Dale, Esq. filed a May 16, 2003 motion for a "Stay of the implementation of the political calendar for the year 2003 for a period of sixty days *** to permit [the Court] to perfect an appeal of this Court's Order of June 14, 2002; and to secure a determination on the same." Plaintiff filed a May 16, 2003 motion for attorney's fees. Such motions were collectively submitted to the Court on June 27, 2003. Plaintiff-Intervenors Stempniak and Dunne ("Intervenors") filed a motion for attorney's fees on June 25, 2003. That matter was subsequently submitted to the Court on the papers. For the reasons stated hereinbelow, the motions by Dale and the Intervenors will be denied and plaintiff's motion will be granted.
Familiarity with the facts and procedural history is presumed. On August 8, 2001 this Court issued a Memorandum and Order declaring that,
"[b]ecause one person-one vote is a bedrock Constitutional right of each and every citizen, the present geographic boundaries of the seventeen election districts comprising Erie County, the territory served by the Erie County Legislature, are askew and must be remedied.
"What the undersigned is now putting in place by this Interim Order is a mechanism that rectifies this illegal and malodorous condition while not muddling the situation for those who currently hold elective legislative positions and for those who will — after this September's primary elections — be the competing candidates in this November's general election for becoming or continuing as the seventeen legislators who will represent their respective districts through the calender years 2002 and 2003." Korman v. Giambra, 2001 WL 967552, at *1 (W.D.N.Y. 2001).
This Court thereupon implemented a system of weighted voting whereby each of the seventeen County Legislator's votes was proportionately increased or decreased based upon the relative numerosity of the residents in his or her district. This Court further held that "[s]uch weighting *** shall obtain until a redistricting plan shall legally be put in place by the Erie County Legislature and the Erie County Executive — or by the Erie County Legislature's overriding the Erie County Executive's veto — or by the undersigned," although the undersigned added that it was his then "present intention to not put in place his own redistricting plan unless a redistricting plan by the Legislature is not in place by March 15, 2002." Ibid. On February 28, 2002 the Erie County Legislature passed a redistricting plan, Local Law Intro. No. 2-2002 ("LL 2-2002"), and such was approved and signed by the Erie County Executive March 14, 2002; however, because such redistricting plan reduced the number of legislative districts from seventeen to fifteen, it was subject to and contingent upon its approval by the voters of Erie County in a referendum to be held during the November 2002 general elections. Plaintiff then filed a motion for summary judgment April 12, 2002 arguing that Erie County had failed to comply with this Court's August 8, 2002 Order because such Order required the County to have legally enacted and in place a redistricting plan by March 15, 2002 and that the County had failed to do so because LL 2-2002 was subject to and contingent upon approval by the voters. Plaintiff therefore requested this Court to (1) impose a seventeen-member redistricting plan upon the County, (2) terminate weighted voting and (3) order a special election for one-year terms as County Legislators to be held in November of 2002. The Erie County defendants filed papers in opposition to such motion, arguing that this Court's August 8, 2001 Order intended that those Erie County Legislators elected in the November 2001 election would serve full two-year terms, that weighted voting would remain in effect throughout calendar years 2002-2003 and that the County had complied with this Court's August 8, 2001 Order by enacting LL 2-2002 before March 15, 2002 even though it could not become effective unless and until approved by the voters of Erie County. The Court subsequently issued a June 14, 2002 Memorandum and Order and began its analysis by noting that plaintiff's motion was "in actuality more in the nature of a request for clarification of this Court's August 8, 2001 Order" and that such motion would be treated accordingly. Korman v. Giambra, 2002 WL 1634165, at *2 (W.D.N.Y. 2002). The Court then went on to clarify that, pursuant to its August 8, 2001 Order, each of the seventeen Erie County Legislators elected in the November 2001 election would serve a full two-year term and, because the seventeen districts from which each was elected were unconstitutionally malapportioned, the Erie County Legislature would continue to operate under weighted voting through December 31, 2003. The Court also noted that because
"the seventeen legislators elected in November 2001 would serve until December 31, 2003, ample time remains to abide the approval vel non of LL 2-2002 by the voters of Erie County. If the voters approve LL 2-2002 via the November 5, 2002 referendum, elections for the positions of Erie County Legislator will then be held in November of 2003 based upon the fifteen districts and, when and if such elected legislators take office in January 2004, weighted voting will terminate. If the voters disapprove LL 2-2002, weighted voting will continue and there will still remain ample time either for Erie County to enact a seventeen-member redistricting plan or for this Court to impose a redistricting plan upon the County." Ibid.
