Durham v. Somerset County et al
Filing
122
MEMORANDUM. Signed by Judge William M Nickerson on 9/10/12. (dass, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JAMES “TROY” DURHAM
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Plaintiff
v.
ROBERT N. JONES
Defendant
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Civil No. WMN-10-cv-2534
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MEMORANDUM
Pending before this Court are a number of post-trial
motions: (1) Plaintiff’s Motion for Attorney’s Fees and Costs,
ECF No. 88; (2) Defendant’s Motion for Judgment Notwithstanding
the Verdict or for New Trial, ECF No. 97; (3) Defendant’s Claim
of Exemption, ECF No. 103; (4) Plaintiff’s Motion for Entry of
Judgment on Garnishment, ECF No. 114; and (5) Plaintiff’s Motion
to Compel, ECF No. 110.
motions.
The parties have fully briefed these
Plaintiff has also filed a Motion for Sanctions, ECF
No. 111, pursuant to Rule 11.
Upon consideration of the pleadings, facts and applicable
law, the Court determines that (1) no hearing is necessary,
Local Rule 105.6, (2) Plaintiff’s Motion for Attorney’s Fees and
Costs will be granted in part and denied in part; (3)
Defendant’s Motion for Judgment Notwithstanding the Verdict, or
for New Trial will be denied; (4) Defendant’s Claim of Exemption
will be granted; (5) Plaintiff’s Motion for Entry of Judgment on
Garnishment will be denied, (6) Plaintiff’s Motion to Compel
will be granted, and (7) the Motion for Sanctions will be
denied.
I. BACKGROUND
Briefly, this matter involves a dispute regarding the
termination of Plaintiff’s employment.
Plaintiff Troy Durham
was employed as a Deputy Sheriff for the Somerset County
Sheriff’s Office (SCSO), and Defendant Robert N. Jones is the
Sheriff of Somerset County.
In August 2008, Plaintiff used
force while assisting a Maryland State Trooper to apprehend a
suspect resisting arrest and subsequently prepared an arrest
report describing this use of force.
According to the testimony
presented at trial, one of Plaintiff’s superiors ordered that he
change his report, and threatened suspension and criminal
charges if he failed to do so.
Plaintiff consented and amended
the report.
Plaintiff, however, was very upset by the threats made
against him by other members of SCSO.
To bring light to this
perceived misconduct, Plaintiff drafted a letter1 explaining the
circumstances of the initial arrest and the conduct of his
commanding officers in the days following, and alleging
“misconduct, malfeasance, corruption, abuse of power and breach
1
This letter was admitted at trial as Plaintiff’s Exhibit 5.
2
of the public trust” on the part of several SCSO officers
including Defendant.
Plaintiff sent this letter to various
state agencies, the Governor, Somerset County State’s Attorney
Office, the press, and an unnamed United States Senator.
Plaintiff attached to the letters a copy of the police report
and the grievance he filed with Somerset County.
Plaintiff was subsequently internally charged with 12
violations of SCSO’s Rules, Policy and Procedures: 10 violations
related to his use of force on the arrest and 2 violations
related to his letter writing.
These two charges were for
dissemination of departmental information without authorization
and unbecoming conduct.
A hearing was held on those charges and
Plaintiff was found guilty for the two charges related to his
letter writing.
The hearing board recommended 5 days of
suspension without pay for each of the two findings of guilt and
forwarded this recommendation to Defendant.
Defendant reviewed
the recommendation, and decided to increase the penalty to
termination of employment.
Plaintiff filed the present suit, alleging that Defendant’s
decision to terminate his employment was wrongful and in
violation of his free speech rights under the First Amendment of
3
the United States Constitution.2
A four-day jury trial commenced
on May 14, 2012, and concluded on May 17, 2012, when the jury
returned a verdict in favor of Plaintiff Durham on one count of
First Amendment retaliation under 42 U.S.C. § 1983.
The jury
awarded $412,000 in economic damages, $700,000 in non-economic
damages, and $200 in punitive damages against Defendant.
II.
MOTION FOR JUDGMENT NOTWITHSTANDINT THE VERDICT, FOR NEW
TRIAL, OR TO STAY THE JUDGMENT
Defendant has filed a motion under Federal Rule of Civil
Procedure 50(b) requesting that the Court determine that he is
entitled to qualified immunity and enter judgment in his favor.
In the alternative, Defendant requests that the Court grant him
a new trial pursuant to Rule 59 in light of the Maryland Court
of Special Appeals’ recent opinion that Defendant’s decision to
terminate Plaintiff’s employment was arbitrary and capricious.3
Plaintiff opposes the motion, arguing that Defendant has waived
his argument for qualified immunity by not raising it earlier,
that even if the argument was not waived, Defendant is not
entitled to qualified immunity.
He also argues that Defendant
2
Plaintiff also made a claim under Article 40 of the Maryland
Declaration of Rights, but this claim was dropped before the
jury was charged.
3
Defendant initially requested a stay of the judgment pending a
decision by the Court of Special Appeals, ECF No. 97-1 at 13,
but after the motion was fully briefed, and before this Court
had the opportunity to consider the motion, the Court of Special
Appeals issued its ruling, which Defendant has provided to this
Court in a Supplement to the motion. See ECF No. 119.
