The opinion of the court was delivered by: LACEY
Application having been made to this court by various defendants for attorneys' fees and costs, and the court having considered the arguments and submissions of counsel; and
The court having determined that plaintiff's § 1981 and Title VII claims against all of the individual defendants except Lowell W. Herron were frivolous; and the court having also determined that plaintiff's § 1985, defamation, and New Jersey Law Against Discrimination claims against FDU and all individual defendants were frivolous;
IT IS this 14 day of March, 1983, ORDERED that plaintiff pay defendants $12,755.50 for services rendered in connection with the merits of the case; $7,759 for services rendered in connection with the fee application; and $4,361.02 in costs, for a total of $24,875.52, all in accordance with an opinion filed this date with the clerk of the court.
On this application by various defendants for attorneys' fees and costs, a review of the history of these proceedings is appropriate, to be read with this court's Findings of Fact and Conclusions of Law filed herein on September 24, 1982, in connection with the court's determination of plaintiff's Title VII claim against the plaintiff and in favor of the then remaining defendant, Fairleigh Dickinson University (FDU).
I. HISTORY OF PROCEEDINGS
In this civil rights action, Edward H. Brown, a black adult male from New Jersey, sued under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., the thirteenth amendment of the United States Constitution, and 42 U.S.C. §§ 1981 and 1985(3), in order "to redress the deprivation of plaintiff's rights to equal employment practices by the defendants. . . ." Second Amended Complaint at 1. He also charged defendants with slander, libel, and violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. Originally named as defendants were FDU, located in Rutherford, New Jersey, twenty-nine individual employees of FDU, and a private investigating agency.
Plaintiff was appointed Director of Purchasing at FDU in July 1969. He received yearly contract renewals for the years 1970-71, 1971-72, 1972-73, 1973-74, and 1975-76. On October 9, 1975, FDU's Vice President for Financial Affairs, Lowell W. Herron, terminated plaintiff's employment. The termination letter stated that plaintiff was being discharged because his "recent accusations regarding the integrity of certain administrators of the University" had produced "a serious disruptive effect within the administration," and because of personal transactions with vendors who did a substantial amount of business with FDU. Letter from Lowell W. Herron to Edward H. Brown, October 9, 1975. On February 11, 1976, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) against FDU, Dr. Herron, Milton Cooper, J. Osborn Fuller, Jerome Pollack, and Joseph Green. On December 17, 1980, the EEOC issued a Right to Sue letter. Plaintiff commenced this action by filing a verified complaint on March 17, 1981. At that time, plaintiff's attorney was Arthur N. Martin, Jr.
The original complaint alleged that defendants had discriminated against plaintiff in the terms, conditions, and privileges of employment because of his race, color and national origin. Although the complaint was diffuse and repetitive, the following specifics emerged. Plaintiff asserted that he had been "an active and aggressive advocate of equality of opportunity for minorities in all facets of the University's operations," Complaint, para. 10, and a vocal opponent of FDU's alleged racially discriminatory practices in hiring, purchasing, and treatment of black students. He stated that he had filed a complaint with the New Jersey Division of Civil Rights in 1973, alleging that FDU and four of its employees, Lowell Herron, J. Osborn Fuller, Harry Bingham, and Milton Cooper, had discriminated against him because of his race; in July 1975 he amended the complaint to include charges of reprisal. Id., P 10, P 16. Plaintiff alleged that the defendants had discharged him in retaliation for his filing of the complaint with the Division of Civil Rights, and also for his activist role at the University. He also alleged that, while he was employed, defendants had harassed him by excluding him from planning and decisionmaking; assigning many of his job functions to other employees; refusing to provide support when he required it; denying him equal opportunity to bid on job vacancies within the University; placing him in a situation where discharge was likely; subjecting him to a "vicious smear campaign," id., P 10; and hiring a private investigating agency to question his acquaintances and to keep him under surveillance. By and large, the complaint did not detail the roles of individual defendants, but spoke instead of "defendant, Fairleigh Dickinson University" or "defendants, Fairleigh Dickinson University, et als."
In April 1981 plaintiff improperly and unsuccessfully attempted service of some of the many persons named in the complaint. At a conference on June 15, 1981, the court instructed plaintiff to re-serve the summons and complaint. When nothing had happened by June 29, 1981, the court held another conference and ordered plaintiff to serve an amended complaint "which will specifically detail the alleged discriminatory acts of each of the defendants in lieu of plaintiff stating the allegations in terms of what 'defendant, Fairleigh Dickinson University, et als.' allegedly did." Order of June 29, 1981. Plaintiff was ordered to file the amended complaint no later than July 7, 1981. The court also set a trial date of December 7, 1981; however, as will hereinafter appear, this date was not met and several extensions were necessary by reason of plaintiff's violation of pretrial orders and procedures prescribed by the court.
