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 continuance. The court determined that a jury should be picked, but that trial would not start before May 3. A jury was chosen on April 27, but was not sworn.
Also on April 27, defendants FDU, Pollack, Conant, Von Essen, and Griffo filed a notice of motion for dismissal of the second amended complaint against all persons named as defendants who had not been served, and for dismissal of portions of the second amended complaint against themselves. The motion was returnable April 29. When Mr. Martin told the court that his responding papers would not be ready by that date, the court put the matter over until May 4, to give plaintiff time to respond. Transcript of Proceedings, May 4, 1982, at 5.
On May 3, 1982, plaintiff filed a notice of motion for leave to file a substitution of counsel or, in the alternative, for Mr. Martin to be relieved as counsel. At that point, trial was now expected to begin on May 6, 1982. See Transcript of Proceedings, May 4, 1982, at 1. This time, by way of affidavit in support of the motion, Mr. Martin stated that he was unprepared to proceed to trial; Mr. Martin complained of the court's refusal to admit Mr. Sussman pro hac vice, and stressed Mr. Sussman's qualifications and his familiarity with the case. Affidavit of Arthur N. Martin, Jr., May 3, 1982 (Martin Aff. II), para. 5 - para. 9. The impression sought to be created was that Mr. Sussman was prepared but that Mr. Martin was not.
The court held a hearing on plaintiff's motion on May 4, 1982. After recapitulating the history of the case, the court denied the motion, perceiving it as just one more tactic of delay. The court pointed out the irony that plaintiff, through discovery, had helped to generate the "voluminous documentary evidence" with which Mr. Martin now claimed he was unprepared to cope (Martin Aff. II, para. 5), and stated that defendants, at a great expense to them, had been placed in an embarrassing position by plaintiff's failure to respond to discovery and by the repeated efforts at delay. Transcript of Proceedings, May 4, 1982, at 9-10. Mr. Martin was instructed to remain as counsel so that trial could proceed.
The court then considered defendants' motions for dismissal, to which plaintiff still had not responded. Defendants sought dismissal of the complaint against eight persons named in the complaint who had not been served (Fairleigh S. Dickinson, Jr., J. Osborn Fuller, Albert Geller, William McGarry, Samuel Bieber, Carol Johnston, James Brennan, and Joseph Carter). They also sought dismissal of the complaint against the individual defendants Pollack, Conant, Von Essen and Griffo, on the grounds that discovery had produced nothing which could set forth a cause of action against any of them. To prove this assertion, defendants' counsel submitted an affidavit to which he attached portions of plaintiff's deposition testimony and answers to interrogatories. Mr. Cavanaugh asserted, for example, that the only charge against defendant Pollack, the President of FDU, was that he had helped create a climate in which the University's middle management could come forward to discuss problems they were having with the University's Purchasing Department. Cav. Aff. III, para. 29. Mr. Cavanaugh stated that the charges against defendant Griffo were based entirely on two unfounded hearsay allegations, id., P 33; that defendant Conant, Secretary of the Board of Trustees of FDU, was accused only of playing a tape for an investigator from the Union County Prosecutor's office and of calling plaintiff "clever," id., P 31; and that defendant Von Essen, the University Internal Auditor, was accused only of taking actions which were within the scope of his employment. Id., P 35. Mr. Cavanaugh also repeated that Ms. Singer of the Brown firm had stated on numerous occasions that she intended to file voluntary dismissals of the complaint against Von Essen and Griffo, id., P 13, but had never done so.
Mr. Martin filed no affidavit in response to Mr. Cavanaugh's affidavit. He stated that he was aware of defendants' argument that there was no case against them, but (notwithstanding his earlier claim of being unable to go forward) asserted that he would be able to prove at trial that they denied plaintiff his rights. Transcript of Proceedings, May 4, 1982, at 13-14. He also said that he was unaware that Singer ever intended to dismiss as to Griffo and Von Essen. Id. at 12-13.
The court first stated that defendants' motion would be denied, Transcript of Proceedings, May 4, 1982, at 16, but then decided to continue the hearing until May 7 in order to give Mr. Martin a chance to prepare papers in response. Id. at 17. The court warned Mr. Martin that, if the claims proved frivolous at trial, the court would consider an application for attorneys' fees on behalf of the defendants. Id. at 15. See pp. 21-22, Infra. The court stated that trial would commence on May 7, 1982.
The next step by the plaintiff in what had now become a tragi-comic series of events was to file, on May 4, 1982, a motion for recusal and disqualification of this judge. Mr. Martin had not mentioned he planned such a motion when he was before this court. The motion was returnable May 7, the date trial was scheduled to begin. On May 5, 1982, the court notified counsel by telephone and telegram that, in the event the recusal motion was denied, trial would go forward on May 7 as scheduled. Transcript of Proceedings, May 7, 1982, at 10-11. The message further stated, "'Both counsel should be prepared to open to the jury and the plaintiff should be prepared to adduce testimony on this case.'" Id. at 11.