4
is not entitled to a new trial because the decision of the Court
of Special Appeals does not change the fact that Plaintiff was
fired.
A. Judgment Notwithstanding the Verdict
Rule 50 governs the requirements for making both initial
and renewed judgments as a matter of law.
This rule specifies
that a party may file a renewed motion for judgment as a matter
of law within twenty-eight days of the entry of judgment.
The
Rule 50(b) motion is a “renewed” motion, as the Rule necessarily
requires that the movant make an initial motion under Rule 50(a)
prior to submission of the case to the jury.
See Fed. R. Civ.
P. 50; Price v. City of Charlotte, N.C., 93 F.3d 1241, 1482-49
(4th Cir. 1996); see also Singer v. Dungan, 45 F.3d 823, 828
(4th Cir. 1995).
The initial Rule 50(a) motion “must specify
the judgment sought and the law and facts that entitle the
movant to judgment.”
Fed. R. Civ. P. 50(a)(2).
“While the United States Court of Appeals for the Fourth
Circuit has rejected a rigid interpretation of this ‘specificity
requirement,’ it has emphasized the need for ‘a proper [Rule
50(a)] motion as foundation for a motion [under Rule 50(b)].’”
Wallace v. Poulos, --- F. Supp. 2d ---, 2012 WL 993380 at *4
(D. Md. Mar. 22, 2012) (citing Miller v. Premier Corp., 608 F.2d
973, 979 n. 3 (4th Cir. 1979)).
This requirement “is not a mere
technicality” but “serves vitally important interests in the
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fair conduct of litigation.”
Miller, 608 F.2d at 980 n.3.
Thus, in determining whether such interests are met, “the Fourth
Circuit has focused principally on whether the moving party,
either in written or oral argument, provided sufficient notice
to his opponent of the alleged deficiencies in the opponent’s
case.”
Wallace, 2012 WL 993380 at *4 (citing to Singer, 45 F.3d
at 829; Miller, 608 F.2d at 979 n. 3; Price, 93 F.3d at 1249
(concluding that a defendant challenging the sufficiency of
evidence regarding damages from emotional distress had preserved
the issue for review by asserting at oral argument on its Rule
50(a) motion that the plaintiffs had not submitted sufficient
evidence of mental or emotional distress)).
At the close of Plaintiff’s case, Defendant orally moved
for judgment arguing, among other things, that he was entitled
to qualified immunity.
The Court heard argument from both
parties, and denied the motion.
Defendant did not present a
case, but renewed the motion for judgment at the close of his
case to ensure that the motion was preserved.
The Court denied
the motion again, and sent the case to the jury.
Defendant now
renews his motion for judgment, solely relying on the argument
that he is entitled to qualified immunity.
Plaintiff preliminarily argues that the Court need not
consider the Rule 50(b) motion because Defendant has waived the
argument presented in the motion.
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He contends that the argument
in support of qualified immunity in this 50(b) motion is a
substantial variation from the arguments previously presented in
support of qualified immunity, including those arguments made in
support of the 50(a) motion at trial.
ECF No. 104 at 4.
As the
50(b) motion presents what he perceives to be a “new” argument,
Plaintiff argues that it has been waived.
In making this argument, however, Plaintiff urges the Court
to strictly construe the requirements of Rule 50, despite the
precedent discussed above indicating that the Fourth Circuit
construes these requirements more liberally.
Though there is no
official transcript of the trial at this time, both parties
acknowledge that qualified immunity was raised as a basis for
Defendant’s Rule 50(a) motion, see ECF No. 97-1 at 2; ECF No.
104 at 3-4, and this is consistent with the Court’s
recollection.
And, though the nuanced details of Defendant’s
argument may have changed between his oral argument of the 50(a)
motion and the written submission of his 50(b) motion, Plaintiff
was clearly on notice that Defendant believed he was entitled to
qualified immunity and that he believed Plaintiff’s case was
deficient because it did not prove that Plaintiff’s free speech
rights were clearly established.
As such, the Court determines
that the requirements of Rule 50 were met and Defendant has not
waived his argument in support of qualified immunity.
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Notwithstanding, the Court is not convinced that Defendant
is entitled to qualified immunity.
As this Court previously
discussed in its memorandum dated April 21, 2011, ECF No. 25,
qualified immunity protects “government officials performing
discretionary functions . . . from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.”
(1982).
Harlow v. Fitzgerald, 457 U.S. 800, 818
A right is clearly established if “it would have been
clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.”
202 (2001).
Saucier v. Katz, 533 U.S. 194,
In making this assessment, the Court looks to the
settled law at the time of the alleged constitutional act to
determine whether the right allegedly violated was clearly
established.
Robinson v. Balog, 160 F.3d 183, 187 (4th Cir.
1998).
Defendant argues that he is entitled to qualified immunity
because his decision to terminate Plaintiff’s employment did not
clearly offend the First Amendment.
He states that his
testimony at trial indicated that he fired Plaintiff because
Plaintiff “stabbed him in the back” by calling him “a crook,”
ECF No. 97-1 at 4, and that the speech that this testimony
refers to is the portion of Plaintiff’s letter that the Court
instructed the jury was not protected under the First Amendment.
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Id. at 3.
