3:13-cv-00750 #76

1

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

ELECTRONICALLY FILED

GREGORY BOURKE, ET AL. )

PLAINTIFFS )

)

and )

)

TIMOTHY LOVE, ET AL. )

INTERVENING PLAINTIFFS ) CIVIL ACTION NO.

v. )

) 3:13-CV-750-JGH

STEVE BESHEAR, ET AL. )

)

DEFENDANTS )

PLAINTIFFS’ REPLY TO DEFENDANTS’ OBJECTION TO AND MOTION TO DENY

PLAINTIFFS’ MOTION FOR ATTORNEY FEES AND COSTS

*** *** ***

INTRODUCTION

Plaintiffs have moved this Court for attorney fees and costs pursuant to 42 U.S.C. § 1988,

which provides a right to the recovery of reasonable attorney fees upon a successful prosecution

of a claim under 42 U.S.C. § 1983. Plaintiffs’ Motion was filed on March 11, 2014 [DN 60],

twelve days following this Court’s Final Order entered on February 27, 2014. [DN 55].

Subsequently, Defendant Steve Beshear appealed the ruling upon which Plaintiffs asserted their

right to recover reasonable attorney fees on March 18, 2014. [DN 68]. Defendant Beshear has

Case 3:13-cv-00750-JGH Document 76 Filed 04/09/14 of 8 PageID #: 1051

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now filed an Objection and Motion to Deny Without Prejudice or Hold in Abeyance in response

to Plaintiffs’ Motion for Attorneys’ Fees and Costs. [DN 74].1

Contrary to Defendant’s Objection, Plaintiffs’ motion was not premature, and the

Defendant’s Motion to Deny or Hold in Abeyance should be denied.

ARGUMENT

I. PLAINTIFFS’ MOTION WAS NOT PREMATURE

Plaintiffs’ Motion for Attorney Fees and Costs was filed on March 11, 2014, twelve days

after this Court’s Final Order of February 27, 2014. Under Federal Rule of Civil Procedure

54(d)(B)(i), a motion for attorney fees must be filed “no later than 14 days after the entry of

judgment.” Therefore, in order to preserve any claim for attorney fees, Plaintiffs were obligated

to file their Motion no later than March 13, 2014. Defendant Beshear did not file his Notice of

Appeal until March 18, 2014 [DN 68], five days after that deadline. Plaintiffs were obligated

under the Federal Rules to file a Motion for Fees in order to adequately preserve their claim for

such. A subsequent decision by one Defendant to appeal does not retroactively make such a

Motion premature.

II. THIS COURT IS NOT OBLIGATED TO DENY PLAINTIFFS’ MOTION WITHOUT PREJUDICE

District courts retain jurisdiction over the prevailing party’s motion for attorney fees

pending appeal on the merits. Tancredi v. Metropolitan Life Ins. Co., 378 F.3d 220, 225 (2nd Cir.

2004). However, while those courts are not required to render judgment on such a motion prior

to resolution of the appeal, they certainly retain the discretion to do so. Id. at 226

1 Jack Conway, in his official capacity as Attorney General of Kentucky, through counsel Brian Judy, filed a similar

response to Plaintiffs’ Motion for Fees on April 4, 2014. [DN 75]. However, Conway was dismissed as a

Defendant in this case by this Court’s Order of March 24, 2014. [DN 73]. Therefore, since the Attorney General is

no longer a party to this action and his counsel has formally withdrawn, Conway’s Response is inappropriate and

should not be considered by this Court.


3

Defendant Beshear cites to a number of district court decisions in which motions for

attorney fees were dismissed without prejudice in the interest of judicial economy [DN 74, pg. 2,

fn 1], but neglected to include decisions where courts granted or at least agreed to decide

motions for attorneys fees while appeals were pending. District courts have in fact done so. See,

e.g. Dumas v. New United Motor Mfg., 2007 U.S. Dist. LEXIS 49098 (N.D. Cal. 2007); and

Giuffre Hyundai, Ltd. v. Hyundai Motor Am., 2013 U.S. Dist. LEXIS 131299 (E.D.N.Y. 2013)

(copies of these unpublished cases are attached as Exhibits 1 and 2, respectively).

