Gilleran v. RDP (Fees and Reconsideration)

NOT TO BE PUBLISHED WITHOUT
THE APPROVAL OF THE COMMITTEE ON OPINIONS
SUPERIOR COURT OF NEW JERSEY
PATRICIA GILLERAN,
LAW DIVISION
Plaintiff,
BERGEN COUNTY
v.
THE RUTHERFORD DOWNTOWN
PARTERNSHIP, INC. and JOHN
DOE, in their capacity as Records
Custodian for the Rutherford
Downtown Partnership,
DOCKET No. BER-L-6239-14
CIVIL ACTION
OPINION
Defendants.
Decided: September 5, 2014
Honorable Peter E. Doyne, A.J.S.C.
Introduction
The instant application for attorney’s fees filed on behalf of the plaintiff, Patricia Gilleran
(“Gilleran” or “plaintiff”), follows a previous written opinion of this court dated August 1, 2014.
The prior action was filed by Gilleran asserting a violation of Open Public Records Act, N.J.S.A.
§ 47:1A-1 to -13 (“OPRA” or the “Act”) by the Rutherford Downtown Partnership (“RDP”) and
their records custodian (collectively “defendants”). The court in its earlier decision held the RDP
violated OPRA. Pursuant to the decision, if the parties failed to agree upon attorneys’ fees, the
court required the plaintiff’s counsel to submit certifications regarding fees within ten (10) days
of the decision and the defendants were granted seven (7) days to respond. Herein, the court
considers the reasonable attorney’s fees, CJ Griffin, Esq. (“Griffin”), counsel for Gilleran, is
entitled pursuant to that earlier opinion. Additionally, the court considers a motion for
reconsideration which the defendants’ had filed on their behalf and the plaintiff’s reply in
opposition to that motion.
Facts/Procedural History
As the facts underlying this matter were previously explicated in the court’s earlier
opinion, those facts are incorporated herein as if set forth at length. However a brief summary of
the relevant facts are provided.
In 1984, legislation was promulgated to permit municipalities to create self-funding
Special Improvement Districts (“SID”) and District Management Corporations “to execute selfhelp programs to enhance their local business climates.” N.J.S.A. 40:56-65(b). In 1997, pursuant
to Rutherford Borough Ordinance #2776-96, Rutherford Borough Code 105A-1, and N.J.S.A.
40:56-65, the RDP, a non-profit corporation, was created. The RDP has its principal place of
business at 1 East Erie Avenue, Rutherford, New Jersey.
The RDP’s budget is overseen by the Borough of Rutherford (“Borough”), which
performs assessments to provide funding for the RDP. The Borough imposes a special
assessment of six (6) percent of the assessed value of the commercial space of the building on
property owners in the core areas of the district and requires business owners to pay an annual
license fee. These monies are turned over to the RDP to promote economic development and
combat community deterioration.
The RDP is governed by a Board of Trustees comprised of fifteen members including
five property owners, five business owners, three residents appointed by the Mayor and Council,
a member of the Borough Council, and a representative from the Rutherford Chamber of
Commerce. Neither the Articles of Incorporation nor the by-laws can be amended without prior
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consent of the Mayor and Council. The Mayor and Council president were two of the three
incorporators of the RDP.
On May 22, 2014, the plaintiff submitted an OPRA request via email to the RDP.
Approximately thirty minutes after receipt, Cori Verdino (“Verdino”), Assistant Manager for
RDP, purportedly authored a response to Gilleran advising the RDP does not respond nor
forward such requests. Instead Verdino’s email advised any and all requests must be made to the
Borough. Gilleran certified she never received said email response.
Subsequently, on June 25, 2014, a verified complaint was filed on the plaintiff’s behalf
with an order to show cause and a letter brief in support of the relief requested. The plaintiff
alleged the defendant violated OPRA by failing to provide copies of documents requested within
the seven day time period mandated by the statute. Oral argument was entertained on August 1,
2014.
On August 1, 2014, this court authored its written opinion. Premised upon the statutory
intent of OPRA and supported by a recent unpublished Appellate Divison case, Kennedy v.
Montclair Ctr. Corp. Bus. Improv. Dist., A-4591-12T2, 2014 N.J. Super. Unpub. LEXIS 1654
(App. Div. June 24, 2014)1 (the “Kennedy decision”), RDP was found to be a “public agency”
and subject to the mandates of OPRA. See N.J.S.A. 47:1A-1.1. Therefore, RDP violated
OPRA: the RDP did not forward Gilleran’s request to the records custodian, the RDP did not
identify the records custodian, and the RDP failed to timely provide the requested records.