Defendant also argues that Plaintiff’s First
Amendment rights in this context were not “clearly established”
because there is no brightline test that he could have applied
to easily determine whether or not terminating Plaintiff’s
employment would violate Plaintiff’s free speech rights.
Id. at
12.
Defendant is making two arguments above.
First, that
Defendant based his decision to terminate Plaintiff’s employment
solely on Plaintiff’s unprotected speech.
This contention,
however, is in conflict with the jury’s verdict.
The Court
instructed the jury as to which portions of the letter were
protected and which portions were not, and then charged the jury
to determine whether Plaintiff had proven, by a preponderance of
the evidence, that “his protected speech was a motivating factor
in the defendant’s decision to terminate plaintiff’s
employment.”
Jury Instr. at 25.
This was the sole issue that
the jury had to determine to reach the verdict.
Thus, the
jury’s finding in favor of Plaintiff necessarily indicates that
it concluded, despite Defendant’s testimony to the contrary,
that the decision to terminate Plaintiff’s employment was
motivated by the portion of speech that was protected.
Viewing
the evidence in the light most favorable to Plaintiff, the Court
determines that, relying on such evidence, a reasonable jury
could have made this finding.
See Duke v. Uniroyal, Inc. 928
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F.2d 1413, 1417 (4th Cir. 1991) (“When determining whether the
evidence is sufficient to support the jury's verdict, the
evidence must be reviewed in the light most favorable to
plaintiffs, giving them the benefit of all inferences.
If, with
that evidence, a reasonable jury could return a verdict in favor
of plaintiffs, the court must defer to the judgment of the jury,
even if the court's judgment on the evidence differs.”).
Therefore, the Court will defer to the judgment of the jury and
not disturb the verdict.
For these reasons, Defendant’s first
argument fails.
Defendant’s second argument is that Plaintiff’s rights in
this context were not clearly established.
This Court, however,
has already determined that Plaintiff’s right to bring “serious
police misconduct and a breach of the public trust to the
attention of government agencies and the press” was clearly
established.
See ECF NO. 25 at 18 (citing Andrew v. Clark, 561
F.3d 261, 267 (4th Cir. 2009); Robinson v. Balog, 160 F.3d 183,
188 (4th Cir. 1998) (holding that speech that “sought to bring
to light actual or potential wrongdoing or breach of public
trust on the part of government employees” was protected public
speech); Brawner v. City of Richardson, 855 F.2d 187, 191-92
(5th Cir.1988) (“The disclosure of misbehavior by public
officials is a matter of public interest and therefore deserves
constitutional protection, especially when it concerns the
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operation of a police department.” (footnote omitted)).
It was
in accordance with this determination that the Court instructed
the jury on which portions of the letter were protected and
which were not.
See Jury Instr. at 23.
The speech that the
Court found to be protected was that which recounted the
circumstances surrounding Durham’s creation of the original
police report and the subsequent threats that he faced before
amending the report; in other words, the portion of the letter
attempting to bring serious police misconduct to the attention
of the public.
This is the speech on which the jury determined
Defendant relied when he terminated Plaintiff’s employment, and
is speech for which Plaintiff’s First Amendment rights were
clearly established.
Moreover, the Court disagrees with Defendant’s suggestion
that using the factors4 in Ridpath v. Bd. Of Governors Marshall
Univ., 447 F.3d 292, 371 (4th Cir. 2006), to balance Plaintiff’s
interest in his protected speech against “the government’s
interest in the effective and efficient fulfillment of its
responsibilities to the public,” Connick v. Myers, 461 U.S. 138,
150 (1983), requires “sophisticated balancing” and is
“inherently subjective,” thus making Plaintiff’s right anything
but “clearly established.”
See ECF No. 97-1 at 10.
4
At trial
These factors were derived from the balance test performed by
the Supreme Court in Pickering v. Bd. of Educ., 391 U.S. 563.
573 (1968).
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there was little testimony or evidence offered to indicate that
Defendant anticipated that there would be more than a minor
disruption to the operation and mission of the SCSO, and, as
Plaintiff recounts and Defendant does not dispute, under crossexamination Defendant “was completely unable to articulate any
harm or disruption, whatsoever, to the Sheriff’s Department,
Somerset County government, or the public at large, as a result
of the Plaintiff’s disclosure.”
ECF No. 104 at 4.
In view of
this dearth of evidence, the Court cannot find that Defendant,
in evaluating the Pickering factors, could reasonably have
concluded that the potential, likely minimal, disruption caused
by Plaintiff’s protected speech outweighed Plaintiff’s interest
in the speech.
As such, Defendant is not entitled to qualified
immunity.
B. New Trial
On a motion for new trial brought under Rule 59(a), a court
may grant a new trial if “(1) the verdict is against the clear
weight of the evidence, or (2) is based upon evidence which is
false, or (3) will result in a miscarriage of justice, even
though there may be substantial evidence which would prevent the
direction of a verdict.”
Cline v. Wal-Mart Stores, Inc., 144
F.3d 294, 301 (4th Cir. 1998) (quoting Atlas Food Sys. & Servs.,
Inc. v. Crane Nat'l Vendors, Inc., 99 F.3d 587, 594 (4th Cir.
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1996)).
