The jury answered in the negative. Thus, the jury rendered verdicts on six separate claims. Only one of these claims was found by the jury to have any merit. Success, in every sense of the word, was attained on only one claim, and may be described as limited. However, plaintiff did receive a substantial monetary verdict on the due process claim upon which he did prevail in the sum of $282,917.00.
The due process claims against both the City of Utica and Mayor Julian, certainly were factually and legally intertwined. The question becomes, therefore, whether these claims were factually and legally intertwined with the other unsuccessful claims. Clearly, the due process claims are legally distinct. Specifically, the race discrimination claims involved determining whether race motivated three separate terminations, and whether it caused a hostile work environment. The free speech retaliation claim involved determining whether retaliation occurred for the exercise of First Amendment rights. The due process claims centered around false, stigmatizing statements, and whether the defendants provided plaintiff with a name-clearing hearing to remediate the same. The due process claims had nothing to do with plaintiff's race, and had nothing to do with the exercise of his First Amendment rights.
However, the unsuccessful claims do have some degree of factual intertwinement with the due process claims. At least some arise out of the same course of events — i.e., plaintiff being berated and fired on the spot. Thus, because, for example, witnesses often offered testimony pertinent to more than one claim, some claimed hours are not capable of division and must be considered as a whole. However, as the intertwinement is not complete, legally or factually, some limited reduction for plaintiff's success against only one defendant on only one claim is appropriate.
Next, the determination needs to be made as to how much to reduce the initial lodestar figure due to plaintiff's limited success with regard to the individual claims, but substantial success with regard to the monetary recovery. Because the same defendants were involved in all of the claims, the hours claimed could reasonably be seen as applying to any of plaintiff's claims, and are therefore incapable of proper separation or elimination. Therefore, it is here found that an across the board percentage reduction is appropriate. No aid is given by the parties, and none is expected or perhaps even reliable, as to the relative weight of the three overall claims. One could go through the hours claimed and attempt to divide hours appropriately. However, such ventures necessarily involve assumptions, such as assumptions involving the division of time an hour was spent on particular claims, that may not necessarily be warranted. Rather than engage in such guesswork, thereby toeing the fine line of strict proportionality found to be incompatible with the purpose of § 1988, it is here found to be more appropriate to reduce the lodestar amounts by only one-tenth (10%). This relatively small reduction is due to the fact that although plaintiff attained success on only one of many claims, he attained an impressive monetary success on that one claim.
An addition to the fee award is the $2,413 claimed by plaintiff as costs and disbursements. (Docket No. 49, Exh. A). "`Attorney's fee's awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients'." LeBlanc-Sternberg, 143 F.3d at 763 (quoting United States Football League v. National Football League, 887 F.2d 408, 416 (2d Cir. 1989)). Defendants have not objected to plaintiff's claim for expenses.
The following is the final fee award:
Hourly Rate $175.00
Reasonable Hours x 306.75