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McDow v. Rosado

September 29, 2009



Defendant moves to amend the judgment issued by this Court on January 23, 2009 to eliminate the award of pre-judgment interest. Plaintiff opposes and cross-moves for attorney's fees. For the reasons stated below, the Court amends the judgment, strikes the pre-judgment interest awarded, and awards attorney's fees in the amount of $78,980 and costs in the amount of $3,299.90 to plaintiff.


In November of 2005, Plaintiff William McDow brought suit against Parole Officer Marcial Rosado for violation of his civil rights under 42 U.S.C. § 1983. Plaintiff claimed that on October 7, 2003, while entering a New York State parole office to visit his former parole officer, he was illegally stopped and detained, falsely arrested, and subjected to excessive force when defendant Rosado, an off-duty parole officer, approached and pepper-sprayed him. Plaintiff further claimed that he was maliciously prosecuted by the State for the alleged assault of defendant immediately following the pepper-spraying. Defendant claimed he used pepper spray only after plaintiff punched him. Defendant filed a motion for summary judgment in March of 2007, which was granted in part and denied in part. The Court dismissed the malicious prosecution claim and claims relating to the false arrest for assault.

On October 14, 2008, the Court tried plaintiff's remaining claims and a jury found for plaintiff, awarding compensatory damages of $10,000. The court did not enter judgment for 10 days at the request of defendant so that the parties could pursue settlement negotiations. The parties could not reach a settlement, however, and the Court entered judgment. Included in the judgment was an award of pre-judgment interest of $2,862.74 for a total of $12,862.74 for plaintiff on January 23, 2009. Defendant then moved to amend the judgment to strike the award of pre-judgment interest, claiming it was punitive rather than compensatory. Plaintiff opposed and cross-moved for attorney's fees and costs in the amount of $93,431.17 pursuant to 42 U.S.C. § 1988 and Rule 54(d) of the Federal Rules of Civil Procedure.


Courts may award pre-judgment interest at their discretion. Gierlinger v. Gleason, 160 F.3d 858, 873 (2d Cir. 1998). Courts take into consideration "(i) the need to fully compensate the wronged party for actual damages suffered, (ii) considerations of fairness and the relative equities of the award, (iii) the remedial purpose of the statute involved, and/or (iv) such other general principles as are deemed relevant by the court." Id. (Internal quotation marks and citations omitted.) However, pre-judgment interest is usually awarded in situations where economic injuries have been sustained, or where the plaintiff was "deprived of money that she would otherwise have earned but for defendants' wrongdoing, as in an employment termination case." Sulkowska v. City of New York, 170 F. Supp. 2d 359, 371 (S.D.N.Y. 2001); see Miner v. City of Glens Falls,999 F.2d 655, 662 (2d Cir. 1993) (affirming award of pre-judgment interest on back pay to fully compensate for damages, because plaintiff was deprived of the use of his salary for that period). By contrast, [a]n award of compensatory damages for pain and suffering . . . is not so easily calculated and represents the jury's translation into monetary terms a loss that is difficult to quantify. It is not so easily divided into specific periods like back pay and it does not represent an amount that the defendant has withheld from plaintiff in the same way that awards in contract or property actions do.

Sulkowska,170 F. Supp. 2d at 371 (quoting McIntosh v. Irving Trust Co.,873 F. Supp. 872, 882 (S.D.N.Y. 1995)).

When the jury intends to fully compensate the plaintiff for his injuries, additional prejudgment interest would be punitive, rather than compensatory, Sulkowska, 170 F. Supp. 2d at 371--72, and the purpose of pre-judgment interest is to be compensatory, not punitive. United States v. Seaboard Surety Co.,817 F.2d 956, 966 (2d Cir. 1987). In this case, the award was approximate in nature, lacking mathematical exactitude, and fully compensated plaintiff for his mental suffering related to false arrest and excessive force. There are no allegations of missed pay or other economic distress that would warrant the grant of pre-judgment interest. The Court, therefore, amends the judgment and strikes its award of pre-judgment interest.


Recently the Court of Appeals attempted to clarify the analytic approach to be used in calculating statutory attorneys' fees. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 189--90 (2d Cir. 2008). Therein, the Court appeared to abandon the lodestar method whereby an attorney's normal billing rate, adjusted to reflect the prevailing rate in the community, is multiplied by the number of hours worked to arrive at a lodestar numeric. Id. at 186. The numeric is then adjusted for case-specific circumstances, generally by application of the factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717--19 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 92-- 93 (1989), to achieve a reasonable fee.*fn1 Id. In its place, the Court proposed an approach whereby the district court should focus on . . . all of the case-specific variables that we and other courts have identified are relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate. The reasonable hourly rate is the rate a paying client would be willing to pay. In determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors; it should also bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.

Id. at 190. Having established the reasonable hourly rate, the district court should then calculate a "presumptively reasonable fee." Id. Though unstated, this calculation is presumably done after a court has established the "reasonable" number of hours expended on the representation. Also unstated, but again presumed, is that the presumptively reasonable fee is just that-a presumptive figure that can be further adjusted as circumstances warrant.

It is not obvious how this process substantively differs from the lodestar approach except perhaps to emphasize that relevant Johnson factors are to be considered when establishing the reasonable hourly rate. As others have noted, however, "some of those variables such as 'the time and labor required' and 'the time limitations imposed by the client or the circumstances' are more logically related to determining the number or hours that should be compensated, and others, such as the extent of success, might be considered . . . in making further adjustment after a presumptive fee has been established." Rozell v. Ross-Holst, 576 F. Supp. 2d 527, 537 n.1 (S.D.N.Y. 2008) (Francis, M.J.). District courts are urged in Arbor Hill to approximate market factors is setting a reasonable hourly rate, but it is generally the case that rates are agreed upon before a case is litigated, so that degree of success is factored in the subsequent negotiation of a final fee. In the marketplace, few clients would argue post-litigation that due to limited success counsel's rate should be reduced, say, from $350 per hour to $307 per hour; but not infrequently clients will seek an across-the-board percentage adjustment. Since making such a downward adjustment at the final step of a court's fee calculation mirrors the operation of the marketplace, the Court does not read Arbor Hill as precluding such an approach. "A district court may exercise its discretion and use a percentage deduction 'as a practical means of trimming fat from a fee application.'" Simmonds v. New York City Dep't of Corrections, No. 06 Civ. 5298, 2008 WL 4303474, at *1 (S.D.N.Y. Sept. 16, 2008) (quoting Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998)).

Reading Arbor Hill broadly, then, the Court understands that, as before, it should (1) apply a reasonable hourly rate (2) to a reasonable number of hours (3) to arrive at a "presumptively reasonable fee," which (4) may be subject to further adjustment to arrive at an actual reasonable fee award. The Johnson factors, among others, apply with varying force on a non-exclusive basis to each of these steps. While the analysis could be described as a multi-step or single-step process, referring to either a "lodestar" or a "presumptively reasonable fee," happily the result should be the same. See Reiter v. Metropolitan Transportation Authority, No. 01 Civ. 2762, 2007 WL 2775144, at *13 n.10 (S.D.N.Y. Sept. 25, 2007) (Gorenstein, M.J.) (in adjusting for ...

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