Rogers v. Cofield

• Decision Date: 31 March 2013
• Docket Number: Civil Action No. 08–10684–MBB.
• Parties: Lionel ROGERS, Plaintiff, v. Gerald L. COFIELD, Jr., Defendant.
• Court: U.S. District Court — District of Massachusetts

935 F.Supp.2d 351

Lionel ROGERS, Plaintiff,

v.Gerald L. COFIELD, Jr., Defendant.

Civil Action No. 08–10684–MBB.

United States District Court,

D. Massachusetts.

March 31, 2013.

Lawrence P. Murray, Catherine Elizabeth Murillo, Burns & Levinson, Boston, MA, for Plaintiff.

Lisa Skehill Maki, Alexandra B. Alland, Ian D. Prior, City of Boston Law Department, Boston, MA, for Defendant.

MEMORANDUM AND ORDER RE: PLAINTIFF LIONEL ROGERS' FEE APPLICATION (DOCKET ENTRY # 56); PLAINTIFF LIONEL ROGERS' SUPPLEMENTAL FEE APPLICATION (DOCKET ENTRY # 78); PLAINTIFF LIONEL ROGERS' SECOND SUPPLEMENTAL FEE APPLICATION (DOCKET ENTRY # 83)

BOWLER, United States Magistrate Judge.

Pending before this court is a motion for attorneys' fees filed by plaintiff Lionel Rogers (“plaintiff”) and two supplemental motions to recover reasonable fees incurred after the filing of the original motion. (Docket Entry 56, 78 & 83). After a four day trial, the jury awarded plaintiff $101,188.30 in this unlawful arrest and excessive force civil rights suit against defendant Gerald L. Cofield, Jr. (“Officer Cofield”), an officer of the Boston Police Department.

Supported by an affidavit, the original petition seeks $117,270.50 in fees and $6,128.51 in costs. (Docket Entry # 56). The supplemental petition and supporting affidavit request $14,568.00 in fees and $329.74 in costs for opposing Officer Cofield's two post trial motions. (Docket Entry 78 & 78–2). The second supplemental petition and supporting affidavit ask for $10,714.00 in fees in connection with responding to this court's request for briefing on qualified immunity. (Docket Entry 83 & 84). The total request is therefore $142,552.50.

Officer Cofield opposes all three filings. (Docket Entry 73, 75, 76, 79 & 86). He seeks a reduction of the initial $117,270.50 request to $34,281.82 and a further reduction of the $14,568.00 and $10,714.00 requests. He contends that any award is subject to a substantial reduction because plaintiff stipulated to a dismissal of defendant City of Boston (“the City”) and a number of claims shortly before trial commenced. Officer Cofield submits that plaintiff cannot recover for work performed on these unsuccessful, “abandoned” claims. Officer Cofield also seeks a reduction of the fees because plaintiff prevailed on only three of the six claims submitted to the jury.¹ Plaintiff argues that the unsuccessful claims are factually interrelated thereby precluding segregability for time spent on the successful claims from time spent on the unsuccessful claims.²

Officer Cofield additionally maintains that the bills: (1) include unproductive and unnecessary work; (2) fail to adequately document the tasks and distinguish between core and non-core work; (3) charge for trial preparation and courtroom time for a second attorney who did not meaningfully participate in the trial; and (4) charge excessive hourly rates.

Throughout these proceedings, Lawrence P. Murray, Esq. (“Attorney Murray”), a partner at the firm of Burns & Levinson LLP, represented plaintiff. In late January 2011, shortly before the April 2011 trial, Elizabeth Brady Murillo, Esq. (“Attorney Murillo”), a seventh year associate at Burns & Levinson LLP, began assisting Attorney Murray.

PROCEDURAL BACKGROUND

Plaintiff initially filed this action against the City as well as Officer Cofield in Massachusetts Superior Court (Suffolk County) on December 4, 2007. The suit involves events that occurred on December 5, 2004, and include plaintiff's arrest at the area B–2 police station in Roxbury, Massachusetts. The complaint raised the following causes of action: (1) false arrest and excessive force against the City in violation of 42 U.S.C. § 1983 (“section 1983”) (Count I); (2) false arrest and excessive force against Officer Cofield in violation of section 1983 (Count II); (3) false arrest and excessive force against Officer Cofield and the City (“defendants”) in violation of sections 11H and 11I of Massachusetts General Laws chapter 12 (“MCRA”) (Count III); (4) assault and battery against Officer Cofield (Count IV); (5) false imprisonment against Officer Cofield (Count V); (6) negligent infliction of emotional distress against Officer Cofield (Count VI); (7) negligence against the City and Officer Cofield (Count VII); (8) negligent hiring and supervision against the City (Count VIII); (9) malicious prosecution against Officer Cofield (Count IX); and (10) abuse of process against Officer Cofield (Count X).