It is true that this Court should consider judicial economy when considering motions for

fees. However, a dismissal without prejudice is not the only method to achieve such economy. In

fact, the very purpose for having a strict 14-day time limit for filing a motion for fees is “to

encourage a prompt ruling on fees to facilitate a consolidated appeal on both the merits and the

attorneys’ fee issue.” Tancredi, 378 F.3d at 227. Judicial economy would in fact be promoted by

a quick ruling on Plaintiffs’ motion, so that either party may consolidate any possible appeal of

the fee ruling with the existing appeal of the case on the merits. And at any rate, this Court must

issue some kind of ruling now on the Plaintiffs’ Motion for Fees – whether to grant, deny,

dismiss without prejudice, or hold in abeyance – and Defendant fails to articulate how a ruling

now to dismiss would take less of this Court’s time than simply ruling on the merits of the

Motion.

The Defendant cites heavily to the case of Michigan Bldg. & Const. Trades Council,

AFL-CIO v. Snyder, 11-13520, 2012 U.S. Dist. LEXIS 71829 ( E.D. Mich. 2012). [DN 74, pg. 2-

3]. In that case, the court acknowledges that “the Sixth Circuit does not appear to have expressed

a preference for prompt adjudication of motions for attorney’s fee.” Id. at *4. Therefore, this


4

Court retains full discretion on this matter, and should grant Plaintiffs’ Motion for Attorney Fees

and Costs quickly, in the interest of judicial economy.

III. THE ATTORNEY FEES REQUESTED BY THE PLAINTIFFS ARE REASONABLE AND SHOULD

NOT BE REDUCED

A. Fees Related to Media/Public Relations are Reasonable

Since there is no controlling Sixth Circuit precedent on this issue, Defendant Beshear

contends that he should not be responsible for reimbursing Plaintiffs’ counsel for media

interactions under the principle articulated in Halderman v. Pennhurst State Sch. & Hosp., 49

F.3d 939 (3rd Cir. 1995). Though it may be the case in the Third Circuit that media-related

services are usually not compensable, they have been upheld as reasonable in both the Ninth

Circuit and the Eighth Circuit. See, e.g., Davis v. City & County of San Francisco, 976 F.2d

1536, 1545 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993); and

Jenkins v. Missouri, 862 F.2d 677, 678 (8th Cir. 1988), aff'd, 491 U.S. 274 (1989).

This case is of profound political and social importance to most if not all Kentucky

citizens, and it treads novel legal and procedural ground. This Court even took special care to

address the public directly, and at length, in its Memorandum Opinion. [DN 47, pgs. 18-22].

Efforts by Plaintiffs’ counsel to educate the public on Kentucky’s marriage laws and the

interplay between state laws and the federal constitution were “directly and intimately related to

the successful representation” of their clients. Davis, 976 F.2d at 1545. The interaction of

Plaintiffs’ counsel with the press in this case was more than mere “publicity efforts” dismissed

offhand by other courts. Halderman, 49 F.3d. at 942.

Second, Defendant makes a temporal argument, claiming that media-related fees are not

reasonable because the interactions took place “after this Court awarded summary judgment.”

[DN 74, pg. 4-5]. That temporal baseline is misleading because the summary judgment opinion


5

to which the Defendant refers, filed on February 12, 2014, was not a final order. The Final Order

in this case was filed on February 27, 2014. [DN 55]. Any attorney fees listed before or on the

date of the Final Order therefore cannot therefore be considered untimely or beyond the scope of

this litigation.

B. Fees Related to the Intervening Plaintiffs Are Reasonable

Defendant opposes several entries in Plaintiffs’ Motion for Fees which, at least partially,

involve work related to the Motion to Intervene in this case. Because the Intervening Plaintiffs

are not yet “prevailing parties,” the Defendant argues, any request for fees related to their

litigation would be untimely. [DN 74, pg. 6].

At the outset, it should be noted that the hours listed by Defendant are not wholly related

to the Motion to Intervene, but also include time spent preparing for and attending the February

26, 2014 hearing in this Court regarding implication of its Final Order and a possible request for

stay by then-Defendant Attorney General Jack Conway. Furthermore, the Motion to Intervene

was filed prior to that Final Order, and this Court, well within its discretion, could have

expanded the reasoning of its initial Memorandum Opinion to include the claims made by the

Intervening Plaintiffs in the subsequent Final Order. Plaintiffs ask this Court to consider these

clarifications in determining that the related fee requests are reasonable.

