     10-2157-cv
     Konits v. Karahalis


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
     CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
     “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 2nd day of February, two thousand eleven.
 4
 5   PRESENT:              RALPH K. WINTER,
 6                         ROBERT D. SACK,
 7                         DEBRA ANN LIVINGSTON,
 8                                          Circuit Judges.
 9
10
11   CAROL KONITS,
12             Plaintiff-Appellant,
13
14            -v.-                                                    No. 10-2157-cv
15
16   DEAN KARAHALIS, individually and as District Coordinator,
17            Defendant-Appellee,
18
19   VALLEY STREAM CENTRAL HIGH SCHOOL DISTRICT, BOARD OF EDUCATION OF
20   THE VALLEY, RONALD D. VALENTI, individually and as District Superintendent, ROBERT
21   E. KAUFOLD, individually and as Principal of Memorial Junior High School, GRACE KERR,
22   individually and as Chairperson,
23                  Defendants.*
24
25
26                                     DENNIS A. BENGELS, Law Office of Dennis A. Bengels, Garden
27                                     City, New York (Sharon Konits, Plainview, New York, on the brief),
28                                     for Plaintiff-Appellant.


              *
                  The Clerk of the Court is directed to amend the official caption as set forth above.
 1
 2                                 CHRISTOPHER J. SOVEROW (Lewis A. Silverman, on the brief),
 3                                 Rutherford & Christie LLP, New York, New York, for Defendant-
 4                                 Appellee.
 5
 6
 7          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 8   DECREED that the judgment of the district court be AFFIRMED.

 9          Plaintiff-Appellant Carol Konits (“Konits” or “Plaintiff”) obtained a favorable jury verdict

10   against defendant Dean Karahalis (“Karahalis”) on her claim of retaliation in violation of the First

11   Amendment, brought pursuant to 42 U.S.C. § 1983. Konits’s other claims, however—for violation

12   of her rights to equal protection and due process, as well as for claims under New York state

13   law—were dismissed prior to trial, and the jury did not find in her favor as to her First Amendment

14   retaliation claim against any of the other defendants against whom she brought suit (including the

15   Valley Stream Central High School District, its Board of Education, and Valley Stream Central High

16   School administrators Robert D. Vilante, Robert E. Kaufold, and Grace Kerr, each in their individual

17   and official capacities). Following the judgment, Konits moved for an award of attorneys’ fees as

18   a prevailing party pursuant to 42 U.S.C. § 1988. Konits now appeals from a May 19, 2010, order

19   of the United States District Court for the Eastern District of New York (Wexler, J.), awarding her

20   attorneys, Dennis A. Bengels (“Bengels”) and Sharon C. Konits (“Sharon Konits”), $500,123 in fees.

21   We assume the parties’ familiarity with the underlying facts, procedural history of the case, and

22   issues on appeal.

23          We review a district court’s award of attorneys’ fees for abuse of discretion, Goldberger v.

24   Integrated Res., Inc., 209 F.3d 43, 47 (2d Cir. 2000), which “occurs when (1) its decision rests on

25   an error of law (such as application of the wrong legal principle) or a clearly erroneous factual


                                                      2
 1   finding, or (2) its decision—though not necessarily the product of a legal error or a clearly erroneous

 2   factual finding—cannot be located within the range of permissible decisions,” Kickham Hanley P.C.

 3   v. Kodak Ret. Income Plan, 558 F.3d 204, 209 (2d Cir. 2009) (internal quotation marks omitted).

 4   Moreover, “‘abuse of discretion’—already one of the most deferential standards of review—takes

 5   on special significance when reviewing fee decisions,” Goldberger, 209 F.3d at 47, since “the district

 6   court, which is intimately familiar with the nuances of the case, is in a far better position . . . than

 7   is an appellate court, which must work from a cold record,” In re Bolar Pharm. Co. Sec. Litig., 966

 8   F.2d 731, 732 (2d Cir. 1992) (per curiam). We defer to the discretion of the district court here even

 9   though it had limited involvement in the case, although we pay particular attention to its explanation

10   of fee reductions related to proceedings over which it did not preside. In any event, “the question

11   before us is not whether we would have awarded a different fee, but rather whether the district court

12   abused its discretion in awarding this fee.” In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129,

13   134 (2d Cir. 2008).