The decision to grant a new trial is entrusted to the
discretion of the court.
Id. at 305.
Defendant argues in the Supplement to his original motion
that he is entitled to a new trial because the recent decision
of the Maryland Court of Special Appeals “changes the essential
fact upon which the jury based its decision in this case: that
Plaintiff has been terminated from his position in the Sheriff’s
office.”
ECF No. 119 at 2.
In making this argument, he appears
to be invoking the second reason enunciated in Cline, that the
jury’s verdict “is based upon evidence which is false.”5
The Defendant enclosed a copy of the Court of Special
Appeals’ opinion with his Supplement.
ECF No. 119-1 (Durham v.
Jones, Slip Op. No. 1382 (Md. Ct. Spec. App. Aug. 1, 2012)).
The Court of Special Appeals reviewed the decision of the
Circuit Court for Somerset County, which had affirmed
Defendant’s decision to increase from a ten day suspension to
termination of employment the penalty recommended by the Board
after Plaintiff’s hearing pursuant to the Law Enforcement
Officer’s Bill of Rights (LEOBR).
5
Upon review, the Court of
In the Supplement, Defendant states that Plaintiff’s argument
made to the jury at trial that he is entitled to front pay
because he was terminated from his job no longer holds “because
the clear weight of the evidence upon which the jury relied—
evidence upon [which] the jury based its decision—[is] no longer
true.” ECF No. 119 at 2. Though he uses language mirroring the
first justification for a new trial enunciated in Cline, this
argument in fact suggests that the problem with the evidence is
its alleged falsity, not the weight with which it was accorded.
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Special Appeals reversed the decision of the Circuit Court and
determined that Defendant’s decision to disregard the Board’s
recommendation and increase the penalty was arbitrary and
capricious.
Id. at 17.
One of the essential elements of a First Amendment § 1983
retaliation claim is that adverse action is taken against a
plaintiff.
See Suarez Corp. v. McGraw, 202 F.3d 676, 686 (4th
Cir. 2000).
As Defendant indisputably terminated Plaintiff’s
employment, the jury was instructed that this element of proof
of adverse action was met.6
Jury Instr. at 24.
Defendant now
argues, however, that the decision from the Court of Special
Appeals essentially undoes this adverse action and so the jury’s
decision is no longer valid because it was based on a fact that
is no longer true.
This argument, however, does not hold water.
Though the
Court of Special Appeals held that Defendant’s decision to take
adverse action by terminating Plaintiff’s employment was
arbitrary and capricious, this holding does not mean no adverse
action was taken.
See Phelan v. Cook County, 463 F.3d 773, 781
(7th Cir. 2006) (“reinstatement and reimbursement do not bar a
finding of adverse employment action where there was an actual
termination”).
Plaintiff still lost his job and was unable to
find comparable work, and the jury determined that because of
6
Defendant did not make any objections to this instruction.
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this Plaintiff suffered both economic and non-economic damages.
In fact, the decision of the Court of Special Appeals only seems
to reaffirm the jury’s determination that Defendant acted
wrongfully in terminating Plaintiff’s employment.
Defendant also argues that if, as a result of the decision
of the Court of Special Appeals, Plaintiff is reinstated and
given backpay, then he will receive a windfall because he was
already awarded economic damages to compensate him for his lost
wages in the present case.
First, the Court will note that if
Plaintiff is reinstated and awarded backpay, this will in no way
affect the non-economic or punitive damages that he was awarded
by the jury.
This is because the non-economic damages represent
compensation for losses, including mental anguish and emotional
pain and suffering that Plaintiff experienced or will likely
experience in the future, see Jury Instr. at 30, and the
punitive damages are awarded as a form of punishment; neither
form of damages considers Plaintiff’s lost wages.
Second,
though the Court of Special Appeals determined that Defendant’s
decision was arbitrary and capricious, its decision did not
specify a remedy.
It is uncertain what the consequence of the
Court of Special Appeals’ decision will in fact be, and
Defendant obviously can advise whichever state court is charged
with determining a remedy of any payments he has made to satisfy
any award of backpay in the present case.
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For these reasons, the Court will exercise its discretion
to deny Defendant’s request for a new trial, and the Motion will
be denied.7
III. MOTION FOR FEES AND COSTS
Plaintiff has filed a motion pursuant to the Civil Rights
Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, seeking to
recover reasonable attorney’s fees and costs accrued in the
prosecution of this matter.
This statute provides that in a
federal civil rights action, such as an action brought pursuant
to 42 U.S.C. § 1983, “the court, in its discretion, may allow
the prevailing party. . . a reasonable attorney’s fee as part of
the costs.”
42 U.S.C. § 1988(b).
It is not disputed that
Plaintiff is a “prevailing party,” as judgment has been entered
in his favor.
Plaintiff requests that the Court award him fees in the
amount of $200,880.00, a figure he calculated by multiplying
502.2 hours by a $400 per hour rate, and costs in the amount of
7
Plaintiff has filed a Motion for Sanctions pursuant to Rule 11,
arguing the Defendant’s Motion to Stay pending a decision by the
Court of Special Appeals is “frivolous and unwarranted under any
existing law,” and was made “for the improper purpose of
delaying this matter and creating unnecessary work for the Court
and [Plaintiff’s] counsel.” ECF No. 111. While the Court
ultimately denied Defendant’s request for a new trial, which was
requested in lieu of the stay once the Court of Special Appeals
issued its decision, the Court does not agree that the motion
was frivolous or presented for an improper purpose, particularly
because the issue of double recovery is still somewhat
uncertain. See Fed. R. Civ. P. 11(b). As such, the Court will
deny the Motion for Sanctions.
