Case 3:13-cv-00750-JGH Document 76 Filed 04/09/14 Page 1 of 8 PageID #: 1051

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 v. STEVE BESHEAR, ET AL. DEFENDANTS ) ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 3:13-CV-750-JGH

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 Courts 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

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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 Defendants Objection, Plaintiffs motion was not premature, and the Defendants 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 Courts 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 partys 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

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 Courts 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, Conways Response is inappropriate and should not be considered by this Court. 2

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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 Courts 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. 23]. In that case, the court acknowledges that the Sixth Circuit does not appear to have expressed a preference for prompt adjudication of motions for attorneys fee. Id. at *4. Therefore, this

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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 Kentuckys 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
4

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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].

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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. Defendants 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].

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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. Maxwells 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 Defendants 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 Courts decision in this regard.

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CONCLUSION For the above stated reasons, Defendant Steven L. Beshears 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, 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

Shannon Fauver Dawn Elliott FAUVER LAW OFFICE, PLLC 1752 Frankfort Ave. Louisville , KY 40206 (502) 569-7710 www. fauverlaw.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

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

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RONALD DUMAS, Plaintiff, v. NEW UNITED MOTOR MANUFACTURING INC., and DOES 1-20, Defendant. No. C 05-4702 PJH UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2007 U.S. Dist. LEXIS 49098

June 29, 2007, Decided June 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: Omar Julian 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 Williams Dawson, LEAD ATTORNEY, Althea V. Bovell, Nick C. Geannacopulos, Seyforth Shaw LLP, San Francisco, CA. JUDGES: PHYLLIS J. HAMILTON. OPINION BY: PHYLLIS J. HAMILTON OPINION court hereby GRANTS in part and DEFERS in part the defendant's motion for the following reasons. BACKGROUND This is an employment discrimination case. Plaintiff was employed by defendant from 1988 until 2003 when he was involuntarily terminated. See Amended Complaint P 6-7. He was reinstated in 2004 as part of the resolution of a union grievance and a labor complaint filed by plaintiff. Plaintiff alleged in his district court complaint that his termination [*2] was the result of discrimination and retaliation (for filing a grievance with the 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 Employment and Housing Act ("FEHA"), Cal. Govt. Code 12900, et seq., 2) wrongful termination in violation of public policy, 3) breach of the covenant of good faith and fair dealing, 4) intentional infliction of emotional distress, 5) negligent infliction of emotional distress, 6) unfair business practices in violation of Cal. Bus. & Prof. Code 17200, 7) retaliation in violation of FEHA, and 8) retaliation in violation of the California Family Rights Act ("CFRA"), Cal. Govt. Code 12945, et seq. See Amended Complaint PP 27-68. The court granted defendant's motion for summary judgment on April 24, 2007, granting summary judgment

ORDER GRANTING IN PART AND DEFERRING IN PART DEFENDANT'S MOTION FOR ATTORNEYS' FEES Now before the court is defendant New United Motor Manufacturing Inc.'s ("NUMMI" or "defendant") motion for attorneys' fees. Having carefully reviewed the parties' papers and considered their arguments and the relevant legal authority, and good cause appearing, the

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on all of plaintiff's claims. In granting the defendant's motion, the court made numerous factual findings and observations. In particular, the court noted that plaintiff filed a very "skimpy" opposition brief, only devoting two pages to opposing defendant's arguments on the merits. Plaintiff also failed to submit any evidence [*3] in opposition to summary judgment: he only provided one inadmissible declaration, which had nothing to do with the defendant's treatment of plaintiff. Defendant now moves for attorneys' fees. Defendant claims that plaintiff caused it to incur attorneys' fees in the amount of $ 99,635.50 in defending against his frivolous claims. Defendant also estimates that it has incurred approximately $ 5,800 more in fees for preparation of the motion for attorneys' fees. Defendant argues that it is entitled to reimbursement for reasonable fees incurred on the basis that plaintiff's action was "frivolous, unreasonable, or without foundation." Plaintiff filed a notice of appeal after defendant filed the instant motion. DISCUSSION A. Legal Standards "Inasmuch as the Court has pendent jurisdiction over plaintiff's claim under the Act, state substantive law governs the merits of that claim." Ackerman v. Western Electric 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 one who has received "at least some relief on the merits of his claim" and thus [*4] can be said to have "obtained the substance 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 Rights Act of 1964, a successful defendant is entitled to attorneys' fees "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though 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, 57 Cal. Rptr. 2d 917 (1996) ("California courts have adopted the methods and principles developed by federal courts in employment discrimination claims arising under the federal Civil Rights Act").

