Conn. Fair Hous. Ctr. v. HUD, No. 20-1775, 2023 WL 184237 (D. Conn. Jan. 13, 2023) (Bolden, J.)

Conn. Fair Hous. Ctr. v. HUD, No. 20-1775, 2023 WL 184237 (D. Conn. Jan. 13, 2023) (Bolden, J.)

Re:  Request for records concerning non-judicial foreclosure practices

Disposition:  Granting plaintiff’s motion for reconsideration; denying plaintiff’s motion for attorney fees

• Attorney Fees:  The court relates that, “[i]n its prior order, the Court stated in a footnote that [plaintiff] ‘likely lack[ed] a basis to obtain attorney’s costs and fees where . . . [plaintiff] has not argued that it expressly reserved its ability to pursue attorney’s fees post-settlement or otherwise moved to reopen this case, which has been administratively closed.’”  The court relates that “[plaintiff] argues there is no statutory or case law basis to require a party to expressly reserve its rights to move for attorney’s fees after judgment is entered.”  The court relates that “[u]nder Federal Rule of Civil Procedure 54(d)(2)(B), a party moving for attorney’s fees must do so within 14 days of judgment, ‘unless a statute or court order provides otherwise.’”  The court finds that, “[i]n light of the unique circumstances of this case, particularly [plaintiff’s] different understanding – arguably a misunderstanding – of the interplay between the Court’s order administratively closing the case and Rule 54’s standard 14-day deadline, and the lack of prejudice to HUD due to both parties’ representation that the they had been actively discussing, but had not yet resolved the issue of attorney’s fees, . . . the Court will consider the motion for attorney’s fees to be timely nunc pro tunc.”  “Accordingly, the Court will grant the motion for reconsideration on this ground.”
   
• Attorney Fees, Eligibility:  First, the court finds that “[plaintiff] has identified ‘the need to correct a clear error’” because, in its prior order, the court did not allow for the “‘catalyst theory’ of recovery as a theory under which plaintiffs can show that they ‘substantially prevailed.’”  “[T]he Court will grant the motion for reconsideration on this ground.”
  
  Second, the court holds that “[plaintiff] is not eligible for attorney’s fees, and, upon reconsideration, the Court will deny its motion for attorney's fees.”  The court notes that “[b]etween September 2020 and December 2020, HUD was not actively processing the request because, in HUD’s view, the request was paused and implicated two legal questions:  first, whether HUD had to produce the requested records if the request would require HUD to create the requested records, as FOIA ‘does not require the creation of records,’ . . . and second, whether a non-profit organization ‘must still pay standard fees for the search of the agency records absent a significant public benefit’ . . . .”  “In addition to the above delays, between June 2020 and May 2021 when HUD produce[d] the first set of responsive documents, HUD stated that the COVID-19 pandemic impacted its ability to respond in a timely manner.”  “More specifically, due to COVID-19, HUD had to ‘devote its resources toward quickly implementing new protections for single-family borrowers, and ensuring that servicers implemented loss mitigation tools to avoid foreclosure and adhered to the foreclosure moratoria.’”  “In light of this, HUD had fewer resources to devote to resolving the issues with [plaintiff’s] FOIA request.”  The court finds that “there is nothing in the record to suggest that HUD ultimately found a solution faster than it would have if [plaintiff] had not filed its Complaint.”  “Overall, in light of HUD’s shifting of resources during the height of the COVID-19 pandemic, HUD’s diligence in its initial response to the request, and the legal questions presented by the request that ultimately led HUD to pause its response for a few months before identifying an alternative solution, it is not clear that [plaintiff’s] Complaint caused a ‘sudden acceleration,’ . . . or ‘quicken[ed] the pace’ of HUD’s disclosure’ . . . .”  “Without any other facts in the record to suggest that the lawsuit caused HUD to respond more quickly, ‘the mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation.’”