LL 2-2002 was subsequently approved by the voters of Erie County on November 5, 2002. See Isenberg Aff., Ex. I. As such, Legislators respectively representing the fifteen newly-created districts will be elected at the general Election on November 4, 2003.
Thus, in clarifying this Court's previous Memorandum and Order, plaintiff's motion was denied.
Korman subsequently appealed such decision to the Second Circuit Court of Appeals by filing a Notice of Appeal on July 3, 2002. On July 12, 2002, Matthew J. Jasen, Esq., as counsel for the individual Democratic members of the Erie County Legislature ("Erie County Democrats"), filed a Notice of Appeal. Although Dale did not file an appeal himself, he was subsequently substituted as appellate counsel for both Korman and the Erie County Democrats. On August 7, 2002 the Court of Appeals issued a Scheduling Order which set forth the deadlines by which the parties were to have filed their papers. See Aff. of Andrew B. Isenberg, Esq., Ex. B. However, Dale subsequently sent two letters to the Court of Appeals requesting modification of the court's August 7, 2002 Scheduling Order. On November 14, 2002 the court issued a Second Scheduling Order allowing Dale additional time in which to file his papers in support of his appeal. On December 6, 2002 Dale requested modification of the court's Second Scheduling Order. Id., Ex. G. However, no such modification was allowed and on January 16, 2003 the Court of Appeals issued an Order dismissing Dale's appeal for failure to comply with its previously issued Scheduling Order. Id., Ex. H. Dale did not take any steps before the appellate court to have such dismissal vacated. Isenberg Aff. ¶ 51. Dale subsequently filed his present motion — some four months after dismissal of his appeal — seeking (1) an "Order of this Court rendering the Interim Order of June 14, 2002 to be a final Order upon the merits of the [case]" and (2) a "Stay of the implementation of the political calendar for the year 2003 for a period of (60) sixty days from the date of [his] Cross Notice of Motion to permit [him] to perfect an appeal of this Court's Order of June 14, 2002; and to secure a determination upon the merits of the same." Notice of Mot., at 2. The Court need not linger on the merits of Dale's motion. To begin, Dale has not cited any legal authority whatsoever to support his request for a preliminary injunction. Second, Dale has not come close to meeting the rigorous legal standard for this Court to stay this year's political calendar. See No Spray Coalition, Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001) (holding that when a plaintiff who seeks a preliminary injunction that will affect government action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction should only be granted if plaintiff can show both irreparable harm and a likelihood of success on the merits). Third, although Dale's motion is ostensibly based on his intention to appeal this Court's June 14, 2002 Order, the actual basis for his request is to allow him to appeal this Court's August 8, 2001 Order by which the undersigned instituted a temporary system of weighted voting. Fourth, Dale simply waited too long to seek the relief he wants. Eleven months have elapsed between this Court's June 14, 2002 Order and Dale's present motion. Fifth, the political calendar is well underway and any injunction issued at this point would severely disrupt the legislative process. See Reynolds v. Sims, 377 U.S. 533, 585 (1964) (holding that a court is "entitled to and should consider the proximity of a forthcoming election" in deciding whether to issue an injunction). Sixth, Dale's motion serves as nothing more than his attempt to take a second bite at the apple. Dale's first appeal having been dismissed for failure to comply with two separate Scheduling Orders, he now wants this Court to allow him to try again. The reasons for such noncompliance are of no consequence to this Court and it would be unjust to allow Dale to use this Court as a vehicle to thwart the deadlines imposed by the Court of Appeals' two Scheduling Orders. Finally, Dale has not shown the need for this Court to modify its Court's June 14, 2002 Memorandum and Order. Accordingly, Dale's motion will be denied in all respects.
As such, Dale has failed to comply with Rule 65(b) of the Local Rules of Civil Procedure, which requires, inter alia, that the movant submit a memorandum of law citing legal authority showing that he is entitled to the sought relief.
