Opinion
96-CV-0394E(Sc).
June 23, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
On November 27, 2002, a jury awarded plaintiff Stephen Babcock ("Babcock") judgment in the amount of $550,001 — including $550,000 in punitive damages. On December 3, 2002, Rezak filed a motion seeking, inter alia, judgment as a matter of law. Babcock filed a motion for judgment as a matter of law on December 6, 2002. Harris Beach filed a motion for attorneys' fees pursuant to 42 U.S.C. § 1988 on December 6, 2002 ("First Fee Request"). On December 9, 2002, Babcock's former attorney, Barry J. Donohue, Esq., filed a motion for attorneys' fees pursuant to section 1988.
This Court will refer to plaintiff as "Babcock" — as opposed to his son and attorney, Jeffrey John Babcock, Esq. — who is currently co-counsel with his former law firm, Harris Beach LLP.
As discussed below, Babcock and Harris Beach dispute whether Harris Beach has the ability to file an application for costs and attorneys' fees under section 1988.
In August of 2003 the parties brought to this Court's attention the existence of a dispute between Babcock and Harris Beach concerning the interpretation of their fee agreement dated November 5, 2002 and executed on November 9, 2002 ("Fee Agreement") — to wit, whether the Fee Agreement, inter alia, (1) entitled Harris Beach to $30,000 in attorneys' fees already paid by Babcock in addition to a 20% contingency fee or whether the $30,000 payment shall offset Harris Beach's 20% contingency fee and (2) entitled Harris Beach to make a section 1988 fee application despite Babcock's desire to waive such. Although Rezak has ostensibly made a $450,000 settlement offer conditioned upon Babcock's waiver of a section 1988 application, the Fee Agreement dispute has stalled settlement negotiations. On August 22, 2003, this Court referred this matter to Magistrate Judge Scott to facilitate discussions with respect to the Fee Agreement dispute. On August 28, 2003, Babcock filed a motion seeking judicial interpretation of the Fee Agreement. On September, 17, 2003, Harris Beach filed a cross-motion for attorneys' fees pursuant to section 1988 ("Second Fee Request"). On December 19, 2003, Magistrate Judge Scott issued a Decision and Order ("DO") finding that the Fee Agreement is unambiguous and that it entitles Harris Beach "to receive $30,000 in attorneys' fees plus twenty percent (20%) contingency fee for the verdict or settlement reached in this action" and that "Harris Beach can apply for and recover such attorneys' fee awarded to a prevailing party under 42 U.S.C. § 1988 in this action." On January 5, 2004, Babcock filed a notice of appeal. This matter was argued and submitted on April 9, 2004. For the reasons set forth below, Donohue's motion for attorneys' fees will be denied, Harris Beach's First Fee Request will be denied as moot, Harris Beach's Second Fee Request will be denied, Babcock's objections will be sustained, the DO will be vacated and Babcock's motion for judicial interpretation of the Fee Agreement will be granted.
Although the parties indicate that the amount Babcock paid to Harris Beach in legal fees was $30,000, Babcock indicates that such amount was actually $33,000. Aff. of Stephen Babcock dated April 7, 2004, at 9. This Court makes no finding of fact with respect to the amount of attorneys' fees paid by Babcock. For purposes of this decision, however, this Court will refer to the amount of hourly charges paid by Babcock as $30,000.
This Court will construe Babcock's notice of appeal as a set of objections filed pursuant to Rule 72(a) of the Federal Rules of Civil Procedure ("FRCvP") and Rule 72.3(2) of the Local Rules of Civil Procedure. Inasmuch as this Court is reviewing Judge Scott's DO, rather than an order issued by this Court, FRCvP 59, which was cited by Babcock, is not applicable. Compare FRCvP 59(e) with FRCvP 72(a). Under FRCvP 72(a), this Court "shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law."
I. Donohue's Motion for Attorneys' Fees will be Denied
For the reasons set forth in Brown v. General Motors Corp., 722 F.2d 1009, 1011 (2d Cir. 1983) (dismissing fee request by plaintiff's former attorney because, under section 1988, "it is the prevailing party rather than the lawyer who is entitled to attorney's fees * * * [and] a claim for such an award must itself be made by the party rather than the attorney"), Donohue's section 1988 application will be denied because he lacks standing to file such motion — either on his own behalf or on behalf of Babcock, his former client.
