A. GALLO CO. ET AL. v. GINA MCCARTHY ET AL.

2011 Ct. Sup. 16953, 52 CLR 423
No. CV 09-4043592-SConnecticut Superior Court Judicial District of Hartford at Hartford
August 4, 2011

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON INTERVENOR PLAINTIFFS’ MOTION FOR ATTORNEYS FEES, NO. 231
DOMNARSKI, J.

This case was initiated by fourteen bottling companies (original plaintiffs) who alleged that provisions of No. 09-01 of the 2009 Public Acts effectuated a retroactive taking of their property, specifically unclaimed beverage container deposits. By memorandum of decision dated April 23, 2010, [50 Conn. L. Rptr. 34] this Court granted summary judgment in favor of the original plaintiffs and determined that they were entitled to damages.

On June 22, 2010, Adirondack Beverages Corp., Bottling Group LLC, Coca-Cola Bottling Company of Northern New England LLC, Coca-Cola Enterprises, Inc., Polar Corp. and Windham Pepsi-Cola Bottling Co., Inc. (intervening plaintiffs) moved to intervene. On August 22, 2010, their motion was granted.

Following a hearing in damages, in a memorandum of decision dated January 26, 2011, this Court awarded the original plaintiffs damages in the amount of $2,270,767.15 and awarded the intervening plaintiffs damages in the amount of $3,908,091.03. It is important to note that the award of damages was based upon written stipulations submitted by all plaintiffs. The original plaintiffs requested attorneys fees in the amount of $160,572.50, and the Court allowed attorneys fees in the amount of $120,429.37. The Court also awarded prejudgment and post-judgment interest at the rate of 5.1% per annum.

The intervening plaintiffs have filed the present motion in which they request $149,914.00 in attorneys fees. The court awarded attorneys fees to the original plaintiffs pursuant to 42 U.S.C. §§ 1983 and 1988.

“A plaintiff must be a `prevailing party’ to recover an attorneys fee under [42 U.S.C.] § 1988. The standard for making this threshold determination has been framed in various ways. A typical formulation is that plaintiffs may be considered `prevailing parties’ for attorneys fees CT Page 16954 purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” (Internal quotation marks omitted.) Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

“A prevailing party in an action to vindicate rights protected by statutes such as 42 U.S.C. § 1983 and by the Fourteenth and Fifteenth Amendments should ordinarily recover an attorneys fee unless special circumstances would render such an award unjust.” (Internal quotation marks omitted.) King v. Illinois State Board of Elections, 410 F.3d 404, 413 (7th Cir. 2005).

“[W]e believe that in considering an intervenor’s request for attorneys fees the . . . court is obligated to examine the particular role played by the intervenor in the lawsuit . . . Courts have held that one type of `special circumstance’ that creates an exception to the ordinary presumption in favor of granting attorneys fees to a prevailing party is where, although plaintiffs received the benefits sought in the lawsuit, their efforts did not contribute to achieving those results. An example is where a lawsuit was filed to achieve an objective that was already being achieved independently. We think the same principle applies here as well. If a lawsuit is successful, but the intervenor contributed little or nothing of substance in producing that outcome, then fees should not be awarded.” (Internal quotation marks omitted.) Donnell v. United States, 682 F.2d 240, 247-48 (1982), cert. denied, 459 U.S. 1204, 103 S.Ct. 1190, 75 L.Ed.2d 436 (1983).

The principal issue in this case, whether the action of the legislature constituted an impermissible taking, was presented and determined in the action brought and prosecuted by the original plaintiffs. The summary judgment decision determined the issue of liability for damages in favor of the original plaintiffs. The original plaintiffs are prevailing parties because they succeeded on the principal and significant issue in this case. The intervening plaintiffs did nothing to resolve this significant issue. In fact, they were not even parties to the case at the time of its resolution. Otherwise stated, the original plaintiffs can point to a resolution of the dispute between themselves and the defendants, while the intervening plaintiffs cannot. The court concludes that the intervening plaintiffs are not prevailing parties who are entitled to an award of attorneys fees.

Even if the intervening plaintiffs were determined to be prevailing parties, the actions of the original plaintiffs in establishing their right to damages before the involvement of the intervening plaintiffs constitutes a “special circumstance” which militates against an award of CT Page 16955 attorneys fees here. Since the intervening plaintiffs were similarly situated, they received the benefits sought in the lawsuit prosecuted by the original plaintiffs. This case falls into the “special circumstance” example contemplated by the Donnell court, wherein the “plaintiffs received the benefits sought in the lawsuit, [although] their efforts did not contribute to achieving those results.” Donnell v. United States supra, 682 F.2d 247.

The intervening plaintiffs rely on King v. Illinois State Board of Elections, supra, 410 F.3d 404, for the proposition that awarding attorneys fees to intervenors promotes judicial efficiency. The facts i King are distinguishable from those presented here. The King intervenors entered the case at an early stage and “carried the weight of the defense while the [original defendant] passively awaited the outcome.” Id., 411. Here, the original plaintiffs actively prosecuted their claim and the intervening plaintiffs were not even parties when the outcome was determined.

The court has considered the intervening plaintiffs’ involvement in responding to the court’s request regarding the reasonably prudent investor rate of interest. That involvement does not rise to the level of success on a significant issue so as to justify an award of attorneys fees. The motion is denied.

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