Millea v. Metro-North RR Co

Filing 139

ORDER denying 120 Defendant's Motion for Judgment as a Matter of Law; granting in part and denying in part 122 Plaintiff's Motion for Attorney's Fees and Costs; granting 125 Motion for Order for Motion for Attorney's Fees Under F.R.C.P. 54 to Have the Same Effect as a F.R.C.P. 59 Motion for Purposes of F.R.A.P. 4; denying 127 Defendant's Motion for Costs. See the attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 1/8/10. (Engel, J.)

UNITED STATES DISTRICT COURT D IS T R IC T OF CONNECTICUT

C H R IS T O P H E R MILLEA P la in tiff, v. M E T R O -N O R T H RAILROAD COMPANY, D e fe n d a n t.

: : : : : : :

C IV IL ACTION NO. 3 : 0 6 -c v -1 9 2 9 (VLB) J a n u a r y 8, 2010

M E M O R AN D U M OF DECISION DENYING DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW [Doc. #120], GRANTING IN PART AND DENYING IN PART P L AIN T IF F 'S MOTION FOR ATTORNEY'S FEES AND COSTS [Doc. #122], AND D E N Y IN G DEFENDANT'S MOTION FOR COSTS [Doc. #127] T h e Plaintiff, Christopher Millea, filed this action against his employer, M e tr o -N o r th Railroad Company (the "Defendant"), asserting claims under the F a m ily Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. and Connecticut state la w . Specifically, Count One of the Second Amended Complaint alleged that the D e fe n d a n t violated the FMLA by interfering with the Plaintiff's exercise of his F M L A rights. Count Two alleged that the Defendant violated the FMLA by taking a d v e r s e employment action against the Plaintiff based upon his absences from w o r k that should have been covered and protected by the FMLA. Count Three a lle g e d that the Defendant intentionally inflicted emotional distress on the Plaintiff b y denying his FMLA rights and disciplining him for exercising those rights. On M a y 19, 2009, the jury returned a verdict in favor of the Plaintiff on Count One, for w h ic h it awarded him $612.50. The jury found in favor of the Defendant on Counts T w o and Three. Presently pending before the Court are the Defendant's motion fo r judgment as a matter of law as to Count One of the Plaintiff's Second Amended

Complaint [Doc. #120], the Plaintiff's motion for an award of attorney's fees and c o s ts [Doc. #122], and the Defendant's motion for costs [Doc. #127].1 For the r e a s o n s stated below, the Defendant's motion for judgment as a matter of law and m o tio n for costs are DENIED. The Plaintiff's motion for attorney's fees and costs is GRANTED IN PART AND DENIED IN PART, and the Court awards the Plaintiff $ 2 0 4 .1 7 in attorney's fees and $18,642.85 in costs. I. Defendant's Motion for Judgment as a Matter of Law D u r in g trial, on May 14 and 15, 2009, the Defendant orally moved for ju d g m e n t as a matter of law with respect to the Plaintiff's claim of interference u n d e r the FMLA (Count One). The Court denied the Defendant's oral motions. See D o c . ## 107 and 108. The Defendant now renews it's motion for judgment as a m a tte r of law pursuant to Fed. R. Civ. P. 50(b). On May 19, 2009, the jury returned a verdict in favor of the Plaintiff on his in te r fe r e n c e claim, for which it awarded him $612.50. In order to reach this d e c is io n , the jury completed a verdict form approved by both parties on which it a n s w e r e d both interference claim interrogatories in the affirmative. See Doc. # 1 1 7 . The first interrogatory read: "Do you find that the plaintiff has proved by a p r e p o n d e r a n c e of the evidence that he gave proper notice of his intent to take F M L A leave on September 18 and 19, 2006?" Id. The Defendant submits that the

The Court grants the parties' request, pursuant to Fed. R. Civ. P. 58, to tr e a t the Plaintiff's motion for an award of attorney's fees and costs and the D e fe n d a n t's motion for costs as timely filed motions under Fed. R. Civ. P. 59 for p u r p o s e s of calculating the time for filing any Notice of Appeal pursuant to Fed. R. Ap p . P. 4. See Doc. ## 125 and 127. 2

