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The Second Circuit is wondering if a New York State law that requires that nonresident attorneys maintain an "office for the transaction of law business" within New York's borders in order to practice here violates the Constitution. It certifies the issue to the State Court of Appeals for a definitive answer.
The case is Schoenefeld v. State of New York, decided on April 8. Plaintiff lives in Princeton, New Jersey. She is licensed to practice in New York. Under the rules, she cannot practice in New York without an office. She says this rule violates the Privileges and Immunities Clause, the Equal Protection Clause and the Commerce Clause because New York residents are not required to maintain an office for the practice of law business. While New Yorkers who practice law have to be accessible to the legal community and be able to communicate with clients, "a review of those laws yields no specific authority specifically requiring New York residents to maintain any office at all." The Second Circuit (Raggi, Hall and Carney) says, "A New York attorney, therefore, may set up her 'office' on the kitchen table in her studio apartment and not run afoul of New York law."
The Second Circuit cannot decide this case without a definitive ruling on the meaning of "office for the transaction of law business." The normal interpretation of the word "office" sounds like a place where the office has a phone, file cabinets, staff, etc. While the State says this requirement simply means a place where the lawyer can be served legal papers, the Second Circuit does not think State law precedent supports that interpretation. So, the Court says, "as it stands, it appears that Section 470 discriminates against nonresident attorneys with respect to their fundamental right to practice law in the state and, by virtue of that fact, its limitations on non-resident attorneys implicate the Privileges and Immunities Clause." But the Second Circuit's suspicions about the law's constitutionality are premature without a ruling from the State Court of Appeals on this issue. The State court is better suited to resolve this issue, since it lives and breathes state law 24 hours a day, 7 days a week.
Monday, April 21, 2014
Thursday, April 17, 2014
The sins of the father fail the Iqbal pleading test
The Constitution does not actually say this, but there is a right to intimate association under the First Amendment. The contours of that right are not clear, but they do not protect a former Assistant District Attorney in Brooklyn who lost his job after the DA learned that his father was running for office against a State Senator who was being prosecuted by his office.
The case is Sharpe v. City of New York, a summary order dated March 27. I represented Sharpe on appeal. The DA was prosecuting Kenneth Parker, a politico who got caught up in some alleged wrongdoing. Sharpe was not involved in that prosecution. His father was running against Parker. Sharpe was fired over this. Here is how the Second Circuit (Chin and Droney) summarizes the case:
Under the Supreme Court's new Iqbal standards governing Rule 12 dismissals, the plaintiff has to allege a "plausible" claim, not a possible claim. The Court of Appeals says,
So what the Second Circuit doing is weighing the plausibility of the parties' arguments under Rule 12. Is this what the Supreme Court intended when it identified the need for plausible pleading under Iqbal? Does anybody want to take bets on how the Supreme Court would answer that question?
The case is Sharpe v. City of New York, a summary order dated March 27. I represented Sharpe on appeal. The DA was prosecuting Kenneth Parker, a politico who got caught up in some alleged wrongdoing. Sharpe was not involved in that prosecution. His father was running against Parker. Sharpe was fired over this. Here is how the Second Circuit (Chin and Droney) summarizes the case:
The amended complaint sets forth the following facts: (1) Sharpe's father, Wellington Sharpe, was running for public office, and had run on several occasions in the past, against Kevin Parker; (2) Parker was the subject of a criminal prosecution brought by the Red Zone General Trial Bureau of the Kings County District Attorney's Office (the "KCDAO"); (3) Wynton Sharpe was an Assistant District Attorney in the Red Zone General Trial Bureau of the KCDAO at the time of the Parker prosecution; (4) the KCDAO employee manual indicated that Assistant District Attorneys have a "duty to avoid both actual conflicts of interest and even the appearance of any improper political motive or bias in the conduct of any prosecution"; (5) on August 11, 2010, Amy P. Feinstein, the Chief Assistant District Attorney in the KCDAO, and James Leeper, the Bureau Chief of the Red Zone, asked Sharpe whether his father was Wellington Sharpe; (6) as soon as he told Leeper and Feinstein that his father was Wellington Sharpe, Wynton Sharpe was suspended from the KCDAO, and was ultimately fired.The government cannot retaliate against you because of your close family associations. The father-son relationship is close enough. The Court of Appeals assumes that Sharpe has to allege that his termination was an arbitrary or undue burden on that association. The Court finds that the complaint does not state a cause of action because Sharpe does not allege that he disclosed his father's race against Parker until someone asked him about it. While Sharpe alleges "upon information and belief" that his father's campaign against Parker was well known in the office, the lack of factual detail on this is too conclusory to avoid dismissal under Rule 12.
