Bochart v. City of Lowell et al

Filing 369

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER. Plaintiff's motion for attorneys' fees and costs is GRANTED in part and DENIED in part. (Schultz, Allison)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________________
)
ANDREW C. BOCHART,
)
)
Plaintiff,
)
)
v.
)
)
ERIC G. WAYNE,
)
)
Defendant.
)
)
___________________________________________)

Civil Action No.
13-11753-FDS

MEMORANDUM AND ORDER ON PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND COSTS
SAYLOR, J.
Plaintiff Andrew Bochart brought this action under 42 U.S.C. § 1983 and related statelaw theories following an altercation in a bar. Plaintiff alleged that Police Officer Eric Wayne
used excessive force against him, causing him substantial injuries, when he was a patron at
Hookslide Kelly’s in Lowell. After a four-day jury trial, the Court granted defendant’s motion
for a directed verdict as to plaintiff’s deliberate-indifference claim and the jury returned a verdict
in favor of plaintiff on his excessive-force claim. The jury awarded plaintiff damages in the
amount of $494.56.
Plaintiff then moved, pursuant to 42 U.S.C. § 1988, for an award of attorneys’ fees in the
amount of $59,922. He also moved for an award of costs, pursuant to Fed. R. Civ. P. 54(d), in
the amount of $8,004.79. For the reasons stated below, that motion will be granted in part and
denied in part.

I.

Background
Plaintiff filed the complaint in this action on July 23, 2013. The complaint alleged that

Lowell Police Officer Eric Wayne, the City of Lowell, and Hookslide Kelly’s were all liable for
injuries sustained by plaintiff when he was arrested by Wayne during the course of an altercation
at Hookslide Kelly’s. Plaintiff stipulated to the dismissal of the claims against Hookslide Kelly’s
in March 2015. In October 2015, he stipulated to the dismissal of the claims against City of
Lowell, after the Court had denied the City’s motion to dismiss and the parties had completed
discovery. Also in October 2015, defendant Wayne moved for partial summary judgment. That
motion was granted in part and denied in part.
The case then proceeded to trial. Plaintiff filed numerous motions in limine, as well as
Daubert motions, and opposed numerous motions in limine filed by the defendant. After a fourday jury trial, the Court granted defendant’s motion for a directed verdict as to plaintiff’s
deliberate indifference claim and the jury returned a verdict in favor of plaintiff on excessive
force claim. The jury awarded plaintiff damages in the amount of $494.56. Plaintiff has now
moved for an award of reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988, as well as costs
pursuant to Fed. R. Civ. P. 54(d).
II.

Analysis
A.

Reasonable Attorneys’ Fees

Under the Fees Act, 42 U.S.C. § 1988, a plaintiff who prevails in a § 1983 claim may be
awarded reasonable attorneys’ fees. Although the fee-shifting provision of § 1988 “is couched in
permissive terminology, awards in favor of prevailing civil rights plaintiffs are virtually
obligatory.” Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 124 (1st Cir. 2004) (internal
quotation marks omitted). The First Circuit follows the “lodestar” approach to determining
2

reasonable attorneys’ fees under the Fees Act. See Gay Officers Action League v. Puerto Rico,
247 F.3d 288, 295 (1st Cir. 2001).
The lodestar method involves “multiplying the number of hours productively spent by a
reasonable hourly rate to calculate a base figure.” Torres-Rivera v. O'Neill-Cancel, 524 F.3d
331, 336 (1st Cir. 2008) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The court may
then adjust the lodestar amount upward or downward based on a number of factors, chief among
which are the results obtained. See Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331,
338 (1st Cir. 1997). In this context, the “results obtained” includes the “plaintiff’s success claim
by claim,” “the relief actually achieved,” and “the societal importance of the right which has
been vindicated.” Id. A failure to prevail on all claims, as well as a “scanty damage award” cut
in favor of a reduction in fees, while the vindication of important rights cuts against a reduction.
Id. at 388 & n.5.
Plaintiff’s counsel spent approximately 1,600 hours working on this case. However, due
to the relatively modest amount of the damages awarded to plaintiff, he has reduced the number
of hours for which he seeks attorneys’ fees to 894.7. Of that 894.7 hours, 754.2 hours of work
was performed by plaintiff’s lead counsel, Paul Klehm, at a rate of $350/hour; 37.7 hours of
work was performed by attorney James Krasnoo, at a rate of $400/hour; and 102.8 hours of work
was performed by attorney Benjamin Falkner, at a rate of $200/hour. All three are named
partners at the firm Krasnoo, Klehm & Falkner, LLP. Those figures result in a total of $299,610
in fees. However, again in recognition of the modest damages award, plaintiff has reduced his
request by 80%, to reach a final fee request of $59,922.
Defendant does not dispute either that plaintiff is entitled to attorneys’ fees, the hours
billed, or the hourly rates applied. Defendant’s only opposition to plaintiff’s calculation is that
3