A. Pleadings
On August 11, 2014, the plaintiff had filed on her behalf an application for attorney’s
fees pursuant to OPRA. Included was a certification provided by Griffin seeking $13,306.17 in
1
While unpublished cases are not precedential, the similarities between the cases made it particularly informative in
the decision. See R. 1:36-3.
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attorney’s fees and court costs. Subsequently, on August 28, 2014, Griffin provided a
supplemental certification seeking an additional $2,250.00 in attorney’s fees reflecting the
services she had performed for the plaintiff since the initial fee application. In total, Griffin
requests reimbursement for 49.50 billable hours at $300.00 per hour. This equates to $14,850.00
given the hourly rate utilized. Griffin also seeks $706.17 in costs for filing, online legal research,
copying fees, and delivery charges. The defendants had a motion for reconsideration and
opposition to the plaintiff’s application submitted on their behalf on August 19, 2014. The
plaintiff had filed a reply on August 28, 2014. Neither party requested oral argument.
Law
A. OPRA Fees
Pursuant to N.J.S.A. § 47:1A-6, “[i]f it is determined that access has been improperly
denied, the court or agency head shall order that access be allowed. A requestor who prevails in
any proceeding shall be entitled to a reasonable attorney’s fee.” The Supreme Court of New
Jersey in Mason v. City of Hoboken, 196 N.J. 51 (2008), interpreting legislative revisions to the
Act, held “OPRA mandate[s], rather than permit[s], an award of fees to a prevailing party.” Id.
at 75.
B. Determining Attorney’s Fees
The first step in the attorney fee-setting process is to calculate the “lodestar.” The
lodestar is defined as the number of hours reasonably expended multiplied by a reasonable
hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Walker v. Guiffre, 209 N.J. 124,
130-31 (2012); Rendine v. Pantzer, 141 N.J. 292, 334-35 (1994). Determining the lodestar is not
an exact calculation, and the primary aim is to approve a reasonable attorney’s fee that is not
excessive. Litton Industries Inc., 200 N.J. at 338. To determine the amount of the lodestar, a
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trial court must carefully evaluate both the hours expended and the specific hourly rates
advanced by the prevailing party’s counsel in support of the fee application. Id.
The first determination in the lodestar calculation is whether the amount of time billed
was reasonably expended by the applying party. Rendine, 141 N.J. at 334-35. The applying
attorney’s organization of billable hours should be presented in sufficient detail to allow the trial
court to determine how the billable hours were expended. Id. at 337. Hours not reasonably
utilized, for example those that are “excessive, redundant, or otherwise unnecessary[,]” should be
stricken from the lodestar calculus. Id. at 336 (quoting Rode v. Dellarciprete, 892 F.2d 1177,
1183 (3d Cir. 1990) (internal citations omitted)).
The second step of the lodestar calculation is to verify whether the hourly rates charged
by the prevailing party’s attorneys in the litigation are reasonable. Rendine, 141 N.J. at 337. A
reasonable hourly rate is calculated according to the relevant and current prevailing market rates
in the “community[.]” Id. This market rate is established by comparing the skills and rates of
the prevailing party’s attorney against the rates of attorneys of reasonably comparable skill. Id.
Although the required analysis should not be unnecessarily complicated, the court should
appropriately “satisfy itself that the assigned hourly rates are fair, realistic, and accurate[.]” Id.
Rule of Professional Conduct 1.5(a) provides that “[a] lawyer’s fee shall be reasonable”
in all cases, not just in fee-shifting cases. RPC 1.5(a) catalogues the “factors to be considered in
determining the reasonableness of a fee,” which include the following: 1) the time and labor
required, the novelty and difficulty of the questions involved, and the skill requisite to perform
the legal service properly; 2) the likelihood, if apparent to the client, that acceptance of the
particular employment will preclude other employment by the lawyer; 3) the fee customarily
charged in the locality for similar legal services; 4) the amount involved and the results obtained;
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5) the time limitations imposed by the client or by the circumstances; 6) the nature and length of
the professional relationship with the client; 7) the experience, reputation, and ability of the
lawyer or lawyers performing the services; and 8) whether the fee is fixed or contingent. RPC
1.5(a).