Under the Supreme Court's new Iqbal standards governing Rule 12 dismissals, the plaintiff has to allege a "plausible" claim, not a possible claim. The Court of Appeals says,
At best, Sharpe's complaint simply alleges facts that are "consistent with" his theory that he was targeted for suspension and termination due to his relationship with his father, but are also consistent with a far more likely explanation: that he was suspended and terminated because the KCDAO believed that he violated its policy. Although Sharpe asserts that he did not work on the Parker prosecution and was not "interested [in] or aware of any of the facts relating to the prosecution," he does not contend that he was unaware of the prosecution. Sharpe's mere employment in the unit that was engaged in a prosecution of Sharpe's father's political rival obviously posed a risk of creating "the appearance of . . . improper political motive or bias," yet Sharpe does not contend he did anything to mitigate this appearance.
So what the Second Circuit doing is weighing the plausibility of the parties' arguments under Rule 12. Is this what the Supreme Court intended when it identified the need for plausible pleading under Iqbal? Does anybody want to take bets on how the Supreme Court would answer that question?
Tuesday, April 15, 2014
This is why lawyers drink
A case like this tells you a lot about the legal process. Unless the defendant can find a way to have the case dismissed on summary judgment, most cases settle. Few go to trial. The road to settlement, though, is a hard one, as the lawyers on both side try to explain to the client why settlement is a good thing and why compromise is (sometimes) better than an all-or-nothing trial. But even if you get to client to "yes," buyer's remorse might kick in the next day. Which is how this case reached the Court of Appeals.
The case is Pierre v. Chase Investment Services, a summary order decided on April 3. This was an employment discrimination case brought in federal court. The parties reached a settlement and the judge placed it on the record in open court. The settlement was in the amount of $50,000, plus additional nom-monetary terms. When the defense lawyer sent plaintiff's counsel a proposed settlement agreement, plaintiff's counsel said it was OK. But the plaintiff herself later on wanted to modify the non-monetary terms of the settlement (including the confidentiality and nondisparagement clauses and certain provisions against plaintiff's reapplication to work for the defendant in the future), and that threw a monkey wrench into the whole agreement. This is why lawyers drink. Of course, defendant's counsel rejected these after-the-fact modifications, and the case then went back to the trial judge to figure it all out.
The trial court held the plaintiff to her in-court agreement about the settlement terms. The trial court stated, "A settlement stated on the record is one of the strongest and most binding agreements in the field of the law and is thus entitled to substantial deference.... The fact that the parties intended to memorialize the settlement agreement in a subsequent writing is not a green light to permit either party to inject new terms which were not previously disclosed to the Court. However, parties who do not intent to be bound until the agreement is reduced to a signed writing are not bound until that time."
The district court held that the parties intended to be bound by the in-court agreement. The written agreement that circulated afterwards was supposed to be consistent with what the plaintiff agreed to in court. The district court ruled that she could not later modify the terms. The Court of Appeals (Wesley, Carney and Eaton [D.J.]) affirms, reasoning, "Everything in the record below and briefs before us indicates that the
settlement was agreed to in open court on July 16, 2012 before Magistrate Judge James L. Cott in the United States District Court for the Southern District of New York, and is therefore valid and enforceable. The fact that Plaintiff had a change of heart between the time the oral agreement was made and when it was reduced to writing has no effect on the validity of the oral settlement."
The case is Pierre v. Chase Investment Services, a summary order decided on April 3. This was an employment discrimination case brought in federal court. The parties reached a settlement and the judge placed it on the record in open court. The settlement was in the amount of $50,000, plus additional nom-monetary terms. When the defense lawyer sent plaintiff's counsel a proposed settlement agreement, plaintiff's counsel said it was OK. But the plaintiff herself later on wanted to modify the non-monetary terms of the settlement (including the confidentiality and nondisparagement clauses and certain provisions against plaintiff's reapplication to work for the defendant in the future), and that threw a monkey wrench into the whole agreement. This is why lawyers drink. Of course, defendant's counsel rejected these after-the-fact modifications, and the case then went back to the trial judge to figure it all out.