See also Venegas v. Mitchell, 495 U.S. 82, 87-88 (1990) (citing Evans v. Jeff D., 475 U.S. 717, 730 (1986) for the proposition that "[s]ection 1988 makes the prevailing party eligible for a discretionary award of attorneys' fees").
II. Harris Beach's Motions for Attorneys' Fees will be Denied
Harris Beach's Second Fee Request (seeking $120,127.50 in fees and $6,245 in disbursements) supersedes the First Fee Request (seeking $180,000 in fees and $25,000 in disbursements). Consequently, Harris Beach's First Fee Request will be denied as moot. Even assuming arguendo that Harris Beach has standing to file the Second Fee Request, such will be denied because "special circumstances" exist in this case that warrant denial of attorneys' fees requested under section 1988. As the Court of Appeals noted in Brown,
"[w]here an attorney and client have independent entitlements in the same action a conflict of interest is created. Defense counsel will agree only to settlements which satisfy the attorney as well as the client. A client willing to settle for $5,000 will be thwarted if his or her attorney asserts a further right to $30,000 from the defendant. There is simply no reason to believe that Congress intended to diminish substantially the attorney's duty of undivided loyalty to his or her client. * * * Since the inability of a client to control litigation can only deter it, we believe the result of entertaining claims for fees under Section 1988 by attorneys in their own name would be counterproductive so far as the underlying purpose of that section is concerned." Brown, at 1011.
As discussed below, this Court finds that Harris Beach lacked standing to file its section 1988 motion, which is a separate basis upon which to deny its motion.
See Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (noting that, under section 1988, "a prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust") (citation and internal quotation marks omitted); Zarcone v. Perry, 581 F.2d 1039, 1042 (2d Cir. 1978) (citing section 1988's legislative history, which adopted case law holding that a prevailing party "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust") (citation omitted); Mid-Hudson Legal Servs., Inc. v. GU, Inc., 578 F.2d 34, 38 (2d Cir. 1978) (same).
Brown, at 1011 (noting that the "purpose of Section 1988 is to encourage the bringing of meritorious civil rights actions") (citation omitted).
It follows, therefore, that Harris Beach should not be permitted to seek attorneys' fees under section 1988 where its client, Babcock, desires to waive them in an effort to settle this case. Indeed, Harris Beach's interest in section 1988 fees is diametrically opposed to that of Babcock. This Court finds that preservation of an attorney's undivided loyalty is a special circumstance justifying denial of section 1988 fees.
Cf. Evans, supra note 6, at 728 n. 14 ("Generally speaking, a lawyer is under an ethical obligation to exercise independent judgment on behalf of his client; he must not allow his own interests, financial or otherwise, to influence his professional advice."); 22 N.Y.C.R.R. § 1200.20 (D.R. 5-101 Conflicts of Interest — Lawyer's Own Interests); 22 N.Y.C.R.R. § 1200.22 (D.R. 5-103 Avoiding Acquisition of Interest in Litigation); Norma Bros. v. Earl's Fashions, Inc., 1984 WL 166, at *2 (S.D.N.Y. 1984) (finding that an attorney had an improper pecuniary interest in the outcome of a case under Disciplinary Rules 5-101 and 5-103 where he was "an assignee of the accounts receivable" that were the subject of the litigation).
Brown, at 1011; see also Rivera v. LaPorte, 1990 WL 186842, at *1 (S.D.N.Y. 1990) ("Special circumstances exist when the granting of a § 1988 award would be inconsistent with the purpose of the statute.").
Furthermore, special circumstances exist supporting denial of section 1988 attorneys' fees because Babcock was able to obtain competent counsel on three separate occasions to try this case on a contingent fee basis. Moreover, the fund created by this litigation — either a $550,001 judgment or a $450,000 settlement — in conjunction with the contingency arrangement in the Fee Agreement, is sufficient to cover Babcock's costs and compensate him for actual damages. Indeed, our Court of Appeals has noted:
"Where the merits of a claim are obviously strong and would be so recognized by local counsel and where the probable damage award is high and would be so recognized by counsel, a district court has discretion to deny an application for counsel fees. This is so because counsel in such cases can be easily obtained on a contingent basis. Since the principal statutory purpose is not served by an award in those circumstances, the addition of counsel fees to a judgment may be considered unjust and denied by the district court."
Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir. 1982).
