Opinion
01 Civ. 9290 (RWS)
November 7, 2002
Blaine H. Bortnick, Esq., Liddle Robinson, New York, NY, for Plaintiff.
Abbie J. Chessler, Esq., Janet Broeckel, Esq., New York, NY, for Defendants.
OPINION
Defendants Nomura Securities International, Inc. ("Nomura"), Frank Zayas ("Zayas") and Anton Appel ("Appel") (collectively, the "Defendants") have moved pursuant to Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York for reconsideration of the July 10, 2002 opinion of this Court in this action (the "Opinion"). The plaintiff Darnel Wilson ("Wilson") has cross-moved for attorney's fees incurred in the defense of this motion. For the reasons set forth below, the motion for reconsideration is granted and upon reconsideration the fees as stated in the Opinion are granted. The cross-motion is denied.
Reconsideration is Warranted Reargument is appropriate where it is established that the court "`overlooked factual matters that were put before it on the underlying motion, and which, had they been considered, `might reasonably have altered the result before the Court.'" SEC v. Credit Bancorp, Ltd., 2001 WL 1135652, at *1 (S.D.N.Y. Sept. 26, 2001) (internal citations omitted); see also Mattel, Inc. v. Robarb's, Inc., 2001 WL 797478, at *1 (S.D.N.Y. July 12, 2001).
According to the Defendants, the Opinion overlooked the fact that the attorney's fees at issue were principally incurred in connection with the Title VII claim where costs as a matter of law include attorney's fees. It can be argued that the Opinion did not distinguish between the attorney's fees incurred with respect to the separate causes of action, most particularly that brought under the Administrative Code of the City of New York § 8.101, et seq. (New York City Human Rights Law). It is appropriate therefore to reconsider the Opinion.
The Fees Were Appropriately Calculated Upon reconsideration the claimed distinction between the causes under the fees incurred in connection with the New York City Human Rights Law and Title VII evanesces.
Both parties have cited Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) for the proposition that "when a plaintiff's claims for relief `involve a common core of facts or [are] based on related legal theories,' the `lawsuit cannot be viewed as a series of discrete claims.'" Hensley notes that in many civil rights cases ". . . plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis." Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) (". . . the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters"). Id.
Similarly, in Dominic v. Consol. Edison Co. of N.Y., Inc., 822 F.2d 1249, 1259 (2d Cir. 1987), this Circuit affirmed the lower court's decision that ". . . the factual and legal theories underlying [plaintiff's] age discrimination claim were inextricably intertwined with those underlying his retaliatory discharge claim.
Consequently a fully compensatory fee award was justified because [plaintiff] recovered the same relief on the retaliation claim that he would have on the discrimination claim." Id. at 1259-1260.
These principles apply here.
The issue of whether or not attorney's fees are costs as a matter of law under the New York City Human Rights Law was overlooked in framing the Rule 68 offer, but as the Opinion indicated the Administrative Code resolves the issue. Since causes under Title VII and the New York City Human Rights Law are related, not discrete, Wilson is entitled to the award decreed in the Opinion.
The Fee Request With Respect to this Motion is Denied Wilson by cross-motion has sought an additional $11,763.75 incurred in opposing the motion to reconsider the Opinion granting his initial fee request. No authority is cited for this request.
Whether or not to award fees to resist an opponent's effort for reconsideration of fees already awarded is not as easy a question as it might first appear. Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1184 (2d Cir. 1996) (the plaintiff's attorney was entitled to fees related solely to preparing the fee application); citing Gagne v. Maher, 594 F.2d 336, 344 (2d Cir. 1979), aff'd on other grounds, 448 U.S. 122 (1980) (attorneys' fees for the preparation of the fee application are compensable because "[i]f an attorney is required to expend time litigating his fee claim, yet may not be compensated for that time, the attorney's effective rate for all the hours expended on the case will be correspondingly decreased. . . . Such a result would not comport with the purpose behind most statutory fee authorizations, viz, the encouragement of attorneys to represent indigent clients and to act as private attorneys general in vindicating congressional policies").
However, in Baker v. Health Management Systems, Inc., 2002 WL 724707 (No. 52) (April 25, 2002), the Court of Appeals of the State of New York answered the fees-on-fees question certified to it by the Second Circuit in the negative, holding that such fees must rest on an agreement or statutory authorization. Since the Administrative Code contains no such provision, the cross-motion to award fees for defending fees is denied.
It is so ordered.