14


15                                   I. Reduction for Limited Success

16          First, Konits asserts that the district court erred in imposing a 25% reduction for her limited

17   success, in that she prevailed against only one of the six defendants against whom she brought suit.

18   “Although full fees may be awarded to a partially prevailing plaintiff when the underlying claims”

19   on which that plaintiff did not succeed “are intertwined” with the claims on which the plaintiff did

20   succeed, “the court retains substantial discretion to take into account the specific procedural history

21   and facts of each case.” Green v. Torres, 361 F.3d 96, 99 (2d Cir. 2004). “[T]he most critical factor

22   in a district court’s determination of what constitutes a reasonable attorney’s fee in a given case is


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 1   the degree of success obtained by the plaintiff.” Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d

 2   132, 152 (2d Cir. 2008) (internal quotation marks omitted). As the Supreme Court has recognized,

 3   if “a plaintiff has achieved only partial or limited success, the product of hours reasonably expended

 4   on the litigation as a whole times a reasonable hourly rate may be an excessive amount,” which may

 5   “be true even where the plaintiff’s claims were interrelated, nonfrivolous, and raised in good faith.”

 6   Hensley v. Eckerhart, 461 U.S. 424, 436 (1983).

 7          Furthermore, we have held that a district court, in reviewing a fee application, should

 8   “examine[] the particular hours expended by counsel with a view to the value of the work product

 9   of the specific expenditures to the client’s case,” and if it “concludes that any expenditure of time

10   was unreasonable, it should exclude these hours” from the calculation of the reasonable fee. Luciano

11   v. Olsten Corp., 109 F.3d 111, 116 (2d Cir. 1997). Finally, we are mindful of the Supreme Court’s

12   observation that in many civil rights cases “the plaintiff’s claims for relief will involve a common

13   core of facts or will be based on related legal theories, . . . making it difficult to divide the hours

14   expended on a claim-by-claim basis.” Hensley, 461 U.S. at 435. Since “[s]uch a lawsuit cannot be

15   viewed as a series of discrete claims, . . . the district court should focus on the significance of the

16   overall relief obtained by the plaintiff in relation to the hours reasonably expended.” Id.

17          On the basis of the record presented, we locate no error in the district court’s decision to

18   impose a 25% reduction based on Konits’s limited success. The district court considered, and

19   rejected, Konits’s assertion that her lack of success was attributable to “constraints placed by the

20   Court” regarding the number of trial days to be devoted to the matter, noting that “she did not

21   withdraw her claims against the other defendants.” Konits v. Valley Stream Cent. High Sch. Dist.,

22   No. CV-01-6763(LDW), 2010 WL 2076949, at *3 (E.D.N.Y. May 19, 2010). The court found,


                                                       4
 1   moreover, that “[a]lthough [Konits] maintains that all of the defendants were united in interest, the

 2   jury’s finding in favor of the other individual defendants demonstrates otherwise, and was supported

 3   by trial testimony and other evidence reflecting distinctions in defendants’ conduct.” Id. Under

 4   these circumstances, the district court did not abuse its broad discretion by imposing a reduction to

 5   reflect Konits’s limited success. Cf. Webb v. Sloan, 330 F.3d 1158, 1169 (9th Cir. 2003) (“Plaintiff

 6   initially sued several defendants, but prevailed against only one . . . . A discretionary reduction to

 7   reflect that kind of limited success is appropriate.”); see also Barfield, 537 F.3d at 152 (“A district

 8   court’s assessment of the ‘degree of success’ achieved in a case is not limited to inquiring whether

 9   a plaintiff prevailed on individual claims,” but rather, “[b]oth the quantity and quality of relief

10   obtained, as compared to what the plaintiff sought to achieve as evidenced in her complaint, are key

11   factors in determining the degree of success achieved.” (internal quotation marks omitted)). Nor do

12   we locate error in the district court’s imposition of a percentage reduction, rather than disallowance

13   of specific billing entries. The court’s decision in this regard was appropriately based on its

14   conclusion that, since Plaintiff’s billing entries did not “differentiate the hours spent in pursuing this

15   action against Karahalis from those hours spent on the other defendants,” it could not “make a

16   specific, calculated reduction for success against only one of several defendants.” Konits, 2010 WL

17   2076949, at *3; see Hensley, 461 U.S. at 436-37 (noting district court’s discretion to “attempt to

18   identify specific hours that should be eliminated, or [to] . . . simply reduce the award to account for

19   the limited success.”).