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jury's affirmative response to this interrogatory does not reflect the overwhelming e v id e n c e adduced throughout the trial, which it claims established that the D e fe n d a n t lawfully requires employees to notify their supervisors when they in te n d to take FMLA leave, and that the plaintiff failed to do so on these particular d a te s . "A district court must deny a motion for judgment as a matter of law unless, v ie w e d in the light most favorable to the nonmoving party, the evidence is such th a t, without weighing the credibility of the witnesses or otherwise considering th e weight of the evidence, there can be but one conclusion as to the verdict that r e a s o n a b le [persons] could have reached." Cruz v. Local Union Number 3 of the IB E W , 34 F.3d 1148, 1154-55 (2d Cir. 1994). Such a motion can only be granted " w h e n (1) there is such a complete absence of evidence supporting the verdict th a t the jury's findings could only have been the result of sheer surmise and c o n je c tu r e , or (2) there is such an overwhelming amount of evidence in favor of th e movant that reasonable and fair minded persons could not arrive at a verdict a g a in s t it." Hubbard v. Total Communications, Inc., 576 F. Supp. 2d 314, 318 (D. C o n n . 2008). As the Plaintiff correctly states, the Department of Labor's ("DOL") r e g u la tio n for notice of unforeseeable leave is Section 825.303, which was p r e s e n te d into evidence at trial. The version of the regulation in effect at the time o f the events in question provided as follows: (a ) When the approximate timing of the need for leave is not foreseeable, a n employee should give notice to the employer of the need for FMLA 3

leave as soon as practicable under the facts and circumstances of the p a r tic u la r case . . . In case of a medical emergency requiring leave b e c a u s e of an employee's own serious health condition . . . , written a d v a n c e notice pursuant to an employer's internal rules and procedures m a y not be required when FMLA leave is involved. (b ) The employee should provide notice to the employer either in person o r by telephone, telegraph, facsimile ("fax") machine or other electronic m e a n s . . . Notice may be given by the employee's spokesperson (e.g., s p o u s e , adult family member or other responsible party) if the employee i s unable to do so personally . . . The employer will be expected to o b ta in any additional required information through informal means. 2 9 C.F.R. § 825.303.2 The Court charged the jury that the Defendant's internal r u le s "cannot be more stringent than the DOL regulations." Therefore, the jury w a s aware that the applicable DOL regulation in effect at the time of the events in q u e s tio n permitted the Plaintiff to provide notice "as soon as practicable under the c ir c u m s ta n c e s of the particular case," and that he was only required to give notice to his employer rather than a particular supervisor. At trial, the jury heard evidence that the Plaintiff had suffered an intense p a n ic attack due to a threatening phone call from his supervisor, Earl Vaughn, at tw e lv e noon on September 18, 2006. After receiving the call from Vaughn, the P la in tiff called his doctor and was advised to leave work and not to speak to V a u g h n . The Plaintiff then gave notice of his unforeseen leave to his employer by n o tifyin g his lead clerk, Garrett Sullivan, and left work. Although Sullivan knew of V a u g h n 's notice policy that he be notified of any absence directly, he did not

This regulation was amended on January 16, 2009 to provide that e m p lo ye e s seeking to use unforeseeable FMLA leave "must comply with the e m p lo ye r 's usual and customary notice and procedural requirements for r e q u e s tin g leave, absent unusual circumstances." 29 C.F.R. § 825.303(c). 4

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inform Vaughn immediately that the Plaintiff had left on an unforeseen FMLA le a v e . Given the evidence presented regarding the Plaintiff's PTSD and panic a tta c k s and the fact that the panic attack he suffered on September 18th was p r e c ip ita te d by a threatening phone call from his supervisor, along with the fact th a t the Plaintiff's doctor instructed him not to personally call Vaughn, the jury c le a r ly had an evidentiary basis to conclude that the notice the Plaintiff provided to Sullivan constituted proper notice to his employer "under the facts and c ir c u m s ta n c e s of his particular case." Under the regulation in effect at the time, n o tifyin g his employer was all that was required of the Plaintiff. The regulations h a d not yet been amended to clarify that an employer has the right to require that a n employee follow a particular procedure. Furthermore, since Sullivan knew of V a u g h n 's policy that he be notified of any absence directly, the jury could have r e a s o n a b ly inferred that the Plaintiff expected Sullivan to call Vaughn and th e r e fo r e that by notifying Sullivan he indirectly notified Vaughn. The Defendant points to Metro-North's Operation Procedure No. 21-022, e n title d "Family & Medical Leave," in support of it's argument that it is entitled to ju d g m e n t as a matter of law. Procedure No. 21-022 states: "If the need for FMLA le a v e is not foreseeable, employees must give notice to their supervisor as soon a s possible." The Procedure does not specify the means by which the supervisor is to receive the notice. According to the Defendant, the policy in place in the S ta m fo r d storeroom where the Plaintiff worked required that all employees d ir e c tly notify Vaughn, his supervisor, regarding any absences. However, the

