ARMANDO MONTANO, et al, Plaintiffs, against LOUIS J.
LEFKOWITZ, et al, Defendants.
No. 78 Civ. 17-CSH
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Slip Opinion
July 11, 1980
COUNSEL: JOHN C. KLOTZ, ESQ., 1345 Avenue of the Americas, New York,
New York 10019 For Plaintiffs
DUBLIRER, HAYDON, STRACI & VICTOR, 67 Wall Street, New York, New
York 10005
Theodore E. Teah, Esq. For Defendant Bronx County Democratic
Committee
OPINIONBY:
HAIGHT
OPINION: MEMORANDUM OPINION AND ORDER
HAIGHT, District Judge:
Plaintiffs, registered voters in the 21st Congressional District of
New York City, commenced this action under the Civil Rights Act, 42
U.S.C. @ 1983, and 28 U.S.C. @ 1343(3) and (4), to challenge
procedures for nomination of candidates for a special congressional
election. The named defendants included "the Democratic Committee of
Bronx County by Joseph Galiber, its Chairman, and Agnes L. Jones, its
Treasurer, Patrick J. Cunningham, Individually and as Chairman of the
Executive Committee of the Democratic Committee of Bronx County" (the
"Bronx Democratic defendants"). Comparable officials of the Liberal,
Conservative and Republican parties were named as defendants, but this
Court held that plaintiffs lacked standing to attack their rules.
They disappeared from the litigation. This Court held further that
plaintiffs were not entitled to a temporary injunction against the
Bronx Democratic defendants. Plaintiffs prosecuted a successful
appeal, 575 F.2d 378 (2d Cir. 1978), and this Court entered an
appropriate order. Plaintiffs, who were represented at all times by
their attorney, John C. Klotz, Esq., now apply for an award of
attorneys' fees pursuant to 42 U.S.C. @ 1988. n1 The application was
originally put forward, and opposed, on the basis of affidavits. Mr.
Klotz then gave oral testimony, and was cross-examined.
n1 42 U.S.C. @ 1988 (1976) provides in pertinent part: "In any
action or proceeding to enforce a provision of sections 1981, 1982,
1983, 1985, and 1986 of this title,... the court, in its discretion,
may allow the prevailing party, other than the United States, a
reasonable attorney's fee as part of the costs."
The Bronx Democratic defendants' papers in opposition raise two
threshold issues. First, they contend that in September, 1978,
subsequent to the commencement of the action, defendant "Democratic
Committee of Bronx, an unincorporated association, ceased to exist as
a result of a primary election and the institution of a new
unincorporated association named the Bronx Democratic County
Committee," whose membership is different from the prior committee.
Affidavit of Theodore E. Teah, Esq., at PP6, 7. From that, it is said
to follow that "[inasmuch] as the defendant association herein does
not exist any longer, and no assets are in existence, any judgment
entered herein would be moot." Id. at P. 9.Defendants further argue
that service of the application has not been made upon the persons of
the new committee specified in @ 13 of the New York General
Associations Law, 18A McKinney's Consol. Laws of N.Y. (1979), n2 so
that the Court lacks jurisdiction. Id. at P8.
n2 The statute provides in pertinent part:
"An action or special proceeding may be maintained, against the
president or treasurer of such an association, to recover any
property, or upon any cause of action, for or upon which the plaintiff
may maintain such an action or special proceeding, against all the
associates, by reason of their interest or ownership, or claim of
ownership therein, either jointly or in common, or their liability
therefor, either jointly or severally. Any partnership, or other
company of persons, which has a president or treasurer, is deemed an
association within the meaning of this section."
Plaintiffs respond to the first contention by citing Rule 25(d),
F.R.Civ.P., which provides:
"(1) When a public officer is a party to an action in his official
capacity and during its pendency dies, resigns, or otherwise ceases to
hold office, the action does not abate and his successor is
automatically substituted as a party. Proceedings following the
substitution shall be in the name of the substituted party, but any
misnomer not affecting the substantial rights of the parties shall be
disregarded. An order of substitution may be entered at any time, but
the omission to enter such an order shall not affect the substitution.
"(2) When a public officer sues or is sued in his official capacity,
he may be described as a party by his official title rather than by
name; but the court may require his name to be added."
Members of political party committees who, by virtue of their offices,
administrate a state's primary election machinery "are election
officers of the state de facto if not de jure," Rice v. Elmore, 165
F.2d 387, 391 (4th Cir. 1941). The Second Circuit recognized in the
case at bar that New York's delegation to the political parties of the
nominating process for special elections "renders the party selection
process state action." 575 F.2d at 383. Thus the individuals acting in
their capacity as officers of the Bronx Democratic County Committee
during the pendency of this litigation must be viewed as "public
officers" under Rule 25(d), cf. Sturdevant v. Deer, 73 F.R.D. 375
(E.D.Mich. 1976), see 3B Moore's Federal Practice (2nd ed. 1980) at
P25.09[3], p. 25-107 n.5 and cases cited, and their successors are
"automatically substituted" as parties.