The court must not include excessive and unnecessary hours spent on the case in
calculating the lodestar. Id. at 335-36 (noting that it is not “time actually expended,” but time
“reasonably expended” that matters and that “[h]ours that are not properly billed to one’s client
also are not properly billed to one’s adversary”) (quoting Copeland v. Marshall, 641 F.2d 880,
891 (D.C. Cir. 1980)). Whether the hours the prevailing attorney devoted to any part of a case
are excessive ultimately requires a consideration of what is reasonable under the
circumstances. Moreover, when the request for attorneys’ fees appears disproportionate to the
amount actually recovered by the prevailing party, “the court must consider that fact in
determining the overall reasonableness of the attorney’s fee award.” Litton, supra, 200 N.J. at
388. The Supreme Court of New Jersey has said that when “the amount actually recovered is
less than the attorney's fee request, the court must consider that fact in determining the overall
reasonableness of the attorney's fee award.” Id. at 387-88.
Even if an attorney’s fee is deemed reasonable based on the lodestar calculation, fairness
and economic considerations may merit a financial enhancement of the lodestar. After the
lodestar has been computed, the trial court may increase the fee “to reflect the risk of
nonpayment in all cases in which the attorney's compensation entirely or substantially is
contingent on a successful outcome.” Rendine, 141 N.J. at 337 (emphasis added). An award
cannot be considered reasonable unless the lodestar reflects the actual risk that the attorney may
not receive payment if the suit is unsuccessful. Id. at 338. Contingency enhancements in fee-
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shifting cases should ordinarily range between five- and fifty-percent of the lodestar. Walker,
209 N.J. at 138 (construing and applying Rendine, 141 N.J. at 343). Such enhancements should
never exceed one-hundred percent of the lodestar amount. Id.
C. Reconsideration
A motion for reconsideration pursuant to R. 4:49-2 “shall state with specificity the basis
on which it is made, including a statement of the matters or controlling decisions which counsel
believes the court has overlooked or to which it has erred.”
Reconsideration should be utilized only for those cases which fall into that narrow
corridor in which either (1) the court has expressed its decision based upon palpably incorrect or
irrational basis, or (2) it is obvious that the court either did not consider or failed to appreciate
the significance of probative, competent evidence. See Cummings v. Bahr, 295 N.J. Super. 374
(App. Div. 1996). Further, a motion for reconsideration must contain a statement of controlling
decisions which counsel believes the court has overlooked. See, Lahue v. Pio Costa, 263 N.J.
Super. 575, 598 (App. Div. 1993).
Alternatively, if a litigant wishes to bring new or additional information to the court's
attention, which it could not have provided on first application, the court should, in the interest of
justice and in exercise of sound discretion, consider such evidence. R. 4:49-2. Disagreement,
however, is not a valid ground for a motion for reconsideration. See, D’Atria v. D’Atria, 242
N.J. Super. 392, 401 (Ch. Div. 1990) (“a litigant should not seek reconsideration merely because
of dissatisfaction with a decision of the court”). Motion practice must come to an end at some
point, and if repetitive bites at the apple are allowed, the core will swiftly sour. See, Cummings,
supra, 295 N.J. Super. at 384. Thus, the court must be sensitive and scrupulous in its analysis of
the issues in a motion for reconsideration.
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Analysis
A. Attorney’s Fees
As the plaintiff is the prevailing party, she is entitled to reasonable attorney’s fees. First,
the rate per hour at which Griffin will be paid must be determined. Griffin requests
reimbursement at a rate of $300 dollars per hour. Griffin regularly litigates OPRA cases and is
the author of Pashman Stein’s OPRA Blog. As the defendant fails to proffer any objections to
this rate and as it appears aligned with the skill and expertise of Griffin, the rate is deemed
reasonable. Therefore, the rate of $300 per hour shall be utilized in determining the fees owed to
Griffin.
Second, it must be determined if the hourly rates charged by the prevailing party’s
attorney are reasonable. Griffin seeks reimbursement for 49.50 hours of work. Counsel for the
defendants raises concerns about the amount of time expended by Griffin. The defendants assert
all of the research and drafting appears to have been done for the first time which seems unlikely
for the experience of the plaintiff’s firm. Additionally, the defendants contend as most of the
points were not in dispute and as no exemption or privilege was stated, the gathering of
background information on the RDP and compiling of exhibits were unnecessary. While the
defendants wish to assert this case was straightforward when arguing for lesser fees, the law
regarding special improvement districts as “public agencies” was not well settled, a point the
defendants curiously rely upon in their motion for reconsideration.