In determining an appropriate fee under both California and federal law, the court begins by calculating the lodestar, or, "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1980); see also Ackerman, 643 F. Supp. at 860. The party seeking attorneys' fees bears the burden of producing evidence supporting the hours worked and a reasonable rate; the district court may reduce the award accordingly if insufficient evidence is produced. Id. The [*5] district court may also exclude compensation for time that was "not reasonably expended" in the case. Id. at 434 (court may deny compensation for "hours that are excessive, redundant, or otherwise unnecessary"). Once this base fee has been established, the court in its discretion may also increase or decrease the fee by a multiplier, in light of various factors. Hensley, 461 U.S. at 434. Under California law, courts consider the factors including: (1) the novelty and difficulty of the questions involved; and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award. See Ackerman, 643 F. Supp. at 860-61 (citing Serrano v. Priest, 20 Cal. 3d 25, 141 Cal. Rptr. 315, 569 P.2d 1303 (1977)). The court may not base any multiplier granted on factors already taken 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 financial resources of the plaintiff in awarding fees to a prevailing defendant. See Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 621 (9th Cir. 1987). B. [*6] Defendant's Motion Preliminarily, the court notes that while plaintiff filed a notice of appeal after defendant moved for attorneys' fees, the court has jurisdiction to resolve defendant'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 court retains 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'

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fees after the notice of appeal from the decision on the merits had been filed."); 1993 Advisory Committee notes to FRCP 54(d) ("if an appeal on the merits of the case is taken, the [district] court may rule on the claim for fees, may defer its ruling on the motion, or may deny the motion without prejudice, directing under subdivision (d)(2)(B) a new period for filing after the appeal has been resolved."). The court, therefore, will address the merits of the motion. 1. Plaintiff's Briefing Defendant missed the filing deadline for its motion by one day and appropriately moved under the local rules for a one-day extension of time. [*7] Plaintiff did not oppose 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 June 6, 2007 pursuant to Local Rule 7-3. Plaintiff did not oppose the motion by that date, and in fact did not file an opposition until June 18, 2007 -- almost two weeks after his opposition brief was due and several days after court staff telephoned plaintiff's counsel to inquire if an opposition would be filed and whether the hearing should be vacated. No declaration establishing good cause for the delay in filing was filed; indeed, plaintiff's counsel did not provide so much as an explanation for the delay. The court therefore has grounds for striking the untimely opposition. However, because of the impact that this order is likely to have on plaintiff personally, the court elects to consider the opposition, such as it is, rather than permit, what appears to be plaintiff's counsel's oversight, to have any more detrimental effect on plaintiff than it already has. The untimely and once again "skimpy" opposition brief is illustrative of how this case has been litigated. Plaintiff's counsel made little effort to [*8] engage in discovery, no admissible evidence in opposition to summary judgment was submitted, not even plaintiff's own declaration, and the instant motion for roughly $ 100,000.00 in attorneys' fees would have been unopposed had court staff not called plaintiff's counsel to inquire about the missed deadline. And significantly, the untimely opposition fails to address whether the amount of requested fees is reasonable or whether the amount should be reduced based on plaintiff's financial ability to pay. Plaintiff essentially makes two arguments in his opposition brief. First, plaintiff argues that defendant's