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regulation in effect at the time of the events in question only required the Plaintiff to notify his "employer" of his FMLA absence, and did not require him to notify a n y particular person. As the Court charged the jury, absent an objection from the d e fe n s e , the Defendant's internal policies were invalid to the extent that they were m o r e stringent than the DOL regulations. M o r e o v e r , even assuming the procedure at issue to be valid, the testimony a t trial established that it was an acceptable practice in other Metro North s to r e r o o m s for employees to provide notice of an FMLA absence by calling their le a d clerk, who then transmitted the information to the supervisor. The D e p a r tm e n t's top manager, Ray Lopez, confirmed that this practice was a c c e p ta b le to supervisors other than Vaughn. In addition, the jury heard te s tim o n y from New Haven clerk Paul Constantinople, Jr., who had personally c a lle d the lead clerk instead of Vaughn while Vaughn was serving as supervisor in th e New Haven storeroom. Indeed, Vaughn himself admitted that the New Haven c le r k s under his supervision called the lead clerk to provide notice of absences, r a th e r than calling him. The Defendant contends that evidence of absence notification procedures in p la c e in storerooms other than the Stamford storeroom are irrelevant. However, a s FMLA Compliance Officer Valentine testified, Metro North's internal notice rules s h o u ld be uniform and applied equally to all employees. The Procedure upon w h ic h the Defendant relies requires only that employees "give notice to their s u p e r v is o r as soon as possible." The jury could have properly relied upon

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evidence that employees within the Storeroom Department may comply with P r o c e d u r e No. 21-022 by notifying their lead clerk of unforeseeable FMLA a b s e n c e s , who then transmitted that information to the supervisor. This is p r e c is e ly what occurred in this case. The Plaintiff promptly notified his lead clerk, G a r r e tt Sullivan, of his FMLA absences on September 18 and 19, 2006. In sum, there was sufficient evidence adduced at trial to support the jury's fin d in g that the Plaintiff "gave proper notice of his intent to take FMLA leave on S e p te m b e r 18 and 19, 2006." This finding was not the result of "sheer surmise a n d conjecture." Hubbard, 576 F. Supp. 2d at 318. Therefore, the Defendant's m o tio n for judgment as a matter of law is denied. II. Plaintiff's Motion for Attorney's Fees and Costs T h e Plaintiff moves, pursuant to 29 U.S.C. § 2617(a)(3) of the FMLA and Fed. R . Civ. P. 54, for an award of attorney's fees in the amount of $144,792 and costs in the amount of $19,076.33. The Defendant objects to the award, claiming that it is unreasonable in light of the results obtained by the Plaintiff. T h e FMLA authorizes an award of reasonable attorney's fees in cases where a violation of the FMLA is established. See 29 U.S.C. § 2617(a)(3) ("The court in s u c h action shall, in addition to any judgment awarded the plaintiff, allow a r e a s o n a b le attorney's fee, reasonable expert witness fees, and other costs of the a c tio n to be paid by the defendant."). H o w e v e r , "[a] plaintiff who has prevailed in th e litigation has established his eligibility for, not his entitlement to, an award of fe e s . The district court retains discretion to determine, under all the

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circumstances, what constitutes a `reasonable' fee, and in appropriate c ir c u m s ta n c e s may conclude that, even though a plaintiff has formally prevailed, n o award of fees to that plaintiff would be reasonable." LeBlanc-Sternberg v. F le tc h e r , 143 F.3d 748, 758 (2d Cir. 1998) (internal citations omitted). As the United States Supreme Court has explained, where, as here, a p la in tiff "has achieved only partial or limited success, the product of hours r e a s o n a b ly expended on the litigation as a whole times a reasonable hourly rate m a y be an excessive amount. This will be true even where the plaintiff's claims w e r e interrelated, nonfrivolous, and raised in good faith. Congress has not a u th o r iz e d an award of fees whenever it was reasonable for a plaintiff to bring a la w s u it or whenever conscientious counsel tried the case with devotion and skill. The most critical factor is the degree of success obtained." Hensley v. Eckerhart, 4 6 1 U.S. 424, 436 (1983). Thus, "[w]here the damage award is nominal or modest, th e injunctive relief has no systematic effect of importance, and no substantial p u b lic interest is served, a substantial fee award cannot be justified." Carroll v. B lin k e n , 105 F.3d 79, 81 (2d Cir. 1997). In Farrar v. Hobby, 506 U.S. 103 (1992), the Supreme Court reemphasized th e primacy of the degree of success obtained in determining the reasonableness o f an award of attorney's fees. As the Supreme Court stated, "Where recovery of p r iv a te damages is the purpose of civil rights litigation, a district court, in fixing fe e s , is obligated to give primary consideration to the amount of damages a w a r d e d as compared to the amount sought. Such a comparison promotes the

