Orshan v. Macchiarola
Decision Date | 28 February 1986 |
Docket Number | No. 79 CV 309 (ERN).,79 CV 309 (ERN). |
Parties | Dr. H. Allen ORSHAN, Plaintiff, v. Frank J. MACCHIAROLA and the Board of Education of the City of New York, Defendants. |
Court | U.S. District Court — Eastern District of New York |
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Frederic J. Gross, Mt. Ephraim, N.J., R. Alan Aslaksen, Haddonfield, N.J., for plaintiff.
Philip Stephen Fuoco, Haddonfield, N.J., for fee petitioners.
Frederick A.O. Schwarz, Jr., Corp. Counsel, City of New York Law Dept., New York City by Caryn M. Hirshleifer, Asst. Corp. Counsel, for defendants.
This case is before the Court for determination of two issues: (1) the rate or rates of prejudgment interest to be applied to the award of $68,000 to plaintiff and (2) his application for attorneys' fees pursuant to 42 U.S.C. § 1988 and an award of costs.
In its prior order of April 5, 1985 the Court requested the parties to brief the issue of the rate or rates of prejudgment interest applicable to the judgment entered September 28, 1983. After the denial of post trial motions, that judgment was entered upon a jury verdict which awarded $38,000 to plaintiff in economic losses and $30,000 in noneconomic losses. Orshan v. Macchiarola, 570 F.Supp. 620, 623 (E.D.N. Y.1983).
This case was followed by Hertz v. Graham, 292 F.2d 443, 449 (2d Cir.1961), where the Court remanded the case for the limited purpose of submitting the issue of prejudgment interest to a jury. Unlike Hertz, plaintiff's failure to ask the Court to submit the issue of prejudgment interest to the jury cannot be attributed to a change in the law effected by the Court of Appeals. Plaintiff's silence, however, which may well not be considered a waiver, see Mallis v. Bankers Trust Co., 717 F.2d 683, 693-94 (2d Cir.1983), but see Robinson v. Watts Detective Agency, 685 F.2d 729, 742 (1st Cir.1982), pales in the face of defendants' silence. Defendants raise this point, for the first time, despite having had an opportunity to submit appropriate jury instructions, object to the jury charge, move for a new trial and seek, pursuant to Fed.R. Civ.P. 60(b), to vacate a judgment which they cannot appeal. Orshan v. Macchiarola, 105 F.R.D. 534 (E.D.N.Y.1985) (discussion therein). Whatever merit this argument may have had at some earlier point in the proceedings, see Segal v. Gilbert Color Systems, Inc., 746 F.2d 78, 84 (1st Cir. 1984), it is no longer viable. See Scola v. Boat Frances R., Inc., 618 F.2d 147 (1st Cir.1980) (discussion therein); see also Cardillo by Cardillo v. United States, 767 F.2d 33, 35 (2d Cir.1985); cf. In Re Frigitemp Corp., 781 F.2d 324 (2d Cir.1986); Goodman v. Heublein, Inc., 682 F.2d 44, 47 n. 2 (2d Cir.1982); Cibro Petroleum Products Inc. v. Sohio Alaska Petroleum Co., 602 F.Supp. 1520, 1565 n. 59 (S.D.N.Y. 1985).
Defendants also contend that the $30,000 awarded by the jury for emotional/mental distress is an unliquidated sum not subject to prejudgment interest and, therefore, the Court should strike its award of prejudgment interest on that sum.
"In a proceeding involving unliquidated damages, such as the present case, the decision whether to award prejudgment interest is committed to the sound discretion of the district court."
Feather v. U.M.W. of America, 711 F.2d 530, 540 (3d Cir.1983) ( ); accord Stern v. Shouldice, 706 F.2d 742, 747 (6th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 487, 78 L.Ed.2d 683 (1983); see also General Motors Corp. v. Devex Corp., 461 U.S. 648, 103 S.Ct. 2058, 2061-62, 76 L.Ed.2d 211 (1983) ( ). Moreover, to grant defendants' request would require amendment of a judgment, see Stern v. Shouldice, supra, which is no longer procedurally available. See Scola, supra. As a result, and in accord with the prior order, 105 F.R.D. at 542, the Court will turn to the rate of prejudgment interest.