C. Plaintiffs Have Not Submitted Unnecessary Fees

Defendant first contests the billing of eight hours for time spent traveling to oral

arguments in the Southern District of Ohio in the case of Obergefell v. Wymyslo on December

17, 2013. [DN 74, pg. 7]. That case, which also deals with issues of out-of-state marriage

recognition and which is currently before the Sixth Circuit on appeal, was even referenced

favorably by this Court in its Memorandum Opinion. [DN 47, pg. 15].


6

Defendant contends that “any briefs or opinions would have been available on PACER.”

[DN 74, pg. 7]. However, no transcript of the oral arguments in that case would be similarly

available, and in-person attendance during those arguments provided important insight into the

particular issues and legal questions in the minds of both a state defendant and of the District

Court in such a case.

The Defendant then contests two hours of claimed time for review of relevant state court

marriage cases on the ground that there “is no adequate explanation” that the claimed time “bears

any relevance to the case at bar.” [Id]. Research into the current status of marriage-related

litigation in the state of Kentucky was of course highly relevant to this case, both procedurally

and legally. Defendant’s dissatisfaction with Plaintiffs’ exact description of this research does

not make such research irrelevant to the case at bar. While Plaintiffs have the “burden of

providing...a particularized billing record,” “conclusory allegations...do not suffice to establish

that there was an error.” Imwalle v. Reliance Med. Prods., 515 F.3d 531, 553 (6th Cir. 2008),

quoting Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir. 1991).

D. Plaintiffs’ Fees Are Not Redundant Due to Overstaffing

Defendant first argues that Plaintiffs “have not made a showing...to support a staffing of

six attorneys from three different firms.” [DN 74, pg. 8]. At the outset, it is important to clarify

that Plaintiffs submitted fees from only two firms, the Fauver Law Office (attorneys Fauver and

Elliott) and Clay Daniel Walton & Adams, PLC (attorneys Canon, Landenwich, Dunman, and

Winner). Also to clarify, one attorney for the Plaintiffs, Louis Winner, claimed just seven hours

out of the combined total. Defendant then argues that some of Plaintiffs’ claimed fees are

redundant due to this alleged overstaffing. [Id].


7

Plaintiffs have already stated with particularity the complex nature of this litigation as

well as the large number of plaintiffs which counsel represented. [DN 60, pg. 4]. Further,

“[t]here is nothing inherently unreasonable about a client having multiple attorneys.” ACLU v.

Barnes, 168 F.3d 423, 432 (11th Cir. 1999) (internal quotations omitted). “An award for time

spent by two or more attorneys is proper as long as it reflects the distinct contribution of each

lawyer to the case and the customary practice of multiple-lawyer litigation.” Id. (international

quotations omitted). It is customary for multiple attorneys to attend hearings in complex

litigation, and such attendance promoted the distinct contribution of each lawyer to the case.

Their preparation for and attendance at a critical hearing (which totaled less than seven hours

claimed among four attorneys) was not merely “passive” as contemplated by the Fifth Circuit in

Flowers v. Wiley, 675 F.2d 704, 705 (5th Cir. 1982).

E. The Decision To Stay Any Award is Within The Discretion of This Court

Defendant Beshear requests that any award of fees and costs to Plaintiffs in this case

should be stayed “prior to the final resolution of the appeal on the merits.” [DN 74, pg. 9].

Defendant cites to two district court cases, including one in which this Court stayed such an

award. Maxwell’s Pic-Pac, Inc. v. Dehner, 3:11-CV-18-H, 2013 U.S. Dist. LEXIS 34596 (W.D.

Ky. 2013) (DN 93).

The Plaintiff would only note that this final request should be considered in light of

Defendant’s pervious argument that a dismissal Plainiffs’ Motion for Fees and Costs would be

necessary for judicial economy. This Court is well within its discretion to grant Plaintiffs’

motion now regardless of whether the case is on appeal, and also within its discretion to stay or

not to stay that award of fees pending the appeal. There is no Sixth Circuit authority forcing the

Court’s decision in this regard.


