Brown v. Fairleigh Dickinson University

• Citation: 560 F. Supp. 391
• Decision Date: 15 March 1983
• Docket Number: Civ. No. 81-735.
• Parties: Edward BROWN, Plaintiff, v. FAIRLEIGH DICKINSON UNIVERSITY, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

560 F. Supp. 391

Edward BROWN, Plaintiff, v. FAIRLEIGH DICKINSON UNIVERSITY, et al., Defendants.

Civ. No. 81-735.

United States District Court, D. New Jersey.

March 15, 1983.

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Arthur N. Martin, Newark, N.J., Michael Sussman, NAACP Special Contribution Fund, Brooklyn Hts., N.Y., for plaintiff.

Dennis M. Cavanaugh, Maria L. Vecchiotti, of Lum, Biunno & Tompkins, Newark, N.J., for defendants.

OPINION

LACEY, District Judge.

On this application by various defendants for attorneys' fees and costs, a review of the history of these proceedings is appropriate, to be read with this court's Findings of Fact and Conclusions of Law filed herein on September 24, 1982, in connection with the court's determination of plaintiff's Title VII claim against the plaintiff and in favor of the then remaining defendant, Fairleigh Dickinson University (FDU).

I. HISTORY OF PROCEEDINGS

In this civil rights action, Edward H. Brown, a black adult male from New Jersey, sued under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., the thirteenth amendment of the United States Constitution, and 42 U.S.C. §§ 1981 and 1985(3), in order "to redress the deprivation of plaintiff's rights to equal employment practices by the defendants ...." Second Amended Complaint at 1. He also charged defendants with slander, libel, and violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. Originally named as defendants were FDU, located in Rutherford, New Jersey, twenty-nine individual employees of FDU, and a private investigating agency.

Plaintiff was appointed Director of Purchasing at FDU in July 1969. He received yearly contract renewals for the years 1970-71, 1971-72, 1972-73, 1973-74, and 1975-76. On October 9, 1975, FDU's Vice President for Financial Affairs, Lowell W. Herron, terminated plaintiff's employment. The termination letter stated that plaintiff was being discharged because his "recent accusations regarding the integrity of certain administrators of the University" had produced "a serious disruptive effect within the administration," and because of personal transactions with vendors who did a substantial amount of business with FDU. Letter from Lowell W. Herron to Edward H. Brown, October 9, 1975. On February 11, 1976, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) against FDU, Dr. Herron, Milton Cooper, J. Osborn Fuller, Jerome Pollack, and Joseph Green. On December 17, 1980, the EEOC issued a Right to Sue letter. Plaintiff commenced this action by filing a verified complaint on March 17, 1981. At that time, plaintiff's attorney was Arthur N. Martin, Jr.

The original complaint alleged that defendants had discriminated against plaintiff in the terms, conditions, and privileges of employment because of his race, color and national origin. Although the complaint was diffuse and repetitive, the following specifics emerged. Plaintiff asserted that he had been "an active and aggressive advocate of equality of opportunity for minorities in all facets of the University's operations," Complaint, ¶ 10, and a vocal opponent of FDU's alleged racially discriminatory practices in hiring, purchasing, and treatment of black students. He stated that he had filed a complaint with the New Jersey Division of Civil Rights in 1973, alleging that FDU and four of its employees, Lowell Herron, J. Osborn Fuller, Harry Bingham, and Milton Cooper, had discriminated against him because of his race; in July 1975 he amended the complaint to include charges of reprisal. Id., ¶ 10, ¶ 16. Plaintiff alleged that the defendants had discharged him in retaliation for his filing of the complaint with the Division of Civil Rights, and also for his activist role at the University. He also alleged that, while he was employed, defendants had harassed him by excluding him from planning and decisionmaking; assigning many of his job functions to other employees; refusing to provide support when he required it; denying him equal opportunity to bid on job vacancies within the University; placing him in a situation where discharge was likely; subjecting him to a "vicious smear campaign," id., ¶ 10; and hiring a private investigating agency to question his acquaintances and to keep him under surveillance. By and large, the complaint did not detail the roles of individual defendants, but spoke instead of "defendant, Fairleigh Dickinson University" or "defendants, Fairleigh Dickinson University, et als."

In April 1981 plaintiff improperly and unsuccessfully attempted service of some of the many persons named in the complaint. At a conference on June 15, 1981, the court instructed plaintiff to re-serve the summons and complaint. When nothing had happened by June 29, 1981, the court held another conference and ordered plaintiff to serve an amended complaint "which will specifically detail the alleged discriminatory acts of each of the defendants in lieu of plaintiff stating the allegations in terms of what `defendant, Fairleigh Dickinson University, et als.' allegedly did." Order of June 29, 1981. Plaintiff was ordered to file the amended complaint no later than July 7, 1981. The court also set a trial date of December 7, 1981; however, as will hereinafter appear, this date was not met and several extensions were necessary by reason of plaintiff's violation of pretrial orders and procedures prescribed by the court.

