Kirschner v. Zoning Board of Appeals of Incorporated Village of Valley Stream

159 F.R.D. 391, 1995 U.S. Dist. LEXIS 557, 1995 WL 19699
CourtDistrict Court, E.D. New York
DecidedJanuary 16, 1995
DocketNo. CV 93-1764 (ADS)
StatusPublished
Cited by14 cases

This text of 159 F.R.D. 391 (Kirschner v. Zoning Board of Appeals of Incorporated Village of Valley Stream) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirschner v. Zoning Board of Appeals of Incorporated Village of Valley Stream, 159 F.R.D. 391, 1995 U.S. Dist. LEXIS 557, 1995 WL 19699 (E.D.N.Y. 1995).

Opinion

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge:

The defendants’ have submitted an application for reasonable attorneys’ fees and costs, in accordance with an order of the Court dated October 22, 1994. In that order the Court granted the defendants’ motion for sanctions against the plaintiffs’ attorneys under Rule 11 of the Federal Rules of Civil Procedure.

BACKGROUND

The plaintiffs commenced this action under 42 U.S.C. § 1983, alleging violation of their Due Process and Equal Protection rights under the Fifth and Fourteenth Amendments to the United States Constitution, and of their free speech rights under the First Amendment to the United States Constitution. The basis of the plaintiffs’ complaint was the revocation of a permit by the defendant Zoning Board of Appeals of the Incorporated Village of Valley Stream (“ZBA”). The permit would have allowed the plaintiffs to expand the nonconforming zoning use of their auto body shop.

On February 7, 1994, the Court granted the defendants’ motion for summary judgment in their favor, and dismissed all of the plaintiffs’ claims in their Second Amended Complaint with prejudice, except for the equal protection claim which was dismissed with leave to replead. At that time the Court warned the plaintiffs that it would consider imposing sanctions on their attorneys if their subsequent complaint failed to properly plead a cause of action.

The plaintiffs filed a Third Amended Complaint, which in the Court’s view insufficiently pleaded a cause of action under the Equal Protection Clause, and did no more than merely recite the same allegations from the previously dismissed Second Amended Complaint. The defendant moved to dismiss the Third Amended Complaint. Realizing the insufficiency of their complaint, the plaintiffs withdrew the Third Amended Complaint and filed a Fourth Amended Complaint two days before oral argument of the defendants’ motion to dismiss the Third Amended Complaint. On June 3,1994 the Court dismissed the Third Amended Complaint, granted leave to the plaintiffs to file the Fourth Amended Complaint and allowed the defendants to move for the imposition of sanctions under Fed.R.Civ.P. 11. The defendants subsequently filed a motion for sanctions.

On October 21,1994 this Court granted the defendants’ motion for sanctions against the plaintiffs’ attorneys, the law firm of Lysaght, Lysaght & Kramer. In its October 22, 1994 order granting the motion, the Court stated that “the sanctions against the law firm of Lysaght, Lysaght & Kramer will comprise of the defendants’ reasonable attorneys’ fees and costs incurred as a result of opposing the plaintiffs’ Third Amended Complaint.” Presently before the Court is the defendants’ application for such fees and costs, and the plaintiffs’ opposition to that application.

The Defendants’ Application.

The defendants have submitted an application for $21,242.06, which they contend represents the amount of reasonable attorneys’ fees and costs they have expended to defend against the plaintiffs’ Third Amended Complaint and to file their motion for Rule 11 [394]*394sanctions. The amount represents approximately 138.25 hours of work, and includes $4,616.81 in disbursements. The application is broken down as follows:

Opposition to Third Amended Complaint:
Kenneth A. Novikoff 95.25 hours @ $125/hr. = $11,906.25
Robert Ortiz 2.75 hours @ $ 50/hr. = $ 137.50
TOTAL 98.00 hours $12,043.75
Motion for Sanctions:
Kenneth A. Novikoff 33.50 hours $125/hr. $ 4,187.50
Michael Penner .75 hours $125/hr. $ 93.75
Robert Ortiz 6.00 hours $ 50/hr. $ 300.00
TOTAL 40.25 hours $ 4,581.25
TOTAL LEGAL SERVICES = $16,625.00
TOTAL DISBURSEMENTS = $ 4,616.81
Total = $21,241.81

The Court notes that while the defendants have applied for $21,242.06, the correct amount of their claim is the sum of $21,-241.81.

In addition to the above, on the day oral argument was to be held on the defendants’ application — and well after the parties submitted their briefs regarding the defendants’ application — the defendants submitted a supplemental application for an additional $2,375 in fees. This amount represents 19 hours of work spent by Mr. Novikoff since November 28, 1994 responding to the plaintiffs’ opposition to the defendants’ fee and costs application, billed at the rate of $125 per hour. The Court, however, will disregard this supplemental application as untimely.

According to the defendants, Mr. Novikoff is a senior associate with his law firm, Mr. Penner is a junior associate, and Mr. Ortiz was a summer intern at the firm. The defendants further explain that Mr. Novikoff spent the 95.25 hours opposing the Third Amended Complaint in the following manner: 46.75 hours were spent analyzing the complaint, researching cases on WESTLAW, and drafting the motion papers; 29.25 hours were spent analyzing the plaintiffs’ opposition papers, researching cases and drafting a reply; 8.25 hours were spent in preparation for oral argument; and 11 hours were spent in correspondence and telephone conversations with the Court, client and the plaintiffs’ counsel regarding matters pertaining to the defendants’ opposition to the Third Amended Complaint.

In explaining the amount of work spent on the opposition to the Third Amended Complaint, the defendants’ counsel contends that certain of the issues to be researched and addressed, such as the elements of an equal protection claim and the preclusive effect of prior determinations of this Court, were complex, and that an “exhaustive line-by-line” comparison of the Second Amended Complaint with the Third Amended Complaint had to be conducted.

DISCUSSION

1. Rule 11 Sanctions.

Rule 11(b) and 11(c) of the Federal Rules of Civil Procedure provide, in relevant part, as follows:

(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,—
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
[395]*395(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

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Cite This Page — Counsel Stack

Bluebook (online)
159 F.R.D. 391, 1995 U.S. Dist. LEXIS 557, 1995 WL 19699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirschner-v-zoning-board-of-appeals-of-incorporated-village-of-valley-nyed-1995.