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CONCLUSION

For the above stated reasons, Defendant Steven L. Beshear’s Motion to Deny Without

Prejudice or Hold in Abeyance Plaintiffs’ Motion for Attorneys’ Fees and Costs should be

DENIED. The Plaintiffs’ motion is not untimely, nor does a ruling on its merits regardless of any

pending appeal interfere with judicial economy. Further, the fees claimed by Plaintiffs’ counsel

are reasonable. There should be no reduction in the amount awarded to Plainiffs, and this Court

is not obligated to delay or stay any award until final resolution of the appeal on the merits. A

proposed Order is attached.

Respectfully submitted,

Shannon Fauver

Dawn Elliott

FAUVER LAW OFFICE, PLLC

1752 Frankfort Ave.

Louisville , KY 40206

(502) 569-7710

www. fauverlaw.com

Counsel for all Plaintiffs

s/L. Joe Dunman

Daniel J. Canon

Laura E. Landenwich

L. Joe Dunman

Louis P. Winner

CLAY DANIEL WALTON ADAMS, PLC

Meidinger Tower, Suite 101

462 S. Fourth Street

Louisville, KY 40202

(502) 561-2005

www.justiceky.com

Counsel for all Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on April 9, 2014, the foregoing was filed with the clerk of the court

by using the CM/ECF system, which will send a notice of electronic filing to all parties.

/s/ L. Joe Dunman


RONALD DUMAS, Plaintiff, v. NEW UNITED MOTOR MANUFACTURINGINC., and DOES 1-20, Defendant.

No. C 05-4702 PJH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFCALIFORNIA

2007 U.S. Dist. LEXIS 49098

June 29, 2007, DecidedJune 29, 2007, Filed

PRIOR HISTORY: Dumas v. New United Motor Mfg.,2007 U.S. Dist. LEXIS 30042 (N.D. Cal., Apr. 24, 2007)

COUNSEL: [*1] For Ronald Dumas Plaintiff: OmarJulian Krashna, LEAD ATTORNEY, Krashna Law Firm,Oakland, CA.; Elaine Lucy Morinelli, Morinelli &Lieberman, Oakland, CA.

For New United Motor Manufacturing, Inc. ("NUMMI"),a California corporation, Defendant: Kamili WilliamsDawson, LEAD ATTORNEY, Althea V. Bovell, Nick C.Geannacopulos, Seyforth Shaw LLP, San Francisco, CA.

JUDGES: PHYLLIS J. HAMILTON.

OPINION BY: PHYLLIS J. HAMILTON

OPINION

ORDER GRANTING IN PART AND DEFERRINGIN PART DEFENDANT'S MOTION FORATTORNEYS' FEES

Now before the court is defendant New UnitedMotor Manufacturing Inc.'s ("NUMMI" or "defendant")motion for attorneys' fees. Having carefully reviewed theparties' papers and considered their arguments and therelevant legal authority, and good cause appearing, the

court hereby GRANTS in part and DEFERS in part thedefendant's motion for the following reasons.

BACKGROUND

This is an employment discrimination case. Plaintiffwas employed by defendant from 1988 until 2003 whenhe was involuntarily terminated. See AmendedComplaint P 6-7. He was reinstated in 2004 as part of theresolution of a union grievance and a labor complaintfiled by plaintiff. Plaintiff alleged in his district courtcomplaint that his termination [*2] was the result ofdiscrimination and retaliation (for filing a grievance withthe Union and a complaint with the Department of Labor("DOL")). Specifically, he alleged causes of action for: 1)race discrimination in violation of the Fair Employmentand Housing Act ("FEHA"), Cal. Govt. Code § 12900, etseq., 2) wrongful termination in violation of publicpolicy, 3) breach of the covenant of good faith and fairdealing, 4) intentional infliction of emotional distress, 5)negligent infliction of emotional distress, 6) unfairbusiness practices in violation of Cal. Bus. & Prof. Code§ 17200, 7) retaliation in violation of FEHA, and 8)retaliation in violation of the California Family RightsAct ("CFRA"), Cal. Govt. Code § 12945, et seq. SeeAmended Complaint PP 27-68.

The court granted defendant's motion for summaryjudgment on April 24, 2007, granting summary judgment

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Case 3:13-cv-00750-JGH Document 76-1 Filed 04/09/14 Page 1 of 5 PageID #: 1059

on all of plaintiff's claims. In granting the defendant'smotion, the court made numerous factual findings andobservations. In particular, the court noted that plaintifffiled a very "skimpy" opposition brief, only devoting twopages to opposing defendant's arguments on the merits.Plaintiff also failed to submit any evidence [*3] inopposition to summary judgment: he only provided oneinadmissible declaration, which had nothing to do withthe defendant's treatment of plaintiff.

