Raishevich v. Foster
| Decision Date | 01 August 2000 |
| Docket Number | Docket No. 99-7093 |
| Parties | (2nd Cir. 2001) BORIS RAISHEVICH, Plaintiff-Appellant, v. CHARLES FOSTER, Agent or Employee of the NYS Police, Defendant Appellee |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from (1) an amended judgment of the United States District Court for the Southern District of New York (William C. Conner, Judge) following a bench trial, reducing the plaintiff-appellant's compensatory damage award to $12,000 in his action brought pursuant to 42 U.S.C. § 1983, and (2) a post-trial order denying the plaintiff-appellant's motion for attorneys' fees under 42 U.S.C. § 1988.
We affirm the District Court's order reducing the compensatory damage award but vacate its order denying the plaintiff-appellant's motion for attorneys' fees and remand the case to the District Court for it to reconsider that issue.
Affirmed in part, vacated in part, and remanded.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] ROBERTO RIONDA, Law Offices of Michael Kennedy, New York, NY (Simone Monasebian, on the brief), for Plaintiff-Appellant.
BRUCE A. BROWN, Assistant Attorney General (Michael S. Belohlavek, Deputy Solicitor General, on the brief), on behalf of Eliot Spitzer, Attorney General of the State of New York, New York, NY, for Defendant-Appellee.
Before: NEWMAN, CABRANES, and STRAUB, Circuit Judges.
Plaintiff-Appellant Boris Raishevich ("Raishevich") appeals from (1) an amended judgment of the United States District Court for the Southern District of New York (William C. Conner, Judge) reducing his compensatory damage award from $24,000 to $12,000 ("Raishevich II"), and (2) a post-trial order denying his motion for attorneys' fees, Raishevich v. Foster, 70 F. Supp. 2d 411 (S.D.N.Y. 1999) ("Raishevich IV").1
Raishevich brought suit pursuant to 42 U.S.C. § 1983 and the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, seeking damages for the destruction of his photographic transparencies by Defendant-Appellee Charles Foster ("Foster"), an evidence custodian for the New York State Police. He also sought an award of attorneys' fees. After Foster conceded liability, the District Court held a bench trial, limited to the issue of damages. Raishevich now appeals from the reduction of his compensatory award and the denial of his motion for attorneys' fees.
For the reasons given below, we affirm the District Court's order reducing the damage award. We find, however, that the District Court exceeded its allowable discretion in denying Raishevich's motion for attorneys' fees solely on the basis of his rejection of a settlement figure the District Court proposed during a pre-trial settlement conference. Thus, we vacate the court's order denying Raishevich's motion for attorneys' fees and remand for further proceedings on that issue.
For approximately fifteen years, Raishevich assembled a collection of photographic transparencies of cannabis, or marijuana, plants. Raishevich I, 9 F. Supp. 2d at 417. In November 1993, officers of the New York State Police arrested Raishevich and seized numerous items from his home, including 347 transparencies from his cannabis collection. See id. Although he requested that the police return his transparencies, they were destroyed by Foster, an evidence custodian for the New York State Police. On May 2, 1995, Raishevich brought suit pursuant to 42 U.S.C. § 1983 seeking compensatory damages for the destruction of these transparencies as well as an award of costs, including attorneys' fees, pursuant to 42 U.S.C. § 1988(b).
Several pre-trial developments are of interest for our purposes. On March 6, 1996, Foster conceded liability. On May 30, 1996, Raishevich obtained new counsel, the law firm of Michael Kennedy, which has continued its representation of Raishevich through this appeal. On March 25, 1998, approximately two months before trial, the District Court conducted a settlement conference. Although each party's recollection of the conference differs somewhat, and, importantly, differs from that of the District Court, a few facts seem clear. During this conference, Assistant Attorney General Bruce A. Brown ("Brown") represented to the District Court on behalf of the defendant that "any figure over $25,000 would be beyond the settlement authority of [his] immediate supervisors and would require approval from Albany." Raishevich's counsel indicated that it would be difficult to convince her client to accept an offer less than $34,700. The District Court then "proposed a compromise at $30,000 and asked the attorneys to discuss the proposal with their clients and inform the Court as to their decision." Raishevich IV, 70 F. Supp. 2d at 415. At oral argument before this Court, Brown confirmed that his supervisors refused to authorize a $30,000 settlement, and both counsel agreed that Foster never made an offer of $30,000. Tr. of Oral Argument at 15, 17, 18, 20, 22. Also at oral argument, Brown went beyond his representation to the District Court regarding the extent of his settlement authority and indicated that there was never a formal offer of $25,000 because any such offer would have required the approval of New York State's Comptroller. Id. at 17, 21. Thus, no offer was made, nor any compromise reached.
