United States District Court, D. Delaware
SUE L. ROBINSON, District Judge.
At Wilmington this 29th day of April, 2015, having reviewed defendant's motion for reargument and the papers submitted in connection thereto; the court will deny the motion (D.I. 167), based on the following reasoning.
1. Procedural background. By order dated July 23, 2013, the court referred to Magistrate Judge Fallon plaintiffs motion to compel enforcement of order and agreement dated September 19, 2011 (D. I. 124), which order involved defendant's compliance with, inter alia, the Prison Rape Elimination Act. (D.I. 132) Magistrate Judge Fallon was to issue a Report and Recommendation in this regard on or before October 23, 2013, pursuant to 28 U.S.C. § 636(b).
2. Judge Fallon in fact issued her Report and Recommendation on October 23, 2013. (D.I. 144) The defendant timely filed objections thereto (D.I. 145), and plaintiff responded to the objections. (D.I. 146) The court issued its ruling on January 10, 2014, adopting in part and overruling in part the Report and Recommendation. (D.I. 147, 148) The court ordered defendant to comply with the recommendations contained in the Report and Recommendation as revised, and required that Magistrate Judge Fallon maintain jurisdiction to monitor defendant's compliance.
3. Plaintiff thereafter filed a motion for attorney fees, along with supporting declarations. (D.I. 149-154) Defendant opposed. (D.I. 155) Magistrate Judge Fallon issued her ruling on September 17, 2014, recommending that the court grant the motion for fees, albeit for only 80% of the fees requested. (D. I. 162) Defendant timely filed objections to the Report and Recommendation. (D.I. 163) Of significance is the fact that, while defendant objected to the award of fees, the only observation defendant made with respect to the amount of fees (if awarded) was the following. contained in a footnote:
DOC has not waived the right to challenge the calculation of any fee awarded, and, as noted by the Magistrate Judge, DOC cited the fee demand as "outrageously excessive." R&R at 10, footnote 8. This Court retains full authority to examine de nova the amount of the fee claim. In particular, the award of 80% of fees claimed cannot be sustained, where the plaintiff ultimately failed to prevail on more than 90% of the claims set forth in the motion, and did not even bother to pursue claims of so-called "bad faith" on the part of DOC and BWCI officials. Any fee award must be based on the scope of the plaintiffs success, if any. Hensley v. Eckerhart, 461 U.S. 424, 433-435 (1983).
(Id. at 2, n.2) The court overruled the objection and adopted the recommendation, concluding that plaintiffs "motion to compel motivated DOC to push ahead more energetically with its efforts to comply with the Order." (D.I. 165 at 5) In other words, the only reason defendant was ultimately compliant was because plaintiff brought defendant into court. With respect to the reasonableness of the fee award, the court reasoned:
[Defendant] did not address in its objections the amount of the requested fee, instead reserving the right to challenge such at a later time. I am not confident that the rules contemplate a bifurcated objection process. In any event, I will not address the merits of the fee award on the record presented.
(D.I. 165 at 5)
4. On December 22, 2014, 28 days after the above order issued, defendant filed a paper captioned "Defendant's Motion for Reargument and to Amend or Alter Judgment." (D.I. 167) Defendant moved for relief from the payment of the fees awarded ($125, 269) pursuant to "Local Rule 7.1.5 and Rule 59(e) of the Federal Rules of Civil Procedure." (Id. at 1) Defendant argues that it properly preserved its right to contest the amount of the fees awarded, and that "[a] ruling that fails to consider factors such as lack of success in argument and an excessive hourly rate in awarding attorney fees would not be sustainable on appeal.... The present Motion affords the Court an opportunity to reduce the gross fee award and substitute therefore a new fee award, and to make a record of the consideration of those factors." (Id. at 2) Defendant proposes that
[t]he record developed for purposes of the fee award would... support an award of either:
25% of the total fees sought (reflecting the compliance issues originally raised by the plaintiff, compared to the uncontested areas of full compliance by DOC) or $31, 317.25;
35% of the total fee claim (representing the percentage of issues raised in the motion on which the ACLF ultimately prevailed) or $43, 844.15; or
53% of the total fee claim (representing the degree of success achieved, on the issues actually submitted to the Court ...