Selzer v. Berkowitz, 77 C 1897.
| Decision Date | 03 October 1979 |
| Docket Number | No. 77 C 1897.,77 C 1897. |
| Citation | 477 F. Supp. 686 |
| Parties | Michael I. SELZER, Plaintiff, v. Morton BERKOWITZ, Phillipa Strum, Ellen Frey-Wouters, Martin Fleisher, Michael Kahan, Herbert Weiss, Robert Engler, David W. Abbott, Nathan Schmukler, Donald R. Reich, John W. Kneller, and Harold M. Jacobs, Chairman, and Edith B. Everett, Ronald T. Gault, Jack John Olivero, David Z. Robinson, Patricia Carry Stewart, Loretta A. Conway, Walter H. Crowley, Armand D'Angelo, Gurstin D. Goldin, Albert V. Maniscalco, David Valinsky, Emanuel R. Piore, Joan B. Maynard, Joaquin Rivera and Edward A. Roberts, Members of the Board of Higher Education of the City of New York, the Board of Higher Education of the City of New York, and Robert J. Kibbee, Chancellor of City University of New York, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Donovan, Leisure, Newton & Irvine by Walter L. Stratton, New York City, for plaintiff.
Allen G. Schwartz, Corp. Counsel, City of New York, by Patrick F. X. Mulhearn, Asst. Corp. Counsel, New York City, for defendants.
Defendants moved, pursuant to Rule 50 of the Federal Rules of Civil Procedure ("FRCP"), for an order granting defendants judgment notwithstanding the verdict or, in the alternative, pursuant to Rule 59 FRCP, for a new trial on the grounds that:
Defendants' aforesaid motions are denied. No opinion.
Subsequent to making the aforesaid motions, defendants moved, pursuant to Rule 62(b) FRCP, (a) for an order staying the enforcement of judgment heretofore entered on May 18, 1979 pending a decision on defendants' aforesaid motion under Rule 50 FRCP for judgment notwithstanding the verdict and (b) for an order directing plaintiff to vacate and/or withdraw all notices filed or served pursuant to the New York Civil Practice Law and Rules "to effectuate the enforcement of said judgment". By reason of a stipulation dated and So Ordered September 28, 1979, made between the attorneys for the parties, this second motion is now moot.
By Notice of Motion served within seven days of the original judgment entered herein, plaintiff moved pursuant to Rule 59(e) FRCP for an order (a) amending the judgment so as to provide for injunctive relief granting the plaintiff promotion from assistant to associate professor and granting plaintiff tenure in the City University of New York, and pursuant to Rules 59(e) and/or 54(d) of FRCP and Title 42 U.S.C. § 1988 for an order (b) amending the judgment so as to grant plaintiff costs, including reasonable attorneys' fees and expenses.
(a) Thereafter, because of the defendants unwillingness to negotiate appropriate injunctive relief in the premises, plaintiff withdrew the first portion of his motion and pursued only the second half thereof, i. e., his motion for reasonable attorneys' fees and expenses.
(b) With respect to the latter, plaintiff's attorneys filed a detailed affidavit, defendants applied for and were granted extensive depositions and other discovery, and a hearing was held by the Court on (i) the issue of whether plaintiff was entitled to attorneys' fees and expenses and (ii) the issue of the reasonableness of plaintiff's attorneys' request therefor.
By way of background, plaintiff commenced his lawsuit herein on September 23, 1977, alleging violations of 42 U.S.C. §§ 1983, 1985(3) and 1986, ultimately charging that defendants violated plaintiff's constitutional rights by causing or contributing to the causation of the denials to plaintiff of tenure and promotion at Brooklyn College on account of plaintiff's associating with and speaking to the CIA. The original verified complaint consisted of four counts and was 29 pages in length. Thereafter, the complaint was twice amended and supplemented, one of such amendments taking into account the opinions in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and Turpin v. Mailet, 579 F.2d 152 (2d Cir. 1978), vacated sub nom. City of West Haven v. Turpin, 439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978), aff'd on remand, 591 F.2d 426 (2d Cir. 1979).
Pretrial discovery was, to put it mildly, extensive, both in terms of document discovery and in terms of the number and length of the depositions which were required. During the course of the litigation defendants brought two motions to dismiss; this Court's decision on the first of such motions, is reported in 459 F.Supp. 347 and its decision on the second of such motions was tentatively indicated at the outset of the trial on March 15, 1979 (before the issues contained therein were mooted by the jury verdict). The trial itself commenced on March 19, 1979, and lasted for nine weeks. The verdict was rendered on May 18, 1979. Sixty three witnesses were called and some 372 exhibits were marked into evidence.1
Plaintiff's attorneys kept detailed time records of the time actually spent in counseling the plaintiff prior to the institution of the litigation, in the preparation of the complaints, in the pretrial discovery, in the briefing and argument of the motions, and in the preparation for and the conduct of the trial, the post-trial motions and other post-trial work. They applied their normal billing rates of approximately $125 per hour for partners time and between $27.25 to $65 per hour for associates time and various other lesser rates for other summer associates, student interns and paralegal times (herein sometimes "para-attorney" times). The total attorney hours (attorney and para-attorney) on this case came to 7,599.50 and the total value of all such time amounted to $438,968.88.