Likewise, our Court of Appeals noted in Zarcone that a factor to be considered in awarding attorneys' fees under section 1988 is "the amount of any fund created by the litigation (and its adequacy to cover the plaintiffs' [sic] costs and compensate him for actual damages) * * *." Zarcone held that
Zarcone, supra note 8, at 1044.
"where a plaintiff sues for damages and the prospects of success are sufficiently bright to attract competent private counsel on a contingent fee basis, the underlying rationale of the [fee-shifting] rule may be inapplicable, since no financial disincentive or bar to vigorous enforcement of civil rights may exist."
Zarcone, supra note 8, at 1044.
Consequently, Zarcone found that attorneys' fees did
"not present a significant barrier to institution and prosecution of a suit for damages. Indeed, plaintiff obtained competent counsel on a contingent fee basis, apparently without any unusual difficulty. The prosecution of his claim resulted in a judgment totalling [sic] $141,000, including $61,000 punitive damages, out of which plaintiff's counsel * * * is entitled to a total of $46,496.63 according to the contingent fee agreement."
Zarcone, supra note 8, at 1044.
Similarly, special circumstances exist here to deny attorneys' fees under section 1988 because Babcock had no difficulty obtaining counsel on a contingent fee basis — including counsel who previously tried this case on two other occasions. Moreover, the fund created by the litigation is sufficient to cover his legal fees while providing him compensation — especially in light of the fact that Harris Beach indicated in the Fee Agreement that its anticipated fee to prepare and try the case, if based solely on an hourly-billing method of payment, would be $60,000.
Zarcone, supra note 8, at 1044; Rivera, supra note 11, at *2 ("Special circumstances also exist where the merits of a claim are so obviously strong and the possibility of a substantial monetary award is so high that a plaintiff in such a case could easily obtain local counsel on a contingency basis."). Although the Fee Agreement indicated that Harris Beach would be entitled to "any such recovery" under section 1988, such language demonstrates that such an award was merely a potential recovery contingent upon this Court granting Babcock's section 1988 fee request — a determination that, under governing Second Circuit case law, takes into consideration factors including the fund established by litigation from which plaintiff and his counsel can be compensated. Consequently, the Fee Agreement does not make this case distinguishable from Zarcone. That Harris Beach anticipated a substantial monetary award may be gleaned from the fact that it used $1 million as the potential recovery in an example of how the Fee Agreement purportedly operated.
See Zarcone, supra note 8, at 1044.
Finally, as discussed below, this Court finds that Harris Beach lacked standing to file its motion for attorneys' fees because Babcock did not assign his rights under section 1988 via the Fee Agreement. Accordingly, Harris Beach's requests for fees will be denied.
Brown, at 1011 ("The entitlement of an attorney to fees depends upon the contractual arrangement between the attorney and the client.").
Evans, supra note 6, at 720 (holding that the "District Court has the power, in its sound discretion, to refuse to award fees" under section 1988); McCann v. Coughlin, 698 F.2d 112, 128 (2d Cir. 1983) (holding that section 1988 "vests discretionary authority in the district court to consider whether fees should be awarded").
III. Babcock's Objections Will Be Sustained Because the Fee Agreement is Ambiguous
The DO will be set aside because, for the reasons set forth below, it was clearly erroneous in concluding that the Fee Agreement was unambiguous. As discussed below, Babcock's objections will be sustained because the Fee Agreement was ambiguous and must be construed against Harris Beach.
"Under New York law, the question of ambiguity vel non must be determined from the face of the agreement, without reference to extrinsic evidence." Collins v. Harrison-Bode, 303 F.3d 429, 433-434 (2d Cir. 2002) (citing Kass v. Kass, 91 N.Y.2d 554, 566 (1998)). Moreover, "[c]ontract language is ambiguous if it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement." Compagnie Financiere de CIC et de L'Union Europeenne v. Merrill Lynch, Pierce, Fenner Smith Inc., 232 F.3d 153, 158 (2d Cir. 2000) (internal quotation marks omitted).
