The opinion of the court was delivered by: Wall, Magistrate Judge.
Plaintiff Jennifer Menghi commenced this action against defendants Teddy Hart ("Hart"), in both his individual and official capacities, and the County of Suffolk ("the County"), alleging violations of her civil rights pursuant to 42 U.S.C. §1983 ("§1983") and violations of the Drivers' Privacy Protection Act ("DPPA"), 18 U.S.C. §2721 et seq. A jury found in favor of plaintiff on her DPPA claims and awarded both compensatory and punitive damages. Before the court are motions from both defendants for judgment as a matter of law pursuant to Rule 50 (b) of the Federal Rules of Civil Procedure, or for a new trial pursuant to Rule 59. See County's Motion, Docket Entry ("DE") ; Hart's Motion, DE . In the alternative, both defendants argue that the compensatory damages award is excessive, and defendant Hart further seeks a reduction in the punitive damages award. Plaintiff has moved for an award of reasonable attorneys' fees and costs. DE . For the reasons set forth herein, the Rule 50 motions are denied, the Rule 59 motions are granted in part and denied in part, and the motion for attorneys' fees and costs is granted in part and denied in part.
Familiarity with the underlying facts of this case and the previous orders of the court is assumed. In brief, plaintiff was arrested by defendant Hart, who was then a Suffolk County police officer, for driving under the influence on August 3, 1996. Subsequent to that lawful arrest, plaintiff received harassing and threatening anonymous phone calls at her home on several dates from February 1997 to January 2000. Plaintiff lodged complaints with the police, and as the result of an Internal Affairs Bureau ("IAB") investigation, Hart was identified as the caller to Menghi and to several other women. The IAB investigation further discovered that Hart had accessed the police computers to run plaintiff's license plate through DMV on three occasions prior to her arrest. Those searches took place twice on August 3, 1995 and once on January 31, 1996. Hart resigned from the police department and pled guilty to charges of aggravated harassment, computer trespass, and official misconduct.
The complaint initially filed by Menghi on February 15, 2002, contained a claim under §1983. She subsequently moved to amend her complaint to add the claims under the DPPA and a claim forliability against the County under Monell v. New York City Dep't of Social Servs., 436 U.S. 658 (1978). On July 27, 2004, I issued a report recommending that the motion be granted. DE .*fn1 That report recommended a finding, inter alia, that plaintiff's claims under the DPPA were subject to a four-year statute of limitations and were not time barred. By Order dated September 13, 2004, Judge Seybert, noting that no objections had been filed, adopted the report and recommendation. Order, DE .
By Memorandum and Order date March 14, 2007, Judge Seybert granted in part and denied in part the County's motion for summary judgment, and denied both Hart's motion and plaintiff's cross-motion for summary judgment. ("SJ Order"), DE . Of particular note, Judge Seybert found that a municipality may be held vicariously liable under the DPPA. SJ Order at 18. In addition, Judge Seybert rejected Hart's motion based on an argument that the DPPA claims were time barred, stating that the earlier ruling on the statute of limitations issue was binding on the parties. SJ Order at 9. Finally, Judge Seybert found that there were disputed issues of fact "as to whether Hart did in fact obtain Plaintiff's personal information from a state motor vehicle agency prior to and during her arrest." SJ Order at 17. None of the parties sought reconsideration of Judge Seybert's SJ Order.
In March 2008, the parties consented to my jurisdiction for all purposes. After a jury trial conducted in October 2008, the jury found in favor of plaintiff Jennifer Menghi on her claims under the DPPA, but found for the defendants on her claims pursuant to §1983. The jury responded "Yes" to the following questions on the Verdict Sheet regarding plaintiff's DPPA claim:
4. Did plaintiff Menghi prove that defendant Hart obtained, disclosed or used plaintiff's personal information obtained from a DMV record?
5. Did plaintiff Menghi prove that defendant Hart's obtaining, disclosing or using plaintiff's personal information obtained from a DMV record was for an impermissible purpose?
6. Did plaintiff Menghi prove that defendant Hart was acting within the scope of his employment when he obtained, disclosed or used plaintiff's personal information obtained from a DMV record for an impermissible purpose?
The jury awarded plaintiff $1,000,000 in compensatory damages. In addition, it awarded $2,000,000 in punitive damages against Hart.
The County defendant now moves for judgment as a matter of law with respect to the following: 1) the finding of municipal vicarious liability under the DPPA, 2) the finding that Hart was acting within the scope of his employment, 3) any claim regarding Hart's appearance at plaintiff's place of work is time barred, and 4) no evidence to show plaintiff suffered from Graves' disease. Defendants also move for a new trial, or alternatively, a remittitur of the damages awards.
