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Pkf Mark Iii Inc., Peter E. Getchell v. Foundation For Faircontracting

November 30, 2011

PKF MARK III INC., PETER E. GETCHELL, STEPHEN P. NEIDHART, CRAIG L. KOLBMAN, GLENN A. ELY, MITCHELL BALAND, PLAINTIFFS,
v.
FOUNDATION FOR FAIRCONTRACTING, THOMAS ST. JOHN, NEW JERSEY : & REGIONAL COUNCIL OF CARPENTERS, ROBERT "SKIP" BOYCE, ROBERT TARBY, LOCAL 623 UNITED BROTHERHOOD OF CARPENTERS AND JOINER OF AMERICA, ALBERT G. KROLL, FRANK SPENCER, KEVIN P. MCCABE, DEFENDANTS.



The opinion of the court was delivered by: Hon Joseph H. Rodriguez

MEMORANDUM OPINION ORDER

This matter has come before the Court on motions for attorney's fees and costs filed by Defendants Local 623 United Brotherhood of Carpenters and Joiners of America, Kevin P. McCabe, New Jersey Regional Council of Carpenters, Frank Spencer, Robert Tarby (Dkt. Entry No. 192), Foundation for Fair Contracting, Thomas St. John (Dkt. Entry No. 194), and Albert G. Kroll (Dkt. Entry No. 195). For the reasons expressed below, the motions will be denied.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

Plaintiff PKF Mark III ("PKF") is a general contractor engaged in the business of construction of public works projects. The individual Plaintiffs are Pennsylvania citizens, officers and/or directors of PKF. Defendant Foundation for Fair Contracting ("FFC") is a New Jersey organization; its executive director is Defendant Thomas St. John. Defendant New Jersey Regional Council of Carpenters ("NJRCC") is a labor organization which operates through its representatives, Defendants Robert "Skip" Boyce, Frank Spencer, and Kevin P. McCabe. Defendant Local 623, United Brotherhood of Carpenters and Joiners of America, is also a New Jersey labor organization, with Defendant Robert Tarby as representative/agent. Collectively, these are the "Carpenter Defendants." Defendant Albert G. Kroll is a New Jersey attorney, and representative/agent of unions affiliated with the Building and Construction Trades ("BCT"), including Local 623 and NJRCC.

In November of 2007, Plaintiffs filed a five count complaint against Defendants, alleging in essence that the Defendants violated the Fifth and Fourteenth Amendments when they acted under color of state law in bringing spurious proceedings against Plaintiffs under New Jersey's Prevailing Wage Laws. Plaintiffs contended that the Defendants brought meritless claims against them in order to harass them and further alleged that the Defendants engaged in this conduct because they do not, but want to, represent the Plaintiff's employees.

On December 23, 2008, this Court denied the Motion to Dismiss filed by Defendants, concluding "Plaintiffs have alleged the existence of a prearranged plan by which the DOL substituted the judgment of the Defendants for its own official authority thereby 'draping' the Defendants with the power of the state." PKF Mark III, Inc. v. Foundation for Faircontracting, 2008 WL 5401626 at *3 (Dec. 23, 2008 D.N.J.).

On December 21, 2010, the Court considered the Motion for Summary Judgment filed by Defendants Kroll and the Carpenter Defendants. The Court conducted an analysis to determine whether Defendants acted "under color of state law" to satisfy the "state action" requirement of the Fourteenth Amendment and determined that "there [was] no evidence of any improper relationship between the Defendants and the DOL" and that Plaintiffs had not "articulated whether their theory is that (1) Defendants exercised powers traditionally the exclusive prerogative of the state; (2) the State and Defendants act in concert or jointly to deprive Plaintiffs of their rights; (3) the Defendants and the DOL have a symbiotic relationship as joint participants in the unconstitutional activity." PKF Mark III, Inc. v. Foundation for Fair Contracting, 2010 WL 5392628 at *7 (Dec. 21, 2010 D.N.J.). Finding that the Plaintiffs had not met their burden to show State action, summary judgment was granted in favor of Defendants.

On April 5, 2011, the Court considered the Motion for Summary Judgment filed by the remaining Defendants (FFC and St. John) and, citing the same reasoning it employed in its prior summary judgment decision, the Court found in favor of Defendants.

Defendants have now filed three separate motions for attorney's fees and costs pursuant to 42 U.S.C. § 1988. Carpenter Defendants filed their motion on April 28, 2011 (Dkt. Entry No. 192), Defendants FFC and St. John filed their motion on May 5, 2011 (Dkt. Entry No. 194), and Defendant Kroll filed his motion on May 6, 2011 (Dkt. Entry No. 195). All Defendants argue that Plaintiffs' alleged causes of action were "frivolous, vexatious or meritless" and therefore Plaintiffs should have to bear the full costs of litigation. Plaintiffs assert that their claims were not meritless and thus the Defendants' Motions for Attorney's Fees should be denied. Alternatively, Plaintiffs contend that Defendants' motions are untimely and unreasonable. The parties' consolidated arguments are considered below.

II. DISCUSSION

A. Standard for Attorney's Fees Under § 1988

Pursuant to 42 U.S.C. § 1988(b), "[i]n any action or proceeding to enforce a provision of sections . . . 1983 . . . 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. . . ." By passing § 1988, Congress meant to provide a limited exception to the rule that litigants must pay their own attorney's fees. Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 415 (1978) (citing Alyeska Pipeline Co. v. Wilderness Soc'y, 421 U.S. 24o (1975)). While prevailing plaintiffs should ordinarily recover attorney's fees under § 1988 unless special circumstances would render such an award unjust, a prevailing defendant is entitled to attorneys fees only upon finding that the plaintiff's action was "frivolous, unreasonable, or without foundation." Christiansburg, 434 U.S. at 421.

The Supreme Court has indicated that "it is important that a . . . court resist the understandable temptation to engage in post hoc reasoning by concluding that because a plaintiff did not ultimately prevail his action must have been unreasonable or without foundation." Barnes v. Township of Lower Merion, 242 F.3d 151, 158 (3d Cir. 2001) (citing Christiansburg, 434 U.S. at 421-22). Accordingly, a grant of summary judgment in favor of a civil rights defendant does not mean the defendant is entitled to attorney's fees. See Bisciglia v. Kenosha Unified Sch. Dist. No. 1, 45 F.3d 223, 227-229 (7th Cir. 1995); Thomas v. Bible, 983 F.2d 152, 155 (9th Cir. 1993). Indeed, "[t]here is a significant difference between making a weak argument with little chance of success . . . and making a frivolous argument with no chance of success . . . . [I]t is only the latter that permits defendants to recover attorney's fees." Veneziano v. Long Island Pipe Fabrication & Supply Corp., 238 F. Supp. 2d 683, 689 (D.N.J. 2002) (quoting Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir. 1999)).

A plaintiff's claim may reach the requisite level of frivolity during the course of litigation which may not be evident from the outset. "Implicit in this approach is the premise that plaintiff knew or should have known the legal or evidentiary deficiencies of his claim." Brown v. Borough of Chambersburg, 903 F.2d 274 (3d Cir. 1990). "If a plaintiff's claim appears to be colorable when filed, but subsequent events clearly demonstrate that the claim is not defensible either on ...


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