Plaintiffs have moved this Court for an order pursuant to Rule
25(d) substituting Stanley M. Friedman as Chairman of the Bronx
Democratic Committee and its Executive Committee, and Harry Mintzer as
treasurer of the Bronx Democratic Committee. These are the
individuals who, according to Klotz's research, have succeeded to
those positions. Defendants have filed no opposition papers to the
Rule 25(d) motion. Ordinarily that would justify its granting by
default, General Rule 9(b) of this Court. However, Rule 25(d) while
providing for the automatic substitution, as a party, of the successor
to a "public officer," appears to assume the uninterrupted existence
of the agency or other entity which those officers serve. In
consequence, it does not fully meet defendants' contention that, by
operation of state law, the then-existing committees no longer exist.
The cases cited for that proposition are Licitra v. Power, 10
A.D.2d 996, 203 N.Y.S.2d 322 (2d Dept. 1960), aff'd, 8 N.Y.2d 871, and
Duryea v. McNab, 232 N.Y.S.2d 462 (Sup.Ct. Suffolk Cty. 1962), aff'd,
17 A.D.2d 713, 232 N.Y.S.2d 600 (2d Dept.). Both cases deal with the
power of committees to designate particular individuals as candidates
for office. Neither case addresses the question presented here,
namely, "whether the institution of a new unincorporated association
named the Bronx Democratic County Committee" (Teah affidavit at P6)
brought about so basic a change in structure that the present
committee bears no liability for a claim for attorneys' fees properly
accruing against its predecessor committee, as the result of the
efforts of counsel for plaintiffs in vindicating important civil
rights.
In the absence of authority compelling that result, I decline to
relieve the Bronx County Democratic Committee of that liability. The
Klotz affidavit of March 28, 1980, seemingly based upon painstaking
research, indicates that substantial overlap of membership exists
between the former county and executive committees and the present
bodies; and that the present Bronx Democratic County Committee assumed
the assets of the prior county committee. Klotz affidavit at PP7-12.
The committee's offices remain at the same location; and Klotz
asserts, to the best of his own knowledge (not inconsiderable in
political affairs) that "when the terms of the county committee
expires [sic] every two years, the consistent practice has been for
the successor committee to assume control of the books, records,
office furniture, offices, etc. of the prior county committee." Id. at
P13. None of these assertions is challenged by defendants.
Accordingly I accept the contention in the Klotz affidavit that the
present county committee "functions as a successor body, not as an
independent entity newborn on September 12, 1978." Id. at P12. The
same rationale applie to the Executive Committee.
Defendants having failed to dispute these factual assertions, or to
cite authority precluding the continuing liability of the committees
for these charges, I reject the contention that the presently-existing
committees are free of any liability by operation of law.
Defendants' contention that the Court lacks jurisdiction because of
insufficiency of personal service is of no substance. Defendants'
counsel have represented the defendants at all stages of the
proceedings, both before and after the date upon which it is now said
that the prior committees ceased to exist. Plaintiffs made service of
the application for attorneys' fees upon counsel who had represented
the defendants throughout, pursuant to Rule 5(b), F.R.Civ.P., and
defendants are now estopped from denying the authority of the
attorneys who have represented them.
I come, then, to the merits of plaintiffs' application for
attorneys' fees and costs.
While there is authority for the proposition that such applications
can be adjudicated solely on the basis of affidavits, without
evidentiary hearing, Population Services International v. Carey, 476
F.Supp. 4, 9 (S.D.N.Y. 1979), a hearing was directed in the instant
case, so that defendants' counsel could cross-examine Mr. Klotz with
respect to the assertions contained in the latter's affidavit. It is
fair to say that while defendants offered some objections to Klotz's
hourly rate and the amount of time assertedly devoted to the case, the
objections were neither asserted nor pressed with any vigor.
Defendants also argued that the individual plaintiffs were elected
public officials, "with salaries in excess of $20,000 per year and
both are well able to provide the remainder of the retainer agreement
funds." The short answer to this contention is that plaintiffs'
attorneys in a successful civil rights action are not limited to their
fee arrangements with their clients. Zarcone v. Perry, 581 F.2d 1039,
1044 (2d Cir. 1978); Population Services International v. Carey,
supra, at 7.
Klotz's original affidavit on this motion recited, in detailed
fashion, the expenditure of 172 hours on the case, from the initial
consultations with his clients, through the proceedings in this Court,
the Court of Appeals, and again in this Court, and in preparation and
presentation of the claim for attorneys' fees. That last element is,
of course, compensable under @ 1988. Mid-Hudson Legal Services v. G. &
U., Inc., 465 F.Supp. 261, 269-70 (S.D.N.Y. 1978). Klotz seeks a
"lodestar" figure of $150 per hour. See Population Services
International v. Carey, supra, at 9, and cases there cited. At the
hearing, Klotz testified to the expenditures of an additional 8 hours,
in final preparation and presentation of his proof. Since that
hearing, Klotz states in a supplemental affidavit, he has devoted an
additional 15 hours in researching and addressing the questions raised
by defendants in opposition to the application. In consequence, the
present application is for compensation at the rate of $150 per hour
for 195 hours' work, yielding a "lodestar" figure of $29,250, to be
increased to $43,875 by the addition of a 50% incentive or premium
figure of $14.625. n3 See City of Detroit v. Grinnell Corp., 560 F.2d
1093, 1098 (2d Cir. 1977); Population Services International v. Carey,
supra, at 11-12; but see Beazer v. New York City Transit Authority,
558 F.2d 97, 101 (2d Cir. 1977), cert. granted on other issues, 440
U.S. 568 (1978) (lodestar of $310,000 approved but incentive award
disapproved, where "the legal issues were relatively simple and few,"
and the benefits of the suit to the plaintiff class "are not
altogether concrete").
