Bogan v. City of Boston
| Decision Date | 11 May 2006 |
| Docket Number | Civil Action No. 02-10522-MBB. |
| Citation | 432 F.Supp.2d 222 |
| Parties | Albertha BOGAN, Individually and as Guardian and Next Friend of Tyla, Eryn and Chad Bogan, Plaintiffs, v. CITY OF BOSTON, Kevin Joyce, Luis Arjona, James Holmes and Regina Hanson, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Harold Jacobi, III, Nancy Sue Keller, Jacobi & Associates PA, Lexington, MA, for Plaintiff.
Elizabeth L. Bostwick, Thomas R. Donohue, City of Boston Law Department, Boston, MA, for Defendant.
MEMORANDUM AND ORDER RE: PLAINTIFFS' RULE 54 MOTION FOR FEES AND COSTS (DOCKET ENTRY # 137); DEFENDANT'S MOTION TO PRECLUDE PLAINTIFFS' ATTORNEYS FROM RECEIVING FEES AND COSTS AFTER THE CITY'S MARCH 10, 2005 OFFER OF JUDGMENT—PURSUANT TO FED. R. CIV. P. 68
(DOCKET ENTRY # 148)
Pending before this court are two motions regarding attorneys' fees and costs in the above styled civil rights action. The first motion, filed by plaintiff Albertha Bogan ("Albertha Bogan"), individually and as guardian and next friend of Tyla, Eryn and Chad Bogan (collectively: "plaintiffs"), is for attorneys' fees and costs. (Docket Entry # 137). Defendant City of Boston ("the City") opposes the motion. (Docket Entry # 149). Plaintiffs filed a reply to the City's opposition. (Docket Entry # 150). The second motion, filed by the City, is to preclude plaintiffs from recovering fees and costs after March 20, 2005. Plaintiffs oppose the motion. (Docket Entry # 151). After conducting a hearing on March 13, 2006, this court took the motions (Docket Entries # # 137 & 148) under advisement.
Plaintiffs request attorneys' fees and costs pursuant to 42 U.S.C. § 1988 ("section 1988") and Rule 54, Fed.R.Civ.P. 54 ("Rule 54"), respectively. The jury found in favor of plaintiffs and against the City on the 42 U.S.C. § 1983 ("section 1983") claim on October 27, 2005. The City seeks to preclude fees after March 20, 2005, pursuant to Rule 68, Fed.R.Civ.P. 68 ("Rule 68"). The motions (Docket Entries # # 137 & 148) are therefore ripe for review.
On March 22, 2002, plaintiffs filed a complaint against defendants the City, the Boston Police Department ("BPD"), the Boston Fire Department ("BFD"), the City of Boston Inspectional Services Department ("ISD"), Mayor Thomas M. Menino ("Mayor Menino"), Kevin Joyce ("Joyce"), Luis Arjona ("Arjona"), James Holmes ("Holmes"), Regina Hanson ("Hanson"), the Neighborhood Development Corporation of Grove Hall ("NDC") and Virginia Morrison ("Morrison") (collectively: "defendants") for damages pursuant to section 1983 and Massachusetts General Laws chapter 258, section 4 ("chapter 258"). (Docket Entry # 1).
Plaintiffs' eight count complaint against defendants sought recovery for trespass, wrongful conversion of real property, wrongful conversion of personal property, violations of chapter 258, violations of section 1983, invasion of privacy, harassment and emotional distress. (Docket Entry # 1).
Morrison and NDC filed a motion for summary judgment on January 29, 2004. (Docket Entry # 30). On January 30, 2004, Arjona, BFD, BPD, the City, ISD, Hanson, Holmes, Joyce and Mayor Menino also filed a separate motion for summary judgment. (Docket Entry # 34). No hearings were held for these motions (Docket Entries # # 30 & 34).
On July 22, 2004, the court issued an Order and dismissed all counts against the City except the section 1983 claim. (Docket Entry # 46). The court also dismissed all counts against ISD, BFD, BPD and Mayor Menino. (Docket Entry # 46). Claims under chapter 258, violations of section 1983 and harassment were dismissed against Joyce, Hanson, Holmes and Arjona. (Docket Entry # 46). The court granted plaintiffs leave to amend the complaint to name Joyce, Arjona, Holmes and Hanson in their personal capacities within 20 days.1 (Docket Entry # 46). An Electronic Order was entered that dismissed all claims against NDC and Morrison on the same day.
On August 16, 2004, plaintiffs filed a motion for the court to reconsider the summary judgment orders that dismissed the claims against Mayor Menino, NDC and Morrison. (Docket Entry # 48). The court entered an Order denying this motion on August 19, 2004. Plaintiffs filed a notice of appeal of the summary judgment decisions in favor of Mayor Menino, NDC and Morrison on September 17, 2004. (Docket Entry # 49). Thereafter, plaintiffs filed a motion to voluntarily dismiss the appeal on October 27, 2004.2 (Docket Entry # 53).