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court's central responsibility to make the assessment of what is a reasonable fee u n d e r the circumstances of the case. Having considered the amount and nature of d a m a g e s awarded, the court may lawfully award low fees or no fees without r e c itin g the 12 factors bearing on reasonableness, or multiplying the number of h o u r s reasonably expended by a reasonable hourly rate." Id. at 114-15 (internal c ita tio n s and quotation marks omitted).3 In Farrar, the district court awarded the p la in tiff $280,000 in attorney's fees after the jury awarded the plaintiff nominal d a m a g e s of $1 on his civil rights claim pursuant to 42 U.S.C. §§ 1983 and 1985. The plaintiff had requested $17 million in damages prior to trial. Id. at 106. The S u p r e m e Court criticized the district court for failing to consider the relationship b e tw e e n the extent of success and the amount of the fee awarded, and concluded th a t the Plaintiff was not entitled to any attorney's fees at all. Id. at 115. Courts in this Circuit often apply the three-part test developed by Justice O 'C o n n o r in her concurring opinion in Farrar to determine whether a prevailing p la in tiff's recovery was de minimis, such that low attorney's fees or no attorney's fe e s should be awarded. See, e.g., Sclant v. Victor Belata Belting Co., No. 94-CV3

The twelve factors bearing on reasonableness to which the Supreme C o u r t was referring are the factors articulated by the Fifth Circuit in Johnson v. G a . Highway Express Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), namely: "(1) the tim e and labor required; (2) the novelty and difficulty of the questions; (3) the skill r e q u is ite to perform the legal service properly; (4) the preclusion of employment b y the attorney due to acceptance of the case; (5) the customary fee; (6) whether th e fee is fixed or contingent; (7) time limitations imposed by the client or c ir c u m s ta n c e s ; (8) the amount involved and the results obtained; (9) the e x p e r ie n c e , reputation, and ability of the attorneys; (10) the `undesirability' of the c a s e ; (11) the nature and length of the professional relationship with the client; a n d (12) awards in similar cases." Hensley, 461 U.S. at 430 n.3 (1983) (citing J o h n s o n , 488 F.2d at 717-719)). 9

0915E(Sc), 2001 U.S. Dist. LEXIS 16539, at *9 (W.D.N.Y. Oct. 2, 2001); Sowemimo v. D .A.O .R . Security, Inc., No. 97 CIV. 1083 RLC, 2000 WL 890229, at *9 (S.D.N.Y. June 3 0 , 2000); Adams v. Rivera, 13 F. Supp. 2d 550, 552 (S.D.N.Y. 1998); Haywood v. K o e h le r , 885 F. Supp. 624, 629 (S.D.N.Y. 1995). The three factors articulated by J u s tic e O'Connor are (1) whether there is "a substantial difference between the ju d g m e n t recovered and the recovery sought," (2) "the significance of the legal is s u e on which the plaintiff claims to have prevailed," and (3) whether the plaintiff " a c c o m p lis h e d some public goal other than occupying the time and energy of c o u n s e l, court, and client." Farrar, 506 U.S. at 121-22 (O'Connor, J., concurring). With respect to the first factor, the Plaintiff's FMLA claims carried a m a x im u m potential recovery of $11,600 ($5,800 in lost wages, plus liquidated d a m a g e s in the same amount). The Plaintiff recovered $612.50, which represents o n ly about 5.3% of the recovery sought on these claims. Moreover, the Plaintiff a ls o asserted a claim for intentional infliction of emotional distress, for which he s o u g h t open-ended compensatory damages. Although the Plaintiff's counsel did n o t argue for a particular amount of damages for the intentional infliction of e m o tio n a l distress claim during his closing argument, the amount of attorney's fe e s and costs expended (over $180,000 in attorney's fees and over $19,000 in c o s ts ) suggests that the Plaintiff anticipated a large potential recovery on the in te n tio n a l infliction of emotional distress claim.4 Therefore, the Court finds that