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$8,485.43.
He also requests an award of 6% prejudgment interest
on these amounts, and that the Court retain jurisdiction to
issue supplemental awards as he continues to expend time in an
attempt to collect Plaintiff’s judgment.
When awarding attorney’s fees, the court should determine
the lodestar amount, which is “the number of hours reasonably
expended on litigation multiplied by a reasonable hourly rates.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
“[A]
‘reasonable’ fee is a fee that is sufficient to induce a capable
attorney to undertake the representation of a meritorious civil
rights case.” Perdue v. Kenny A., ––– U.S. –––-, ––––, 130 S.
Ct. 1662, 1672 (2010).
A court may, however, award an
enhancement to the lodestar figure “in rare and exceptional
circumstances.”
Id. (internal quotations omitted).
A fee
applicant bears the burden of proving the enhancement is
necessary and must do so with reference to “specific evidence
that the lodestar fee would not have been adequate to attract
competent counsel.”
Id. at 1674 (internal quotations omitted).
Plaintiff acknowledges that under the Local Rules of the
District Court for the District of Maryland, the presumptive
lodestar fee range is $225 to $300 per hour for attorneys who
have been admitted to the bar for 9 to 14 years.8
8
See Local
Plaintiff's attorney, Mr. Hoffman, has 13 years of experience
in the bar.
17
Rules, App. B: Rules and Guidelines for Determining Attorneys'
Fees in Certain Cases.
Plaintiff argues, however, that an
enhancement is appropriate due to the “undesirability of this
litigation.”
ECF No. 88 at 11.
He elaborates by explaining
that the case is undesirable because (1) his counsel has had to
disburse out-of-pocket expenses without timely repayment by
Plaintiff; (2) Defendant is represented by “the largest public
law firm in the State of Maryland (the Maryland Attorney
General’s office);” and (3) because the Defendant has proclaimed
himself to be “judgment proof.”
ECF No. 88 at 9.
Plaintiff
also points to the very favorable judgment that he achieved,
with an award of over $1,000,000.
In support of his claim for 502.2 billable hours, Plaintiff
has submitted timesheets describing the specific tasks for which
he was billed.
ECF Nos. 88-1, 105-1, 105-3.
Furthermore,
Plaintiff argues that, due to the undesirability of the case, as
discussed supra, the presumptive lodestar range is not “adequate
to attract competent counsel,” see Perdue, 130 S. Ct at 1673,
and points to the fact that “[t]hree separate lawyers declined
to assist the Plaintiff with this case, before Hoffman agreed to
represent the Plaintiff.”
ECF No. 88 at 10.
Plaintiff also
notes that the formula for hourly rates in the Local Rules is
based entirely on number of years of bar admission, and Perdue
held that “an enhancement may be appropriate where the method
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used in determining the hourly rate employed in the lodestar
calculation does not adequately measure the attorney's true
market value, as demonstrated in part during the litigation.
This may occur if the hourly rate is determined by a formula
that takes into account only a single factor (such as years
since admission to the bar) ....”
130 S.Ct. at 1674.
Defendant challenges some of the billable hours claimed by
Plaintiff, particularly those claimed for appellate work done in
furtherance of Plaintiff’s LEOBR appeal and “for pursuing claims
against those no longer parties, for claims now abandoned, and
for pursuing motions for sanctions which were denied.”
96 at 5.
ECF No.
Defendant also challenges Plaintiff’s claim to an
enhanced billing rate, arguing that Plaintiff “has shown no
compelling reason why” an award of the maximum lodestar rate of
$300 could not attract competent counsel in this case.
Id. at
8.
The Court is generally satisfied with the number of
billable hours claimed by Plaintiff, which is 502.2.
Plaintiff
has submitted timesheets which thoroughly account for these
hours, and the total is generally reasonable, particularly in
light of the fact that this case was thoroughly litigated and
tried in a four-day jury trial at the end of which Plaintiff was
awarded judgment on his remaining claim.
With respect to the
hours contested by Defendant, the Court will not deduct the
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entire 28.3 hours expended on claims that have now been
abandoned and an unsuccessful motion for sanctions.
Though some
of this time was expended pursuing what ultimately were
unsuccessful claims, the Court recognizes that such hours were
expended in furtherance of the litigation of the case as a whole
and centered on a common core of facts and related legal
theories.
See Imgarten v. Bellboy Corp., 383 F. Supp. 2d 825,
839 (D. Md. 2005).
Notwithstanding, in the spirit of
compromise, Plaintiff has agreed to accept a 5.1 hour reduction
for time spent pursuing claims against Somerset County.
105 at 7.
ECF No.
This reduction is factored into Plaintiff’s claim for
502.2 hours of billable time.
The Court agrees that this is a
fair compromise, and will not reduce the lodestar number by the
28.3 hours proposed by Defendant.