See Dale Aff. ¶¶ 8-14 (stating his arguments why the August 8, 2001 Memorandum and Order was either premature or unwarranted).
The Court now turns to the motions for attorney's fees. Both motions are premised upon sections 1983 and 1988 of the Civil Rights Attorney's Fees Act of 1976, 42 U.S.C. § 1983 and 1988. Plaintiff contends that he is entitled to such fees as a prevailing party inasmuch as he was "responsible for a redress of a Constitutional Rights violation (ie. [sic] The `One man, one vote' principle) ***." Aff. of Richard S. Juda, Jr., Esq., ¶ 6.
Section 1988 states that, "[i]n any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, *** the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction."
Defendants oppose plaintiff's motion and argue that he was not a prevailing party because (1) the relief which he sought — to wit, his requested reapportionment plan — was not granted by this Court and (2) his subsequent motion for summary judgment was denied. Defendants further contend that plaintiff's argument based on a "catalyst theory" — to wit, plaintiff's contention that he served as the catalyst for the ultimate remedying of a constitutional violation — is without merit and should not serve as the basis for the award of attorney's fees.
A two-step inquiry is needed to determine whether to award attorney's fees. First, the party must be a "prevailing party" in order to recover and, second, the requested fee must be reasonable. Pino v. Locascio, 101 F.3d 235, 237 (2d Cir. 1996). The relevant inquiry in determining whether plaintiff is a prevailing party within the meaning of section 1988 is succinctly summarized in Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-792 (1989), wherein the Court stated:
"If the plaintiff has succeeded on any significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit, the plaintiff has crossed the threshold to a fee award of some kind. *** The floor in this regard is provided by our decision in Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987). As we noted there, [r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail. Id., at 760, 107 S.Ct., at 2675. Thus, at a minimum, to be considered a prevailing party within the meaning of § 1988, the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." (Internal citation and quotation marks omitted).
One of the forms of relief sought by plaintiff in this case included an Order from this Court
"[d]eclaring insufficient, defective, invalid, null and void the current apportionment of the Erie County Legislature, State of New York, for the failure to meet the Constitutional mandate of one-man, one-vote and ordering a new apportionment of legislative Districts in Erie County, State of New York by enactment of the County Legislature or by a Court adopted plan." Pet., at 2.
Although the plaintiff, as well as the defendants, subsequently submitted several proposed redistricting plans to the Court, the Court ultimately decided to impose a system of weighted voting rather than adopt any such proposed plan. Thus, while plaintiff's specific proposed redistricting plan was not adopted, his suit prompted the Court to remedy a constitutional violation — to wit, the underrepresentation of not only himself but also the other residents of his Legislative District. Furthermore, plaintiff should be considered a prevailing party inasmuch as the Court's August 8, 2001 Order provided that it would impose its own redistricting plan unless the Erie County legislature properly enacted its own such plan. Such relief was specifically sought by plaintiff's Petition.
The fact that the Court subsequently denied plaintiff's April 12, 2002 motion for summary judgment does not change such conclusion. As stated in the June 14, 2002 Order denying the motion, such was more of a request for clarification rather than motion for summary judgment requiring a decision on the merits. See Korman, 2002 WL 1634165, at *2. In addition, the disposition of such motion did nothing to alter the status of the remedies that were previously imposed by the Court.