The jury's verdict found (i) that all of the defendants, with the exception of the Board of Higher Education and its members, had considered plaintiff's association with the CIA in the determination to deny plaintiff's tenure and promotion, (ii) that such consideration was a substantial and motivating factor therein, (iii) that all of such defendants "knowingly acted in such a way as to cause, or contribute to the causation, of that result" and (iv) that defendants had failed to prove that the plaintiff would have been denied tenure and promotion in the absence of such consideration.
All of the defendants raised the defense of qualified immunity by reason of their alleged good faith. The jury found that six defendants had proved their entitlement to this defense and that six individual defendants had not acted in good faith and the jury rendered a verdict and the Court entered a judgment against the latter six in the amount of $580,000.
In addition to all of the foregoing, plaintiff incurred disbursements and expenses in the amount of $60,065.83.
(i) On the first issue indicated above, namely, whether plaintiff is entitled to an award of reasonable attorneys' fees and expenses herein, § 1988 of Title 42 of the United States Code provides in part that:
"In any action or proceeding to enforce a provision of sections . . . 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs."
As plaintiff's attorneys point out in their memoranda, Congress clearly intended that successful plaintiffs in actions brought under the Civil Rights Acts of 1871 should be able to recover attorneys fees just as successful plaintiffs are entitled to recover such fees under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000a-3 and 2000e-5(k)) and § 402 of the Voting Rights Act Amendments of 1975 (42 U.S.C. § 1973l (e)).
In a Senate Report in support of 42 U.S.C. § 1988 () the standard for awarding fees was described as follows:
.
Defense counsel seems to suggest that plaintiff in the case at bar should not be entitled to recover any attorneys fees because he prevailed on only one of his theories of recovery and only in money damages as against some of the individual defendants. Defense counsel either misunderstand or are deliberately attempting to confuse the clear answers given by the jury to the special interrogatories propounded to them in connection with their verdict. The jury specifically found that all the defendants (except the members of the Board of Higher Education) caused or contributed to the causation of the deprivation of plaintiff's civil rights and thus that they violated 42 U.S.C. § 1983 and the jury further specifically found that the defendants failed to prove that the plaintiff would have been denied tenure had the CIA matter not arisen. In short, plaintiff was and is entitled to full injunctive relief herein and would have received the same had he not withdrawn his request therefor in exchange for the full amount of the damages awarded to him by the jury. The fact that he recovered only on his § 1983 claim and not on his claims based on other sections of Title 42, is wholly immaterial and irrelevant to the question of his entitlement to recovery of...
To continue reading
Request your trial
-
US Football League v. National Football League
...been the case had the work been done by lawyers, the losing party benefits and has little cause to complain." Selzer v. Berkowitz, 477 F.Supp. 686, 690 n. 3 (E.D.N.Y.1979). Finally, with regard to the amount recoverable under § 4 of the Clayton Act, the NFL contests the expenses (which it t......
-
Gopher Oil Co., Inc. v. Union Oil Co. of California
...to litigation costs in state actions. For instance, federal courts encourage the use of paralegals. See, e.g., Selzer v. Berkowitz, 477 F.Supp. 686, 690 n. 3 (E.D.N.Y.1979). There is no reason to believe that the federal policy of encouraging the use of paralegals to prune litigation expens......
-
Ramos v. Lamm
...book and secretarial costs, travel expenses, and paralegal fees. In support of this claim, they cite three cases: Selzer v. Berkowitz, 477 F.Supp. 686, 691 (E.D.N.Y.1979); Population Services International v. Carey, 476 F.Supp. 4, 8 (S.D.N.Y. 1979); Palmigiano v. Garrahy, 466 F.Supp. 732, 7......
-
Houston v. Cotter
...191.) Gonzalez v. Bratton , 147 F.Supp.2d 180, 188 (S.D.N.Y. 2001), aff'd , 48 Fed.Appx. 363 (2d Cir. 2002), and Selzer v. Berkowitz , 477 F.Supp. 686, 688 (E.D.N.Y. 1979), involved three-week and nine-week trials, respectively. The litigation in Konits v. Valley Stream Central High School ......