Carter v. Inc.

• Decision Date: 21 July 2014
• Docket Number: Docket No. 13–815–cv.
• Citation: 759 F.3d 159
• Parties: Edward CARTER, Frank Fiorillo, Kevin Lamm, Joseph Nofi, Thomas Snyder, Plaintiffs–Appellants, v. INCORPORATED VILLAGE OF OCEAN BEACH; Joseph C. Loeffler, Jr., Mayor, individually and in his official capacity; Natalie K. Rogers, Former Mayor, individually and in her official capacity; Ocean Beach Police Department; George B. Hesse, Acting Deputy Police Chief, individually and in his official capacity, Defendants, Suffolk County; Suffolk County Police Department; Suffolk County Department of Civil Service; Alison Sanchez, individually and in her official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

759 F.3d 159

Edward CARTER, Frank Fiorillo, Kevin Lamm, Joseph Nofi, Thomas Snyder, Plaintiffs–Appellants,

v. INCORPORATED VILLAGE OF OCEAN BEACH; Joseph C. Loeffler, Jr., Mayor, individually and in his official capacity; Natalie K. Rogers, Former Mayor, individually and in her official capacity; Ocean Beach Police Department; George B. Hesse, Acting Deputy Police Chief, individually and in his official capacity, Defendants,Suffolk County; Suffolk County Police Department; Suffolk County Department of Civil Service; Alison Sanchez, individually and in her official capacity, Defendants–Appellees.^*

Docket No. 13–815–cv.

United States Court of Appeals, Second Circuit.

Argued: April 11, 2014.

Decided: July 21, 2014.

Douglas Holden Wigdor, Wigdor LLP, New York, NY, for Plaintiffs–Appellants.

Arlene S. Zwilling, Assistant County Attorney, for Dennis M. Brown, Suffolk

County Attorney, Hauppauge, NY, for Defendants–Appellees.

Before: JACOBS, CALABRESI, and LIVINGSTON, Circuit Judges.

DENNIS JACOBS, Circuit Judge:

Plaintiffs appeal from an order of the United States District Court for the Eastern District of New York (Feuerstein, J.), granting attorney's fees and costs to the Defendants–Appellees pursuant to Federal Rule of Civil Procedure 54(d) and 42 U.S.C. § 1988(b). Plaintiffs argue that (1) their claims were not frivolous; (2) they should not be liable for fees and costs associated with voluntarily dismissed claims, state law claims, and claims not enumerated in § 1988; and (3) the district court incorrectly calculated the fee award. We affirm.

Plaintiffs, five former seasonal and part-time police officers of the Incorporated Village of Ocean Beach (“Village”), pursued a variety of wrongful termination and defamation claims against (1) the Village, its current and former mayors, the Village police department (“OBPD”), and the acting OBPD deputy police chief (collectively, the “Village Defendants”); and (2) Suffolk County (“County”), the County Police Department, the County Department of Civil Service, and Alison Sanchez, a mid-level County Department of Civil Service employee (collectively, the “County Defendants”). The district court granted summary judgment to all Defendants and, after this Court affirmed, awarded attorney's fees and costs to the County Defendants only. This appeal followed.

As the district court recognized, Plaintiffs' claims against the County Defendants were frivolous from the outset, warranting an award of costs and fees pursuant to Federal Rule of Civil Procedure 54 and 42 U.S.C. § 1988. The County Defendants, who did not employ or supervise Plaintiffs, had no meaningful role in any alleged wrongs.

Plaintiffs argue that they should not be liable for fees and costs associated with claims that, frivolous or not, were voluntarily dismissed before summary judgment; or claims over which the district court declined to exercise supplemental jurisdiction; or claims that are not enumerated in § 1988.

I

Plaintiffs were employed as OBPD police officers on a seasonal or part-time basis between 2002 and 2006. They had complained to superiors about George Hesse, an OBPD sergeant who allegedly encouraged on-the-job drinking and other unprofessional behaviors. Hesse was eventually designated acting police chief, though Plaintiffs allege that he was never properly certified for the position under New York Civil Service Law. Soon after his promotion, on the eve of the summer 2006 season, Hesse told Plaintiffs that they would not be invited back to work. He allegedly told other officers that Plaintiffs were “rats,” made crude comments about them on an Internet blog frequented by Village officers and residents, and gave negative references to potential employers.

Plaintiffs linked the County Defendants to this local squabble through Alison Sanchez, a personnel analyst in the County's Civil Service Department, which is generally in charge of administering civil service examinations and monitoring municipal compliance with the Civil Service Law. However, that Department has no power to hire, discipline, or fire police officers of individual municipalities, and no power to require municipalities to do any of these things. The Department may only inform and advise the municipalities about failures to meet civil service requirements. Sanchez was a mid-level employee in the Department:her work was subject to three levels of supervisory review.