The trial court held the plaintiff to her in-court agreement about the settlement terms. The trial court stated, "A settlement stated on the record is one of the strongest and most binding agreements in the field of the law and is thus entitled to substantial deference.... The fact that the parties intended to memorialize the settlement agreement in a subsequent writing is not a green light to permit either party to inject new terms which were not previously disclosed to the Court. However, parties who do not intent to be bound until the agreement is reduced to a signed writing are not bound until that time."
The district court held that the parties intended to be bound by the in-court agreement. The written agreement that circulated afterwards was supposed to be consistent with what the plaintiff agreed to in court. The district court ruled that she could not later modify the terms. The Court of Appeals (Wesley, Carney and Eaton [D.J.]) affirms, reasoning, "Everything in the record below and briefs before us indicates that the
settlement was agreed to in open court on July 16, 2012 before Magistrate Judge James L. Cott in the United States District Court for the Southern District of New York, and is therefore valid and enforceable. The fact that Plaintiff had a change of heart between the time the oral agreement was made and when it was reduced to writing has no effect on the validity of the oral settlement."
Friday, April 11, 2014
School is not a church
The City of New York and the Bronx Household of Faith have been engaged in a vicious fight over the last two decades over the right to use public schools for religious purposes. This case has been to the Court of Appeals on various occasions. This time around, the Second Circuit says the City is allowed to prohibit religious organizations from using the schools for religious worship services.
The case is Bronx Household of Faith v. Board of Education, decided on April 3. It took the Second Circuit (Calabresi, Leval and Walker [dissenting]) 1.5 years to decide this case, which pits the Establishment Clause against the Free Exercise Clause, both of them in the First Amendment. As background, the Free Exercise Clause protects the right to worship as you choose. The Establishment Clause ensures church-state separation. So when the Household of Faith wants to hold services in a public school, that dispute creates the perfect constitutional storm.
A New York City regulation says that "no permit shall be granted for the purpose of holding religious worship services or otherwise using a school as a house of worship." The district court said this rule violates the Free Exercise Clause and the Establishment Clause. The Court of Appeals reverses, holding that it was intended to prevent the City from violating the Establishment Clause. See how complicated this all gets?
There are a smattering of holdings in this decision.In rejecting the Free Exercise challenge, the Second Circuit says the Constitutional does not require the City to allow services simply because -- away from the school -- the plaintiffs cannot afford a large enough site for their services. While the Supreme Court says the government cannot enact rules that target one religion, although they are prohibited from worshiping at the school, plaintiffs are not being singled out here; there is no real favored comparator as there is no such thing as non-religious worship services (unless you go to a Springsteen concert in New Jersey).Ultimately, the Court says, "if the Board [of Education] has a reasonable, good faith concern that making its school facilities available for the conduct of religious worship services would give rise to a substantial risk of violating the Establishment Clause, the permissibility of the Board's refusal to do so does not turn on whether such use of school facilities would in in fact violate the Establishment Clause." In other words, the City gets the benefit of the doubt on predicting whether allowing the religious group to use the schools for worship would violate the Establishment Clause.
In rejecting the Establishment Clause challenge, the Court of Appeals notes that the government violates that Clause when it excessively entangles itself with religion. But the rule challenged here does not require the City to become excessively entangled in religion for the purposes of deciding what are religious worship services. The City does not make any determination whether an applicant's proposed activities constitute a religious worship service. "The Board's policy is to rely on the applicant's own characterization as to whether the applicant will conduct religious worship services."
The case is Bronx Household of Faith v. Board of Education, decided on April 3. It took the Second Circuit (Calabresi, Leval and Walker [dissenting]) 1.5 years to decide this case, which pits the Establishment Clause against the Free Exercise Clause, both of them in the First Amendment. As background, the Free Exercise Clause protects the right to worship as you choose. The Establishment Clause ensures church-state separation. So when the Household of Faith wants to hold services in a public school, that dispute creates the perfect constitutional storm.
A New York City regulation says that "no permit shall be granted for the purpose of holding religious worship services or otherwise using a school as a house of worship." The district court said this rule violates the Free Exercise Clause and the Establishment Clause. The Court of Appeals reverses, holding that it was intended to prevent the City from violating the Establishment Clause. See how complicated this all gets?
