The opinion of the court was delivered by: RAKOFF
In this § 1983 action, plaintiff sued for $ 1,475,000 and recovered $ 1,080. After extended delay, he filed for $ 27,095 in attorneys' fees. Common sense suggests that he might better have foregone the filing altogether. Application of the law leads to the same conclusion.
In the underlying action, plaintiff brought suit against five defendants, asserting four claims under 42 U.S.C. § 1983 and seeking $ 475,000 in compensatory damages and $ 1 million in punitive damages. Three claims and three defendants remained when the case went to the jury: malicious prosecution against defendants Rivera and Saliba, excessive force against defendants Pena and Rivera, and false arrest against defendants Pena and Rivera. The jury found for defendants on all counts except the excessive force claim, on which they awarded plaintiff the grand total of $ 1,080, consisting of $ 540 in compensatory damages from each of the two defendants against whom that claim was brought. Judgment was entered on October 3, 1997.
On January 29, 1998, some one hundred eighteen days after the entry of judgment, plaintiff moved for $ 27,095 in attorneys' fees pursuant to 42 U.S.C. § 1988. To say that the motion was belated is to belabor the obvious, since Federal Rule of Civil Procedure 54(d)(2)(B) provides that "unless otherwise provided by statute or order of the court, the motion [for attorneys' fees] must be filed and served no later than 14 days after entry of judgment . . . ."
Nonetheless, in such cases, "district courts may grant extensions of time . . . upon a showing of 'excusable neglect,'" LoSacco v. City of Middleton, 71 F.3d 88, 93 (2d Cir. 1995) (quoting Fed. R. Civ. P. 6(b)(2)), and plaintiff seeks to be so excused. In assessing such showings, a court should take into account "the danger of prejudice . . . , the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Pioneer Investment Services Co. v. Brunswick Assoc., 507 U.S. 380, 395, 123 L. Ed. 2d 74, 113 S. Ct. 1489 (1993).
Applying these criteria to the instant motion, the Court finds that plaintiff's delay poses a significant danger of prejudice to defendants, is excessively long by any relevant standard, and is not justified by any legitimate excuse.
As to prejudice, defendants aver that, had they known plaintiffs would request fees, they might well have decided to appeal the verdict, since such a contingency would increase their potential liability 26-fold.
This is precisely the kind of prejudice the Advisory Committee had in mind when it recommended the amendments to Rule 54(d)(2)(B) imposing the 14-day time limit. See Fed. R. Civ. P. 54(d)(2)(B) Adv. Comm. Notes 1993 ("One purpose of the provision is to assure that the opposing party is informed of the claim before the time for appeal has elapsed.").
As to length of delay, the vast difference between the 14 days allotted by Congress to file such a motion and the 118 days taken by plaintiff's counsel to actually do so here speaks for itself.
Finally, as to excuse, plaintiff claims that he refrained from filing his motion because he was involved in good faith negotiations with defense counsel regarding recovery of such fees and defendants never informed him that they might raise a timeliness objection if negotiations were to collapse. But the excuse is lame, not just because defendants were under no obligation to volunteer their defenses, but also because, by plaintiff's counsel's own admission, these fee negotiations did not even begin until December 8, 1997, a full 52 days after the Rule 54(d)(2)(B) deadline had already passed. See Cameron Aff. P 11.
In short, plaintiff's motion must be denied on grounds of untimeliness. It remains only to add that, even if this Court could somehow overlook plaintiff's gross and prejudicial delay in bringing this motion, it would deny the motion on the ground that his "victory" was technical and de minimis. See Farrar v. Hobby, 506 U.S. 103, 117, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992) (O'Connor, J., concurring).
The statute under which plaintiff seeks fees, 42 U.S.C. § 1988, provides in pertinent part that "in any action or proceeding to enforce a provision of section . . . 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." 42 U.S.C. § 1988. In Farrar, the most recent Supreme Court case interpreting "reasonable" in the context of § 1988, the Supreme Court held that "when a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all." Farrar, 506 U.S. at 115 (citation omitted), cited in LaRouche v. Kezer, 20 F.3d 68, 71 (2d Cir. 1994); accord, e.g., McCardle v. Haddad, 131 F.3d 43, 55 (2d Cir. 1997); Pino v. Locascio, 101 F.3d 235, 239 (2d Cir. 1996); Caruso v. Forslund, 47 F.3d 27, 31 (2d Cir. 1995).
Of itself, this holding would not preclude an award of attorneys' fees here, since the jury in the case at bar found actual, rather than nominal damages. See, e.g., Magnett v. Pelletier, 488 F.2d 33, 35 (1st Cir. 1973) (per curiam) (holding that a damage award of $ 500 in a civil rights case was not "nominal"). But see, e.g., Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996) ("'Nominal damages' is not limited to an award in the amount of $ 1, but includes an award that may properly be classified as 'de minimis.'"). But, by the same token, nothing in Farrar requires the award of attorneys' fees to a prevailing party simply because its recovery is more than the one dollar given for nominal damages.
Further guidance is provided, however, by Justice O'Connor's concurring opinion in Farrar, which suggests that, "when the plaintiff's success is purely technical or de minimis, no fees can be awarded," Farrar, 506 U.S. at 117 (O'Connor, J., concurring). For these purposes, a plaintiff's victory is "purely technical" or "de minimis" if there is a substantial difference between the damages sought and the damages awarded, the legal issue on which plaintiff prevails is relatively unimportant, and the litigation serves no discernible public purpose. See id. at 121-22.
Although Justice O'Connor's tripartite test was not the holding of the Court, it has received wide recognition, with some or all of its criteria having been applied by courts in this Circuit. See, e.g., Cabrera v. Jakabovitz, 24 F.3d 372, 393 (2d Cir. 1994); Schwenk v. Kavanaugh, No. 94- CV-773, 1998 WL 259907, at *2 (N.D.N.Y. May 14, 1998); Calovine v. City of Bridgeport, 1998 U.S. Dist. LEXIS 4764, No. 3:94 CV00379, 1998 WL 171432, at *2 (D. Conn. Feb. 4, 1998); Red Cloud-Owen v. Albany Steel, Inc., 958 F. Supp. 94, 97 (N.D.N.Y. 1997); Haywood v. Koehler, 885 F. Supp. 624, 629 (S.D.N.Y. 1995), aff'd on other grounds, 78 F.3d 101 (2d Cir. 1996); see also Pino, 101 F.3d at 239 ("The vast majority of civil rights litigation does not result in ground-breaking conclusions of law, and therefore, will only be appropriate candidates for fee awards if a plaintiff recovers some significant measure of damages or other meaningful relief.").
The O'Connor ...