As permitted by Rule 50 (b), both the County and Hart have renewed their motions for judgment as a matter of law made prior to verdict. "In ruling on a motion for judgment as a matter of law, a district court must consider the evidence in the light most favorable to the non-movant and draw all reasonable inferences the jury could have drawn." Cweklinsky v. Mobil Chem. Co., 364 F.3d 68, 75 (2d Cir. 2004). Additionally, "[a] jury verdict should be set aside only where there is 'such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or . . . such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.'" Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 79 (2d Cir. 2006) (quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992) (ellipsis in original) (quotations omitted)). In evaluating the motion, the court "cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d Cir.2001) (quoting Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 367 (2d Cir.1988)). It is enough that this testimony was in evidence for the jury to consider. Defendants' liability turns on the jury's credibility determinations, which the Court "cannot disturb" unless the verdict was "egregious." See James v. Melendez, 567 F. Supp. 2d 480, 484 (S.D.N.Y. 2008) (citing DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998)).
Rule 59 allows the court to grant a new trial on all or some of the issues "for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59 (a)(1)(A). This standard is "less stringent" than that required for relief under Rule 50. Olsen v. County of Nassau, 615 F. Supp. 2d 35, 39 (E.D.N.Y. 2009). "In comparison to a Rule 50 motion, the Second Circuit has held that the standard for a Rule 59 motion is less onerous for the moving party in two ways: first, '[u]nlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence supporting the jury's verdict.' Second, in deciding a Rule 59 motion 'a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner.'" Ramos v. County of Suffolk, --- F. Supp. 2d ----, 2010 WL 1641454, at *6 (E.D.N.Y.,Apr. 26, 2010) (quoting DLC Mgmt. Corp., 163 F.3d at 134). While the court may independently weigh the evidence, a motion for a new trial should only be granted if the court is convinced that the jury reached a seriously erroneous result or that the verdict is a miscarriage of justice and that the verdict is against the weight of the evidence. Manley v. AmBase Corp., 337 F.3d 237, 244-45 (2d Cir. 2003) (citations omitted).
The jury found that Hart, while acting within the scope of his employment, obtained, disclosed or used plaintiff's personal information obtained from a DMV record for an impermissible purpose. The DPPA provides, in pertinent part, that "[a] person who knowingly obtains, discloses or uses personal information from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains."
18 U.S.C. §2724(a). A "person" under the statute "means an individual, organization or entity, but does not include a State or agency thereof." 18 U.S.C. §2725(2). "Personal information" is defined by the statute as "information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not 5-digit zip code), telephone number, and medical or disability information. " 18 U.S.C. §2725(3).
II. Defendant Suffolk County's Rule 50 Motion
The County raised four arguments in support of its Rule 50 motion: that it cannot be held vicariously liable for Hart's violations of the DPPA, that Hart was not acting within the scope of his employment, that any claim regarding Hart's unwanted appearance at plaintiff's workplace is time barred, and that plaintiff provided no evidence that she has Graves' disease. I will address these arguments in turn.
A. Vicarious Liability Under the DPPA
The County argues that the DPPA does not allow for a finding of vicarious liability based on respondeat superior, but rather urges adoption of a Monell-type rule allowing an imposition of liability on its part only where plaintiff has established a custom, policy, or practice within the County. It further argues that the case relied upon by Judge Seybert in her order denying summary judgment, Margan v. Niles, 250 F. Supp. 2d 63 (N.D.N.Y. 2003), was "incorrectly decided." County's Mem. at 3.
This issue was previously raised by the County in its motion for summary judgment. In the SJ Order issued on March 14, 2007, DE , Judge Seybert found that "a municipality may be held vicariously liable under Section 2724" of the DPPA. SJ Order at 18. "The doctrine of the law of the case posits that if a court decides a rule of law, that decision should continue to govern in subsequent stages of the same case." Aramony v. United Way of Am., 254 F.3d 403, 410 (2d Cir. 2001) (citations omitted). Courts apply this doctrine when "their prior decisions in an ongoing case either expressly resolved an issue or necessarily resolved it by implication." Id. (citations omitted). Application of this doctrine is discretionary and does not limit the court's power to review its decisions prior to final judgment. Id.; McAnaney v. Astoria Fin. Corp., 665 F. Supp. 2d 132, 142 (E.D.N.Y. 2009). Here, the County has presented no new argument to persuade the undersigned to exercise that discretion and essentially reverse the opinion of Judge Seybert on this crucial issue.
Although the County has not presented any new argument, the court conducted further research regarding application of the DPPA. While case law interpreting the DPPA is sparse, research has not discovered any case in which a court has applied a Monell-type standard. To the contrary, the Margan case makes a compelling argument that use of a Monell standard is not appropriate in the context of a DPPA case. The Margan court noted that the consideration of whether a municipal policy existed is necessary in §1983 cases "because, unlike ordinary tort litigation, the doctrine of respondeat superior [is] inapplicable." Margan, 250 F. Supp. 2d at 75 (emphasis in original) (quoting Collins v. City of Harker Heights, Tex., 503 U.S. 115, 122 (1992)). It concluded that "the DPPA is more akin to an ordinary tort than an action pursuant to section 1983 (which requires conduct under 'color of state law'), and therefore, analogy to section 1983 principles of liability is inappropriate." Id. The court further noted that in formulating the DPPA, "Congress carefully defined the term 'person'" to exclude states and state agencies, but not municipalities. Thus, "Congress's decision not to exclude municipalities evinces its intention to put municipalities on the same footing as all other 'persons.'" Margan, 250 F. Supp. 2d at 75, n.15.