motion should be denied because he intends to request a stay of judgment pending appeal under Federal Rule of Civil Procedure ("FRCP") 62(d). Plaintiff, however, has not moved for a stay and has not posted a supersedeas bond to obtain a stay. Nor has plaintiff explained how a stay of proceedings to enforce a judgment relates to the propriety of the court deciding a motion for attorneys' fees after judgment has been entered. This argument provides no basis for denying defendant's motion. Plaintiff's second argument is that his case was not frivolous, unreasonable, or groundless, essentially [*9] rearguing the merits of defendant's motion for summary judgment. He notes, for example, that his complaint alleged that his supervisors were motivated by racial animus, and that he was antagonized by his supervisor after he filed a complaint with the NLRB. Allegations without evidence are simply not enough here, just as they were insufficient to avoid summary judgment. Neither this motion nor the summary judgment motion challenged the adequacy of the pleadings. Defendant has not argued that plaintiff failed to state a claim. Rather defendant argued and the court found that plaintiff has no evidence to support his well-pleaded allegations. Plaintiff has not submitted any new evidence on this motion that might merit reconsideration of the court's prior determination. 2. Award of Fees A plaintiff may be ordered to pay his opponent's attorney's fees if a court finds that his claim was "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Cummings v. Benco Building Services, 11 Cal. App. 4th 1383, 1388, 15 Cal. Rptr. 2d 53 (1992) (quoting Christianburg). Such fees may be awarded if the plaintiff's conduct was egregious or if his or her case was patently [*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 no evidence of discrimination and no evidence that plaintiff "should have believed he was being discriminated against"). Here, defendant argues that plaintiff's claims were frivolous and groundless. Although plaintiff argues that they were not, he has not in his opposition to defendant's motion for summary judgment or in his opposition to the instant motion, pointed to one shred of evidence that supports any of his claims. It is, therefore, impossible for

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the court to find that plaintiff's claims were not baseless in light of his utter failure to provide any evidence to support such a finding. This finding that his complaint was groundless may very well have been avoided had plaintiff submitted any evidence bearing on his claims, such as a declaration by a witness to any of the events he described or even his own declaration. In the absence of evidence, however, the court, has no alternative but to conclude that his claims were groundless. The following review of plaintiff's opposition to the summary judgment motion supports this conclusion. [*11] The complaint contained eight claims: wrongful termination, breach of the covenant of good faith, retaliation in violation of the CFRA, unfair business practices, race discrimination in violation of FEHA, retaliation in violation of FEHA, and both negligent and intentional infliction of emotional distress. It also contained a prayer for punitive damages. Plaintiff did not oppose or even mention the wrongful termination, breach of covenant, CFRA retaliation, unfair business practices, negligent and intentional infliction of emotional distress claims in his opposition to defendant's motion for summary judgment. Nor did he oppose the FEHA retaliation claim, though he did mention that defendant's argument that the first three claims were barred, did not affect the viability of the FEHA retaliation and discrimination claims. He did not oppose or even mention the prayer for punitive damages. In sum, plaintiff failed to oppose, failed to mention in his opposition brief, and failed to submit any evidence on any of these claims, yet argues here that these claims were not groundless. The only claim for which plaintiff submitted substantive argument was the FEHA discrimination claim. He devoted [*12] a whole 14 lines of his opposition brief to this claim. With respect to this claim, a prima facie case of race discrimination requires that the employee demonstrate that: (1) he is a member of a protected class; (2) he was performing according to his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) other employees with similar qualifications were treated more favorably. The court found that plaintiff failed to establish a prima facie case, as he did not demonstrate that other non-African American employees with similar qualifications were treated more favorably. Neither plaintiff's complaint nor his opposition to summary judgment identified any