The Court will, however, reduce the lodestar number by the
72.6 hours expended by Plaintiff’s counsel in pursuit of the
LEOBR appeal.
Plaintiff notes that he is not seeking these
fees, but argues that the Court may award them as the LEOBR
appeal is “both useful and of a type ordinarily necessary to
advance the civil rights litigation to the state it reached
before settlement.”
ECF No. 105 at 4 (quoting Webb v. Bd. of
Educ. of Dyer Cty., Tenn., 471 U.S. 234, 243 (1985)).
Plaintiff
contends that pursuit of the LEOBR appeal, through which he
could potentially be awarded reinstatement and backpay, was
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necessary to hedge against an inability to recover a judgment
from Defendant.
Though this may be the case, the Court does not
view the LEOBR appeal as any type of “action or proceeding to
enforce [§ 1983],” see Webb, 471 U.S. at 241, but rather as an
independent avenue of relief, which was undertaken concurrently
with this case.
As such, the Court will reduce the lodestar
number by 72.6 hours.
The Court will award the additional 57.1
hours requested by Plaintiff in his Reply and thoroughly
accounted for in the timesheets attached thereto.
This number
is also already factored into Plaintiff’s lodestar total of
502.2 hours.
Accordingly, the Court finds that 429.6 (502.2
less 72.6) hours constitutes a reasonable total.
With respect to the hourly rate, the Court declines to
apply an enhancement to the presumptive rate of $300 per hour.
The Supreme Court has emphasized that enhancements should be
applied sparingly and only in exceptional cases. Spencer v.
Central Services, LLC, Civ. No. CCB-10-3469, 2012 WL 142978 (D.
Md. Jan. 13, 2012) (referring to Purdue, 130 S. Ct. at 1674).
As noted by Judge Blake in Spencer, “Plaintiffs' counsel appears
to have performed laudably, but this court does not find the
upper end of the lodestar range is too low to attract competent
counsel.”
Id.
Plaintiff acknowledges that the Fourth Circuit
has stated that “risk of counsel's not being compensated in a
case . . . [is] not a sufficient ground for enhancing the
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lodestar fee,” Lyle v. Food Lion, Inc., 954 F.2d 984, 989 (4th
Cir. 1992), yet continues to argue the “apparent inability to
collect the underlying Judgment” is evidence of this case’s
extreme undesirability.
ECF No. 88 at 11.
Though this Court
agrees that the Lyle opinion leaves open the possibility that
this factor in conjunction with other extreme circumstances
could justify an enhancement, the Court does not agree that such
extreme circumstances were present in this case.
Because § 1983
litigation by its very nature involves claims filed against
state actors, such defendants are frequently provided with a
taxpayer defense.
Furthermore, these suits are filed against
individuals and not local governments, so encountering an
individual government employee-defendant who is insolvent is not
an extraordinary occurrence.
In electing to apply the presumptive lodestar rate, this
court has considered all factors enumerated in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974),9 most of which are subsumed in the rate and hour analysis.
9
These factors are:(1) the time and labor required in the case,
(2) the novelty and difficulty of the questions presented, (3)
the skill required to perform the necessary legal services, (4)
the preclusion of other employment by the lawyer due to
acceptance of the case, (5) the customary fee for similar work,
(6) the contingency of a fee, (7) the time pressures imposed in
the case, (8) the award involved and the results obtained, (9)
the experience, reputation, and ability of the lawyer, (10) the
“undesirability” of the case, (11) the nature and length of the
22
This includes the difficulty of the questions presented, the
undesirability of the case, the risk of not receiving any
recovery, and awards made in similar cases, see Spencer, 2012 WL
142978 (declining enhancement and awarding an hourly rate of
$300 to Mr. Hoffman); Chapman v. Ourisman Chevrolet Co., Inc.,
Civ. No. AW-08-2545, 2011 WL 2651867 (awarding an hourly rate of
$300 to Mr. Hoffman).
Accordingly, the Court awards attorney's
fees to the Plaintiff in the amount of $128,880, which
represents 429.6 hours at a rate of $300 per hour.
Costs in the
amount of $8,573.18 are not challenged and also will be awarded.
ECF Nos. 88-1 at 32, 105 at 4 24.
Finally, given that this case was filed in September 2010
and resolved reasonably expeditiously, in a trial held in May
2012, the Court does not find that the passage of time was
sufficient to adversely impact the value of the Plaintiff’s
compensation in a meaningful way.
The 20 month period of
pendency is in contrast to the cases cited by Plaintiff, which
were pending for a number of years before resolution.
See, Daly
v. Hill, 790 F.2d 1071, 1081 (4th Cir. 1986) (noting that “civil
rights litigation often spans several years, and consequently
compensation ... often occurs long after the relevant services
have been rendered.
This delay in payment of attorney's fees
professional relationship between the lawyer and the client, and
(12) the fee awards made in similar cases.
23
obviously dilutes the eventual award and may convert an
otherwise reasonable fee into an unreasonably low one.”); Ohio
River Valley Env’t Coalition, Inc. v. Green Valley Coal Co., 511
F.3d 407 (4th Cir. 2007 (pending over four years).