the 80% reduction is too limited in light of plaintiff’s relatively meager recovery, and that a
reduction of 95% should be applied.
“[T]hough a meager damage award may be taken into consideration, the [Supreme] Court
has squarely disclaimed ‘the proposition that fee awards under § 1988 should necessarily be
proportionate to the amount of damages a civil rights plaintiff actually recovers.’” Id. at 339
(quoting City of Riverside v. Rivera, 447 U.S. 561, 574 (1986)). A small recovery is one factor
to be considered, but it “does not constitute a dispositive criterion, or even ceiling on an ensuing
fee award.” Foley v. City of Lowell, 948 F.2d 10, 19 (1st Cir. 1991). Furthermore, while the
damages award here was significantly lower than the damages alleged by plaintiff, it was not
merely an award of nominal damages.1 The $494.56 was equal to plaintiff’s hospital bill from
the morning after his arrest. This is not, therefore, a case in which plaintiff failed to prove any
actual, compensable damages. Cf. Farrar v. Hobby, 506 U.S. 103, 115 (1992) (stating that fees
should not be awarded in civil rights suit for damages where plaintiff recovers only nominal
damages because “the awarding of nominal damages . . . highlights the plaintiff’s failure to prove
actual, compensable injury”).
As to plaintiff’s claim-by-claim success, his calculation of time spent working on the
case—a calculation that defendant does not dispute—already excludes time spent on the
dismissed claims against the City of Lowell and Hookslide Kelly’s. And while the Court did
grant defendant’s motion for a directed verdict as to plaintiff’s deliberat-indifference claim, the
80% reduction—viewed in light of the other relevant considerations—adequately accounts for

1

Plaintiff alleged medical damages of $76,467.92. He also requested damages for pain and suffering,
emotional distress, and lost income.

4

plaintiff’s failure to prevail on that aspect of his § 1983 claim.2
In addition, the “results obtained” includes more than just the verdict returned on each
claim and the damages awarded; it also includes the societal importance of the rights vindicated.
Coutin, 124 F.3d at 338. “[A] civil rights plaintiff seeks to vindicate important civil and
constitutional rights that cannot be valued solely in monetary terms,” and, in enacting the Fees
Act, Congress “determined that ‘the public as a whole has an interest in the vindication of the
rights conferred by the statutes enumerated in § 1988, over and above the value of a civil rights
remedy to a particular plaintiff . . . .’” Rivera, 477 U.S. at 574 (quoting Hensley, 461 U.S. at 444
n.4 (Brennan, J., concurring in part and dissenting in part)). The public’s interest in the
vindication of the right to be free from excessive force is substantial, particularly as the litigation
of such claims—even absent significant monetary damages—serve as a necessary deterrent to
the abuse of police power.
How a fee award should be adjusted under circumstances such as those presented here is
difficult to quantify. Coutin, 124 F.3d at 338 & n.5. There are no strict rules or mathematical
formulae to guide the Court’s discretion. Hensley, 461 U.S. at 436-37. In light of plaintiff’s
limited damages award and his failure to succeed on the deliberate-indifference portion of his §
1983 claim—which cut in favor of a substantial reduction in his fee award—and the public’s
interest in the vindication of an important right—which cuts against substantial reduction—the
Court finds that an 80% reduction to the undisputed base amount of $299,610 results in a
reasonable attorneys’ fee of $59,922.

2
Plaintiff’s accounting of the billable time spent working on the case does not allow for precise reduction
in the hours spent working on the deliberate-indifference claim. (See Klehm Aff. Ex. 4). However, such precision
is not necessary. See Hensley v. Eckerhart, 461 U.S. 424, 436-37 (1983) (noting difficulty of isolating time spent on
one claims as compared to another and stating that a “court may attempt to identify specific hours that should be
eliminated, or it may simply reduce the award to account for the limited success”).

5

B.

Costs

Plaintiff also seeks to recover costs associated with this litigation pursuant to Fed. R. Civ.
P. 54(d). Defendant contends that the parties should be left to bear their own costs, because,
while the plaintiff prevailed on his excessive-force claim, defendant prevailed on the deliberateindifference claim. However, “[w]here a plaintiff has brought an action based on several
theories of recovery and prevails on only one theory, courts have found that the plaintiff was the
prevailing party entitled to costs.” E.E.O.C. v. Colgate-Palmolive Co., 617 F. Supp. 843, 844
(S.D.N.Y 1985). For present purposes, plaintiff is therefore the prevailing party and is entitled to
recover his costs.
Plaintiff has requested $8,004.79 in litigation costs. By the Court’s calculations, $754.85
of that total is for the costs of making photocopies at a rate of $.20 per page. Plaintiff has not
supported any documentation to support that rate, and for most of the individual charges listed,
has not indicated what the copies were for or why they were necessary. In light of the lack of
supporting documentation, the Court will apply a rate of $.10 per page and reduce the
reimbursement sought for photocopies by half.
Plaintiff’s request for reimbursement also includes $4,691.25 for the preparation of
transcripts, including deposition transcripts and trial transcripts. Included in that total is $380 for
the deposition transcript of Dr. Michael Rater, who did not testify at trial. Plaintiff excluded the
time spent preparing for and taking Dr. Rater’s deposition in his calculation of attorneys’ fees,
and it seems appropriate to also exclude the costs of the deposition transcript from plaintiff’s
request for costs.
Plaintiff’s request for costs is otherwise reasonable. Therefore, the Court finds that a
reasonable award of costs under the circumstances is $7,247.37, broken out as follows:
6

Category
Medical Records
Photocopies
Posters for Trial
Postage
Transcripts
Filing Fee
Video Testimony at Trial
Total
III.

Costs
Cost Requested
$1,071.27
$754.85
$328.32
$4.1
$4,691.25
$400
$755
$8,004.79

Cost Approved
$1,071.27
$377.43
$328.32
$4.1
$4,311.25
$400
$755
$7,247.37

Conclusion
For the foregoing reasons, plaintiff’s motion for attorneys’ fees, costs, and other expenses

is GRANTED in the amount of $59,922 in fees and $7,247.37 in costs, and is otherwise
DENIED.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: April 27, 2017

7