Additionally, research has found no case in which a court has expressly declined to impose vicarious liability on a municipality in a DPPA case. The Seventh Circuit, however, left undisturbed a jury's finding that a municipality was liable for the actions of its police officer who searched DMV records and disclosed plaintiff's address to her ex-husband in violation of the DPPA. See Deicher v. City of Evansville, Wis., 545 F.3d 537 (7th Cir. 2008) (reversing trial court on procedural grounds and new trial on damages ordered), cert. denied 129 S.Ct. 1355 (2009). Thus, for the reasons stated in the SJ Order dated March 14, 2007 and in Margan, I find that use of a vicarious liability standard was not erroneous.
The County next argues that Hart's violations of the DPPA "were beyond the scope of his employment as a matter of law." County's Mem. at 4. It argues that the evidence established "that the DPPA violations, particularly the obscene phone calls, were completely unrelated to Hart's employment or any police business," that he never identified himself as a police officer, and that three of the four calls were made while he was off duty. Id. The County further argues that the jury's determination that Hart was not acting under color of law when making the calls "was irreconcilable with the finding that he was acting within the scope of his employment." Id at 8.
Contrary to the County's assertions, there was no explicit finding by the jury that Hart was acting within the scope of his employment when he made the offensive telephone calls. The jury specifically found that Hart was "acting within the scope of his employment when he obtained, disclosed or used plaintiff's personal information obtained from a DMV record for an impermissible purpose." Verdict Sheet question 6. In determining whether Hart was acting within the scope of his employment, the jury was instructed that it could consider such factors as "the connection between the time, place and occasion for the act; the history of the relationship between defendant Hart and defendants Suffolk County as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the defendant Suffolk County could reasonably have anticipated." Trial Transcript ("Tr.") at 812-13.*fn2 A greater emphasis may be placed on the final factor -- whether the acts "could reasonably have been anticipated by the employer." Mingo v. United States, 274 F. Supp. 2d 336, 346 (E.D.N.Y.). There was evidence as to several of these factors, including the final one, that supports a finding that Hart was acting within the scope of his employment.
Lieutenant Peter Cilento testified that on both August 3, 1995 and January 31, 1996, defendant Hart, while on duty, ran plaintiff's plate from a computer within the Sixth Precinct.
Tr. 276-77. Hart did not have his own computer access code, id. 242, but rather used a code he found written on the computer. Id. 250. Hart stated that at some point, that password stopped working so he started counting backwards until he hit upon a number that worked. Id. 418. Lieutenant Cilento noted that the computer recognized valid codes even if the authorized user for that code did not input it. Id. 244-45. As evidenced by several documents, the police department was aware of the practice of leaving passwords on computers and unauthorized access to computers and issued warnings about it. Exs. D, F, O, P; Tr. 301. There was no evidence that the police department performed any follow-up or used any other precautions to ensure that it's warnings about unauthorized computer use were heeded. From 1990 to his resignation, Hart performed almost 2000 computer runs, some were for legitimate police reasons, some were not. Tr. 247-48. Hart was never instructed not to make computer runs. Id. 381. This evidence clearly supports a finding that although he was not authorized to do so, Hart commonly performed computer searches for both legitimate and illegitimate purposes, and that the County not only anticipated that its officers might perform unauthorized searches, but was aware that such searches were being conducted. Thus there was sufficient evidence for the jury to conclude that Hart was acting within the scope of his employment when he accessed the DMV records to obtain plaintiff's address and other information.
In addition, the jury was specifically instructed that "as a matter of law, the obtaining of the plaintiff's DMV records at the time of her arrest was permissible under the DPPA. However, it is for you, the jury, to determine whether the defendant Hart subsequently used the information permissibly obtained at the time of the arrest for a later impermissible purpose." Tr. 810-11. There was evidence that would support a jury finding that Hart obtained Menghi's personal information during the arrest from her driver's license rather than from Menghi herself during an interview. Menghi testified that Hart took her license when he first approached her car during her arrest, and that it was not returned to her until the next day. Id. 435. There was also testimony that Menghi's address and plate number were recorded on a notepad kept by Hart, id. 348 and Ex. 10, and Hart acknowledged that the information could have come from a DMV record, Tr. 365, or could have been written the night of her arrest. Id. 380. I find that there was also evidence for the jury to find that Hart used the information permissibly obtained at the time of the arrest for a later impermissible purpose.
The County also argues that the jury's finding that Hart was acting within the scope of his employment is inconsistent with its finding that he was not acting under color of state law when he approached her at her workplace and/or made telephone calls to her. The court disagrees. Whether actions are performed "in the scope of employment" is a different inquiry as to whether those acts were made "under color of state law" for §1983 purposes. Indeed the question of whether an off-duty police officer was acting within the scope of his employment is cited as a factor in determining whether that person was acting under color of state law. See, e.g., Steptoe v. City of Syracuse, 2010 WL 1257936, ...