20


21                                    II. The Appropriate Hourly Rate

22           Next, Konits contends that the district court erred in its determination of the appropriate


                                                         5
 1   hourly rate for Bengels and Sharon Konits. In sum, she asserts that the district court “used historical

 2   rates going back to the year 2000” in determining the prevailing market rate for attorneys of like skill

 3   and experience in the Eastern District, “rather than current hourly rates.” Appellant’s Br. 26.

 4   Attorneys’ fees are determined in this Circuit by reference to the “presumptively reasonable fee,”

 5   Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d 182, 190 (2d Cir.

 6   2008), which “boils down to what a reasonable, paying client would be willing to pay, given that

 7   such a party wishes to spend the minimum necessary to litigate the case effectively,” Simmons v.

 8   N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (internal quotation marks omitted). In

 9   “asking what a reasonable, paying client would do, a district court best approximates the workings

10   of today’s market for legal services.” Arbor Hill, 522 F.3d at 192.

11           The district court should, accordingly, “assess case-specific considerations at the outset,

12   factoring them into its determination of a reasonable hourly rate for the attorneys’ work,” which is

13   then multiplied by a reasonable number of hours expended to reach the presumptively reasonable

14   fee. McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 420 (2d Cir. 2010). These case-specific

15   considerations include, “among others, the Johnson factors.” Arbor Hill, 522 F.3d at 190; see also

16   Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) (enumerating factors

17   for consideration in awarding attorneys’ fees), abrogated on other grounds by Blanchard v.

18   Bergeron, 489 U.S. 87, 92-93 (1989). In considering these case-specific factors, the district court

19   should attempt to approximate “the market rates prevailing in the community for similar services by

20   lawyers of reasonably comparable skill, experience, and reputation.” Gierlinger v. Gleason, 160

21   F.3d 858, 882 (2d Cir. 1998).

22           Reviewing recent Eastern District cases awarding attorneys’ fees, the district court concluded


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 1   that “[c]ourts have found that the prevailing rates for experienced attorneys in Eastern District of

 2   New York cases range from approximately $300-400 per hour.” Konits, 2010 WL 2076949, at *2;

 3   see also Simmons, 575 F.3d at 174 (“According to the forum rule, courts should generally use the

 4   hourly rates employed in the district in which the reviewing court sits in calculating the

 5   presumptively reasonable fee.” (internal quotation marks omitted)). The district court did not abuse

 6   its discretion in reaching this conclusion, which is amply supported by recent Eastern District cases

 7   assessing the prevailing rate in that district. See, e.g., Trs. of the Local 813 I.B.T. Ins. Trust Fund

 8   v. Sprint Recycling, Inc., No. 09-CV-04435(FB)(RER), 2010 WL 3613839, at *4 (E.D.N.Y. Aug.

 9   6, 2010) (noting that “[i]n the Eastern District of New York, reasonable hourly rates for attorneys

10   have ranged from $200 to $350 an hour for partners”); Blue v. Finest Guard Servs., Inc., No. 09-CV

11   133(ARR), 2010 WL 2927398, at *15 (E.D.N.Y. June 24, 2010) (“After Simmons, rates of $300 to

12   $400 per hour for partners have been considered reasonable in the Eastern District.”), adopted by

13   2010 WL 2927403 (E.D.N.Y. July 19, 2010); Melnick v. Press, No. 06-CV-6686(JFB)(ARL), 2009

14   WL 2824586, at *9 (E.D.N.Y. Aug. 28, 2009) (exhaustive survey of Eastern District case law by

15   Judge Bianco, leading to the conclusion that “recent cases in this District indicate[] that the range

16   of appropriate billing rates is $200-$375 for partners”).

17          Moreover, the district court properly referenced case-specific factors in its determination of

18   an appropriate rate, noting that “[i]n determining th[at] rate,” it was to “consider such factors as

19   those identified in Johnson.” Konits, 2010 WL 2076949, at *2. The court expressly addressed

20   counsels’ performance, finding it “adequate” and “competent” but generally “not exceptional.” Id.