The Defendant also points to the Plaintiff's settlement demand prior to tr ia l as evidence of the substantial disparity between the judgment recovered and th e recovery sought. However, "[i]t would be improper for the Court to consider th e Plaintiff's settlement demands as evidence of [his] limited success at trial." 10

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there is a substantial difference between the recovery sought by the Plaintiff and th e judgment he received. With respect to the second factor, the Plaintiff argues that the importance of th is case was not dependent on the amount of economic damages awarded, but in s te a d rested on proving that the Defendant violated the FMLA and that such v io la tio n s will not be tolerated by its employees. However, the Plaintiff did not a s s e r t a claim for non-monetary relief, and "[t]he moral satisfaction of knowing th a t a jury concluded that defendant had discriminated against [him] does not e n title plaintiff to attorney fees." Schlant, 2001 U.S. Dist. LEXIS, at *13. Furthermore, this case did not involve any novel legal issues significant to the le g a l community as a whole rather than the Plaintiff individually. On the contrary, th e Plaintiff's successful claim relied on an ambiguous regulation that was s u b s e q u e n tly clarified in a manner which, had it been clarified earlier, might have s u b je c te d his claim to dismissal on summary judgment. As the Second Circuit h a s recognized, the "vast majority of civil rights litigation does not result in g r o u n d -b r e a k in g conclusions of law, and therefore, will only be appropriate c a n d id a te s for fee awards if a plaintiff recovers some significant measure of d a m a g e s or other meaningful relief." Pino v. Locascio, 101 F.3d 235, 239 (2d Cir. 1 9 9 6 ). As in most civil rights cases, "there is no particular significance to the le g a l issue on which plaintiff prevailed because such did not establish a new th e o r y of liability and the resolution of such has no significance beyond the

P a p p a s v. Watson Wyatt & Co., 2008 WL 45385, at *8 (D. Conn. Jan. 2, 2008) (citing O r tiz v. Regan, 980 F.2d 138, 140 (2d Cir. 1992)). 11

parties to this case." Schlant, 2001 U.S. Dist. LEXIS, at *13. F in a lly, as to the third factor, the Plaintiff indicates that this case serves an im p o r ta n t goal because the jury's verdict declaring that the Defendant's conduct v io la te d the FMLA will have a substantial impact on the future conduct of the D e fe n d a n t's management and employees. However, the Court does not believe th a t this case served any important public purpose. The jury awarded judgment to th e Plaintiff on his interference claim only. In order to establish the interference c la im , the Plaintiff needed to prove only that he gave proper notice of his intent to ta k e FMLA leave on September 18 and 19, 2006, and that the Defendant denied his r ig h t to take FMLA leave on those dates. As discussed above, the jury was in s tr u c te d on the applicability of a DOL regulation requiring only that an employee n o tify his employer of his need for unforeseeable FMLA leave, which has since b e e n amended to require employees to comply with the employer's usual and c u s to m a r y notice and procedural requirements for requesting leave. See 29 C.F.R. § 825.303(c). The jury also heard evidence that the Defendant had a written p r o c e d u r e in place requiring employees to notify their supervisors of unforeseen F M L A leave, but that implementation of the procedure varied such that employees a t certain storerooms were required to personally notify their supervisor while e m p lo ye e s at other storerooms could discharge their notice obligation by n o tifyin g their lead clerk rather than the supervisor directly. In the Court's view, th e jury's verdict in favor of the Defendant on the retaliation and intentional in flic tio n of emotional distress claims sent a message that the Defendant did not r e ta lia te against the Plaintiff for taking FMLA leave and did not engage in extreme 12

