Ragin v. Harry Macklowe Real Estate Co.
| Decision Date | 09 December 1994 |
| Docket Number | No. 88 Civ. 5665 (RWS).,88 Civ. 5665 (RWS). |
| Citation | 870 F. Supp. 510 |
| Parties | Luther M. RAGIN, Jr., Deborah Fish Ragin, Renaye B. Cuyler, Jerome F. Cuyler and Open Housing Center, Inc., Plaintiffs, v. The HARRY MACKLOWE REAL ESTATE CO. and Harry Macklowe, Defendants. |
| Court | U.S. District Court — Southern District of New York |
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Steptoe & Johnson (Roger E. Warin, Mindy A. Kaiden, of counsel), Washington, DC, Lefrak & Holman, P.C. (Thomas A. Holman, of counsel), New York City, NAACP Legal Defense and Educational Fund, Inc. (Eric Schnapper, of counsel), Washington, DC, for plaintiffs.
Robinson Silverman Pearce Aronsohn & Berman (George B. Yankwitt, Suzanne M. Berger, of counsel), New York City, for defendants.
The plaintiffs, Luther M. Ragin, Jr., Deborah Fish Ragin, Renaye B. Cuyler, Jerome F. Cuyler (collectively, the "Individual Plaintiffs") and the Open Housing Center, Inc., (the "OHC") (the OHC and the Individual Plaintiffs are referred to collectively as the "Plaintiffs") have moved this Court for an order of attorneys' fees in favor of Plaintiffs pursuant to the opinion and mandate of the Second Circuit on September 29, 1993. See Ragin v. Macklowe, 6 F.3d 898 (2d Cir.1993).
Plaintiffs' motion for attorney fees is granted, subject to the limitations set forth below.
The facts and prior proceedings in this action are fully set forth in the following cited opinions, familiarity with which is assumed. See Ragin v. Macklowe, 126 F.R.D. 475 (S.D.N.Y.1989) ("Ragin I"); Ragin v. Macklowe 801 F.Supp. 1213 (S.D.N.Y.1992) ("Ragin II"); Ragin v. Macklowe, 6 F.3d 898 (2d Cir.1993) ("Ragin III"). A review of those facts and prior proceedings relevant to this motion is presented below.
The Plaintiffs commenced this action in federal district court for damages and injunctive relief in August of 1988, alleging that defendants The Harry Macklowe Real Estate Co. ("HMRE"), Harry Macklowe ("Macklowe"), and Elfon Realty Co. ("Elfon") (collectively, the "Defendants") violated section 804(c) of the Fair Housing Act, 42 U.S.C. § 3604(c) (1988) (the "FHA" or the "Act"). The gravamen of the Plaintiffs' complaint was that the Defendants' placement of display advertising for residential apartments in The New York Times violated the Act's prohibition against racial discrimination in residential housing advertising because all of the models portrayed in the advertisement were white.
Although the complaint in this case was filed on August 12, 1988, the controversy between the parties began in 1986. At the request of Plaintiffs, Kerry A. Scanlon ("Scanlon") (then counsel at NAACP Legal Defense Fund) ("NAACP-LDF") began preliminary investigations and research to remedy advertising deemed to be discriminatory under the Act.
In 1987, Plaintiffs filed an administrative complaint with the New York Division of Human Rights, alleging that the Harry Macklowe Organization ("HMO") had conducted unlawful discrimination in its advertising campaign. In May of 1988, the Agency found probable cause against HMO and recommended that a public hearing be held. There was no public hearing, and no further action was taken by or before the Division of Human Rights.
Shortly after the Agency finding, this litigation was commenced finally culminating in a fourteen day trial with an advisory jury (See Ragin II). Judgment was entered in favor of the Plaintiffs on August 25, 1992. The court determined that HMRE and Macklowe had violated the Fair Housing Act. Ragin II, 801 F.Supp. at 1230-32. Damages of $2,500 were awarded to each individual plaintiff and $20,000 in compensatory damages to OHC. Id. at 1233-34. The Court, following the advisory verdict of the jury, declined to award punitive damages. Id. at 1234-35. In addition to compensatory damages, the Court issued a permanent injunction providing broad relief. The injunction enjoins the defendants, their officers, agents, servants and employees from:
making, printing, publishing, or causing to be made, printed, or published ... any advertisement of any type with respect to the sale or rental of housing or a dwelling which violates § 3604(c) of the Fair Housing Act, 42 U.S.C. § 3604(c), and indicates any preference, limitation or discrimination based upon race or color, or an intention to make such a preference, limitation, or discrimination or that the housing or dwelling being advertised is not open to all without regard to race or color.
