McAfee v. Boczar

• Decision Date: 02 November 2012
• Docket Number: Civil Action No. 3:11cv646.
• Parties: Eileen McAFEE, Plaintiff, v. Christine M. BOCZAR, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

906 F.Supp.2d 484

Eileen McAFEE, Plaintiff,

v.Christine M. BOCZAR, Defendant.

Civil Action No. 3:11cv646.

United States District Court,

E.D. Virginia,

Richmond Division.

Nov. 2, 2012.

Stephen Charles Piepgrass, William Henry Hurd, Troutman Sanders LLP, Richmond, VA, for Plaintiff.

Michael Robert Ward, Grant Edward Kronenberg, Morris & Morris PC, Richmond, VA, Henry Smith Keuling–Stout, Keuling–Stout PC, Big Stone Gap, VA, for Defendant.

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

This matter is before the Court on Plaintiff's PETITION FOR ATTORNEY'S FEES AND COSTS (Docket No. 113). For the reasons set forth below, the motion will be granted in part and denied in part.

PROCEDURAL AND FACTUAL BACKGROUND

On December 26, 2010, Eileen McAfee, a resident of Henrico County, received a request from a friend in Powhatan County to assess the circumstances of a dog which the friend thought was in distress. The two later visited the dog's owner who gave permission for them to examine the dog. McAfee concluded that the dog was in satisfactory condition, but that it needed a new dog house. Having secured permission of the owner, McAfee bought a dog house and delivered it to the owner and then helped to set it in place. In the process, McAfee fed the dog a treat, and, in its exuberance to eat the treat, the dog accidentally bit McAfee.

McAfee was treated at a local hospital which reported the bite to Powhatan County where the report was given to Ms. Christine Boczar, a deputy sheriff, employed by Powhatan County, Virginia. The record at trial showed that after receiving the report Boczar telephoned McAfee, and asked whether McAfee knew the address where the dog was housed. McAfee replied that she did not know the address but thought she could show the location to Boczar and offered to do so. Boczar evinced no interest and the conversation ended because Boczar claimed to be busy when McAfee inquired about whether the dog might be euthanized to test for rabies. That was the only conversation that Boczar ever had with McAfee.

At trial Boczar claimed that, before having the arrest warrant issued, she had received information from Sharon Wampler, who had spoken with McAfee, which confirmed that McAfee was withholding the address where the dog was housed because of a concern that the dog would be euthanized to test for rabies. However, when Wampler testified, she testified only that she told Boczar that McAfee had expressed concern about the dog, not that McAfee knew the dog's location or was withholding it.

Thus, without any real basis in fact, Boczar concluded that McAfee was withholding the location of the dog and, acting without probable cause, Boczar had McAfee arrested for violating a Virginia statute which made illegal withholding of information about possibly rabid animals. McAfee was acquitted on the merits when, at the conclusion of the prosecution's case, the court dismissed the charge.

On September 28, 2011, McAfee commenced this action by filing a Complaint against Boczar, alleging malicious prosecution and a violation of the Fourth Amendment (Count I); malicious prosecution under state law (Count II); and a false imprisonment state law claim (Count III). (Docket No. 1). After Boczar filed an Answer and an Amended Answer, she moved for partial summary judgment on the basis of the doctrine of qualified immunity. (Docket No. 26). The parties briefed the motion, and the Magistrate Judge issued a REPORT AND RECOMMENDATION (Docket No. 53) recommending that the motion be denied. The Court fully adopted the Report, denying the summary judgment motion.

The parties exchanged written discovery, but most of the discovery was in the form of depositions. There were thirteen discovery depositions, seven of so-called “major” witnesses, and six of so-called “minor” witnesses. A fourteenth deposition was taken to preserve for use at trial the testimony of a witness who would not be available at trial.

A three-day jury trial commenced on July 2, 2012. Before jury selection, Boczar moved to dismiss Count III of the Complaint pursuant to Fed.R.Civ.P. 50, and the Court granted the motion. (Docket No. 99). Thus, the jury considered only Counts I and II of the Complaint. At trial, McAfee called two witnesses in her case-in-chief and introduced several documents. Boczar called eight witnesses in the defense case and introduced a number of documents. McAfee called two witnesses in her rebuttal case. On July 6, 2012, the jury returned a verdict in favor of McAfee on Count I, the federal malicious prosecution claim, and against McAfee on Count II, the state malicious prosecution claim (Docket No. 103).