21   It observed that “[w]hile the issues in this action may not have been difficult, they were to some

22   extent novel,” a fact that “[p]resumably . . . would have made the case less desirable.” Id. “On the


                                                       7
 1   other hand,” the court noted, “the timing demands posed by the litigation were not substantial,” and

 2   “[t]he litigation was not expedited,” nor did “the client or circumstances impose[] any significant

 3   time constraints or unusual burdens.” Id. Under these circumstances, the district court did not abuse

 4   its discretion in settling on a rate of $350 per hour for Bengels and $300 per hour for Sharon Konits,

 5   both within the prevailing range of rates for attorneys of like skill and experience in the Eastern

 6   District. Cf. In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 237 (2d Cir. 1987) (noting that

 7   “[w]e cannot reverse a district court’s finding[s] . . . merely because we might have weighed the

 8   information in the fee petitions differently”).

 9


10                                              III. Sanctions

11          Finally, Appellee requests that we impose sanctions against Konits’s attorneys, arguing that

12   “[t]his case is the archetypal example of an attorney pursuing unjust enrichment via attorneys’ fees

13   in contravention of the purposes of Section 1988.” Appellee’s Br. 27. We decline to do so here.

14          First, though Appellee requests sanctions pursuant to Federal Rule of Appellate Procedure

15   38, that rule expressly provides that a court of appeals may sanction an attorney based on the

16   frivolousness of an appeal only “after a separately filed motion or notice from the court and

17   reasonable opportunity to respond.” Fed. R. App. P. 38. Since neither has occurred here, we decline

18   to impose sanctions pursuant to Rule 38. See Great Am. Ins. Co. v. M/V Handy Laker, 348 F.3d 352,

19   354 (2d Cir. 2003) (per curiam) (“Rule 38 provides that a court of appeals may make a determination

20   of frivolousness and impose costs only after a separately filed motion or notice from the court. Since

21   neither of those measures has been taken in this case, we deny [Appellee’s] motion under Rule 38.”

22   (internal quotation marks omitted)); see also State St. Bank & Trust Co. v. Inversiones Errazuriz


                                                       8
 1   Limitada, 374 F.3d 158, 180 (2d Cir. 2004) (same).

 2           While we might also sanction Konits’s attorneys pursuant to 28 U.S.C. § 1927, which

 3   provides for sanctions against one “who so multiples the proceedings in any case unreasonably and

 4   vexatiously,” we have held that “[s]anctions may be imposed . . . [pursuant to § 1927] ‘only when

 5   there is a finding of conduct constituting or akin to bad faith.’” In re 60 E. 80th St. Equities, Inc., 218

 6   F.3d 109, 115 (2d Cir. 2000) (quoting Sakon v. Andreo, 119 F.3d 109, 114 (2d Cir. 1997)).

 7   Accordingly, “[w]e have held that an award under § 1927 is proper when the attorney’s actions are

 8   so completely without merit as to require the conclusion that they must have been undertaken for

 9   some improper purpose such as delay.” United States v. Int’l Bhd. of Teamsters, 948 F.2d 1338,

10   1345 (2d Cir. 1991) (internal quotation marks omitted). With regard to the only matter before this

11   Court—the instant appeal—we conclude that while it lacks merit, there is not a sufficient basis on

12   this record to support a conclusion that it was brought in bad faith.

13           While we are mindful of the Supreme Court’s admonition that “[a] request for attorney’s fees

14   should not result in a second major litigation,” Hensley, 461 U.S. at 437, and that extended litigation

15   over attorneys’ fees “must be one of the least socially productive types of litigation imaginable,” id.

16   at 442, the better course in this case is for the district court to address the question of sanctions in

17   the first instance, as there is, in fact, a Rule 11 motion for sanctions currently pending before that

18   court. This is particularly so since much of the conduct argued by Appellee to be sanctionable was

19   manifested in filings in the district court. Cf. Barr Labs., Inc. v. Abbott Labs., 867 F.2d 743, 748 (2d

20   Cir. 1989), overruled on other grounds by Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396

21   (1990) (“[A]pplications for Rule 11 sanctions must be made in the court where the offending papers

22   are filed, since the abusive conduct is determined as of the time of filing.”). Accordingly, while we


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 1   decline to sanction Konits’s attorneys as to their conduct of the present appeal, we note, without

 2   expressing any view on the merits, that the district court remains free, within the exercise of its

 3   discretion, to impose sanctions based on counsels’ course of conduct before it.

 4          We have considered all of Appellant’s remaining arguments and find them to be without

 5   merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

 6
 7                                                        FOR THE COURT:
 8                                                        Catherine O’Hagan Wolfe, Clerk
 9
10




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