On February 27, 2008, plaintiff filed a motion to appoint a special process server and to extend the time for service of the summons and the complaint.³ Officer Cofield takes issue with the 3.10 hours Attorney Murray spent with respect to these motions. In late April 2008, the City removed this action to the United States District Court for the District of Massachusetts. Officer Cofield and the City each filed an answer. On July 1, 2008, the parties consented to proceed before this court for all proceedings pursuant to 28 U.S.C. § 636(c). As a result, this court is familiar with the entire proceedings.

Discovery was uneventful. Officer Cofield and the City filed a motion for a protective order to prevent public dissemination of Officer Cofield's personnel records and other sensitive information. Plaintiff did not oppose the motion which this court allowed without a hearing. Counsel cooperated with each other in seeking a number of extensions of fact discovery and expert disclosures by joint motions.

As to expert disclosures, in October 2009, the parties filed a joint motion to extend the deadlines because of a miscalculation of plaintiff's deadline in a prior motion.⁴ On April 16, 2010, the parties filed another joint motion to extend the deadlines for expert disclosures. During a May 24, 2010 status conference, this court set an August 2, 2010 deadline for plaintiff to produce an expert report for a medical expert who he represented had been identified.⁵ This court set an August 23, 2010 deadline for defendants to provide their expert report. Plaintiff did not provide the expert disclosure by August 2, 2010. Defendants however did provide plaintiff with their expert disclosure on August 24, 2010. (Docket Entry # 74–2). At a status conference on September 10, 2010, Attorney Murray represented that plaintiff had borrowed funds to retain an expert. Accordingly, this court allowed plaintiff an extension to October 12, 2010. The date passed without production whereupon this court set a further deadline of December 1, 2010, for plaintiff's expert disclosure. On December 3, 2010, plaintiff advised defendants he would not be using the medical expert to testify at trial.

On January 13, 2011, defendants filed a motion to disclose plaintiff's Criminal Offender Record Information (“CORI”).⁶ Plaintiff opposed the motion in light of his testimony that he had no prior convictions that might be admissible under Rule 609, F.R.E. On January 31, 2011, this court held a hearing and allowed the motion. Plaintiff's record revealed a number of prior arrests by officers working at the area B–2 police station in Roxbury. During cross examination at trial, plaintiff testified about being arrested five or eight times before the December 5, 2004 incident.

On February 11, 2011, with trial set to commence on April 4, 2011, the parties filed a joint stipulation dismissing all of the claims against the City. Prior thereto at the May 24, 2010 conference, Attorney Murray represented that, “We are probably moving” and “will be voluntarily moving to dismiss most, if not all, the claims against the City.” ⁷ The stipulation also dismissed Count VII against Officer Cofield. During or shortly before trial, plaintiff decided not to pursue the malicious prosecution claim (Count IX), the negligent infliction of emotional distress claim (Count VI) and the MCRA claim against Officer Cofield (Count III).⁸ As narrowed, the case tried before the jury consisted of section 1983 violations based on a false arrest and the use of excessive force as well as common law claims for false arrest, assault, battery and abuse of process.⁹

On March 17, 2011, plaintiff filed an assented to motion to continue the final pretrial conference for one week because of a prepaid vacation for Attorney Murray.¹⁰ This court allowed the extension. Trial commenced on April 4, 2011. Three days later, the jury returned a verdict in plaintiff's favor on the section 1983 claim(s), the common law false arrest claim and the common law assault claim and in Officer Cofield's favor on the battery and the abuse of process claims. Without objection, the verdict form did not distinguish between the false arrest and the excessive force section 1983 claims.¹¹

The jury awarded plaintiff $26,188.30 in past compensatory damages attributed entirely to the section 1983 claims and $75,000.00 in future compensatory damages. After discharging the jury, this court inquired whether plaintiff was seeking prejudgment interest.¹² Plaintiff responded in the affirmative and this court therefore directed the parties to confer about the matter. On April 14, 2011, the parties filed a stipulation that plaintiff was not seeking prejudgment interest.

On May 5, 2011, Officer Cofield filed a detailed, 25 page motion for judgment as a matter of law or for a new trial. In opposing the motion, plaintiff filed a 12 page brief. Officer Cofield also attacked the amount of the verdicts in a motion for a remittitur and a 15 page supporting memorandum. Plaintiff filed a five page opposition. The nature of the verdicts, including the amount of damages and the interrelationship between the common law and section 1983 verdicts, as well as a question from the jury engendered an atypical complexity to a seemingly straight forward false arrest and excessive force suit. In a written opinion, this court upheld the damages awards and the verdicts in their entirety. (Docket Entry # 80).

On the issue of qualified immunity, this...