Plaintiff did not file his amended complaint until July 10, 1981. At a status conference on July 21, 1981, the court found that the amended complaint still lacked the ordered specificity, and directed plaintiff to clarify its ambiguities. On July 24, 1981, plaintiff filed his second amended complaint. The law firm of Lum, Biunno and Tompkins accepted service on behalf of FDU, Martin C. Conant, Jerome M. Pollack, and Ronald J. Von Essen, and filed an answer on behalf of those defendants on August 7, 1981. In mid-September 1981 plaintiff began to re-serve some of the other defendants at their business addresses. On November 23, 1981, Lum, Biunno and Tompkins filed an answer on behalf of James V. Griffo.

Meantime, on September 14, 1981, the law firm of Brown, Brown and Furst entered an appearance as attorneys (along with Martin) for plaintiff. Discovery then ensued from October 1981 through January 1982. Plaintiff worked zealously and actively on the case from its outset. As his brief in opposition to the fee application states,

Mr. Brown arranged his voluminous files for Ms. Singer's use and fully prepared her for the Cooper, Herron and Von Essen depositions. He spent more than five hundred hours, night after night, working with Ms. Singer on the development of the case and essentially lived in the law offices of Brown, Brown & Furst from October to January.

Plaintiff's Brief in Opposition to Defendant's Application for Attorneys' Fees at 4-5.

On October 27, 1981, plaintiff voluntarily dismissed the action as to twelve defendants, some of whom had still not been served. The complaint was dismissed as to Harry S. Bingham, Clifford Burnham, Milton H. Cooper, A. Steven Donofrio, Stephen Edmundson, Saul K. Fenster, Joseph Green, C. William Hall, Lowell W. Herron, Kenneth Hesselbirg, Malcolm L. Sturchio, and Robert Wiley. The dismissal as to Herron is of interest because it is undisputed that it was he who decided to, and did, fire Brown. According to defendants' counsel, at the time of these dismissals and during the course of discovery Ms. Singer made "numerous representations" that consents to dismissals would also be shortly forthcoming for defendants Pollack and Griffo. Affidavit of Dennis M. Cavanaugh, April 26, 1982 (Cav.Aff. III), ¶ 13. While plaintiff's counsel, Mr. Martin, later stated that Ms. Singer had never told him that she intended to dismiss Pollack and Griffo, see Transcript of Proceedings, May 4, 1982, at 12-13, Singer herself was never called upon to refute Cavanaugh's contention. Moreover, as late as March 22, 1982, plaintiff's then co-counsel, Michael Sussman, was under the impression that Pollack and Griffo had already been voluntarily dismissed from the case. Plaintiff's Brief in Opposition to Defendant's Application for Attorneys' Fees at 8. Nonetheless, voluntary dismissals as to Pollack and Griffo were never offered.

On February 5, 1982, the Brown firm applied to be relieved as counsel for plaintiff, "on the grounds that the relationship between plaintiff and counsel had deteriorated to the extent that it is inappropriate to continue in his representation" and because plaintiff had breached both an initial and a revised retainer agreement. Notice of Motion, January 18, 1982; see Affidavit of Raymond M. Brown, January 21, 1982, ¶ 3-¶ 4. Plaintiff did not oppose the motion; neither he nor Mr. Martin appeared at the hearing.¹ On February 11, 1982, the court granted the motion, thus making Mr. Martin sole counsel of record once again.

A pre-trial conference was held on February 5, 1982. The court ordered all discovery to be completed by March 9, 1982; trial was rescheduled for April 5, 1982. The order also set forth dates by which proposed jury instructions (for the jury issues), suggested findings of fact and conclusions of law (with critiques of the other side's suggested findings) (for the non-jury issues), and trial memoranda were due.

On March 10, 1982, defendants FDU, Von Essen, Conant, Pollack, and Griffo moved for dismissal of portions of the second amended complaint. After a hearing the court granted dismissal of "all claims alleging defamation and/or violations of N.J. S.A. 10:5 et seq.," but denied dismissal of claims under 42 U.S.C. §§ 1981 and 1985. Order of March 10, 1982. Since plaintiff had failed to provide answers to supplemental interrogatories, originally due by March 9, 1982, the order also extended plaintiff's time to answer the interrogatories until March 24, 1982.

On March 30,...