For these
reasons, the Court declines to grant prejudgment interest.10
In sum, the Court will grant in part and deny in part
Plaintiff’s motion with the result that the Court awards
$128,880 in fees and $8,573.18 in costs to Plaintiff.
The Court
will also retain jurisdiction to issue supplemental awards as
may be appropriate under the circumstances.
IV.
DEFENDANT’S CLAIM OF EXEMPTION AND PLAINTIFF’S MOTION FOR
ENTRY OF JUDGMENT ON GARNISHMENT AGAINST GARNISHEE HEBRON
SAVINGS BANK
Defendant has filed a Claim of Exemption requesting that
the Court dismiss the writ of garnishment that Plaintiff served
on Defendant’s bank, Hebron Savings Bank (Hebron).
ECF No. 103.
In its Answer to Plaintiff’s writ of garnishment, Hebron
indicated that Defendant’s accounts total $2,180.75.
107.
ECF No.
Defendant seeks to exempt that entire amount pursuant to
Md. Code Ann., Cts. & Jud. Proc. § 11-504.11
Specifically, § 11-
10
The Court also notes that an award of interest at the rate of
6%, a requested by Plaintiff and as provided for in the Maryland
Constitution, Article 3, Section 57, would far exceed the low
rate of inflation that has persisted during the pendency of this
case, which has coincided with a period of economic downturn.
11
Section 11-504 is made applicable here by Fed. R. Civ. P.
69(a)(1) which provides that “[t]he procedure on execution – and
24
504(b)(5) allows a judgment debtor to exempt “[c]ash or property
of any kind equivalent in value to $6,000” by making an election
to exempt such property with 30 days from the date of the
attachment.
Plaintiff opposes Defendant’s Claim of Exemption and argues
that § 11-504 is preempted by federal law.12
Briefly,
preemption, as Plaintiff notes, stems from the principles of
federalism enshrined in the Constitution.
ECF No. 106 at 4;
Arizona v. U.S., 567 U.S. ---, 132 S. Ct. 2492, 2500 (2012).
The Supremacy Clause of the Constitution clearly provides that
federal law “shall be the Supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary
in proceedings supplementary to and in aid of judgment or
execution – must accord with the procedure of the state where
the court is located.” See also Trustees of Ironworkers Union
No. 16 Pension Plan v. Turner, No. AMD-07-1691, 2010 WL 917359
(D. Md. Mar. 10, 2010).
12
In his Opposition, Plaintiff offered two additional arguments.
First, that Defendant’s claim should be denied because Hebron
had not filed its Answer to the writ of garnishment at the time
Defendant filed his Opposition and, as a result, Plaintiff’s
claim was not ripe. ECF No. 106 at 3. Hebron filed its Answer
the same day that Plaintiff filed his Opposition. See ECF No.
107. Therefore, the Court will not consider Plaintiff’s
ripeness argument. Second, Plaintiff argued that Defendant’s
request should be denied because dismissal of a writ of
garnishment is not a form of relief provided for by § 11-504.
ECF No. 106 at 6-7. Because the Court is deciding Plaintiff’s
Claim of Exemption and Defendant’s Motion for Judgment together,
to the extent that Defendant’s request for dismissal of the writ
of garnishment is an error, it is of no import.
25
notwithstanding.”
Art. VI, cl. 2.
Thus, preemption can occur
in three ways: “(1) when Congress has clearly expressed an
intention to do so . . . ; (2) when Congress has clearly
intended, by legislating comprehensively, to occupy an entire
field of regulation . . . ; and (3) when a state law conflicts
with federal law.”
Coll. Loan Corp. v. SLM Corp., a Delaware
Corp., 396 F.3d 588, 595-96 (4th Cir. 2005).
Plaintiff’s
argument is based on the third variety of preemption.
He
suggests that § 11-504 is preempted because it “stands in the
way of compliance with Section 1983 and the judgment entered in
this case.”
ECF No. 106 at 6.
To support his position, Plaintiff directs the Court to
Hankins v. Finnel, 964 F.2d 853 (8th Cir. 1992).
In that case,
the Eighth Circuit held that § 1983 preempted a Missouri state
statute, the Missouri Incarceration Reimbursement Act (MIRA),
that would have allowed the state to recoup ninety percent of
the judgment that the plaintiff had previously been awarded in
his § 1983 action against the defendant, an instructor at a
state run penitentiary school, as costs associated with the
plaintiff’s incarceration.
Id. at 854, 861.
The MIRA
specifically authorized the state to recover money from funds
that a prisoner “received from the State a result of a civil
action against one of its employees.”
Id. at 854.
The court
reasoned that permitting the state to recover the judgment
26
awarded to the plaintiff “would be inimical to the goals of [§
1983]” because “neither the state nor its employees would have
the incentive to comply with the constitutional rights of
prisoners.”
omitted).
Id. at 861 (internal quotations and citations
Thus, the court concluded “that section 1983 preempts
the Missouri Incarceration Reimbursement Act as it is applied in
this case.
To the extent that the Act permits the State to
recoup the very monies it has paid to satisfy a section 1983
judgment against one of its employees, the Act is invalidated
under the Supremacy Clause.”
Id. at 861.
Hankins provides no support for Plaintiff’s position in
this case for two reasons.