At the hearing on May 7, plaintiff argued that certain statements of the trial judge indicated a predisposition against plaintiff which made recusal necessary. He pointed to the trial judge's statement, "Life goes on," made to Mr. Martin during the off-the-record conference in chambers on April 27, 1982, upon hearing that there had been a problem in the Martins' adopting a baby. The court found that plaintiff mischaracterized that statement. Viewed in context, the statement did not indicate any prejudgment of the plaintiff; rather it was an attempt to encourage and hearten Mr. Martin:
I listened with sympathy to his personal problem and told him that I had learned a long time ago that work was the best antidote for personal problems; and that he could not withdraw from his practice, because he had to make a living.
Transcript of Proceedings, May 7, 1982, at 8. Plaintiff also ascribed to the court a statement that "'Brown was trying to destroy the university, bring it to its knees.'" Id. The court found that Mr. Martin misrepresented this statement. Id. Plaintiff alleged that the court showed predisposition when it "'raise[d] the possiblity'" that "'substantial legal fees'" could be awarded against plaintiff if his claims were frivolous. Id. The court found that the possibility of such an award was a legitimate one, which could not be disregarded. Id. at 8-9. Plaintiff also referred to a statement the court made in response to Mr. Cavanaugh's charge, on defendants' motion to dismiss, that Mr. Martin had not responded to his moving papers. When the statement was made, it appeared to the court that Mr. Martin's failure to respond was consistent with his claim that he needed assistance, and the statement was made in that light. Id. at 9. Although the court had made numerous rulings in the case, plaintiff did not suggest that any of them reflected a bias. Id. at 10.
The court denied the motion, finding it without basis in law or fact. Transcript of Proceedings, May 7, 1982, at 9. In addition, the court pointed to its thorough familiarity with the case and the imposition which transfer to another judge, on the eve of trial, would create. Id.
Mr. Martin had indicated that, if the motion was denied, he intended to appeal to the Third Circuit. The court offered to give plaintiff a stay so that he could appeal. Transcript of Proceedings, May 7, 1982, at 11-12. Circuit Judge John Gibbons denied plaintiff's motion, id. at 13.
Counsel then returned to this court and began to discuss the trial events.
At this juncture, after failure of the recusal effort, Mr. Martin stated that, as he returned from Judge Gibbons' chambers, plaintiff had handed him a note which read, "'Mr. Martin, you are excused as my attorney as of this very moment. Edward H. Brown.'" Transcript of Proceedings, May 7, 1982, at 14. Both Mr. Martin and Mr. Cavanaugh stated that they were prepared to proceed to trial, which was scheduled to start that afternoon. Id. Mr. Cavanaugh objected to a continuance, since the court had already granted plaintiff a number of continuances, as well as extensions of time within which to file papers. He stated that he had fourteen or fifteen witnesses, including six from out of state, who had set aside time to attend the trial, and that he himself had adjourned other trials in order to be present. Id. at 15. The court had also juggled trials on its calendar in order to accommodate plaintiff. Mr. Cavanaugh also stated that defendants would be prejudiced by a continuance. Id. at 15-16.
The court then allowed plaintiff himself to speak. Plaintiff stated that he had relieved Mr. Martin because "Mr. Martin is not my choice of counsel to bring evidence before this court in support of my complaint." Transcript of Proceedings, May 7, 1982, at 16. Mr. Sussman was his first choice. Plaintiff also asserted that "Mr. Martin's knowledge of facts in this case and the relationships is lacking. He is unprepared and, by his own admission through affidavits, has stated that." Id. at 16-17. The plaintiff then asked permission to proceed pro se but, because he suffers from angina pectoris and narcolepsy, he required a continuance to obtain a medical examination first. If his doctors were to advise him not to act pro se, he said that he would then apply to the court for Mr. Sussman's admission as counsel. Id. at 17. Mr. Sussman, it is noted, was not present in court on May 7. Id. at 19.
The court considered plaintiff's application against "the history of the repeated attempts to put this trial off again and again." Transcript of Proceedings, May 7, 1982, at 18. The court noted its efforts to aid plaintiff: "At every stage where I could have gone one way or another I've taken the course that would give the plaintiff more time." Id. at 20. Mindful that the repeated postponements of discovery dates and trial had caused hardship and expense for the defendants, the court stated:
There comes a point when someone who starts a lawsuit has to be prepared to go on trial with it. There were numerous people named as defendants in this case. They've had this case hanging over their heads for a long time. And some of them, indeed, were not dismissed from the case until last week. There are others still remaining in the case, and I'm sure they're either anxious to get the cloud removed from their heads in a way that is not adverse to them, or, on the other hand, to get it removed from their heads on [ sic ] a way that is adverse to them. But at least to get a determination.