At the January 21, 2005 final pretrial conference,3 the court ordered bifurcation of the section 1983 claim against the City from the state law tort claims against Joyce, Arjona, Holmes and Hanson. On March 10, 2005, the City served plaintiffs with an offer of judgment pursuant to Rule 68 in the amount of $50,000 for any and all claims, damages and injuries suffered by plaintiffs. . This offer was inclusive of all interest, costs and attorneys' fees that accrued or that might have been assessed by the court. . The offer was also contingent upon judgment entering against the City only and the dismissal with prejudice of all claims against Joyce, Hanson, Holmes and Arjona. . Plaintiffs did not accept this offer within ten days. (Docket Entry # 148).
At the May 9, 2005 final pretrial conference,4 the court informed the parties that Joyce would be tried (for the state law tort claims) along with the City (for the section 1983 claim) in the first trial for this matter. Upon the consent to jurisdiction by a United States Magistrate Judge on September 8, 2005, the case was reassigned to this court for all purposes including trial and entry of final judgment on September 12, 2005.
A jury trial against the City and Joyce commenced on October 17, 2005, before this court and continued for eight days. The jury found in favor of plaintiffs and against the City on the section 1983 claim on October 27, 2005. (Docket Entry # 131). On this claim, the jury awarded Albertha Bogan $15,000, and Tyla, Eryn and Chad Bogan $5,000 each, for a total of $30,000. (Docket Entry # 131). As to the state law tort claims against Joyce, the jury found that plaintiffs failed to establish the necessary elements of intentional infliction of emotional distress, invasion of privacy, conversion and trespass and, thus, Joyce was not found liable to plaintiffs for any damages for these claims. (Docket Entry # 131).
Having heard arguments from the parties regarding the need for a second trial at a status conference on November 8, 2005, this court ordered the submission of briefs on the issue. On November 22, 2005, plaintiffs filed a memorandum of law in support of a second trial. (Docket Entry # 134). On the same day, Joyce, Arjona, Holmes, Hanson and the City filed a brief addressing double recovery and moved to dismiss the remaining claims as duplicative. (Docket Entry # 135).
After a hearing on November 30, 2005, this court dismissed the remaining state law tort claims against Arjona, Holmes and Hanson in a Memorandum and Order on December 8, 2005. (Docket Entry # 136). This court also directed plaintiffs to file a motion for attorneys' fees properly supported with contemporaneous and adequately detailed records on or before January 3, 2006, in the event the parties proved unable to agree upon a stipulated amount. (Docket Entry # 136).
Plaintiffs filed the motion for attorneys' fees and costs (Docket Entry # 137) with supporting affidavits (Docket Entries # # 138-141)5 on January 3, 2006. Plaintiffs allege that because they are prevailing parties under section 1988 and Rule 54, they are entitled to reasonable attorneys' fees and costs in the amount of $126,700.83.6
The City filed a motion on January 13, 2006, to extend the time until January 31, 2006, to oppose plaintiffs' motion for fees and costs. (Docket Entry # 147). This court allowed the extension on January 18, 2006.7
On January 31, 2006, the City filed a motion to Preclude Plaintiffs' Attorneys from Recovering Fees and Costs after the City's March 10, 2005 offer of judgment— Pursuant to Rule 68. (Docket Entry # 148). The City contends that, pursuant to Rule 68, plaintiffs are not entitled to recover fees or costs after the City's offer of judgment for $50,000 was not accepted by plaintiffs and plaintiffs went on to recover less than the offer at trial (only $30,000). Plaintiffs filed an opposition to this motion on February 17, 2006. (Docket Entry # 151).
The City also filed an opposition to plaintiffs' motion for attorneys' fees and costs (Docket Entry # 137). (Docket Entry # 149). The City contends that plaintiffs' fee petition provides no basis for recovery of fees because: (1) the fee petition is not contemporaneous; (2) the fee petition is not "adequately detailed;" (3) billed time is attributable to other dismissed defendants and not the City; (4) items are double billed; (5) unnecessary hours and services were billed extensively; (6) plaintiffs failed to use the lodestar approach appropriately in determining a reasonable fee because the hourly rate and the hours recorded are excessive; and (7) prejudgment interest should not be awarded as it was not submitted to the jury during the trial. (Docket Entry # 149). In addition, the City requests that the amount awarded should be substantially reduced. (Docket Entry # 149, p. 36). Plaintiffs filed a response to the City's opposition on February 17, 2005. (Docket Entry # 150).
Traditionally, the prevailing party in a civil action is required to bear his or her own attorneys' fees and costs. Boston's Children First v. City of Boston, 395 F.3d 10, 13-14 (1st Cir.2005) (citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)). Congress has created statutory exceptions to this traditional rule. One exception is for...
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