First, the Eighth Circuit itself,
along with other courts, has repeatedly emphasized the
narrowness of the holding in Hankins.
See El–Tabech v. Clarke,
616 F.3d 834, 840 (8th Cir. 2010) (“In Hankins, we carefully
held that ‘section 1983 preempts the Missouri Incarceration
Reimbursement Act as it is applied in this case.’”) (emphasis in
original); Parsons v. Heebsh, No. 09-CV-14411, 2010 WL 3905196
*5 (E.D. Mich. Sept. 30, 2010) (noting that Hankins “is of
limited value in cases with facts that are not virtually
identical to those in Hankins”); Moore v. Jackson, No. 04–1086,
2004 U.S.App. LEXIS 21332, *3 (8th Cir. Oct. 14, 2004) (per
curiam) (“case [fell] outside the limited scope of Hankins”);
State Treasurer v. Rusiecki, No. 242238, 2003 Mich.App. LEXIS
27
837, *3 (Mich. Ct. App. Mar. 27, 2003) (distinguishing Hankins).
More importantly, however, Plaintiff fails to acknowledge that
by approving Rule 69(a)(1), “Congress expressly declared its
intent not to preempt state law.”13
(emphasis in original).
El-Tabech, 616 F.3d at 839
Indeed, the incorporation of state law
governing the execution of money judgments through Rule 69(a)(1)
eliminates the conflict that Plaintiff argues exists.
Thus, §
11-504 is not preempted by § 1983.
Because the value of Defendant’s accounts is below the
$6,000 exemption permitted by § 11-504(b)(5), pursuant to Md.
Rule 2-645(i) the Court will grant Defendant’s Claim of
Exemption.
Consequently, the Court will deny Plaintiff’s Motion
for Judgment on Garnishment Against Garnishee Hebron Savings
Bank.
Plaintiff’s request for attorney’s fees associated with
preparing his Opposition to Defendant’s Claim of Exemption, ECF
No. 106 at 7, will be denied.
13
As discussed in Note 12, supra, Rule 69(a)(1) makes state law
applicable to the execution of federal money judgments only to
the extent that a federal statute does not apply. The Advisory
Committee Notes to Rule 69 identify dozens of federal statutes
that do apply to the execution of federal money judgments in
lieu of state law. Section 1983 is, obviously, not among them.
Had Congress intended for any procedure other than those
provided for by the states to apply to the execution of
judgments awarded for violations of § 1983, it could have done
so.
28
V. PLAINTIFF’S MOTION TO COMPEL DEFENDANT TO ANSWER
INTERROGATORIES IN AID OF EXECUTION
Plaintiff has filed a “Motion Compelling Judgment-Debtor
Jones to Answer Interrogatories In Aid of Execution (And Request
for Money Sanctions from Counsel)” (Motion to Compel).
110.
ECF No.
Plaintiff also provided the Court with copies of his
interrogatories to Defendant as well as correspondence between
the parties’ counsel.
See ECF Nos. 110-1 – 110-4.
These
documents support Plaintiff’s assertion that, at the time he
filed his Motion to Compel, Defendant had not yet responded to
Plaintiff’s interrogatories.
Defendant opposes Plaintiff’s
motion and in his Opposition states that he responded to
Plaintiff’s interrogatories on July 27, 2012 and supplemented
those responses on August 8, 2012.
ECF No. 116.
Thus,
Defendant argues that Plaintiff’s Motion to Compel is moot.
Id.
In his reply brief, Plaintiff appears to acknowledge that
Defendant has provided responses to his interrogatories, in some
form, but, nonetheless argues that “the Motion is not moot
because the Judgment-Debtor has not provided proper and full
answers to Interrogatories 13 and 14, regarding the existence of
insurance.”
ECF No. 121 at 1.
Neither party has provided the
Court with a copy of Defendant’s answers.
From the limited
record before the Court, it is unclear whether Defendant has
responded to Interrogatories 13 and 14 and his responses do not
29
meet with Plaintiff’s approval or whether the interrogatories in
question have gone unanswered in their entirety.
If Plaintiff’s
concern is the former, then the record provided to the Court is
wholly insufficient to support granting Plaintiff’s Motion to
Compel.
Therefore, the Court will grant Plaintiff’s motion only
to the extent that Defendant has not responded to
Interrogatories 13 and 14 at all.
Defendant will be ordered to
provide responses – answers or objections – to Interrogatories
13 and 14 to Plaintiff within 7 days of entry of this Memorandum
and Order, if he has not already done so.
Plaintiff’s request
that a sanction of $500.00 be imposed against counsel for
Defendant, Stephen Hearne, Esq., will also be denied.
VI.
CONCLUSION
For the foregoing reasons, the Court concludes that
Plaintiff’s Motion for Attorney’s Fees and Costs will be granted
in part and denied in part; Defendant’s Motion for Judgment
Notwithstanding the Verdict or New Trial, will be denied;
Defendant’s Claim of Exemption will be granted; Plaintiff’s
Motion for Entry of Judgment on Garnishment will be denied;
Plaintiff’s Motion to Compel will be granted; and Plaintiff’s
Motion for Sanctions will be denied.
separate Order.
30
The Court will issue a
/s/
William M. Nickerson
Senior United States District Judge
September 10, 2012
31
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