Defendants contend that plaintiff's "catalyst theory" is without merit because at the time Korman commenced the present action, Erie County had already undertaken the reapportionment process. However, as noted in this Court's August 8, 2001 Memorandum and Order, no such plan had by then been enacted. See Korman, 2001 WL 967552, at *1 n. 1 (noting that although the Erie County legislature had acted favorably upon a redistricting plan, such plan was vetoed by the Erie County Executive and the Legislature failed to override such veto). Furthermore, the Court is not persuaded by defendants' reliance on Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001), in support of their position that this Court should reject plaintiff's catalyst theory. In Buckhannon, the plaintiffs had brought suit against the defendants based on their claim that a provision of the West Virginia code had violated federal law. After the parties had begun discovery, the West Virginia Legislature eliminated the provision at issue. Consequently, the district court dismissed the case as moot. Plaintiffs thereafter sought attorney's fees as a prevailing party on the ground that their lawsuit was the "catalyst" in forcing the defendants to change the law. The district court rejected plaintiffs' "catalyst theory" and denied the award of attorney's fees. On appeal, the Fourth Circuit Court of Appeals affirmed. The Supreme Court subsequently granted certiorari and affirmed the decision holding that plaintiff's catalyst theory could not provide the basis for the award of attorney's fees. In rejecting plaintiffs' catalyst theory as a basis for an award of attorney's fees, the Court reasoned that there was "no judicially sanctioned change in the legal relationship of the parties" and that defendant's voluntary change in conduct lacked the "necessary judicial imprimatur on the change." Id. at 605. By contrast, plaintiff's action here prompted a judicially sanctioned change in the legal relationship of the parties; such a change being achieved by operation of this Court's August 8, 2001 Memorandum and Order. Furthermore, the defendants' change in conduct was neither voluntary nor had it lacked the necessary judicial imprimatur. Thus, defendants' reliance on Buckhannon is misplaced in arguing that this Court should reject plaintiff's catalyst theory as a basis for an award of attorney's fees. Plaintiff was indeed a prevailing party inasmuch as his suit resulted in a judicially sanctioned material alteration of the legal relationship between the parties. See Roberson v. Giuliani, ___ F.3d ___, 2003 WL 22232780, at *3 (2d Cir. 2003) ("[I]n order to be considered a prevailing party after Buckhannon, a plaintiff must not only achieve some material alteration of the legal relationship of the parties, but that change must also be judicially sanctioned.") (quotation and punctuation marks omitted).
Despite the fact that the Buckhannon plaintiffs had sought attorney's fees pursuant to the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601 et seq., and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., "it is clear that the Supreme Court intend[ed] the reasoning of that case to apply to [the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988,] as well." Union of Needletrades, Indus. and Texfile Employees v. U.S. Immigration and Naturalization Svce., 336 F.3d 200, 205 (2d Cir. 2003) (quotation marks and citation omitted).
Having found plaintiff to be a prevailing party, the second relevant inquiry is whether the requested attorney's fees are reasonable. To determine the reasonable amount of attorney's fees to be awarded, courts within the Second Circuit use the "lodestar" method, "whereby an attorney fee award is derived `by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.'" G.M. ex rel. R.F. v. New Britain Bd. of Educ., 173 F.3d 77, 84 (2d Cir. 1999) (quoting Blanchard v. Bergeron, 489 U.S. 87, 94 (1989)). Richard S. Juda, Esq. has submitted sufficient evidence to show that the fees sought are both reasonable and fair. Juda has submitted an itemized list showing that he expended 110.95 hours on the present litigation. Juda Aff. ¶ 12. Plaintiff seeks a total fee of § 21,314.25 based upon a rate of § 190 per hour plus disbursements made in the amount of § 245. Defendants do not dispute the reasonableness of such fees. Accordingly, such attorney's fees will be awarded to plaintiff.
The Intervenors, on the other hand, are not entitled to attorney's fees. Generally, Intervenors are entitled to attorney's fees if their efforts (1) have "contributed importantly to the creation of remedies" and (2) are not merely duplicative of those efforts of the plaintiff. Wilder v. Bernstein, 965 F.2d 1196, 1204-1205 (2d Cir. 1992). Intervenors sought to intervene in this case primarily to represent the rights of citizens residing in legislative districts other than plaintiff's and to oppose plaintiff's proposed redistricting plan. See Aff. of Dennis E. Ward, Esq. ¶¶ 25-43. However, it cannot be said that such intervention contributed significantly to the remedy imposed by this Court's August 8, 2001 Memorandum and Order. Indeed, the primary issue addressed by such Order — to wit, Erie County's disproportionate legislative representation — was prompted by the plaintiff's initial action and the subsequent involvement of the Intervenors were merely duplicative of such efforts in advocating for their own redistricting plan. Thus, Intervenors' motion for attorney's fees will be denied.
Accordingly, it is hereby ORDERED that Dale's motion is denied in all respects, that the motion for attorney's fees by plaintiff-intervenors Stempniak and Dunne is denied, that plaintiff's motion for attorney's fees is granted and that plaintiff is awarded § 21,314.25 in attorney's fees.