Tri-city Cmty. Action Program Inc v. City Of Malden

680 F.Supp.2d 306

TRI-CITY COMMUNITY ACTION PROGRAM, INC., 3 John Does, and Jane Doe, Plaintiffs,

v.CITY OF MALDEN, Paul E. Johnson, Charles Ioven, Timothy L. Glynn, Arnold Kaufman, Robert Foley, Diane M. Chuha, Hattie Broome, David D'Arcangelo, and John Spadafora, Defendants.

Civil Action No. 06cvl2246-NG.

United States District Court, D. Massachusetts.

Decided: Jan. 22, 2010.

COPYRIGHT MATERIAL OMITTED

William J. Hunt, Michael J. Rossi Clark, Hunt, Ahern & Embry, Cambridge MA, for Plaintiffs.

Charles Toomajian, City Solicitor, Kathryn M. Fallon, Maiden Legal Department, Maiden, MA, for Defendants.

MEMORANDUM AND ORDER RE MOTION FOR ATTORNEY FEES & COSTS

GERTNER, District Judge:

I. INTRODUCTION

Plaintiffs are a nonprofit organization Tri-City Community Action Program, Inc. ("Tri-CAP"), that provides housing to the homeless, and four disabled homeless persons ("Jane Doe and three John Does") who planned to live in the rooming house that Tri-CAP was to renovate. They sued the City of Maiden ("the City") to compel the issuance of a building permit that would allow Tri-Cap to retrofit the house in compliance with the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq.

There is no question that the plaintiffs were successful, admirably so. Plaintiffs obtained a preliminary injunction which ordered the City to refrain from interfering with the construction of the rooming house. By May of 2008, while the preliminary injunction was in force, Tri-CAP completed the construction, thereby rendering the suit moot.¹

Plaintiffs now move for an award of attorney fees and costs as prevailing parties under the fee-shifting provision of the Fair Housing Act Amendments of 1988 ("FHAA"), 42 U.S.C. § 3613(c)(2). As I describe below, there is no question that plaintiffs deserve to be paid for their efforts, and that the law requires it. The only question is the amount. For the reasons described below, I AWARD $48,994.00 in fees and $1,005.00 in costs.

II. BACKGROUND

Plaintiffs are Tri-CAP, a Maiden-based nonprofit that provides housing and services to chronically homeless and disabled adults, and four homeless persons slated to live in a new Tri-CAP facility. On January 11, 2006, Tri-CAP entered into a purchase and sale agreement ("PSA") to buy a fourteen-room house for $595,000. The house was already a rooming house-one of the last four licensed rooming houses in Maiden-but was deteriorating and underutilized. Tri-CAP planned $1.37 million in renovations to bring the building into compliance with the ADA. It had arranged for the funding for the project, much of it from the U.S. Department of Housing and Urban Development ("HUD").

In February 2006, Maiden's building inspector informed Tri-CAP that he would not issue a building permit. Tri-CAP submitted revised plans in April 2006, which were reviewed but then denied again in August 2006. Tri-CAP then applied to the Maiden Planning Board for a special permit to make the renovations. At a public hearing on October 11, 2006, several neighborhood residents raised concerns about the peace and safety of the neighborhood and their children. The meeting was continued until November 15, 2006, at which point the Board denied the permit application, without any statement of reasons.

Plaintiffs filed claims under the FHAA, 42 U.S.C. § 3601 et seq., for defendants' alleged discriminatory actions; 42 U.S.C. § 1983, for equal protection and due process violations; Mass. Gen. Laws ch. 40A, § 3 for abuse of discretion in connection with the denial of a permit; and various state constitutional and statutory provisions that protect disabled persons against discrimination. Asserting irreparable harm in connection with the delay in obtaining the permit and the risk of losing their HUD grant, plaintiffs sought injunctive relief, as well as damages.²

III. PROCEDURAL HISTORY

On December 15, 2006, plaintiffs filed a motion for a preliminary injunction. Having had absolutely no response from the defendants to its moving papers and facing a deadline, namely the building seller's demand for assurances that the permit be obtained by January 31, 2007, plaintiffs moved for a temporary restraining order ("TRO") on January 18, 2007. The defendants continued to ignore the suit. Plaintiffs filed a motion for default judgment on January 18, 2007, renewing it on January 30, 2007. But while defendants finally responded by opposing the default judgment, they did not oppose the motion for a preliminary injunction.