evidence demonstrating that other employees not in his protected class but with similar qualifications were treated differently. See 4/24/07 Order. In opposition to this motion, plaintiff did not submit any evidence showing he had any basis to believe that employees with similar qualifications were treated more favorably. It is unclear whether plaintiff's counsel even tried to discover facts about how other employees with similar qualifications were treated. The court can only conclude that such evidence [*13] does not exist. Why else would it not have been submitted for the court's consideration? On this record, the court can only conclude that all of plaintiff's claims were groundless. 3. Reasonableness of Fees As noted above, plaintiff does not challenge the number of hours billed or the hourly billing rates of defendant's counsel, nor does he argue that the amount of fees claimed by defendant are unreasonable. The absence of such a challenge is unusual particularly in light of the amount of fees sought. The court has reviewed defendant's evidence in support of its application and it appears that the number of hours expended on the litigation are reasonable and the hourly rates are reasonable. The court finds that the requested fees are therefore reasonable. See Hensley, 461 U.S. at 433. More troubling, however, is the absence of any attempt by plaintiff to put before the court information from which the court could ascertain his financial resources, a factor the court should consider in awarding fees to a prevailing defendant. See Miller, 827 F.2d at 621. Whether this omission is the result of plaintiff's counsel's lack of knowledge, oversight or indifference, the court is reluctant to [*14] make an award without giving plaintiff another opportunity to establish his ability or inability to pay the fees incurred. Accordingly, while the court finds that plaintiff's complaint was groundless and that defendant is therefore entitled to an award of attorneys' fees, the court defers setting the amount of the award pending further consideration as described below. CONCLUSION For the reasons stated above, the court GRANTS defendant's motion for attorneys' fees insofar as it finds that an award of attorneys' fees is warranted. In order to determine the amount of attorneys' fees to be awarded to defendant, plaintiff shall have ten (10) days from the date of this order to provide evidence (i.e., a properly

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authenticated declaration) regarding plaintiff's financial resources to assist the court in determining the amount of attorneys' fees to award to defendant. Defendant may respond within five (5) days. The record will then close, the court will decide the issue on the papers, and an order setting the amount and time for payment will issue thereafter. It is further ordered that plaintiff's counsel shall immediately provide a copy of this order and the court'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

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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 NEW YORK 2013 U.S. Dist. LEXIS 131299

September 12, 2013, Decided September 13, 2013, Filed PRIOR HISTORY: Giuffre Hyundai, Ltd. v. Hyundai Motor Am., 2013 U.S. Dist. LEXIS 132145 (E.D.N.Y., Aug. 20, 2013) COUNSEL: [*1] For Giuffre Hyundai, Ltd., doing business as Giuffre Hyundai, Plaintiff: Eric L. Chase, LEAD ATTORNEY, Bressler Amery & Ross, P.C., New York, 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 States District Judge. OPINION BY: Jack B. Weinstein OPINION Having read the report and recommendation of the magistrate judge dated August 20, 2013 (ECF No. 50) and the objections of plaintiff Giuffre Iyundai, Ltd. dated September 5, 2013 (ECF No. 52), the magistrate judge's recommendations are approved and adopted. The objections are not meritorious for the reasons stated by the magistrate. Since clear issues of law are presented, no oral argument is required. Plaintiff has already filed a notice of appeal as to the court's granting of defendant's motion for summary judgment. See Notice of Appeal, May 4, 2013, ECF No. 35. A delay in decision on the issue of attorney's fees, as alternatively requested by plaintiff, while the appeal is pending, [*2] should not be adopted. Efficiency and justice are best served by issuing a "prompt ruling on fees to facilitate a consolidated appeal on both the merits and the attorneys' fee issue" if both are before the appellate court. Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 227 (2d Cir. 2004) (citing Fed.R.Civ.P. 54, advisory committee's notes(1993)). See also Weyant v. Okst, 198 F.3d 311, 314 (2d Cir. 1999) (discouraging "piecemeal appeals of merits and fee questions" (internal citations and quotation marks omitted)). Reasonable attorney's fees of $87,500 are awarded to plaintiff. Enter judgment.

MEMORANDUM, ORDER AND JUDGMENT AWARDING ATTORNEY'S FEES TO DEFENDANT JACK B. WEINSTEIN, Senior United States District Judge:

Case 3:13-cv-00750-JGH Document 76-2 Filed 04/09/14 Page 2 of 2 PageID #: 1065

Page 2 2013 U.S. Dist. LEXIS 131299, *2

SO ORDERED. /s/ Jack B. Weinstein Jack B. Weinstein

Senior United States District Judge. Date: September 12, 2013 Brooklyn, New York

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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 v. STEVE BESHEAR, ET AL. DEFENDANTS ) ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 3:13-CV-750-JGH

ORDER *** *** *** It is HEREBY ORDERED that: Defendant Steve Beshears 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 _________________________.