There are a smattering of holdings in this decision.In rejecting the Free Exercise challenge, the Second Circuit says the Constitutional does not require the City to allow services simply because -- away from the school -- the plaintiffs cannot afford a large enough site for their services. While the Supreme Court says the government cannot enact rules that target one religion, although they are prohibited from worshiping at the school, plaintiffs are not being singled out here; there is no real favored comparator as there is no such thing as non-religious worship services (unless you go to a Springsteen concert in New Jersey).Ultimately, the Court says, "if the Board [of Education] has a reasonable, good faith concern that making its school facilities available for the conduct of religious worship services would give rise to a substantial risk of violating the Establishment Clause, the permissibility of the Board's refusal to do so does not turn on whether such use of school facilities would in in fact violate the Establishment Clause." In other words, the City gets the benefit of the doubt on predicting whether allowing the religious group to use the schools for worship would violate the Establishment Clause.
In rejecting the Establishment Clause challenge, the Court of Appeals notes that the government violates that Clause when it excessively entangles itself with religion. But the rule challenged here does not require the City to become excessively entangled in religion for the purposes of deciding what are religious worship services. The City does not make any determination whether an applicant's proposed activities constitute a religious worship service. "The Board's policy is to rely on the applicant's own characterization as to whether the applicant will conduct religious worship services."
Wednesday, April 9, 2014
New ergonomic chairs can avoid costly lawsuits under the Americans with Disabilities Act
The modern workplace is a sea of chairs, cubicles and computers. What happens when employees suffer back injuries and they cannot sit all day? Do they have any rights under the Americans with Disabilities Act? The answer, as usual, is "it depends."
The case is Parada v. Banco Industrial De Venezuala, C.A., decided on March 25. The plaintiff fell on a sidewalk and hurt her back. She requested an ergonomic chair at work. That chair never arrived. Eventually, she as unable to come to work because of her back, so she was fired for job abandonment. She sues under the ADA.
There is a parallel universe going on in the federal courts over the ADA. The statute was amended in 2008 to broaden the class of "disabilities" in response to what Congress thought were heartless decisions from the Supreme Court that narrowed the definition of "disability" such that cases were being dismissed left and right over whether someone even had coverage under the statute. But the amended ADA took effect in 2009, and cases that pre-dated the amendments are still winding through the courts, which apply the old ADA standards governing who is disabled under federal law. This case is one of them.
The Second Circuit (Raggi, Lohier and Lynch) says here that "the inability to sit for even a prolonged period of time may be a disability depending on the totality of the circumstances." The Court reaches that conclusion after dealing with Colwell v. County of Suffolk (2d Cir. 1998), which the district court in Parada said means that "an impairment which limits the ability to sit for long periods of time is not recognized as a substantial limitation [on a major life activity]." That was a misreading of of Colwell, the Second Circuit says. There is no per se rule that the inability to sit for long periods of time is a substantial limitation only if the plaintiff cannot sit at all. The ADA does not like bright-line rules. And having clarified that, the Court of Appeals sends the case back to the district court to see if there is a factual issue for the jury about whether plaintiff's inability to sit for long periods of time equals a substantial limitation of a major life activity.
The case is Parada v. Banco Industrial De Venezuala, C.A., decided on March 25. The plaintiff fell on a sidewalk and hurt her back. She requested an ergonomic chair at work. That chair never arrived. Eventually, she as unable to come to work because of her back, so she was fired for job abandonment. She sues under the ADA.
There is a parallel universe going on in the federal courts over the ADA. The statute was amended in 2008 to broaden the class of "disabilities" in response to what Congress thought were heartless decisions from the Supreme Court that narrowed the definition of "disability" such that cases were being dismissed left and right over whether someone even had coverage under the statute. But the amended ADA took effect in 2009, and cases that pre-dated the amendments are still winding through the courts, which apply the old ADA standards governing who is disabled under federal law. This case is one of them.
The Second Circuit (Raggi, Lohier and Lynch) says here that "the inability to sit for even a prolonged period of time may be a disability depending on the totality of the circumstances." The Court reaches that conclusion after dealing with Colwell v. County of Suffolk (2d Cir. 1998), which the district court in Parada said means that "an impairment which limits the ability to sit for long periods of time is not recognized as a substantial limitation [on a major life activity]." That was a misreading of of Colwell, the Second Circuit says. There is no per se rule that the inability to sit for long periods of time is a substantial limitation only if the plaintiff cannot sit at all. The ADA does not like bright-line rules. And having clarified that, the Court of Appeals sends the case back to the district court to see if there is a factual issue for the jury about whether plaintiff's inability to sit for long periods of time equals a substantial limitation of a major life activity.