Id. at 18-19. The defendants were prepared for trial as they had been instructed to be, in the event the recusal motion was denied. Now, without prior warning, plaintiff had moved, on the very day of trial, with the previously selected jury in the courthouse, for a continuance so that he could proceed pro se, discharging Mr. Martin. The court found that plaintiff had "trivializ[ed]" the entire litigation process, id. at 19, and that the interests of justice would only be served by proceeding to trial. Id. at 20-21. The court pointed to its own familiarity with the case, the length of time the case had been pending, the fact that Mr. Martin had been in the case from the beginning, and the relative simplicity of the issues. Id. at 21-25. The court found no reason why the trial could not go forward as planned. Id. at 21. For all of these reasons, the court denied plaintiff's application for a continuance. The court also denied Mr. Martin's application to be relieved as counsel but stated that plaintiff could open to the jury if he desired. Id. at 23.
Plaintiff responded, "I cannot move forward, your Honor, under the circumstances." Transcript of Hearing, May 7, 1982, at 28. When asked whether he wanted Mr. Martin to open, plaintiff responded that he "ha[d] no objections to it, but he "d[id]n't want Mr. Martin to open to the jury." Id. at 29. The court reminded plaintiff that if he abandoned prosecution of the case and defendants moved for dismissal of the action with prejudice and for costs and attorneys' fees, the court would have to grant the request; the court advised plaintiff to consider the matter carefully before making his decision. Id. at 30-31. The court granted a recess so that plaintiff could confer with Mr. Martin. Id. at 32-33.
When the parties returned after recess, the court declared that trial would go forward and instructed Mr. Martin that he was still in the case and would open to the jury. Transcript of Proceedings, May 7, 1982, at 33-34. The jury was sworn, and counsel opened. Mr. Martin then informed the court that he was unprepared to call his first witness, even though he had received the court's telegram of May 5 advising him to be prepared to call witnesses on May 7. Id. at 37-39. Mr. Martin then applied, on behalf of plaintiff, to adjourn the trial until May 10. The court granted the application. Id. at 41. The court also granted defendants' motion to dismiss the eight persons named in the complaint who had not been served (Dickinson, Fuller, Geller, McGarry, Bieber, Johnston, Brennan, and Carter). The order of dismissal was filed on July 7, 1982.
On May 10, 1982, defendants moved for dismissal of the action with prejudice. The court mistakenly, it will now concede, denied the motion. Mr. Martin again applied to be relieved as counsel; this motion too was denied. Plaintiff then moved for Mr. Sussman's admission pro hac vice. Only after Mr. Sussman assured the court that he was completely familiar with the case and that his admission would cause no further delay, the court, reversing its earlier stand, granted the motion, while requiring Mr. Martin's presence daily thereafter. Trial proceeded with Mr. Sussman taking over as trial attorney. Needless to say, it was with displeasure that the court heard Mr. Sussman state at the end of the day that he could not go forward because of other commitments, and required an adjournment of several weeks. Having permitted Mr. Sussman to come into the case pro hac vice, the court granted an adjournment until May 17, 1982.
Trial resumed on May 17 and continued until June 14, 1982. The claims under 42 U.S.C. §§ 1981 and 1985 were tried to the jury; the Title VII claims were tried to the judge. On May 17, 18, 19, 20 and 21, the defendants moved for dismissal of the case, on the basis of plaintiff's not having complied with this court's orders to provide pre-trial discovery materials. While the court noted that there was indeed a valid reason for defendants' complaints of having been misled and prejudiced by the plaintiff's many violations of this court's orders, the motions to dismiss were denied. On June 2, at the close of the plaintiff's case, defendants moved for a directed verdict on the jury issues and involuntary dismissal on the non-jury issues. The directed verdict motions were granted as to the individual defendants on the § 1981 and § 1985 claims, and the involuntary dismissal motions were granted on the Title VII claim against the individuals. A directed verdict in favor of FDU on the § 1985 claim was also entered. Trial then resumed as to FDU on the § 1981 (jury) and Title VII (non-jury) claims, and on June 9 and 10 FDU again moved unsuccessfully for a directed verdict and dismissal.
On June 14, 1982, on the § 1981 claim, the jury returned a verdict in favor of the defendant FDU. The court thereafter determined the Title VII claim in favor of FDU. See Findings of Fact and Conclusions of Law, filed September 24, 1982.