Defendant now moves for attorneys' fees. Defendantclaims that plaintiff caused it to incur attorneys' fees inthe amount of $ 99,635.50 in defending against hisfrivolous claims. Defendant also estimates that it hasincurred approximately $ 5,800 more in fees forpreparation of the motion for attorneys' fees. Defendantargues that it is entitled to reimbursement for reasonablefees incurred on the basis that plaintiff's action was"frivolous, unreasonable, or without foundation." Plaintifffiled a notice of appeal after defendant filed the instantmotion.

DISCUSSION

A. Legal Standards

"Inasmuch as the Court has pendent jurisdiction overplaintiff's claim under the Act, state substantive lawgoverns the merits of that claim." Ackerman v. WesternElectric Co., 643 F. Supp. 836, 857 (N.D. Cal. 1986).The FEHA provides that a court may, in its discretion,award reasonable attorneys' fees to the prevailing party.Cal. Govt. Code § 12965(b). A prevailing party is onewho has received "at least some relief on the merits of hisclaim" and thus [*4] can be said to have "obtained thesubstance of what he sought." Hewitt v. Helms, 482 U.S.755, 760-61, 107 S. Ct. 2672, 96 L. Ed. 2d 654 (1987).

Under both FEHA and Title VII of the Civil RightsAct of 1964, a successful defendant is entitled toattorneys' fees "upon a finding that the plaintiff's actionwas frivolous, unreasonable, or without foundation, eventhough not brought in subjective bad faith."Christiansburg Garment Co. v. EEOC, 434 U.S. 412,420-22, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978); Bond v.Pulsar Video Prods., 50 Cal. App. 4th 918, 921-22, 57Cal. Rptr. 2d 917 (1996) ("California courts have adoptedthe methods and principles developed by federal courts inemployment discrimination claims arising under thefederal Civil Rights Act").

In determining an appropriate fee under bothCalifornia and federal law, the court begins bycalculating the lodestar, or, "the number of hoursreasonably expended on the litigation multiplied by areasonable hourly rate." Hensley v. Eckerhart, 461 U.S.424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1980); seealso Ackerman, 643 F. Supp. at 860. The party seekingattorneys' fees bears the burden of producing evidencesupporting the hours worked and a reasonable rate; thedistrict court may reduce the award accordingly ifinsufficient evidence is produced. Id. The [*5] districtcourt may also exclude compensation for time that was"not reasonably expended" in the case. Id. at 434 (courtmay deny compensation for "hours that are excessive,redundant, or otherwise unnecessary").

Once this base fee has been established, the court inits discretion may also increase or decrease the fee by amultiplier, in light of various factors. Hensley, 461 U.S.at 434. Under California law, courts consider the factorsincluding: (1) the novelty and difficulty of the questionsinvolved; and the skill displayed in presenting them; (2)the extent to which the nature of the litigation precludedother employment by the attorneys; (3) the contingentnature of the fee award, both from the point of view ofeventual victory on the merits and the point of view ofestablishing eligibility for an award. See Ackerman, 643F. Supp. at 860-61 (citing Serrano v. Priest, 20 Cal. 3d25, 141 Cal. Rptr. 315, 569 P.2d 1303 (1977)). The courtmay not base any multiplier granted on factors alreadytaken into account when calculating the lodestar. Blum v.Stenson, 465 U.S. 886, 898-901, 104 S. Ct. 1541, 79 L.Ed. 2d 891 (1984).

Finally, district courts are to consider the financialresources of the plaintiff in awarding fees to a prevailingdefendant. See Miller v. Los Angeles County Bd. ofEduc., 827 F.2d 617, 621 (9th Cir. 1987).