Monday, April 7, 2014
State Court of Appeals provides guidance on civil rights retainer agreements
It all starts with the retainer agreement. Clients walks into lawyer's office and convinces the lawyer that she has a great case. Lawyer drafts a retainer agreement. That agreement has to be clear and understandable to a non-lawyer. If the plaintiff wins and a lot of money is a stake, the attorney-client relationship can collapse and they end up in court against each other. That happened in this case.
The case is Albunio v. City of New York, decided on April 3 by the New York Court of Appeals. Attorney Dorman represented Albunio and another plaintiff in a civil rights case against the City, winning nearly $1 million in damages. The City appealed but Dorman won the appeal for her clients. Under the fee-shifting provisions under the City Human Rights Law, Dorman recovered about $530,000 in attorneys fees. The question then became how much money Dorman was able to take from the overall judgment.
The first retainer agreement covered trial. It said that Dorman got one-third of the sum recovered. It did not make reference to attorneys' fees or the method by which the contingency fee would be calculated if Dorman got fees. Dorman says the one-third contingency fee should be calculated based on the total value of the attorneys fees plus the jury award. If Dorman is correct, she gets a lot more money than just one-third of the jury award, as the counsel fees are huge.
The Court of Appeals disagrees with Dorman's argument, finding that this agreement is ambiguous on that point, and that unclear attorney-client contracts are always construed against the lawyer. As the Court sees it, most clients would not interpret their "recovery" to include attorneys fees, only the jury award or the amount of settlement. And the retainer agreement does not even mention attorneys fees. The general rule in other jurisdictions says that "absent an explicit agreement to the contrary, statutory [attorneys] fees are not considered part of the total recovery for purposes of determining the contingency fee, and counsel is generally entitled to the greater of the two." In this case, as the retainer agreement does not address statutory attorneys fees, Dorman gets "the more generous alternative of either one third of the jury award of the statutory award for her trial work."
The appellate retainer agreement did make reference to counsel fees. It said that if Dorman succeeded on appeal and the court for some reason would not award her attorneys fees (or if she got less than $20,000 in fees), then the client would pay her $20,000 for her work, or the difference between the fees awarded and $20,000. Dorman is entitled to money under that calculation. Albunio and her co-plaintiff argue, however, that the statutory awards for both trial work and appellate work should offset the contingency fee owed to Dorman under the trial retainer agreement. The Court of Appeals does not see it that way. Attorneys and their clients can negotiate a separate retainer for appellate work. So that while appeals are the logical extension of the trial work, if there is a separate retainer for the appellate work, that fact alone does not obligate the attorney on appeal to the terms of the trial retainer.
The case is Albunio v. City of New York, decided on April 3 by the New York Court of Appeals. Attorney Dorman represented Albunio and another plaintiff in a civil rights case against the City, winning nearly $1 million in damages. The City appealed but Dorman won the appeal for her clients. Under the fee-shifting provisions under the City Human Rights Law, Dorman recovered about $530,000 in attorneys fees. The question then became how much money Dorman was able to take from the overall judgment.
The first retainer agreement covered trial. It said that Dorman got one-third of the sum recovered. It did not make reference to attorneys' fees or the method by which the contingency fee would be calculated if Dorman got fees. Dorman says the one-third contingency fee should be calculated based on the total value of the attorneys fees plus the jury award. If Dorman is correct, she gets a lot more money than just one-third of the jury award, as the counsel fees are huge.
The Court of Appeals disagrees with Dorman's argument, finding that this agreement is ambiguous on that point, and that unclear attorney-client contracts are always construed against the lawyer. As the Court sees it, most clients would not interpret their "recovery" to include attorneys fees, only the jury award or the amount of settlement. And the retainer agreement does not even mention attorneys fees. The general rule in other jurisdictions says that "absent an explicit agreement to the contrary, statutory [attorneys] fees are not considered part of the total recovery for purposes of determining the contingency fee, and counsel is generally entitled to the greater of the two." In this case, as the retainer agreement does not address statutory attorneys fees, Dorman gets "the more generous alternative of either one third of the jury award of the statutory award for her trial work."