After the trial, defendants applied for costs and attorneys' fees. The court requested detailed briefs and affidavits on the issue. On September 24, 1982, the court awarded the costs of the Title VII action to defendant FDU, but denied FDU's application for attorneys' fees after finding that the Title VII claim against FDU was not frivolous. Conclusions of Law, para. 5 - para. 6. Thereafter, in a letter opinion of October 20, 1982, the court stated that the § 1981 and Title VII claims against FDU were not frivolous; therefore, attorneys' fees would not be awarded "on those claims as to that defendant." The court then stated: "It is clear that other claims against individual defendants were frivolous and that attorneys' fees should be awarded on those claims." Letter Opinion, October 20, 1982. The court requested additional briefing distinguishing the services performed for individual defendants from the services performed for FDU.
II. DEFENDANTS' APPLICATION FOR ATTORNEYS' FEES
Individual defendants Pollack, Conant, Von Essen, and Griffo seek attorneys' fees, pursuant to 42 U.S.C. §§ 1988 and 2000e-5(k), for services performed with respect to all five of the claims asserted against them in the second amended complaint. Those claims alleged: violation of 42 U.S.C. § 1981; violation of 42 U.S.C. § 1985(3); violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. ; defamation; and violation of N.J.S.A. 10:5-1 et seq.
Attorneys' fees are also sought on behalf of three individual defendants who received voluntary dismissals on October 27, 1981 (Cooper, Fenster and Herron), and three individual defendants who received involuntary dismissals on July 7, 1982 (Dickinson, Fuller and McGarry).
Defendant FDU seeks attorneys' fees pursuant to 42 U.S.C. § 1988 for services performed with respect to three of the claims against it: the § 1985 claim, the defamation claim, and the claim under N.J.S.A. 10:5-1 et seq.4
A. Standard Governing Awards of Attorneys' Fees Under 43 U.S.C. §§ 1988 and 2000e-5(k)
In 1976 Congress amended 42 U.S.C. § 1988 to allow awards of attorneys' fees in civil rights actions. The statute now provides:
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title . . . 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.
Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), contains similar language:
In any action or proceeding under this subchapter 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. . . .
Congress intended the standards for awards of attorneys' fees under the two statutes to be "generally the same," S. Rep. No. 94-1011, 94th Cong., 2d Sess., reprinted in 1976 U.S. Code Cong. & Ad. News 5908, 5912, and the Supreme Court has stated that the standards are identical. Hughes v. Rowe, 449 U.S. 5, 14, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam). See also Roadway Express, Inc. v. Piper, 447 U.S. 752, 758, 65 L. Ed. 2d 488, 100 S. Ct. 2455 n.5 (1980). Thus cases interpreting one statute may be used to interpret the other. Sullivan v. Commonwealth of Pennsylvania Department of Labor & Industry, 663 F.2d 443, 447 n.5 (3d Cir. 1981), cert. denied, 455 U.S. 1020, 102 S. Ct. 1716, 72 L. Ed. 2d 138 (1982).
Defendants were clearly the "prevailing parties" on all claims in this action. However, prevailing plaintiffs and prevailing defendants are not treated identically when they apply for attorneys' fees under §§ 1988 and 2000e-5(k). Although the statutes do not distinguish between plaintiffs and defendants, the Supreme Court has set up a dual standard. A successful plaintiff in a civil rights action should ordinarily recover attorneys' fees, in order to effectuate the congressional policy of encouraging plaintiffs to act as private attorneys general and to enforce the Civil Rights Act. Albemarle Paper Co. v. Moody, 422 U.S. 405, 415, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975); Newman v. Piggie Park Enterprises, 390 U.S. 400, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968). But a court should award attorneys' fees to a prevailing defendant only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 421, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978). See also P. Mastrippolito & Sons, Inc. v. Joseph, 692 F.2d 1384, 1386 (3d Cir. 1982) (per curiam); Hughes v. Repko, 578 F.2d 483 (3d Cir. 1978); United States Steel Corp. v. United States, 519 F.2d 359 (3d Cir. 1975). Routinely awarding attorneys' fees to prevailing defendants would have an overly deterrent effect on civil rights plaintiffs and would discourage the vigorous private enforcement of the civil rights laws. Christiansburg, supra, 434 U.S. at 422. But a defendant must be able to recover attorneys' fees when the action is groundless because, "while Congress wanted to clear the way for suits to be brought under the [Civil Rights] Act, it also wanted to protect defendants from burdensome litigation having no legal or factual basis." Id. at 420.
In this case, therefore, the court must first determine whether plaintiff's action was unreasonable, frivolous, meritless, or vexatious. As the Supreme Court pointed out in Christiansburg, a district court must resist the temptation to conclude that, because the plaintiff did not ultimately prevail, his action must have been meritless. 434 U.S. at 421-22. On the other hand, the plaintiff's honest belief in the worth of his case does not make it meritorious. As the Supreme Court explained:
The term "meritless" is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, and . . . the term "vexatious" in no way implies that the plaintiff's subjective bad faith is a necessary prerequisite to a fee award against him.
. . .