Plaintiff did not file his amended complaint until July 10, 1981. At a status conference on July 21, 1981, the court found that the amended complaint still lacked the ordered specificity, and directed plaintiff to clarify its ambiguities. On July 24, 1981, plaintiff filed his second amended complaint. The law firm of Lum, Biunno and Tompkins accepted service on behalf of FDU, Martin C. Conant, Jerome M. Pollack, and Ronald J. Von Essen, and filed an answer on behalf of those defendants on August 7, 1981. In mid-September 1981 plaintiff began to re-serve some of the other defendants at their business addresses. On November 23, 1981, Lum, Biunno and Tompkins filed an answer on behalf of James V. Griffo.
Meantime, on September 14, 1981, the law firm of Brown, Brown and Furst entered an appearance as attorneys (along with Martin) for plaintiff. Discovery then ensued from October 1981 through January 1982. Plaintiff worked zealously and actively on the case from its outset. As his brief in opposition to the fee application states,
Mr. Brown arranged his voluminous files for Ms. Singer's use and fully prepared her for the Cooper, Herron and Von Essen depositions. He spent more than five hundred hours, night after night, working with Ms. Singer on the development of the case and essentially lived in the law offices of Brown, Brown & Furst from October to January.
Plaintiff's Brief in Opposition to Defendant's Application for Attorneys' Fees at 4-5.
On October 27, 1981, plaintiff voluntarily dismissed the action as to twelve defendants, some of whom had still not been served. The complaint was dismissed as to Harry S. Bingham, Clifford Burnham, Milton H. Cooper, A. Steven Donofrio, Stephen Edmundson, Saul K. Fenster, Joseph Green, C. William Hall, Lowell W. Herron, Kenneth Hesselbirg, Malcolm L. Sturchio, and Robert Wiley. The dismissal as to Herron is of interest because it is undisputed that it was he who decided to, and did, fire Brown. According to defendants' counsel, at the time of these dismissals and during the course of discovery Ms. Singer made "numerous representations" that consents to dismissals would also be shortly forthcoming for defendants Pollack and Griffo. Affidavit of Dennis M. Cavanaugh, April 26, 1982 (Cav. Aff. III), para. 13. While plaintiff's counsel, Mr. Martin, later stated that Ms. Singer had never told him that she intended to dismiss Pollack and Griffo, see Transcript of Proceedings, May 4, 1982, at 12-13, Singer herself was never called upon to refute Cavanaugh's contention. Moreover, as late as March 22, 1982, plaintiff's then co-counsel, Michael Sussman, was under the impression that Pollack and Griffo had already been voluntarily dismissed from the case. Plaintiff's Brief in Opposition to Defendant's Application for Attorneys' Fees at 8. Nonetheless, voluntary dismissals as to Pollack and Griffo were never offered.
On February 5, 1982, the Brown firm applied to be relieved as counsel for plaintiff, "on the grounds that the relationship between plaintiff and [counsel] had deteriorated to the extent that it is inappropriate to continue in his representation" and because plaintiff had breached both an initial and a revised retainer agreement. Notice of Motion, January 18, 1982; see Affidavit of Raymond M. Brown, January 21, 1982, para. 3 - para. 4. Plaintiff did not oppose the motion; neither he nor Mr. Martin appeared at the hearing.
On February 11, 1982, the court granted the motion, thus making Mr. Martin sole counsel of record once again.
A pre-trial conference was held on February 5, 1982. The court ordered all discovery to be completed by March 9, 1982; trial was rescheduled for April 5, 1982. The order also set forth dates by which proposed jury instructions (for the jury issues), suggested findings of fact and conclusions of law (with critiques of the other side's suggested findings) (for the non-jury issues), and trial memoranda were due.
On March 10, 1982, defendants FDU, Von Essen, Conant, Pollack, and Griffo moved for dismissal of portions of the second amended complaint. After a hearing the court granted dismissal of "all claims alleging defamation and/or violations of N.J.S.A. 10:5 et seq.," but denied dismissal of claims under 42 U.S.C. §§ 1981 and 1985. Order of March 10, 1982. Since plaintiff had failed to provide answers to supplemental interrogatories, originally due by March 9, 1982, the order also extended plaintiff's time to answer the interrogatories until March 24, 1982.
On March 30, 1982, plaintiff applied for an adjournment of the trial date, still not having complied with the court's prior order. Nonetheless, to allow plaintiff more time, he was given until April 16, 1982, to comply, and the trial was postponed from April 5 to April 27, 1982. Later, as will be seen, the trial was postponed once again, until May 3, 1982 (after jury selection on April 27).
Two weeks before trial was scheduled to begin, on April 19, 1982, plaintiff moved on short notice for the admission pro hac vice of Michael H. Sussman, Assistant General Counsel of the National Association for the Advancement of Colored People (NAACP) Special Contribution Fund and a member of the Massachusetts bar. Defendants opposed the motion. The court held a telephone conference with counsel on April 19. In support of his motion, Mr. Martin stated, for the first time, that he had not participated actively in the case after the Brown firm had entered their appearance; that Mr. Sussman had assisted the Brown firm; and that, before he, Martin, had renewed his active representation of the plaintiff, the NAACP Special Contribution Fund had assured him that Mr. Sussman would assist him. See Affidavit of Arthur N. Martin, Jr., April 20, 1982 (Martin Aff. I), para. 3 - para. 6.