B. [*6] Defendant's Motion

Preliminarily, the court notes that while plaintifffiled a notice of appeal after defendant moved forattorneys' fees, the court has jurisdiction to resolvedefendant's motion. See Tancredi v. Metro. Life Ins. Co.,378 F.3d 220, 225 (2d Cir. 2004) (citations omitted)("[N]otwithstanding a pending appeal, a district courtretains residual jurisdiction over collateral matters,including claims for attorneys' fees."); Masalosalo v.Stonewall Ins. Co., 718 F.2d 955, 957 (9th Cir. 1983)("The district court retained the power to award attorneys'

Page 22007 U.S. Dist. LEXIS 49098, *2


fees after the notice of appeal from the decision on themerits had been filed."); 1993 Advisory Committee notesto FRCP 54(d) ("if an appeal on the merits of the case istaken, the [district] court may rule on the claim for fees,may defer its ruling on the motion, or may deny themotion without prejudice, directing under subdivision(d)(2)(B) a new period for filing after the appeal has beenresolved."). The court, therefore, will address the meritsof the motion.

1. Plaintiff's Briefing

Defendant missed the filing deadline for its motionby one day and appropriately moved under the local rulesfor a one-day extension of time. [*7] Plaintiff did notoppose the motion and the extension was granted.Defendant's motion was noticed for hearing on June 27,2007. Accordingly, plaintiff's opposition was due on June6, 2007 pursuant to Local Rule 7-3. Plaintiff did notoppose the motion by that date, and in fact did not file anopposition until June 18, 2007 -- almost two weeks afterhis opposition brief was due and several days after courtstaff telephoned plaintiff's counsel to inquire if anopposition would be filed and whether the hearing shouldbe vacated. No declaration establishing good cause forthe delay in filing was filed; indeed, plaintiff's counseldid not provide so much as an explanation for the delay.The court therefore has grounds for striking the untimelyopposition. However, because of the impact that thisorder is likely to have on plaintiff personally, the courtelects to consider the opposition, such as it is, rather thanpermit, what appears to be plaintiff's counsel's oversight,to have any more detrimental effect on plaintiff than italready has.

The untimely and once again "skimpy" oppositionbrief is illustrative of how this case has been litigated.Plaintiff's counsel made little effort to [*8] engage indiscovery, no admissible evidence in opposition tosummary judgment was submitted, not even plaintiff'sown declaration, and the instant motion for roughly $100,000.00 in attorneys' fees would have been unopposedhad court staff not called plaintiff's counsel to inquireabout the missed deadline. And significantly, theuntimely opposition fails to address whether the amountof requested fees is reasonable or whether the amountshould be reduced based on plaintiff's financial ability topay.

Plaintiff essentially makes two arguments in hisopposition brief. First, plaintiff argues that defendant's

motion should be denied because he intends to request astay of judgment pending appeal under Federal Rule ofCivil Procedure ("FRCP") 62(d). Plaintiff, however, hasnot moved for a stay and has not posted a supersedeasbond to obtain a stay. Nor has plaintiff explained how astay of proceedings to enforce a judgment relates to thepropriety of the court deciding a motion for attorneys'fees after judgment has been entered. This argumentprovides no basis for denying defendant's motion.

Plaintiff's second argument is that his case was notfrivolous, unreasonable, or groundless, essentially [*9]rearguing the merits of defendant's motion for summaryjudgment. He notes, for example, that his complaintalleged that his supervisors were motivated by racialanimus, and that he was antagonized by his supervisorafter he filed a complaint with the NLRB. Allegationswithout evidence are simply not enough here, just as theywere insufficient to avoid summary judgment. Neitherthis motion nor the summary judgment motionchallenged the adequacy of the pleadings. Defendant hasnot argued that plaintiff failed to state a claim. Ratherdefendant argued and the court found that plaintiff has noevidence to support his well-pleaded allegations. Plaintiffhas not submitted any new evidence on this motion thatmight merit reconsideration of the court's priordetermination.

2. Award of Fees

A plaintiff may be ordered to pay his opponent'sattorney's fees if a court finds that his claim was"frivolous, unreasonable, or groundless, or that theplaintiff continued to litigate after it clearly became so."Cummings v. Benco Building Services, 11 Cal. App. 4th1383, 1388, 15 Cal. Rptr. 2d 53 (1992) (quotingChristianburg). Such fees may be awarded if theplaintiff's conduct was egregious or if his or her case waspatently [*10] baseless for objective reasons. Cummings,11 Cal. App. 4th at 1389-90; see also Bond, 50 Cal. App.4th at 924 (award of fees proper where there was noevidence of discrimination and no evidence that plaintiff"should have believed he was being discriminatedagainst").