In April 2006, three of the Plaintiffs met with Sanchez to discuss the Village's decision not to rehire them. Plaintiffs allege that Sanchez was biased by her purported sexual relationship with Hesse, that she defended his decision to terminate their employment, and that she relayed the substance of the conversation to Hesse despite a promise to keep it confidential. After Plaintiffs' termination, they or their supporters (or both) posted complaints about Hesse on an Internet blog frequented by OBPD officers, to which Sanchez allegedly responded (anonymously), telling the posters to stop complaining and labeling their “revenge posting” as “crap.” See J.A.1967–69, 2006.

Plaintiffs brought suit in March 2007. The complaint asserted myriad claims, largely undifferentiated as between the various Village Defendants and County Defendants, including (in no particular order): First Amendment retaliation; deprivation without procedural due process of property and liberty interests in “[Plaintiffs'] employment with the OBPD, their reputation, and their status”; conspiracy to infringe state and federal constitutional rights; equal protection; improper termination under New York Civil Service Law; improper retaliation under New York Labor Law; defamation per se; termination in violation of public state policy; negligent retention of an unfit employee; racketeering; and tortious interference with a prospective business relationship. See Compl. ¶¶ 116–192.

Plaintiffs later withdrew their equal protection, racketeering, and New York Labor Law claims. See Carter v. Inc. Vill. of Ocean Beach, 693 F.Supp.2d 203, 207 n. 2 (E.D.N.Y.2010). In February 2010, after motions for summary judgment had been briefed—and only thirteen days before jury selection was slated to begin—Plaintiffs withdrew many other claims, leaving claims against the Village, Hesse, the County, and Sanchez, premised on theories of First Amendment retaliation, deprivation of procedural due process, improper termination under New York Civil Service Law, defamation per se, and negligent retention of an unfit employee. See J.A. 6027–28.

On February 19, 2010, a few days before trial was set to start, the district court granted summary judgment in favor of all Defendants. See 693 F.Supp.2d at 216. The court explained that the First Amendment retaliation claims were barred by Weintraub v. Board of Education, 593 F.3d 196 (2d Cir.2010), decided about three weeks prior, because all of Plaintiffs' complaints were made pursuant only to their official duties and were therefore constitutionally unprotected. See 693 F.Supp.2d at 210–12. The procedural due process claims were dismissed because (1) the breaks in Plaintiffs' employment defeated any property right under New York Civil Service Law; and (2) the availability of a meaningful post-deprivation state law remedy defeated any liberty-based, “stigma-plus” claim. See id. at 212–16. The court declined to exercise supplemental jurisdiction over the state law claims. Id. at 216.

In March 2011, this Court affirmed. See Carter v. Inc. Vill. of Ocean Beach, 415 Fed.Appx. 290, 292–94 (2d Cir.2011) (summary order). Meanwhile, Plaintiffs brought their state law claims in state court, which dismissed all claims against the County Defendants at the pleadings stage. See Carter v. Inc. Vill. of Ocean Beach, No. 07 Civ.1215 (SJF)(ETB), 2013 WL 816257, at *2 (E.D.N.Y. Mar. 4, 2013).

Defendants subsequently moved for attorney's fees and costs in the federal action. In March 2013, Judge Feuerstein denied fees and costs to the Village Defendants because they had not prevailed on the state law claims, which were as yet live in state court. Seeid. at *1–4. The County Defendants, however, “ultimately prevailed upon all of plaintiffs' claims against them, i.e., plaintiffs voluntarily dismissed some of the claims, summary judgment was granted dismissing the federal claims that were not voluntarily dismissed and plaintiffs' state law claims against the County defendants ... were dismissed at the pleadings stage in the state court.” Id. at *2. Moreover, “all of plaintiffs' claims against the County defendants, who did not employ plaintiffs, or have any legal authority to hire, retain, fire or control employees of the Village or OBPD, were frivolous from the outset of this litigation.” Id. at *4.

Fees and costs were awarded to the County Defendants. The time claimed by the County Attorneys' Office was discounted by a third because “some of the hours expended appear[ed] redundant, duplicative or unnecessary.” Id. at *5–7. An hourly rate of $150 was found to be consistent with prevailing local rates. Id. The total fee award was $63,990.00. Id. This appeal followed.

II

As a general matter, “costs—other than attorney's fees—should be allowed to the prevailing party.” Fed.R.Civ.P. 54(d)(1). The Rule “codifies a venerable presumption that prevailing parties are entitled to costs.” Marx v. Gen. Revenue Corp., ––– U.S. ––––, 133 S.Ct. 1166,1172, 185 L.Ed.2d 242 (2013).

Though Rule 54(d)(1) excludes attorney's fees from costs presumed to be recoverable by the prevailing party, “[i]n any action or proceeding to enforce a provision of ... [42 U.S.C. §§ ] 1983, 1985, and 1986 ..., the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 1988(b).

A party who “secure[s] a judgment on the merits or a court-ordered consent decree” is a “prevailing party”; but a “voluntary change in the [other party's] conduct” is not enough. Buckhannon Bd. &...