Judgment, October 19, 1992.
Prior to submission of a formal fee application by Plaintiffs, an order of October 19, 1992 was entered supplementing the findings of fact and conclusions of law, and stating that in view of the "financial ability of the plaintiffs" and "the nature of the action and relief granted," counsel fees were not appropriate to further the purposes of the Fair Housing Act. Order, October 19, 1992.
The Plaintiffs appealed, among other issues, the denial of attorneys' fees. The Court of Appeals affirmed the findings and conclusions of law with respect to liability, compensatory damages and punitive damages, as well as the scope of injunctive relief. Ragin III, 6 F.3d 898, 911. The Court did not agree, however, with the method used by this Court to deny all attorneys' fees and remanded the attorneys' fees issues for further proceedings stating:
... the district court improperly declined to apply the amendment in determining whether plaintiffs were entitled to attorney's fees for legal work performed after the effective date of the amendment ... A remand is required also to determine whether the plaintiffs met the criteria established in the unamended statute for attorney's fees incurred prior to the effective date of the amendment.
After the remand, a November 10, 1993 conference established that Plaintiffs would file a fee application on or before December 22, 1993. Defendants were then to respond by January 26, 1994 and Plaintiffs were to file a reply by February 4, 1994. Oral argument was scheduled for February 9, 1994.
Plaintiffs filed a fee application of December 22, 1993, but, a week later, Plaintiffs filed an amended application ("Base Application"). In that Base Application, Plaintiffs sought compensation for 2,587.39 hours resulting in a fee of $557,530.53, together with disbursements of $45,667.13. The Base Application did not contain any contemporaneous time records, nor did it contain receipts in connection with the disbursements sought. The motion claimed to seek reimbursement for only 70 percent of the work done on the appeal and to exclude legal work done on the punitive damages section of the original claim, since Plaintiffs did not prevail on this issue at trial or on appeal.
Thereafter, on January 12, 1994, Plaintiffs served their First Set of Interrogatories and Request for Production of Documents on Attorneys' Fees. Responses to those Discovery Requests were due on February 11, 1994, two days after oral argument.
Defendants filed their Opposition Brief on January 26, 1994 arguing that Plaintiffs had not met their burden demonstrating OHC's inability to pay pre-amendment fees and asking for a denial, or the alternative for a substantial reduction in post-amendment fees to account for the minimal success of the action, to eliminate fees affiliated with administrative hearings and reductions for failure of documentation, lack of specificity, duplication and repetition. Plaintiffs filed their reply on February 4, 1994. Plaintiffs agreed to reduce their application by an additional 43.45 hours including time spent on the punitive damage issue and time spent in court on the day a mistrial was declared for failure to withdraw counsel before jury selection began.
On February 8, 1994 Defendants responded to the new information by letter to the Court. In that letter Defendants cite numerous expenses allocated by Plaintiffs counsel's firm of Lefrak & Holman that did not relate to this case.
At the hearing on February 9, Plaintiffs were ordered to provide Defendants with their contemporaneous time records, rather than the "recharacterized" versions initially submitted. The hearing was adjourned to allow Defendants to review those records.
It was soon revealed that Plaintiffs did not have the actual time records to support entries for Scanlon totalling 242 hours for which they sought approximately $66,770 in fees. Rather the Base Application contained "summaries" based upon Scanlon's recollection and the time records of others. Defendants made objections to some of these entries in a letter dated February 15.
Oral argument was heard on February 16, and decision was reserved.
On March 15, 1994 Plaintiffs sent a letter to the Court stating that the Defendants' response to their Discovery Request was inadequate. Plaintiffs also indicated that they would reduce the number of hours for which compensation was being sought. They reduced their fees by 19.60 hours in response to specific instances of duplication or transcription errors that were pointed out to them and this Court by Defendants. An additional 7.5 hours were deducted for hours attributable to another case. Finally, Plaintiffs reduced by 20% the remaining fees attributable to the trial work done by the lawyers at the firms of Hill Betts & Nash, Summit Solomon & Feldesman, and LeFrak & Holman, P.C. who were associated with Thomas A. Holman ("Holman") one of two principal counsel for the Plaintiffs in this case.
Defendants responded by letter dated March 25 and on April 13 oral argument was heard on discovery issues related to the fee application. At the hearing, Defendants were ordered to supplement their February 11 response by providing Plaintiffs with the number of hours recorded by Defendants' attorneys in connection with this lawsuit. Plaintiffs were given permission to submit additional information in support of the Base Application.
Defendants supplemented their discovery...
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