n3 The Klotz affidavit calculated that 195 hours times $150 per
hour totalled $28,500. The computation was in error.
Based upon my own familiarity with the case, I conclude that 195
hours is a reasonable amount of time for Mr. Klotz to have devoted to
the litigation in its several stages; and that $150 per hour is a
reasonable rate of compensation for an attorney of his age, experience
and skill in this area of the law. On that point, his application is
supported by the affidavit of another attorney, not affiliated with
Klotz in practice, who is qualified to express an opinion on the
subject. Mr. Klotz is a specialist in the law of election procedures
as is illustrated by his retention, according to his testimony at the
hearing, by the forces of Senator Kennedy in a challenge to petitions
lodged by California's Governor Brown in connection with the recent
New York presidential primary election. While a $150 hourly rate
verges toward the higher end of the scale for attorneys' compensation
in these cases, see Population Services International v. Carey, supra,
at 10 and cases there collected, there is authority for such a rate,
particularly in the case of a single practitioner. Quirke v. Chessie
Corp., 368 F.Supp. 558, 563 (S.D.N.Y. 1974). While Klotz has not
submitted detailed time sheets, and these are of course preferable
when available, his explanation for not keeping such sheets is
plausible,l given the nature of his practice among clients of limited
economic circumstances. Affidavit of January 8, 1980 at P9. (Senator
Kennedy would appear to fall into a different category.)
In sum, I allow the requested lodestar figure, in the amount of
$29,250 (195 hours at an hourly rate of $150).
I further conclude that some additional, incentive award is
justified. The constitutional question was an important one, and the
success achieved by plaintiffs in the Court of Appeals, while not of
immediate benefit to the candidates in question (the special election
having been held by the time the case reached the Court of Appeals),
nonetheless stands as an important precedent for future electoral
procedures. However, it is also fair to observe that Judge Friendly's
opinion in the Court of Appeals rejected a number of plaintiffs'
arguments. The case stressed by plaintiffs, appellants in the Court
of Appeals, "is not so determinative in appellant's favor as they
claim." 575 F.2d at 383. The Court of Appeals also found "relatively
little enlightenment in decisions of the Supreme Court relied upon by
appellants," ibid, and "scant help in decisions of other courts of
appeals which were cited," id at 384. "Appellants' case when properly
analyzed," wrote Judge Friendly, "rests not only on the Equal
Protection Clause of the Fourteenth Amendment but also upon the
clauses of the Constitution with respect to the election of the House
of Representatives and action of Congress pursuant thereto." Ibid.
Judge Friendly thereupon embarked upon a constitutional analysis which
was not put forward by plaintiffs, either in this Court or in the
Court of Appeals. I conclude, therefore, that a significant measure
of any incentive award for innovative legal research should go to
Judge Friendly, although of course he is not in a position to receive
it. I am also mindful of the Court of Appeals' admonition in Beazer,
supra, that attorneys' fee requests must be scrutinized with "'an eye
to moderation', seeking to avoid either the reality or the appearance
of awarding 'windfall fees.'" 558 F.2d at 101.
My conclusion is that plaintiffs' attorney is entitled to a 25%
incentive award, in the amount of $7,312.50, which results in a total
award of $36,562.50. No claim is made for out-of-pocket expenses. Out
of the award of $36,562.50, plaintiffs are directed to compensate
Professor Michael Lanzarone, who, according to Klotz's supplementary
affidavit, spent 4 hours conferring with Klotz with respect to the
most recent activities in the case. I intimate no view as to what
Professor Lanzarone's compensation should be. I simply hold that it
does not give rise to a separate claim for compensation; and that his
ultimate compensation is to be determined to the mutual satisfaction
of plaintiffs, Klotz and Lanzarone, and funded out of the award
decreed herewith.
CONCLUSION
In these circumstances, plaintiffs' motion under Rule 25(d),
F.R.Civ.P., is granted. Plaintiffs are awarded attorneys' fees in the
amount of $36,562.50 against the defendant committees. n4
n4 If judgment against the defendant committees is returned wholly
or partly unsatisfied or unexecuted, then and only then would a
subsequent action lie against the individual members. N.Y. General
Associations Law, @ 16.
Plaintiffs and their counsel are directed to settle an appropriate
order and judgment on five (5) days' notice to counsel who have
represented defendants in this litigation.
E-Mail: johnklotz@johnklotz.com