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Annette Brown v. Starrett City Associates

October 27, 2011


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


Following a four-day jury trial before the Honorable Jack B. Weinstein, plaintiff Annette Brown ("plaintiff") moved for attorney's fees and expenses pursuant to 42 U.S.C. § 1988 ("section 1988"). See Trial Transcript ("Trial Tr.") (July 8, 2011) at 29-30, Electronic Case Filing Docket Entry ("D.E.") #82-10. At trial, plaintiff sought to prove that Starrett City Associates and Officer Rupert Newman (collectively, "defendants") violated her federal constitutional rights and New York state law when they arrested her near her residential housing complex. See Memorandum (July 13, 2011) ("7/13/11 M&O") at 1-2, D.E. #74. At the conclusion of trial, the jury found against plaintiff on her false arrest claim. See id. at 4. The jury did find, however, that defendants had used excessive force in handcuffing plaintiff, who suffered from pre-existing carpal tunnel syndrome, and awarded plaintiff $500 in compensatory damages. See id. Subsequently, Judge Weinstein ruled that plaintiff was entitled to attorney's fees under section 1988 and referred the issue of the amount of fees to the undersigned magistrate judge. See Order (July 14, 2011), D.E. #75.

On August 15, 2011, plaintiff filed a fee application seeking $73,350 in fees and $10,407.93 in disbursements pursuant to section 1988. See Memorandum of Law in Support of Plaintiff's Application for Attorney's Fees (Aug. 15, 2011) ("Pl. Mem.") at 13, D.E. #81. Alternatively, plaintiff sought to recoup legal fees under 28 U.S.C. § 1927 ("section 1927"). See id.

Defendants objected to plaintiff's request on numerous grounds. See Memorandum of Law in Opposition to Plaintiff's Application for Attorney's Fees (Sept. 14, 2011) ("Def. Opp."), D.E. # 83. First, defendants claimed that plaintiff's victory was "de minimus" and argued that because the jury only awarded her "nominal" damages, she was not entitled to $73,350 in fees; defendants did not otherwise address the reasonableness of the hourly rate requested or number of hours expended. See id. at 3-6. Second, defendants asserted that plaintiff's recovery of fees should be limited to one-third of the damages awarded, as per the retainer agreement with her attorney. See id. at 6-7. Finally, defendants contended that because their defense was not frivolous, fees under section 1927 were not justified. See id. at 8-9.

Thereafter, plaintiff filed a reply in which she amended the amount of fees and disbursements to $82,710 and $11,198.24, respectively, to reflect the work performed in preparing the fee application. See Reply Memorandum in Further Support of Plaintiff's Application for Attorney's Fees (Sept. 21, 2011) ("Pl. Reply"), D.E. # 84.

For the reasons set forth below, the Court grants plaintiff's motion in part and denies it in part.


I. The Complaint

Defendant Starrett City Associates ("Starrett City") is a private corporation that operates a private security force that has been deputized by the New York City Police Department and whose officers have the power to make arrests. See 7/13/11 M&O at 1. Defendant Rupert Newman ("Newman") was employed by Starrett City as a security officer when he arrested plaintiff on July 30, 2008. See id.

On July 27, 2009, plaintiff filed a complaint alleging that defendants (as well as various John Doe officers) violated 42 U.S.C. § 1983 ("section 1983") and New York state law by falsely arresting plaintiff and by using excessive force in executing the allegedly wrongful arrest. See Complaint ("Compl."), D.E. #1. In addition, the Complaint included a malicious prosecution claim and a claim against Starrett City for negligent hiring and supervision of its officers. See Compl. ¶¶ 42-46.

II. Summary Judgment

Following the completion of discovery, defendants moved for summary judgment on all claims in February 2011. See Defendants' Motion for Summary Judgment (Feb. 28, 2011), D.E. #34. In support of their motion, defendants argued that "no genuine issues of material fact exist." Id. at 1.

On March 10, 2011, plaintiff wrote to defendants pursuant to Rule 11 of the Federal Rules of Civil Procedure. See Letter by Michael P. Mangan, D.E. #82-4, Exhibit 3 to Declaration of Michael P. Mangan (Aug. 15, 2011) ("Mangan Decl."), D.E. #82. Plaintiff demanded that defendants withdraw their February 28, 2011 motion for summary judgment, on the ground that defendants' Rule 56.1 Statement of Material Facts improperly ignored the deposition testimony of plaintiff contradicting defendants' version of the encounter on July 30, 2008. See id. A few days later, on March 15, 2011, defendants wrote to Judge Weinstein requesting permission to re-file their motion for summary judgment. See Letter from Joshua D. Lindy (March 15, 2011), D.E. #35. Defendants explained that plaintiff's March 10, 2011 letter had led them to realize that they had inadvertently filed a draft summary judgment motion. See id. That same day, defendants re-filed their motion for summary judgment. See Amended Motion for Summary Judgment (March 15, 2011), D.E. # 36. Shortly thereafter, plaintiff withdrew her claims of malicious prosecution and negligent hiring and supervision. See Memorandum and Order (May 13, 2011) ("5/13/11 M&O") at 1, D.E. #52. Plaintiff also withdrew all claims against the John Doe police officers. See id.

Ultimately, Judge Weinstein granted in part and denied in part defendants' motion for summary judgment. See 5/13/11 M&O at 1. Specifically, Judge Weinstein found that genuine issues of material fact precluded summary judgment on all but one of the remaining claims. See id. (dismissing claim for corporate liability against Starrett City under section 1983).*fn1

III. The Trial

On July 5, 2011, a jury trial commenced before Judge Weinstein. See Minute Entry (July 5, 2011), D.E. #65. Over the course of four days, the jury heard testimony from plaintiff and her treating physician regarding plaintiff's wrist injury. See Pl. Mem. at 7-8. The jury also heard testimony from the arresting officers.*fn2 See id. at 9-10. Because the claims being tried shared common elements, Judge Weinstein instructed the jury solely as to the (1) false arrest and (2) excessive force claims under section 1983. See 7/13/11 M&O at 2 (noting that the New York state law claims were essentially the same as plaintiff's section 1983 claims). Judge Weinstein charged the jurors that if they found that plaintiff suffered "no physical, emotional or financial injury" as a result of defendants' conduct, they could "award her one dollar as nominal damages for that violation." Trial Tr. at 16. He further instructed the jurors that they could "not award both nominal and compensatory damages for the violation of a right." Id. He specifically explained that "[e]ither the plaintiff was injured due to the violation of her right, in which case you must award compensatory damages or she was not, in which case you may award nominal damages." Id.

After four days of trial, the jury returned its verdict. See Trial Tr. at 25. The jury found in favor of defendants on the wrongful arrest claim but in favor of plaintiff on her excessive force claim. See id. The ...

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