United States District Court, D. Connecticut
CHABAD LUBAVITCH OF LITCHFIELD COUNTY, INC., et al., Plaintiffs,
BOROUGH OF LITCHFIELD, CONNECTICUT, et al., Defendants.
RULING RE: MOTION FOR ATTORNEY FEES AND COSTS (DOC.
C. Hall United States District Judge.
action arose out of a denial of an application for a
Certificate of Appropriateness made by Chabad Lubavitch of
Litchfield County (“the Chabad”) to the Historic
District Commission of the Borough of Litchfield (the
“Commission”). The Chabad alleged that the
Commission's denial substantially burdened its religious
exercise, in violation of the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), title
42 section 2000cc et seq. of the United States Code.
The defendants, the Commission and the Borough of Litchfield,
denied this allegation.
initial Complaint, the Chabad asserted Free Exercise, Free
Speech, and Freedom of Association claims under the First and
Fourteenth Amendments; Due Process and Equal Protections
claims under the Fourteenth Amendment; and Substantial
Burden, Nondiscrimination, and Equal Terms claims under
RLUIPA. The Chabad also alleged Civil Conspiracy under title
42 section 1985(3) of the United States Code; Failure to
Prevent Violations and Civil Conspiracy under title 42
section 1986 of the United States Code; claims under the
Connecticut State Constitution; and a Free Exercise claim
under the Connecticut Religious Freedom Act, Connecticut
General Statutes section 52-571b.
original suit was brought by the Chabad and Rabbi Joseph
Eisenbach, founder and current leader of the Chabad Lubavitch
of Litchfield County, against the Commission, the Town of
Litchfield, several members of the Commission in their
individual and official capacities, and several Doe
defendants. By the Third Amended Complaint, however, the
plaintiffs had dropped their claims against the Town of
Litchfield and the Doe defendants.
court granted summary judgment in favor of the defendants on
all claims. See Chabad Lubavitch v. Borough of
Litchfield, 796 F.Supp.2d 333 (D. Conn. 2011). The
Chabad appealed that judgment, and the Second Circuit
remanded the case, vacating the judgment with respect to two
of the claims: the Substantial Burden claim and the
Nondiscrimination claim. See Chabad Lubavitch of
Litchfield Cty., Inc. v. Litchfield Historic Dist.
Com'n, 768 F.3d 183 (2d Cir. 2014).
Second Circuit dismissed all claims against one of the
Commission members, Wendy Kuhne. See id. at 187 n.1.
The plaintiffs subsequently voluntarily withdrew all claims
against the other two Commission members, Glenn Hillman and
Kathleen Crawford. On the eve of trial, Rabbi Eisenbach
voluntarily withdrew from the case as a plaintiff, following
the court's Ruling on a Motion in Limine that evidence of
damages was inadmissible. Because that Ruling eliminated all
legal claims, the remaining plaintiff, the Chabad, had no
right to a trial by jury. Therefore, by the time trial
commenced, the case had evolved from a two-plaintiff,
twelve-defendant, twelve-count action to an action by a
single plaintiff against two defendants on one claim for
injunctive relief: Substantial Burden under RLUIPA.
case was tried to the court over a three day period. At
trial, the Chabad argued that all the uses of the proposed
construction were religious exercise, at least in part, and
that its proposal represented the minimum size necessary to
accommodate its religious exercise. Furthermore, the Chabad
argued that the Commission was disingenuous in articulating
conditions under which a revised proposal would be accepted,
and that the denial should therefore be interpreted as an
absolute denial of any construction or modification of
property at 85 West Street.
Bench Ruling issued on November 2, 2017, the court found that
the Chabad's religious exercise was substantially
burdened by the Commission's denial of its application
for a certificate of appropriateness, specifically because
the first floor footprint that the denial would have
permitted was not large enough to accommodate the
Chabad's religious needs. See Bench Ruling (Doc.
No. 325) at 46-47. The court granted the Chabad's prayer
for relief in part. Id. at 70-71. Specifically, the
court issued a mandatory injunction as follows:
[T]he court issues a mandatory injunction ORDERING the
Historic District Commission of the Borough of Litchfield
(the “Commission”) to approve forthwith an
application of the Chabad Lubavitch of Litchfield County (the
“Chabad”) for a certificate of appropriateness
based on the court's conclusion that the denial
substantially burdened the Chabad's religious exercise
without a compelling governmental interest exercised in the
least restrictive means, in violation of the Religious Land
Use and Institutionalized Persons Act, title 42, section
2000cc et seq, of the United States Code, within the
First, the conditions in the Commission's Decision that
do not relate to the size of the addition are still in
effect, because those conditions were not challenged by the
Chabad. See supra p. 22 & note 7.
Second, given the needs of the Chabad with respect to the
proposed religious uses of the first and basement floors of
the proposed structure, the Chabad is entitled to a first
floor and basement level as proposed in the Boe plans.
Third, because the Chabad's religious exercise will not
be substantially burdened if the rabbi's residence is not
inside the Chabad House, the application should be modified
to remove what is currently the second story of the Boe
The Chabad is hereby ordered to submit an amended application
consistent with these conditions, or a modified application
if agreed to by the parties without the approval of the
court, within thirty days of the date of this Ruling. Upon
receipt of said application, the Commission is ordered to
approve said application within thirty days.
