NANCE, et al v. CITY OF NEWARK, et al

Filing 295

MEMORANDUM OPINION. Signed by Magistrate Judge James B. Clark on 7/16/14. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DARREN M. NANCE,
Plaintiff,
v.
CITY OF NEWARK, et al.,
Defendants.

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Civil Action No. 97-6184 (JLL)

MEMORANDUM OPINION

CLARK, Magistrate Judge
This matter comes before the Court upon Plaintiff Darren M. Nance’s (“Plaintiff”)
motion for attorney’s fees [Docket Entry No. 287]. Defendant the City of Newark (“Newark”)
opposes Plaintiff’s motion. [Docket Entry No. 288]. The Court has fully reviewed and
considered all arguments made in support of, and in opposition to, Plaintiff’s motion. The Court
also held oral argument on Plaintiff’s motion pursuant to L.CIV.R. 78.1(b) on June 27, 2014. For
the reasons set forth more fully below, Plaintiff’s motion is GRANTED IN PART.
I.

BACKGROUND
This litigation has a lengthy and complex procedural history. As such, the Court shall

discuss only those facts relevant to the instant motion. Plaintiff filed this action on December
18, 1997 alleging various constitutional violations, employment discrimination, retaliation and
wrongful termination in connection with his job as a police officer for the City of Newark. See
generally Third Am. Compl.; Docket Entry No. 53. After over a decade of litigation, the case
went to trial before the Honorable Dennis M. Cavanaugh, U.S.D.J. (now retired) on June 9,

2010. The trial lasted thirteen days and resulted in a jury verdict in favor of Plaintiff and against
Defendants. Plaintiff was awarded $350,000 and $250,000 in compensatory and punitive
damages, respectively. In the years that followed, various motions and appeals were filed, with
the one most relevant to the instant motion being Plaintiff’s application for prejudgment interest
on the entire damage award.
On May 2, 2011, the District Court denied Plaintiff’s motion for prejudgment interest,
finding first that “it is established that prejudgment interest is not permitted on punitive
damages” and further finding that “[p]rejudgment interest shall not…be allowed on any recovery
for future economic losses [and] due to a general verdict sheet…it cannot be determined whether
the jury verdict is for non-economic loss or for future economic loss[.]” See Docket Entry No.
254 (internal citations and quotations omitted). Thereafter, Plaintiff filed a pro se appeal with the
Third Circuit Court of Appeals challenging the District Court’s determination with respect to
compensatory damages only. In an Order dated October 15, 2012, the Third Circuit vacated the
District Court’s Order and remanded for further proceedings, holding that “the District Court
should have inquired more thoroughly into whether the award includes some identifiable
component of past economic damages on which prejudgment interest generally should be
awarded.” Nance v. City of Newark, 501 Fed. Appx. 123, 130 (3d Cir. 2012).
Thereafter, the parties submitted supplemental briefing on the issue of whether
prejudgment interest should be awarded on Plaintiff’s compensatory damages. On January 30,
2014, the District Court issued an opinion reversing its prior determination and awarding
prejudgment interest on the entire $350,000 compensatory damage award. It is important to
note that no judgment calculating the amount of prejudgment interest was entered by the District
Court. Instead, in the interim, the parties endeavored to settle on a suitable dollar amount for
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prejudgment interest and eventually came to an agreement on March 5, 2014. See Plaintiff’s
Brief in Reply at 5; Docket Entry No. 289. Plaintiff subsequently filed the instant motion for
attorney’s fees in association with the pre- and post-appeal motions 1 for prejudgment interest
pursuant to 42 U.S.C. §1988.
II.

LEGAL STANDARD
In this District, motions for attorney’s fees are now explicitly governed by L.Civ.R. 54.2,

which provides that “[i]n all actions in which a counsel fee is allowed by the Court or permitted
by statute, an attorney seeking compensation for services or reimbursement of necessary
expenses shall file within 30 days of the entry of judgment or order, unless extended by the
Court, a motion for fees and expenses in accordance with L. Civ. R. 7.1.”
Title 42 U.S.C. §1988(b) provides that the Court, in Its discretion, may award reasonable
attorney’s fees and expenses to a prevailing party. A plaintiff is “prevailing” and thereby entitled
to a fee award if he or she has succeeded on “any significant issue in litigation which achieves
some of the benefit the part[y] sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433,
103 S.ct. 1966, 76 L.Ed.2d 40 (1983) (internal quotation marks and citation omitted). “To be
eligible to make a prevailing-party claim under §1988, the plaintiff must, at a minimum…be able
to point to a resolution of the dispute which changes the legal relationship between itself and the
defendant.” Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223 (3d Cir. 2011) (internal
quotation marks and citation omitted). Plaintiffs who achieve partial or limited success on their
claims are still eligible for attorney’s fees under §1988. Hensley, 461 U.S. at 440. However,
“where the plaintiff achieved only limited success, the district court should award only that amount