During a two-day bench trial solely on the issue of damages, Raishevich produced little evidence of his past earnings from his now-destroyed transparencies. The District Court's evaluation of the evidence reveals that it found much of Raishevich's proof regarding his past earnings-findings not directly challenged on appeal-either unsubstantiated or unconvincing. See Raishevich I, 9 F. Supp. 2d at 418-19. The District Court discredited Raishevich's expert witness's testimony that the value of a one-time use of a transparency was $1500, seemingly finding her testimony to be both flawed and largely irrelevant. See id. at 419-21. After receiving conflicting evidence regarding the value of Raishevich's transparencies, the District Court found that $200 was the proper measure of the actual value of each transparency. See id. at 421. The District Court then examined how many prints from his transparencies Raishevich could have sold over a thirty-year period. See id. Despite finding that evidence of his past earnings and productions was "scant," the District Court provided Raishevich with "the benefit of every doubt" and concluded that Raishevich's peak publication rate was two prints per year. This yielded sixty uses of his destroyed transparencies over a thirty-year period. Id. At $200 per use, the damages amounted to $12,000. The District Court then doubled the award of $12,000 to $24,000 because Foster's destruction of the transparencies may have hindered Raishevich's ability to prove his damages with greater specificity. See id. Finally, the District Court stated that the parties should bear their own costs and attorneys' fees. See id. at 422.
Foster then sought an order amending the District Court's findings of fact and judgment in order to reduce the damage award. Raishevich also moved to increase the damage award and to amend the judgment to include an award of attorneys' fees. In its December 17, 1998 order ("Raishevich II"), the District Court granted Foster's motion and reduced the amount of compensatory damages to $12,000, denied Raishevich's motion to increase the damages because his motion was untimely, and reserved decision on Raishevich's motion for attorneys' fees pending our decision following rehearing in Quaratino v. Tiffany & Co., 129 F.3d 702 (2d Cir. 1997), vacated and superseded on rehearing, 166 F.3d 422 (2d Cir. 1999). In halving the damage award, the District Court explained that it had improperly taken the "Bigelow principle"2 into account twice in its initial decision, both in determining the publication rate of a Raishevich transparency and in supplementing the resulting damage figure at the end. The District Court, however, had not explicitly discussed the "Bigelow principle" in its initial opinion.
Following Raishevich II, Raishevich moved for an order amending the judgment, to increase the compensatory damages and to include an award of punitive damages and prejudgment interest. On January 13, 1999, the District Court granted Raishevich's motion for an award of prejudgment interest but denied his motion in all other respects ("Raishevich III"). In this opinion, the District Court explained that it previously had applied the Bigelow principle twice-"first by substantially increasing plaintiff's estimated rate of publication... by choosing the highest rate ever achieved (two compensated publications per year) [thereby arriving at a total damage figure of $12,000], and again by doubling the final determined market value," so as to award $24,000.
Raishevich filed a notice of appeal to this Court on January 19, 1999. On February 24, 1999 the appeal was withdrawn without prejudice to reinstatement after the District Court decided the pending issue of attorneys' fees. On November 10, 1999, the District Court denied Raishevich's motion for attorneys' fees, finding that although Raishevich was a prevailing party, special circumstances existed that rendered an award unjust. Raishevich IV, 70 F. Supp. 2d at 414-15. The District Court concluded that such an award was unjust because (1) liability had been conceded; (2) Raishevich's expert had predicted a large sum in damages; and (3) Raishevich had rejected an offer of settlement that was greater than the amount he ultimately received in damages. Id.
On December 8, 1999, Raishevich filed a notice of appeal of the District Court's amended judgment of December 17, 1998, the initial judgment of August 3, 1998, and its four opinions and orders. On appeal, Raishevich contends that the District Court erred in reducing the damage award and also abused its...
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