See Alderman v. Pan Am World Airways, 169 F.3d 99, 103 (2d Cir. 1999) ("Federal courts apply state law when ruling on the interpretation of contractual attorney fee provisions."); Shaw v. Manufacturers Hanover Trust Co., 68 N.Y.2d 172, 177 (1986) ("From a reading of the language of the retainer agreement itself, both interpretations are reasonable. In such event the law requires that an agreement between client and attorney be construed most favorably for the client.") (citation omitted); Greenberg v. Bar Steel Constr. Corp., 22 N.Y.2d 210, 213 (1968) ("Unquestionably, it is the law of this State that an agreement between a client and his attorney will be construed most favorably for the client."); see also Jacobson v. Sassower, 66 N.Y.2d 991, 993 (1985) ("In cases of doubt or ambiguity, a contract must be construed most strongly against the party who prepared it, and favorably to a party who had no voice in the selection of its language. Additionally, and as a matter of public policy, courts pay particular attention to fee arrangements between attorneys and their clients. An attorney has the burden of showing that a fee contract is fair, reasonable, and fully known and understood by the client.") (citations omitted).
A. Calculation of Harris Beach's Contingency Fee
With respect to the calculation of Harris Beach's contingency fee, the Fee Agreement provides in relevant part
"The fee that we propose combines capped hourly billing with the ability for additional compensation on a contingency basis in the event we are successful in the trial of your case.
"Our fees are typically based on the time spent by the attorneys and legal assistants who work on the matter. Our 2002 hourly rates range from $225-$335 for partners, $130-$215 for associates and $75-$110 for para professionals. Were this case to be billed strictly on an hourly fee basis, it is our expectation that trial preparation and the trial could be concluded for an aggregate fee of $60,000.[footnote omitted] We propose to cap our hourly fees at $30,000.00 and accept further fees for our engagement on a contingency basis. Specifically, in connection with the capped fee, in the event any sum is recovered by settlement or verdict, Harris Beach will be entitled to a contingency fee of 20% of your overall recovery. In the event that you prevail in this matter, and money damages are awarded, you agree Harris Beach's 20% contingency fee be offset by attorneys' fees previously paid by you. By way of example, if your overall recovery is $1,000,000, Harris Beach's contingency recovery would be [$1,000,000 minus $30,000 times .20 ($1,000,000 — $30,000 — $970,000; $970,000 x .20 = $194,000]." Fee Agreement, at 2 (emphasis added).
It was clearly erroneous for the DO to conclude that the Fee Agreement is unambiguous. The highlighted portion of the Fee Agreement is unambiguous when standing alone — it indicates that Harris Beach's 20% contingency fee "be offset by" the $30,000 Babcock paid to Harris Beach. When the highlighted language is combined with the subsequent illustration, however, it is ambiguous because the penultimate sentence is inconsistent with the final sentence, which illustrates Babcock's total recovery as being offset by the fees paid by Babcock. The Fee Agreement is internally inconsistent and thus ambiguous. Accordingly, the Fee Agreement will be construed against Harris Beach such that Harris Beach's fee shall be 20% of Babcock's recovery, minus the attorneys' fees previously paid by Babcock.
Even if the ambiguous Fee Agreement were not to be construed against its drafter, Harris Beach, supra note 21, this Court would nonetheless construe it in Babcock's favor because parol evidence supports his construction of the Fee Agreement — i.e., that the $30,000 should be deducted from the contingency fee, not from the total recovery. See, e.g., Aff. of Stephen Babcock, Ex. 3(6)(b) ("I will commit to a 30% contingency recovery (minus fees paid) for Harris Beach when we prevail."); Collins, supra note 20, at 433-434 ("[W]here * * * there are internal inconsistencies in a contract pointing to ambiguity, extrinsic evidence is admissible to determine the parties' intent.") (citation omitted).
Cf. Morrison Cohen Singer Weinstein, LLP v. Network Indus. Corp., 292 A.D.2d 153, 154 (1st Dep't 2002). Morrison involved a fee agreement that combined a capped fee component with a contingency fee component equal to "15% of the gross settlement amount less the amount you have paid us for legal fees * * *." Ibid. The court affirmed a lower court ruling that construed such language as providing that the overall recovery ($2.2 million) was to be multiplied by the contingency percentage (15%) to arrive at the contingency fee ($330,000), from which previous legal fees ($160,000) was to be subtracted for a total of $170,000. Ibid.
Thus, assuming a $450,000 recovery, Harris Beach's 20% contingency fee would be $90,000, which would be offset by the amount of attorney's fees paid by Babcock.