and outrageous conduct with respect to it's denial of the Plaintiff's request for F M L A leave on September 18 and 19, 2006, but that it only nominally violated the F M L A. In summary, application of the factors identified by Justice O'Connor in her c o n c u r r e n c e in Farrar demonstrates that the Plaintiff's recovery was de minimis a n d therefore he does not qualify for a substantial attorney's fee award in this c a s e . While it is true that "the public interest in encouraging injured parties to v in d ic a te their civil rights is such that attorneys' fees should sometimes be a w a r d e d to prevailing plaintiffs even when damages are very modest[,] . . . there is a ls o a public interest in preventing dubious or trivial claims from flooding the fe d e r a l courts." Adams v. Rivera, 13 F. Supp. 2d 550, 553 (S.D.N.Y. 1998) (denying p la in tiff's motion for attorney's fees where plaintiff received $1,080 in c o m p e n s a to r y damages and prevailed against only two of five defendants on one o f four claims). Because the Court holds that the Plaintiff's recovery was de minimis, under F a r r a r the Court may award either low or no attorney's fees without addressing th e twelve Johnson factors bearing on reasonableness. 506 U.S. at 115. The C o u r t finds that the Plaintiff is entitled to an award of attorney's fees because he r e c o v e r e d more than a nominal amount in damages. However, the requested a m o u n t of $144,792 must be greatly reduced to account for the Plaintiff's limited d e g r e e of success. The Court agrees with the Western District of New York's h o ld in g in Schlant that the customary contingency fee of one-third of the total r e c o v e r y is a reasonable amount of attorney's fees where a Plaintiff's recovery is 13

de minimis. See Schlant, 2001 U.S. Dist. LEXIS, at *16-*17 (awarding $277.45 in a tto r n e y's fees where plaintiff recovered $832.34); see also Rivera v. T.P. Horton, 7 F . Supp. 2d 147, 150 (N.D.N.Y. 1998) (awarding $0.66 in attorney's fees where p la in tiff recovered $2); McCardle v. Haddad, 131 F.3d 43, 53-55 (2d Cir. 1997) (a ffir m in g award of $0.33 in attorney's fees where plaintiff recovered $1). Accordingly, the Court awards the Plaintiff $204.17 in attorney's fees, representing o n e -th ir d of the damages awarded by the jury at trial. The Plaintiff also requests $19,076.33 in costs. Fed. R. Civ. P. 54(d)(1) s ta te s , in relevant part: "Unless a federal statute, these rules, or a court order p r o v id e s otherwise, costs - other than attorney's fees - should be allowed to the p r e va ilin g party." Similarly, L. Civ. R. 54(a) states that "[t]he Clerk shall enter an o r d e r allowing costs to the prevailing party unless the Court otherwise directs." "Under this [Rule 54(d)] analysis, for a plaintiff to be considered a prevailing p a r ty, he need not have succeeded on the central issue in the case, and need not h a v e obtained the primary relief sought. It is sufficient that the plaintiff succeeded o n any significant issue in the litigation, regardless of the magnitude of the relief o b ta in e d , if he received actual relief on the merits of his claim that materially alters th e legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff. Indeed, it is axiomatic that a plaintiff need n o t sustain his entire claim to be regarded as the prevailing party . . . Under this p r e va ilin g party standard, a plaintiff who wins nominal damages is a prevailing p a r ty." Bristol Tech., Inc. v. Microsoft Corp., 127 F. Supp. 2d 85, 93 (D. Conn.

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2000) (internal citations and quotation marks omitted); see also K-2 Ski Co. v. H e a d Ski Co., Inc., 506 F.2d 471, 477 (9th Cir. 1974) ("In general, a party in whose fa v o r judgment is rendered by the district court is the prevailing party . . . Although a plaintiff may not sustain his entire claim, if judgment is rendered for h im he is the prevailing party."); see generally 10 James Wm. Moore et al., Moore's F e d e r a l Practice, § 54.101[3] (3d ed. 2009) ("The cases that have interpreted the `p r e va ilin g party' language of Rule 54(d)(1) generally state simply that the p r e va ilin g party is the party in whose favor judgment was entered, even if that ju d g m e n t does not fully vindicate the litigant's position in the case."). In this case, the jury returned a verdict in favor of the Plaintiff on his in te r fe r e n c e claim, and judgment was entered for the Plaintiff in the amount of $ 6 1 2 .5 0 . See Doc. #119. This judgment "modifies the defendant's behavior for the p la in tiff's benefit by forcing the defendant to pay an amount of money he o th e r w is e would not pay." Bristol, 127 F. Supp. 2d at 93. Therefore, the Plaintiff is th e prevailing party for purposes of Rule 54(d). T h e r e is a strong presumption in favor of awarding costs to the prevailing p a r ty. See Remington Products, Inc. v. North Am. Phillips, Corp., 763 F. Supp. 683, 6 8 6 -8 7 (D. Conn. 1991). As the Second Circuit has observed, "[t]he award of costs a g a in s t the losing party is a normal incident of civil litigation and is the rule rather th a n the exception." Mercy v. County of Suffolk, 748 F.2d 52, 54 (2d Cir. 1984). Therefore, "unsuccessful parties bear some burden of showing circumstances s u ffic ie n t to overcome the presumption" favoring the award of costs to the