The appellate retainer agreement did make reference to counsel fees. It said that if Dorman succeeded on appeal and the court for some reason would not award her attorneys fees (or if she got less than $20,000 in fees), then the client would pay her $20,000 for her work, or the difference between the fees awarded and $20,000. Dorman is entitled to money under that calculation. Albunio and her co-plaintiff argue, however, that the statutory awards for both trial work and appellate work should offset the contingency fee owed to Dorman under the trial retainer agreement. The Court of Appeals does not see it that way. Attorneys and their clients can negotiate a separate retainer for appellate work. So that while appeals are the logical extension of the trial work, if there is a separate retainer for the appellate work, that fact alone does not obligate the attorney on appeal to the terms of the trial retainer.
Friday, April 4, 2014
2d Cir. closes the door on Fair Housing Act case
This Fair Housing Act case alleges that the Town of Milan, Dutchess County, denied a developer certain entitlements because she is Hispanic. The Court of Appeals doesn't see it that way.
The case is McCulloch v. Town of Milan, a summary order decided on March 25. I have little understanding of what happened in this case. The extensive district court docket tells me very little, as there is no written decision explaining why the case was dismissed on summary judgment. It looks like plaintiff wanted to build a subdivision in the Town. There was a heated board meeting over this. The board did plaintiff wrong, and she sues under the FHA, which requires the plaintiff to "present evidence that animus against the protected group was a significant factor in the position taken by the municipal decisionmakers themselves or by those to whom the decisionmakers were knowingly responsive." But as the Court of Appeals (Jacobs, Pooler and Reiss [D.J.]) writes:
The case is McCulloch v. Town of Milan, a summary order decided on March 25. I have little understanding of what happened in this case. The extensive district court docket tells me very little, as there is no written decision explaining why the case was dismissed on summary judgment. It looks like plaintiff wanted to build a subdivision in the Town. There was a heated board meeting over this. The board did plaintiff wrong, and she sues under the FHA, which requires the plaintiff to "present evidence that animus against the protected group was a significant factor in the position taken by the municipal decisionmakers themselves or by those to whom the decisionmakers were knowingly responsive." But as the Court of Appeals (Jacobs, Pooler and Reiss [D.J.]) writes:
McCulloch presents no evidence from which a reasonable jury could find that the Defendants harbored animus against Hispanics, or that animus played a role in the restrictions imposed on McCulloch’s subdivision. McCulloch never met the Defendants; her interests were represented throughout the approval process by her husband, who is not Hispanic. McCulloch responds by arguing, among other things, that a subdivision driveway was labeled (by McCulloch) as the “Otero” driveway, that “Otero” is clearly a Hispanic surname, and that an unidentified non-Defendant made a negative comment at a public meeting about “city people.” None of these contentions gives rise to a genuine dispute that the Defendants actually knew that McCulloch was Hispanic and discriminated against her for that reason.When the case ended, defendants moved for attorneys' fees against the plaintiff. This is always an uphill battle. The law requires that the case be totally and completely frivolous for the court to award the defendants attorneys fees, which can amount to hundreds of thousands of dollars. While the district court denied the fee application (a ruling that defendants do not appeal), it noted the rancorous nature of this litigation:
As all parties are aware, this case has not been litigated by either side in a way the Court would characterize as a cooperative, efficient, or considerate manner. This case has been fraught with delay since its inception, due in large part to one or the other or both of the parties’ not complying with directions of the Court or to each party’s general wish to make the other’s tasks as difficult as possible.A motion for attorneys' fees only makes the litigation more heated. The district court denies fees for a variety of reasons: (1) "Defendants’ briefs are just that—brief—and rely heavily on the declaration of the Town’s attorney, Terry Rice, who outlines the evidentiary flaws in Plaintiff’s case instead of providing a considered legal basis for an award"; (2) "Defendants failed to provide billing statements and contemporaneous time records to Plaintiff and the Court until a conference was held and they were instructed to do so despite making various privilege and hardship arguments. When those records were provided, they were missing entries for several time periods, including the time period preceding the motion to dismiss"); (3) "The ... claims, by the very fact that they survived a motion to dismiss, do not rise to the level of being 'frivolous' such that an award pursuant to Section 1988 is available."
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