Here, defendant argues that plaintiff's claims werefrivolous and groundless. Although plaintiff argues thatthey were not, he has not in his opposition to defendant'smotion for summary judgment or in his opposition to theinstant motion, pointed to one shred of evidence thatsupports any of his claims. It is, therefore, impossible for



the court to find that plaintiff's claims were not baselessin light of his utter failure to provide any evidence tosupport such a finding. This finding that his complaintwas groundless may very well have been avoided hadplaintiff submitted any evidence bearing on his claims,such as a declaration by a witness to any of the events hedescribed or even his own declaration. In the absence ofevidence, however, the court, has no alternative but toconclude that his claims were groundless.

The following review of plaintiff's opposition to thesummary judgment motion supports this conclusion.[*11] The complaint contained eight claims: wrongfultermination, breach of the covenant of good faith,retaliation in violation of the CFRA, unfair businesspractices, race discrimination in violation of FEHA,retaliation in violation of FEHA, and both negligent andintentional infliction of emotional distress. It alsocontained a prayer for punitive damages.

Plaintiff did not oppose or even mention thewrongful termination, breach of covenant, CFRAretaliation, unfair business practices, negligent andintentional infliction of emotional distress claims in hisopposition to defendant's motion for summary judgment.Nor did he oppose the FEHA retaliation claim, though hedid mention that defendant's argument that the first threeclaims were barred, did not affect the viability of theFEHA retaliation and discrimination claims. He did notoppose or even mention the prayer for punitive damages.In sum, plaintiff failed to oppose, failed to mention in hisopposition brief, and failed to submit any evidence onany of these claims, yet argues here that these claimswere not groundless. The only claim for which plaintiffsubmitted substantive argument was the FEHAdiscrimination claim. He devoted [*12] a whole 14 linesof his opposition brief to this claim.

With respect to this claim, a prima facie case of racediscrimination requires that the employee demonstratethat: (1) he is a member of a protected class; (2) he wasperforming according to his employer's legitimateexpectations; (3) he suffered an adverse employmentaction; and (4) other employees with similarqualifications were treated more favorably. The courtfound that plaintiff failed to establish a prima facie case,as he did not demonstrate that other non-AfricanAmerican employees with similar qualifications weretreated more favorably. Neither plaintiff's complaint norhis opposition to summary judgment identified any

evidence demonstrating that other employees not in hisprotected class but with similar qualifications weretreated differently. See 4/24/07 Order. In opposition tothis motion, plaintiff did not submit any evidenceshowing he had any basis to believe that employees withsimilar qualifications were treated more favorably. It isunclear whether plaintiff's counsel even tried to discoverfacts about how other employees with similarqualifications were treated. The court can only concludethat such evidence [*13] does not exist. Why else wouldit not have been submitted for the court's consideration?On this record, the court can only conclude that all ofplaintiff's claims were groundless.

3. Reasonableness of Fees

As noted above, plaintiff does not challenge thenumber of hours billed or the hourly billing rates ofdefendant's counsel, nor does he argue that the amount offees claimed by defendant are unreasonable. The absenceof such a challenge is unusual particularly in light of theamount of fees sought. The court has revieweddefendant's evidence in support of its application and itappears that the number of hours expended on thelitigation are reasonable and the hourly rates arereasonable. The court finds that the requested fees aretherefore reasonable. See Hensley, 461 U.S. at 433.

More troubling, however, is the absence of anyattempt by plaintiff to put before the court informationfrom which the court could ascertain his financialresources, a factor the court should consider in awardingfees to a prevailing defendant. See Miller, 827 F.2d at621. Whether this omission is the result of plaintiff'scounsel's lack of knowledge, oversight or indifference,the court is reluctant to [*14] make an award withoutgiving plaintiff another opportunity to establish his abilityor inability to pay the fees incurred. Accordingly, whilethe court finds that plaintiff's complaint was groundlessand that defendant is therefore entitled to an award ofattorneys' fees, the court defers setting the amount of theaward pending further consideration as described below.