I granted a preliminary injunction enjoining the City from "interfering with or preventing Tri-City Community Action Program from purchasing, occupying and carrying out modifications" to the property. Electronic Order (January 31, 2007). And, while I denied the renewed motion for default judgment, I chastised the defendants:

The Court will not default the defendants, even though their explanation for the total failure to respond to plaintiffs' pleadings is barely reasonable. The preliminary injunction which the Court entered yesterday protects the plaintiffs from the immediate consequences of the defendants' dilatoriness. Under the circumstances, the litigation may proceed; a section 16(b) conference will be scheduled shortly.

Electronic Order (January 31, 2007). The preliminary injunction endorsement found that the plaintiffs were substantially likely to succeed on the merits of their claims as required by the Rule 65, Fed. R. Civ. Pro (all the while underscoring the court's concern with defendant's conduct):

There being no opposition, this Court GRANTS in part plaintiffs' motion for a preliminary injunction (docket # 2). Defendants are hereby ENJOINED from interfering with or preventing TriCity Community Action Program, Inc., from purchasing, occupying and carrying out modifications to the property at 115 Washington St. in Maiden set out in plaintiffs permit application submitted on 8/30/06 to the Maiden Planning Board. Pl.Ex. G (docket # 3-8), Exhibit H (docket #3-9). The motion for a preliminary injunction is denied with respect to monetary damages, and attorneys' fees which are not an appropriate subject for a preliminary injunction. The case was filed on December 15, 2006; a motion for a preliminary injunction accompanied the filing. The complaint was served with answers due on during the first week in January, 2007. The plaintiff-under considerable time pressure as described in its preliminary injunction papers, namely a January 31, 2007 deadline for the purchase of the property which was to be used for transitional housing-moved for a default and indicated to the defendants that it would do so by letter. The defendants did not respond in any way-by letter, by phone call, much less by pleadinguntil today, the very deadline that was the subject of the preliminary injunction. When the defendants finally responded, their response was only to seek to set aside the default, and not to oppose the preliminary injunction. On its face, the motion for preliminary injunction meets the standards of Rule 65, namely the likelihood of success on the merits, coupled with irreparable harm.

Id. (Italics supplied.)

On February 12, 2007, I ordered defendants to submit an answer. Plaintiffs filed a second motion for default judgment on March 12, 2007; the defendants had still not responded to the lawsuit. On April 3, 2007, defendants finally filed an answer, and, in what can only be described as extraordinary indulgence, I denied yet another motion for default judgment. A scheduling order entered shortly thereafter.

With the preliminary injunction in place, construction on the rooming house proceeded. J. Mot. to Set Deadlines at 2 (document # 40). Renovations were substantially completed by May of 2008. The Maiden City Council voted to renew the property's lodging house license on May 20, 2008, and the City issued a certificate of occupancy on September 15, 2008. The residence is currently fully occupied. These events rendered the case moot, leav- ing the parties to negotiate over plaintiffs' attorneys' fees, negotiations which were not successful. On May 8, 2009, plaintiffs filed a motion for attorneys' fees and costs, to which the defendants opposed.

IV. DISCUSSION

Under the FHAA, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee and costs." 42 U.S.C. § 3613(c)(2). Two issues are presented here: (1) whether the plaintiffs are prevailing parties, based on the preliminary injunction, and (2) if so, what amount of attorney fees should be awarded.

A. Plaintiffs Are Prevailing Parties

Plaintiffs are prevailing parties under fee-shifting statutes if "they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Tex. State Teachers Ass'n v. Garland Indep. Sch Dist, 489 U.S. 782, 789, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)) (internal citations omitted). In the instant case, while no final judgment on the merits ever issued, plaintiffs obtained a preliminary injunction based in part on my finding of their probability of success on the merits. Through the enforcement of the preliminary injunction and the passage of time, the case became moot before dispositive motions could be entered.

Prior to 2001, various courts of appeals had held that plaintiffs who were similarlysituated qualified as prevailing parties. See, e.g., Dahlem v. Bd. of Edue, 901 F.2d 1508, 1512 (10th Cir.1990) (male high school senior who obtained preliminary injunction permitting him to compete on girls' gymnastics team was a prevailing party, after the mooting of his claim when the season ended that year); Grano v Barry, 783 F.2d 1104, 1109 (D.C.Cir.1986) (citizens who obtained a preliminary injunction to prevent the demolition of historic tavern pending a referendum on the future of the tavern were prevailing par...