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prevailing party. Remington, 762 F. Supp. at 687 (quoting Baez v. U.S. Dep't of J u s tic e , 684 F.2d 999, 1004 (D.C. Cir. 1982)). The Defendant argues that the amount of costs awarded to the Plaintiff s h o u ld be reduced to exclude costs attributable to the Plaintiff's unsuccessful c la im s , and should be further reduced to reflect the Plaintiff's limited success. Although the Court has the discretionary authority under Rule 54(d) to deny or r e d u c e costs, it is unpersuaded that the reduction requested by the Defendant is a p p r o p r ia te in this case. The Defendant has not identified any cases from this C ir c u it in which a court has reduced costs on the basis of the prevailing party's lim ite d success. Instead, in cases in which courts in this Circuit have reduced c o s ts , there was a showing of bad faith or misconduct by the prevailing party d u r in g the litigation. See, e.g., Electronic Specialty Co. v. Int'l Controls Corp., 47 F .R .D . 158, 160 (S.D.N.Y. 1969) (recognizing that cases in which courts have d e n ie d costs "involve culpable actions by the prevailing party which justify the `p e n a lty' of the denial of costs"); Remington, 763 F. Supp. at 688 (denying costs to p r e va ilin g party where that party refused to provide any discovery in "a bad-faith e ffo r t to avoid complying with the rules governing discovery proceedings"). The D e fe n d a n t has not asserted and the Court is unaware of any bad faith or m is c o n d u c t on the part of the Plaintiff in this case, and therefore there is no r e a s o n to penalize him by reducing his award of costs. T h e Defendant further argues that $433.48 in costs for Dr. Shapiro's d e p o s itio n should be stricken because Dr. Shapiro was not deposed in connection

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with this case. The Plaintiff does not object to the removal of this cost. Accordingly, the Court awards the Plaintiff $18,642.85 in costs. III. Defendant's Motion for Costs T h e Defendant moves for an award of costs pursuant to Fed. R. Civ. P. 5 4 (d )(1 ) and L. Civ. R. 54 in the amount of $12,823.68. As stated previously, the P la in tiff submitted three claims to the jury: 1) interference under the FMLA; 2) r e ta lia tio n under the FMLA; and 3) intentional infliction of emotional distress under C o n n e c tic u t common law. On May 19, 2009, the jury returned a verdict in favor of th e plaintiff on his interference claim and awarded him $612.50. The jury found in fa v o r of the Defendant on the retaliation and intentional infliction of emotional d is tr e s s claims. The Defendant claims that it is entitled to an award of the costs r e la te d to the retaliation and intentional infliction of emotional distress claims as th e prevailing party on those claims. It calculates these costs to total $12,823.68. As stated above, under the law of this Circuit, the Plaintiff, rather than the D e fe n d a n t, is the prevailing party in this litigation despite his modest success. The Court is unpersuaded by the Defendant's argument that it should be awarded c o s ts because it was the prevailing party as to two of the three claims submitted to the jury. It is not necessary that the Plaintiff succeed on all of its claims in o r d e r to be considered the prevailing party. In Bristol, for instance, the Court (H a ll, J.) found the Plaintiff to be the prevailing party for purposes of a Rule 5 4 (d )(1 ) award of costs even though it was successful at trial as to only one of the fo u r te e n claims alleged. The Defendant has cited no authority from this Circuit

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supporting its entitlement to an award of costs pursuant to Rule 54(d) when it was n o t the prevailing party in this case. Therefore, the Defendant's motion for costs is denied. III. Conclusion B a s e d on the above reasoning, the Defendant's motion for judgment as a m a tte r of law [Doc. #120] and motion for costs [Doc. #127] are DENIED. The P la in tiff's motion for attorney's fees and costs [Doc. #122] is GRANTED IN PART AN D DENIED IN PART, and the Court awards the Plaintiff $204.17 in attorney's fees a n d $18,642.85 in costs.

IT IS SO ORDERED.

/s/ Vanessa L. Bryant U n ite d States District Judge

D a te d at Hartford, Connecticut: January 8, 2010.

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