In her Complaint, McAfee did not articulate a specific damage request, instead praying for actual damages and punitive damages, in amounts to be determined by the evidence. Complaint p. 11 ¶¶ (b) and (c). At trial, McAfee's counsel proved actual damages of $2,943.00, and, in closing argument, asked the jury to impose such damages as it thought appropriate. The jury awarded actual damages in the amount proved, $2,943.00.

Following the jury verdict, McAfee filed her PETITION FOR ATTORNEY'S FEES AND COSTS (Docket No. 114). Boczar filed her BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEY'S FEES (Docket No. 118). Briefing was suspended while parties met with Magistrate Judge Novak to discuss settlement. The settlement conference was held on September 19, 2012 and was unsuccessful. See REPORT REGARDING SETTLEMENT CONFERENCE (Docket No. 124). The Magistrate Judge reported that the Division of Risk Management (“DRM”), which is responsible to pay the damages award against Boczar, did not negotiate in good faith. On September 21, 2012, the Court entered an Order directing McAfee's reply to specifically address a number of discrete issues (Docket No. 125). McAfee filed her reply on October 5, 2012 (Docket No. 128). Thus, the parties have fully briefed the motion, and it is now ripe for review.

LEGAL STANDARD

The Civil Rights Attorney's Fees Awards Act of 1976 provides that, in federal civil rights actions, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 1988. The Supreme Court has directed that a successful plaintiff “should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The purpose of the fee award statute “is to ensure ‘effective access to the judicial process' for persons with civil rights grievances.” Hensley, 461 U.S. at 429, 103 S.Ct. 1933 (quoting H.R.Rep. No.94–1558 at 1 (1976)). The amount of the award should be “adequate to attract competent counsel, but not produce windfalls to attorneys.” City of Riverside v. Rivera, 477 U.S. 561, 580, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) (internal quotations and citations omitted). In order to qualify as a “prevailing party,” “the plaintiff must obtain an enforceable judgmentagainst the defendant from whom fees are sought.” Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992).

Here, neither party disputes that McAfee is a prevailing party and therefore is entitled to some award of attorney's fees. The disagreement is over the amount that would be “reasonable” under the circumstances of this case. Thus, the Court must now determine whether McAfee has satisfied her burden of establishing that her requested amount of attorney's fees is reasonable. Hensley, 461 U.S. at 437, 103 S.Ct. 1933 (explaining that the fee-applicant has the burden of demonstrating the reasonableness of the fee).

The “initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); see also Perdue v. Kenny A., 559 U.S. 542, 130 S.Ct. 1662, 1672, 176 L.Ed.2d 494 (2010) (noting that this approach, the “lodestar approach,” has “achieved dominance in the federal courts”) (citations and quotations omitted). Hours that were not “reasonably expended” must necessarily be excluded. Hensley, 461 U.S. at 434, 103 S.Ct. 1933. “Counsel ... should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.” Id. And, time devoted to any claims on which the applicant did not prevail must be excluded from the calculation.

There is a “strong presumption that the lodestar figure ... represents a reasonable fee.” Pennsylvania v. Delaware Valley Citizen's Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). Indeed, in Perdue, the Supreme Court made clear that the strong presumption for the reasonableness of a lodestar fee figure can only rarely be overcome, 130 S.Ct. at 1673, and then only in “extraordinary cases” which will be presented in the “rarest of circumstances.” Id. at 1677 (Kennedy, J., concurring); see also id. at 1678 (Thomas, J., concurring).

The Court's preference for the lodestar figure as a reasonable fee was explained in perspective of two alternatives: (1) the twelve factor test devised by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974); and (2) the lodestar method pioneered by the Third Circuit in Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973); appeal after remand540 F.2d 102 (3d Cir.1976). As to the Johnson twelve factor test, the Supreme Court concluded that:

This method, however, gave very little actual guidance to district courts. Setting attorney's fees by reference to sometimes subjective factors placed unlimited discretion in trial judges and produced disparate results.

Perdue, 130 S.Ct. at 1672 (internal quotation and citation omitted). To explain its preference for...