The defendants contend the actions by Verdino was not “knowingly or willful” which
should limit the award of attorney’s fees. The court concedes this noting the prior decision never
identified Verdino’s actions as done in bad faith or as an attempt to willfully obstruct the
process. Yet, nothing in the case law permits a good faith denial to prevent plaintiff’s counsel
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from obtaining legal fees. In fact the statute expressly states: “A requestor who prevails . . . shall
be entitled to a reasonable attorney’s fee.” N.J.S.A. 47:1A-6 (emphasis added). Premised upon
the catalyst theory, a prevailing party shall be entitled to fees. Although Verdino was not acting
in bad faith, a custodian’s good faith denial does not permit denying the prevailing party
attorney’s fees.
Somewhat more compelling however, is the defendants’ contention the plaintiff’s counsel
made no effort to obtain compliance or work together with the RDP to resolve the matter prior to
the filing of a lawsuit. OPRA provides the custodian must reach a reasonable resolution with the
requestor where the request may necessitate an extension of time or may cause disruption the
agency’s operations. However, “[t]he statute is designed both to promote prompt access to
government records and to encourage requestors and agencies to work together toward that end
by accommodating one another.” Mason v. City of Hoboken, 196 N.J. 51, 78 (2008). There is a
breadth of case law discussing the custodian’s duty to cooperate with the requestor but little to
none addressing an affirmative duty, if any, by the requestor to cooperate with the custodian.
While it remains within the spirit of OPRA for both parties to work together in good faith, it
appears the requestor is not required to seek a resolution if records are denied, although the same
is clearly preferable. Instead, the requestor may either bring a suit in the Superior Court or file an
action with the Government Records Council.
Finally, the defendants also assert the RPD has since taken administrative steps such as
modifying its website to include a link to the Borough’s OPRA request form and discussing how
to modify its management to comply with OPRA. While these steps are to be commended, they
do not mitigate the statutory requirement to provide attorney’s fees to the prevailing party.
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The plaintiff is the prevailing party and shall be entitled to reasonable legal fees.
Plaintiff’s counsel is commended for her effective advocacy on behalf of Gilleran and shall be
compensated for 49.50 hours of work at a rate of $300 per hour and $706.17 in court costs and
expenses for a total award of $15,556.17.
B. Reconsideration
The defendants seek reconsideration of the court’s determination the RDP is a “public
agency” and violated OPRA by failing to respond to Gilleran’s request. Reconsideration is only
appropriate in a narrow set of cases where either (1) the court has expressed its decision based
upon palpably incorrect or irrational basis or (2) it is obvious that the court either did not
consider or failed to appreciate the significance of probative, competent evidence. See
Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996).
The defendants assert there are conflicting opinions on whether or not a SID would
constitute a “public agency” and as this legal issue is evolving, the court should reconsider its
prior decision. The defendants also request the court take judicial notice that the Kennedy
decision was decided after the OPRA request was made and only one month prior to this lawsuit.
The defendants assert the State is also unclear if SIDs are public or private entities but concedes
the Department of Community Affairs recommends they meet the spirit of OPRA.
However, as the Kennedy decision is unpublished it only provided additional persuasive
support to the court’s decision and there is no suggestion it should looked at only prospectively.
Accordingly, the defendants’ contention the RDP should not be considered a public agency at the
time of Gilleran’s request is rejected. Additionally, the Kennedy decision was not dispositive.
While whether a SID should be considered a “public agency” is an area without considerable
review, allowing the RDP to shelter itself as a private agency would frustrate the intent of OPRA
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and would promote secrecy in government, an anathema to transparency in government and
violative of the policies of OPRA. Although the law may not be well settled, it does not follow
that the court’s prior decision was palpably incorrect or did not consider the significance of the
competent evidence. Therefore, the defendants’ motion for reconsideration is denied.
Conclusion
The amount of fees requested by Griffin is fair and aligned with the intent of the OPRA
statute. The work performed by Griffin shall be paid at a rate of $300 an hour. The total award of
attorney’s fees shall be $14,850.00. Griffin shall also receive $706.17 in court costs for the filing
of the complaint and order to show cause as these fees were uncontested. Therefore, Griffin
shall be awarded the total amount of $15,556.17.
As the defendants’ motion for reconsideration does not demonstrate the prior decision
was either palpably incorrect and presents no new evidence which the court did not consider, it
shall be denied.
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