In its charge the Court instructed the jury on multiple elements of damage applicable to a single federal cause of action. Orshan, supra, 105 F.R.D. at 535; Orshan, supra, 570 F.Supp. at 622; Transcript of jury charge, March 24, 1983. Here, unlike Wojtkowski v. Cade, 725 F.2d 127, 129 (1st Cir.1984), there are no pendent state claims which might be subject to prejudgment interest under the law of New York.
In federal question cases, absent statutory directive, the rate of prejudgment interest is left to the Court's discretion. Citizens Savings Bank v. Bell, 605 F.Supp. 1033, 1047 (D.R.I.1985); Donovan v. Freeway Construction Co., 551 F.Supp. 869, 881 (D.R.I.1982); see E.E.O.C. v. County of Erie, 751 F.2d 79, 82 (2d Cir. 1984); Norte & Co. v. Huffines, 416 F.2d 1189, 1192 (2d Cir.1969), cert. denied sub nom. Muscat v. Norte & Co., 397 U.S. 989, 90 S.Ct. 1121, 25 L.Ed.2d 396 (1970) (per curiam). Obviously, therefore, the Court of Appeals' approval of the adjusted prime rate of interest, 26 U.S.C. § 6621(c), as within the trial court's discretion in County of Erie, supra, does not preclude reference to the post judgment "Treasury bill" rate of interest specified in 28 U.S.C. § 1961(a). See E.E.O.C. v. Wooster Brush Co., etc., 727 F.2d 566, 579 (6th Cir.1984).
Foltz v. U.S. News & World Report, Inc., 613 F.Supp. 634, 648-49 (D.D.C.1985).
Defendants attempt to avoid County of Erie by emphasizing that the Court limited its indorsement of the appropriateness of the adjusted prime rate to a back pay award, a liquidated sum. They argue that the $30,000 awarded for noneconomic losses was unliquidated, hence County of Erie supports their contention that this Court's award of prejudgment interest on that portion of the recovery is erroneous. This argument is meritless in light of the Court's earlier observations concerning waiver.
In deference to the Court of Appeals' characterization of the adjusted prime rate as "`widely known and accepted as a good indicator of interest rates generally.'" County of Erie, 751 F.2d at 82 (citation omitted), plaintiff will receive simple prejudgment interest at the following adjusted prime rates: 12% from October 1, 1980 to January 31, 1982; 20% from February 1, 1982 to December 31, 1982; 16% from January 1, 1983 to June 30, 1983; and 11% from July 1, 1983 to September 28, 1983.1
42 U.S.C. § 1988 grants the Court discretion to award a reasonable attorney's fee in this case. See Gingras v. Lloyd, 740 F.2d 210, 212 (2d Cir.1984). The instant application was filed February 8, 1985, some 17 months after the entry of judgment. Although the circumstance of this delay may permit defendants to claim prejudice, see Neidhardt v. D.H. Holmes Co. Ltd., 701 F.2d 553, 554-55 (5th Cir.1983); Gary v. Spires, 634 F.2d 772 (4th Cir.1980) (per curiam); see also White v. New Hampshire, etc., 455 U.S. 445, 454, 102 S.Ct. 1162, 1167, 71 L.Ed.2d 325 (1982); but see Mendoza v. Blum, 602 F.Supp. 200, 202 (S.D.N.Y.1985), they have not raised or addressed the issue. See Cruz v. Hauck, 762 F.2d 1230, 1238 (5th Cir.1985); cf. Fulps v. City of Springfield, Tenn., 715 F.2d 1088, 1096 (6th Cir.1983).
Plaintiff's attorney Gross has submitted papers in support of a schedule of fees as follows: Gross (499.8 hours × $190/hour), associates (170 hours × $45/hour), 25% multiplier ($24,916.75), and costs ($1,340.25). The application of plaintiff's other attorney, Alan Aslaksen, who served as lead trial counsel, requests compensation for a total of 207.1 hours (146 hours × $200/hour for trial and trial preparation, 52.3 hours × $125/hour for other work, and 8.8 hours × $45/hour for an associate). Defendants contest the adequacy of...
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