After hearing the arguments of counsel, the court denied the motion. The court stated that, since Mr. Martin had already put a considerable amount of time into the case and was thoroughly familiar with it, he should continue to try the case, and that Mr. Sussman could be present to aid him in any way and as much as was necessary. The court also expressed a fear that Mr. Martin was attempting to ease himself out of the case on the eve of trial, thus causing further postponement of the trial.
On the following day, April 20, 1982, plaintiff moved for reconsideration of the court's decision. Plaintiff and Mr. Martin submitted affidavits in support of the motion. Plaintiff stated that Mr. Sussman had been involved in the case since October 1981, meeting with Ms. Singer (of Brown, Brown and Furst) "on several occasions" and serving "in a consultative role, advising Ms. Singer of discovery strategy and doing back-up writing and research as necessary." Affidavit of Edward H. Brown, April 20, 1982, para. 5 - para. 6. Mr. Sussman also met with plaintiff and discussed the case with him. Id., P 6. In February 1982, after the Brown firm withdrew, plaintiff asked Mr. Sussman to serve as lead counsel but, because of other trial commitments, he was unable to do so. Id., P 7. Plaintiff stated that Mr. Sussman was his first choice as counsel, and asserted that his case would be prejudiced if Mr. Sussman were not allowed to represent him. Id., P 7, P 9, P 11. He also stated that the admission of Mr. Sussman would not delay trial. Id., P 10. Mr. Martin's affidavit did not address the question of delay.
The court granted the motion for reconsideration and held a hearing on April 20, 1982. Mr. Martin repeated his arguments of the previous day and stated that the admission of Mr. Sussman would not delay trial, an obvious reference to Mr. Sussman's familiarity with the case gained while working on it with the Brown firm. Transcript of Proceedings, April 20, 1982, at 4. Upon reconsideration, the court adhered to its earlier ruling. The court again stated that Mr. Sussman could attend the trial and could do anything he wished to help Mr. Martin. Id. at 6. The court denied the motion, however, because:
I want to be absolutely sure that nothing occurs, that there is absolutely no basis for any applications that in any way will hinder this matter going to trial. And while I can accept now counsel's representations made in good faith that nothing would be drawn from [Mr. Sussman's] coming in on pro hac vice grounds to impair what I've just said will be our goal and has been our goal, to put this case on trial, nonetheless the best way to assure that is to deny [him] pro hac vice status. But, on the other hand, I do hope that [he] will continue to remain in the matter.
At the same hearing, defendants cross-moved for costs and attorneys' fees due to Mr. Martin's failure to appear for a deposition of Senator Fairleigh S. Dickinson, Jr., scheduled for 9 a.m. that morning, April 20. Over defendants' objections, the court had allowed plaintiff to subpoena and depose Senator Dickinson, who had originally been named as a defendant in the case but had never been served. At 9:05 on the morning of April 20, defendants' counsel received a telephone message saying that the deposition was cancelled. Approximately half an hour later, Mr. Martin telephoned Dennis Cavanaugh, counsel for the defendants, and stated that he was not prepared for the deposition because he had hoped Mr. Sussman would take it. Transcript of Proceedings, April 20, 1982, at 7. Mr. Cavanaugh objected to providing Senator Dickinson for deposition again. The court denied the application for costs and attorneys' fees and allowed plaintiff a new date for deposition.
On the next day, April 21, 1982, notwithstanding this court's having stated Mr. Sussman could work with and assist Mr. Martin, plaintiff applied to the Court of Appeals of the Third Circuit for what amounted to a reversal of the order denying Mr. Sussman pro hac vice status. Circuit Judge John Gibbons denied the application. On April 26, 1982, a Third Circuit panel also denied the application.
Also on April 21, 1982, defendants FDU, Pollack, Conant, Von Essen, and Griffo moved for dismissal of the second amended complaint as a sanction for plaintiff's continued failure to comply with the court's discovery orders. In the alternative, defendants sought other sanctions. Although plaintiff had failed to comply with the court's orders of July 21, 1981, February 5, 1982, and March 30, 1982, regarding discovery, and defendants asserted that plaintiff's failure had prejudiced their preparation for trial, Affidavit of Dennis M. Cavanaugh, April 19, 1982 (Cav. Aff. II), para. 23, the court denied the motion to dismiss. A $100 fine was imposed on Mr. Martin.
The court held trial preparation conferences on April 21, 23, and 27, 1982. On April 27, at an off-the-record conference in chambers, and after he had failed to reverse this court's order regarding Mr. Sussman, Mr. Martin told the court for the first time that he felt emotionally unable to go forward due to a personal problem, and requested a continuance. Defendants objected to any postponement, since counsel had already scheduled numerous witnesses for trial. The court listened sympathetically to Mr. Martin's explanation of his problems, but thought it advisable to keep to the scheduled trial date, and so denied the ...