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Marchisotto v. City of New York

July 27, 2009


The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge



On March 29, 2005, plaintiff John F. Marchisotto, a former sergeant in the New York City Police Department, initiated this action against the New York City Police Department, the City of New York ("the City"), and Carla Hollywood, alleging sexual harassment and retaliation in employment in violation of Title VII. The case proceeded to trial, and the jury found the City liable for retaliation against Marchisotto, awarding him $300,000 in compensatory damages.

Currently before the Court are Marchisotto's application for attorneys' fees and costs in the amount of $156,514.92, and his request for sanctions in the amount of $25,000. For the reasons that follow, Marchisotto's application for attorneys' fees and costs is GRANTED, in part, and DENIED, in part. The City, therefore, SHALL pay Marchisotto the amount of $21,012 in attorneys' fees. Marchisotto's motion to compel and for sanctions is DENIED.


A. Marchisotto's Motion for Attorneys' Fees and Costs

On July 25, 2006, the Parties consented to jurisdiction by the undersigned. Trial commenced on January 22, 2007.After the close of evidence, the jury found for Defendants on the harassment claim, but returned a verdict for Marchisotto of $300,000 in compensatory damages for the retaliation claim against the City. The City's post-trial oral motion to overturn the verdict and award was denied. On February 1, 2007, the City renewed its motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure ("FRCP") 50(b), seeking to set aside the verdict finding retaliation. It also sought a new trial on the retaliation charge, or on damages alone, under FRCP 59(a), or in the alternative, for remittitur pursuant to FRCP 59(e) to reduce the jury verdict.

By Memorandum Opinion & Order dated April 11, 2007, the Court denied the City's post-trial motions, and entered judgment for Marchisotto in the amount of $300,000. (Doc. Nos. 31 and 32.) The City appealed this ruling to the Second Circuit. (Doc. No. 33.) By Summary Order dated November 7, 2008, (issued as mandate on December 1, 2008), the Second Circuit affirmed the April 2007 decision. (Doc. No. 43.) On November 24, 2008, Marchisotto filed the present motion for attorneys' fees and costs. In support of this motion, Marchisotto submitted affirmations from David M. Fish and Vivek V. Gupta, the two attorneys who worked on his case. Each affirmation sets forth the attorney's professional background, hourly billing rate, and contemporaneous time records documenting the number of hours worked on Marchisotto's case. (See Affirmation of David M. Fish in Supp. of Att'ys' Fees, ("Fish Affirmation"); Decl. of Vivek V. Gupta in Supp. of Att'ys' Fees, ("Gupta Decl.").)

The City objects to Marchisotto's motion on the basis that it was untimely made under FRCP 54(d)(2)(B), which states that a motion for attorneys' fees and related nontaxable expenses must be filed "no later than 14 days after entry of judgment." (Decl. of Phyllis Calistro in Opp'n to Att'y's Fees ("Calistro Decl.") ¶ 2.) The City argues that "entry of judgment" means after post- judgment motions are decided by the District Court; therefore, Marchisotto was required to file his motion within fourteen days of April 11, 2007 -- the date upon which this Court denied the City's post-trial motions. (Id. ¶ 5 (citing Weyant v. Okst, 198 F.3d 311, 314-15 (2d Cir. 1999)).) The City further argues that because of Marchisotto's delay in filing his application, it has been prejudiced because it brought an appeal that did not include any argument about attorneys' fees. (Id. ¶ 6.) The City asserts that Marchisotto has not demonstrated any excusable neglect for this delay, and urges the Court to deny the motion. (Id. ¶ 8.)

Marchisotto's counsel, David M. Fish, replies that Marchisotto's motion is timely because the term "judgment" within the meaning of FRCP 54 (d)(2)(B) is a "judgment that is final and not appealable, and includes an order of settlement." (Fish Reply Aff. ¶ 4, citing 28 U.S.C. § 2412(d)(2)(G).) He reasons that the request for attorneys' fees and costs would have been premature prior to this Court's December 1, 2008 mandate, because this Court's rulings were then pending appeal and no final judgment had been rendered. (Id. ¶ 4.) Fish further argues that the motion is timely because Marchisotto also brought his claims under the Administrative Code of the City of New York, which has no deadline for an application for attorneys' fees. (Id. ¶ 5, (citing NYC Administrative Code § 8-502).)

Fish urges that, even if the Court were to find the motion untimely, the Court should use its equitable powers to accept Marchisotto's application because it is in the interest of justice, and the City has suffered no prejudice. (Id. ¶ 7.) Fish claims that shortly after trial, he repeatedly attempted to resolve the fee dispute with the City's counsel. He notes that counsel refused to engage in discussions, and instead, it commenced its appeal to the Second Circuit. (Id. ¶ 10-13.) Fish asserts that it was not because of neglect that he filed for attorneys' fees and costs after the Second Circuit's decision (and not within fourteen days after the resolution of post-trial motions), but because he made " a thoughtful decision . . . to file the instant application at the appropriate time to avoid the time and expense of a fee application that could be rendered moot by a pending appeal, and to avoid the potential filing of a supplemental fee application." (Id. ¶ 3.)

B. Marchisotto's Motion to Compel and for Sanctions

On March 18, 2009, Marchisotto moved to compel the City to satisfy the $300,000 judgment against it, and for monetary sanctions in the amount of $25,000. Fish explained that after the Second Circuit's mandate was issued on December 1, 2008, he contacted the City's counsel about receiving payment, and was reminded the City had ninety days to pay, but Marchisotto had still not received payment as of March 18, 2009. (David M. Fish's Letter to the Ct., Mar. 18, 2009 at 1.)

The City responded to Marchisotto's motion for sanctions by explaining that a computer system problem had caused the delay; that the payment would be issued no later than March 25, 2009; and that Marchisotto has not been prejudiced because he currently collects a disability pension from the City, and therefore enjoys an income. On April 1, 2009, per the Court's direction, the City submitted an affidavit detailing the computer ...

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