Id. In a footnote to the mandatory injunction
section, the court stated:
The court notes that, because the sub-basement is located
entirely below-grade and is therefore beyond the purview of
the Commission, the court knows of no reason why the
Commission would have the authority, much less the reason, to
deny the Chabad the ability to construct the sub-basement
level as proposed. In addition, given that removal of the
rabbi's residence level from the application will
significantly decrease the mass and roofline of the addition,
the court is of the view that the staff residential level,
either as proposed or with modifications to incorporate /
connect it to the second story of the original Deming House,
will not conflict with the Commission's stated goals of
protecting the residential character of the area and not
overwhelming the original structure.
Id. at 71 n.21. In sum, the court agreed with the
Chabad's position that its religious exercise was
substantially burdened, but disagreed with the Chabad's
position as to the extent of the burden.
November 16, 2017, the Chabad moved for the award of attorney
fees and costs. See generally Plaintiff's Motion
for Attorney Fees and Costs (“Pl.'s Mot.”)
(Doc. No. 329). The defendants oppose the Chabad's
Motion. See Objection re Motion for Attorney Fees
(“Def.'s Response”) (Doc. No. 338).
Subsequently, on May 16, 2018, the defendants moved for
permission to file supplemental exhibits. Specifically, the
defendants assert that the Chabad submitted a significantly
revised application to the HDC which was approved by the HDC
in May 2018. Motion for Permission to File Supplemental
Information (“Def.'s Mot. to Supplement”)
(Doc. No. 343). The Chabad asserts that the revised
application and approval “does not in any manner moot
attorneys fees” and should not be considered by this
court. Plaintiff's Response to Defendant's Request
for Supplemental Briefing (“Pl.'s Obj. to
Supplement”) (Doc. No. 344).
reasons set forth below, the Chabad's Motion for Attorney
Fees and Costs is granted in the amount of $717, 405.95.
their Motion for Attorney Fees and Costs, the Chabad requests
a total monetary award for attorney fees and costs in the
amount of $1, 640, 110.36, broken down as follows:
Attorney fees for Herbst & Herbst and Robinson
& Cole (underlying administrative proceeding)
Attorney fees for the American Liberties Institute
Attorney fees for Halloran & Sage (local
Attorney fees for Dalton & Tomich, LLC
Chabad makes its Motion pursuant to section 1988 of title 42
of the United States Code, which provides, in pertinent part,
In any action or proceeding to enforce a provision of . . .
the Religious Land Use and Institutionalized Persons Act of
2000 . . . the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs . . . .
42 U.S.C. § 1988(b).
case, the defendants assert that the Chabad is not entitled
to attorney fees at all because the Chabad is not a
“prevailing party” within the meaning of section
1988. See Def.'s Response at 12-17. The
defendants further argue that the Chabad is not entitled to
reimbursement for expenses such as “airfare, car
rentals, fuel, tolls, and meals.” Id. at
17-18. In addition, the defendants raise specific challenges
to the Chabad's particular fee claims, including: (1)
that the Chabad is not entitled to fees for the proceeding
before the Commission that underlies this action,
id. at 18-21; (2) that much of the work performed by
local counsel and out-of-state counsel was duplicative,
id. at 21-23; (3) that the Chabad wasted money by
hiring out an out-of-state expert in RLUIPA litigation,
Attorney Daniel Dalton, id. at 24-25; and, finally,
(4) that the court should cap the number of compensable hours
devoted to the fee application to five percent of the number
of hours devoted to the main case, id. at 26-27.
Whether the Chabad “Prevailed”
statutory language makes clear, a threshold determination for
the court is whether the Chabad is a “prevailing
party.” 42 U.S.C. § 1988(b) (“[T]he court,
in its discretion, may allow the prevailing party .
. . a reasonable attorney's fee . . . .”) (emphasis
added); see LeBlanc-Sternberg v. Fletcher, 143 F.3d
748, 757 (2d Cir. 1998) (“The question of whether a
plaintiff is a ‘prevailing party' within the
meaning of the fee- shifting statutes is a threshold question
that is separate from the question of the degree to which the
plaintiff prevailed.”). The Supreme Court has held that
a plaintiff “prevails” within the meaning of
section 1988 “when actual relief on the merits of [its]
claim materially alters the legal relationship between the
parties by modifying the defendant's behavior in a way
that directly benefits the plaintiff.” Farrar v.
Hobby, 506 U.S. 103, 111-12 (1992). Thus, in Rhodes
v. Stewart, 488 U.S. 1 (1988), the Supreme Court denied
the plaintiff's motion for attorney fees awarded based on
a declaratory judgment that prison officials had violated the
plaintiffs' First and Fourteenth Amendment rights.
“By the time the District Court entered judgment,
‘one of the plaintiffs had died and the other was no
longer in custody.'” Farrar, 506 U.S. at
110 (quoting Rhodes, 488 U.S. at 2). “Under