CONCLUSION

For the reasons stated above, the court GRANTSdefendant's motion for attorneys' fees insofar as it findsthat an award of attorneys' fees is warranted. In order todetermine the amount of attorneys' fees to be awarded todefendant, plaintiff shall have ten (10) days from the dateof this order to provide evidence (i.e., a properly



authenticated declaration) regarding plaintiff's financialresources to assist the court in determining the amount ofattorneys' fees to award to defendant. Defendant mayrespond within five (5) days. The record will then close,the court will decide the issue on the papers, and an ordersetting the amount and time for payment will issuethereafter. It is further ordered that plaintiff's counselshall immediately provide a copy of this order and thecourt's summary judgment order [*15] to the plaintiff,and certify that he has done so at the same time that the

anticipated declaration is filed.

IT IS SO ORDERED.

Dated: June 29, 2007

PHYLLIS J. HAMILTON

United States District Court



GIUFFRE HYUNDAI, LTD. (d/b/a GIUFFRE HYUNDAI), Plaintiff, -- against --HYUNDAI MOTOR AMERICA, Defendant.

13-CV-520

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEWYORK

2013 U.S. Dist. LEXIS 131299

September 12, 2013, DecidedSeptember 13, 2013, Filed

PRIOR HISTORY: Giuffre Hyundai, Ltd. v. HyundaiMotor Am., 2013 U.S. Dist. LEXIS 132145 (E.D.N.Y.,Aug. 20, 2013)

COUNSEL: [*1] For Giuffre Hyundai, Ltd., doingbusiness as Giuffre Hyundai, Plaintiff: Eric L. Chase,LEAD ATTORNEY, Bressler Amery & Ross, P.C., NewYork, NY; Ronald James Campione, Bressler Amery &Ross P.C., Florham Park, NJ.

For Hyundai Motor America, Defendant: John J.Sullivan, LEAD ATTORNEY, Hogan Lovells US LLP,New York, NY.

JUDGES: Jack B. Weinstein, Senior United StatesDistrict Judge.

OPINION BY: Jack B. Weinstein

OPINION

MEMORANDUM, ORDER AND JUDGMENTAWARDING ATTORNEY'S FEES TODEFENDANT

JACK B. WEINSTEIN, Senior United States DistrictJudge:

Having read the report and recommendation of themagistrate judge dated August 20, 2013 (ECF No. 50)and the objections of plaintiff Giuffre Iyundai, Ltd. datedSeptember 5, 2013 (ECF No. 52), the magistrate judge'srecommendations are approved and adopted. Theobjections are not meritorious for the reasons stated bythe magistrate.

Since clear issues of law are presented, no oralargument is required.

Plaintiff has already filed a notice of appeal as to thecourt's granting of defendant's motion for summaryjudgment. See Notice of Appeal, May 4, 2013, ECF No.35. A delay in decision on the issue of attorney's fees, asalternatively requested by plaintiff, while the appeal ispending, [*2] should not be adopted. Efficiency andjustice are best served by issuing a "prompt ruling on feesto facilitate a consolidated appeal on both the merits andthe attorneys' fee issue" if both are before the appellatecourt. Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 227(2d Cir. 2004) (citing Fed.R.Civ.P. 54, advisorycommittee's notes(1993)). See also Weyant v. Okst, 198F.3d 311, 314 (2d Cir. 1999) (discouraging "piecemealappeals of merits and fee questions" (internal citationsand quotation marks omitted)).

Reasonable attorney's fees of $87,500 are awarded toplaintiff. Enter judgment.

Page 1


SO ORDERED.

/s/ Jack B. Weinstein

Jack B. Weinstein

Senior United States District Judge.

Date: September 12, 2013

Brooklyn, New York



IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

ELECTRONICALLY FILED

GREGORY BOURKE, ET AL. )

PLAINTIFFS )

)

and )

)

TIMOTHY LOVE, ET AL. )

INTERVENING PLAINTIFFS ) CIVIL ACTION NO.

v. )

) 3:13-CV-750-JGH

STEVE BESHEAR, ET AL. )

)

DEFENDANTS )

ORDER

*** *** ***

It is HEREBY ORDERED that:

Defendant Steve Beshear’s Motion to Deny Without Prejudice or Hold in Abeyance

[Doc. No. 74] is DENIED.

Plaintiffs’ Motion for Fees and Costs [Doc. No. 60] is GRANTED. The Plaintiffs are

hereby awarded fees and costs in the amount of _________________________.


3:13-cv-00750 #76

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