B. The Right to Apply for Attorneys' Fees under Section 1988
It was clearly erroneous for the DO to conclude that Babcock "essentially agreed to assign [his] § 1988 attorneys' fee claim to Harris Beach." DO, at 6. With respect to the right to apply for section 1988 attorneys' fees, the Fee Agreement provides in relevant part
"In the event you recover any amount of monetary damages such that you are entitled to make application for the payment of your attorneys' fees under 42 U.S.C. § 1988 (or any other applicable federal statute) as a prevailing party, you agree to permit Harris Beach to make such an application on your behalf. You further agree that any such recovery of fees under 42 U.S.C. § 1988 (or any other applicable statute) will be paid over to Harris Beach. In the event that Harris Beach is successful in its application on your behalf for the recovery of fees under 42 U.S.C. § 1988 or any other applicable statute, Harris Beach shall be entitled to the full amount of such fee award. Any hourly fees incurred by Harris Beach above $30,000 and recovered under 42 U.S.C. § 1988 or any other applicable statute would be payable dollar for dollar to Harris Beach." Fee Agreement, at 2 (emphasis added).
Although Babcock was able to assign his rights under section 1988 to Harris Beach, the language of the Fee Agreement did not effect such an assignment.
Evans, supra note 6, at 730-731; Goodman v. Heublein, Inc., 682 F.2d 44, 47-48 (2d Cir. 1982).
Even assuming arguendo that the Fee Agreement may be read to effect an assignment of Babcock's rights under section 1988, it is nonetheless ambiguous and must be construed against Harris Beach as the drafter of the Fee Agreement as discussed above.
An "assignment" is defined in relevant part as the "transfer of rights or property." Although "[n]o particular words are necessary to effect an assignment; it is only required that there be a perfected transaction between the assignor and assignee, intended by those parties to vest in the assignee a present right in the things assigned." Properly construed, however, the Fee Agreement fails to effect a transfer of section 1988 rights from Babcock to Harris Beach.
Black's Law Dictionary 115 (7th ed. 1999); see also 6A N.Y. Jur.2d Assignments § 1 (1997) ("An assignment is a transfer or conveyance which vests in the assignee the property owned by the assignor and embraced in the terms of the instrument.").
Leon v. Martinez, 84 N.Y.2d 83, 88 (1994) (emphasis added); see also Martha Graham Sch. Dance Found. v. Martha Graham Ctr. of Contemporary Dance, 2002 WL 1467852, at *3 (2d Cir. 2002) (quoting Leon); Pearl-Wick Corp. v. John Hancock Mut. Life Ins. Co. (In re Pearl-Wick Corp.), 26 B.R. 604, 608 (S.D.N.Y.) ("There must be sufficient language to establish a completed transfer of title to a present right."), aff'd, 697 F.2d 295 (2d Cir. 1982).
Under the Fee Agreement, Babcock merely "agree[d] to permit Harris Beach to" make a section 1988 application on Babcock's behalf. Such is not a transfer of Babcock's section 1988 rights. First, the Fee Agreement failed to effect an assignment because it did not divest Babcock of all right or control over a section 1988 recovery; he was entitled to the first $30,000. Second, the agreement to permit Harris Beach to file a section 1988 application on Babcock's behalf grants Harris Beach, at most, a power of attorney to pursue a section 1988 recovery. Third, the Fee Agreement is silent as to Babcock's right to waive his section 1988 rights — an ambiguity that must be construed against Harris Beach. Fourth, the Fee Agreement failed to manifest Babcock's intent to give or transfer his section 1988 rights — including the right to waive such — to Harris Beach. Finally, the Fee Agreement merely allocated any section 1988 recovery that might be obtained. The Fee Agreement provides that any section 1988 recovery would be paid to Harris Beach and that it would be entitled to any amount above $30,000. In other words, any section 1988 recovery would be paid to Harris Beach, who would then be responsible for reimbursing Babcock for the $30,000 that he had previously paid to Harris Beach. Consequently, the Fee Agreement merely allocated to Harris Beach any section 1988 recovery above $30,000 if a recovery were ever obtained. The contingency includes both the contingency that such an award would be made by this Court as well as the contingency that Babcock had not waived his section 1988 rights. For the reasons set forth above, this Court finds that, in agreeing to permit Harris Beach to file a section 1988 application on his behalf, Babcock did not give Harris Beach any present right or interest. Indeed, the Fee Agreement either failed to effect an assignment or it ambiguously did so, in which case it must be construed against Harris Beach. Accordingly, the Fee Agreement will be construed against Harris Beach such that Babcock did not assign his rights under section 1988, that he retains a right to waive such rights and that, absent such a waiver, Harris Beach is entitled to any section 1988 recovery that Babcock may obtain above $30,000.
See Spencer v. Standard Chems. Metals Corp., 237 N.Y. 479, 480-481 (1924) (noting that assignment divests "all control and right" in the thing assigned); Coastal Commercial Corp. v. Samuel Kosoff Sons, Inc., 10 A.D.2d 372, 376 (4th Dep't 1960) ("An assignment at law contemplates a completed transfer of the entire interest of the assignor in the particular subject of assignment, whereby the assignor is divested of all control over the thing assigned. * * * [No assignment exists where there is no evidence] that the alleged assignor had divested itself of all interest in the claim * * *."). In Spencer, the New York Court of Appeals held that an assignment was not effected by an instrument granting an attorney "power to commence or prosecute any suit or action or other legal proceedings for the recovery of damages" because such merely provided that "the attorney's duty is simply to collect what may be due to [the client] solely for the [client's] benefit and to transmit it to him." Spencer, at 481-482. Similarly, the Fee Agreement granted Harris Beach the power to seek a section 1988 recovery on Babcock's behalf for his benefit — a benefit that included the compensation of his attorneys.
Cf. Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 17-18 (2d Cir. 1997) ("A provision by which one person grants another the power to sue on and collect on a claim confers on the grantee a power of attorney with respect to that claim. The grant of a power of attorney, however, is not the equivalent of an assignment of ownership; and, standing alone, a power of attorney does not enable the grantee to bring suit in his own name.") (citation omitted); Spencer, supra note 29, at 480-481.
Cf. Venegas, supra note 6, at 88 ("And just as we have recognized that it is the party's entitlement to receive the [section 1988] fees in the appropriate case, so have we recognized that as far as [section 1988] is concerned, it is the party's right to waive, settle, or negotiate that eligibility.") (citing Evans, supra note 6, at 730-731).
See note 21 supra.
Cf. Advanced Magnetics, supra note 30, at 17 ("In order to make a valid assignment, the owner must manifest an intention to make the assignee the owner of [the] claim.") (internal quotation marks omitted). At best, the phrase "make such an application on your behalf" could mean either (1) that Harris Beach would make a section 1988 application at Babcock's behest or (2) that Harris Beach would make a section 1988 application while standing in Babcock's shoes. Consequently, the Fee Agreement is ambiguous and must be construed against Harris Beach. The phrase "payable * * * to Harris Beach" is likewise ambiguous because "payable to" does not necessarily mean "entitled to." Indeed, the Fee Agreement provides that a section 1988 recovery would be payable to Harris Beach, while Babcock would be entitled to the first $30,000.
Cf. Kurzman Karelsen Frank, L.L.P. v. Kaiser, 283 A.D.2d 330, 330 (1st Dep't 2001) (finding that a "future contingent promise to pay * * * did not constitute an assignment").
Cf. Darby v. City of Torrance, 810 F. Supp. 275, 276 (C.D. Cal. 1992) (denying plaintiff's counsel leave to withdraw because the court had refused to approve of the plaintiff's assignment of section 1988 rights to his attorney and noting that the plaintiff's attorney should have been aware of the possibility that the plaintiff would waive his section 1988 rights as part of a settlement offer and that a purported assignment of rights may not be approved by the Court).
As discussed above, however, this Court declines to make an award under section 1988.
C. Responsibility for Any Valid Claims by Donohue
Harris Beach concedes that, under the Fee Agreement, it is responsible for any valid fee claims that Donohue may have. Accordingly, this Court need not address the issue, which Magistrate Judge Scott also declined to address.
IV. Conclusion
Accordingly, it is hereby ORDERED that Donohue's section 1988 application (docket #104) is denied, that Harris Beach's section 1988 application filed on December 6, 2002 (docket #102) is denied as moot, that Harris Beach's section 1988 application filed on September 17, 2003 (docket #130) is denied, that plaintiff's objections to Magistrate Judge Scott's Decision Order dated December 19, 2003 are sustained, that such Decision Order is set aside, that Babcock's motion for judicial interpretation is granted such that this Court finds that the Fee Agreement shall be interpreted as set forth above and that Harris Beach shall stop sending billing notices to Babcock.
Still pending are the parties' respective motions for judgment as a matter of law.