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The Court notes that Plaintiff is explicitly NOT seeking any fees in connection with Plaintiff’s actual appeal to the
Third Circuit. That appeal was filed pro se by Plaintiff with no assistance of counsel.
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of fees that is reasonable in relation to the results obtained.” Id. Specifically, “[w]here the plaintiff
has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours
spent on the unsuccessful claim should be excluded in considering the amount of a reasonable
fee.” Id. See also Rendine v. Pantzer, 141 N.J. 292, 337 (1995) (“[A] trial court should reduce the
lodestar fee if the level of success achieved in the litigation is limited as compared to the relief
sought.”).
Once it has been determined that a party is eligible for an award of attorney’s fees, the first
step in calculating same under §1988 requires the Court to determine the lodestar fee, defined as
the number of hours reasonably expended multiplied by a reasonable hourly rate. Hensley, 461
U.S. at 433. The party seeking attorney’s fees has the burden of producing sufficient evidence of
what constitutes a reasonable market rate for the character and complexity of the legal services
rendered. Blum v. Stenson, 465 U.S. 886, 896, n.11 (1984). The burden of establishing the
lodestar rests on the fee applicant, who must provide appropriate documentation of the hours spent
and the market rate.

If the documentation is inadequate, a court may reduce the award

accordingly. Hensley, 461 U.S. at 433. The opposing party must make specific objections to the
requested fee. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). “Once the adverse
party raises objections to the fee request, the district court has a great deal of discretion to adjust
the fee award in light of those objections.” Id. However, the district court cannot decrease a fee
award based on factors not raised at all by the opposing party. Id.
III.

DISCUSSION
a. Timeliness
As a threshold matter, the Court finds that Plaintiff’s motion was timely filed. Newark

argues that the applicable 30 day period began to run on January 30, 2014, the date of the District
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Court’s Opinion and Order granting Plaintiff prejudgment interest. See Newark’s Brief in
Opposition at 2; Docket Entry No. 288. Newark submits that because Plaintiff’s motion was
filed on March 25, 2014, it was untimely and further, that Plaintiff’s late filing cannot be excused
under a theory of “excusable neglect” under Fed.R.Civ.P. 6. Id. In reply, Plaintiff argues that
the District Court’s Order should not be considered a “judgment” for purposes of L.Civ.R. 54.2
because it did not set forth the amount of prejudgment interest to be awarded. See Pltf. Br. Reply
at 3. Plaintiff maintains that the parties did not agree to the amount of prejudgment interest until
March 5, 2014 and therefore, Plaintiff’s motion was not untimely. Moreover, Plaintiff submits
that even if January 30, 2014 is the applicable date which caused the 30 day period to run, that
Plaintiff’s motion be permitted on the basis of excusable neglect, due to the ongoing dispute
regarding the amount of prejudgment interest. Id. at 6-7.
The Court finds that the January 30, 2014 Opinion of the Court, while an “order”, does
not constitute a “judgment” as contemplated by Rule 54.2. Plaintiff’s motion seeks attorney’s
fees in connection with the issue of prejudgment interest, a part of which was still in dispute even
after the District Court’s Order was entered. As such, at that time, it could not be discerned
whether additional briefing concerning the amount of prejudgment interest would be required.
Therefore, it is entirely reasonable that Plaintiff would await an order of judgment setting forth
the amount of prejudgment interest before filing a motion for attorney’s fees. As such, the
Court need not address excusable neglect, as it finds Plaintiff’s motion to be timely and shall
therefore address the merits.
b. Plaintiff’s Entitlement to Attorney’s Fees
In the present matter, the parties do not dispute that Plaintiff was ultimately successful on
the issue of prejudgment interest, as evidenced by the District Court’s Order in Plaintiff’s favor.
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Therefore, Plaintiff is permitted to recover reasonable attorney’s fees under §1988. However,
Newark’s objection to Plaintiff’s application lies in the reasonableness of the fees requested by
Plaintiff’s counsel, Angelo R. Bianchi, Esq. The Court shall therefore turn to the calculation of
fees based on the lodestar fee methodology.
c.

Calculation of Fees
i. Reasonable Rate

In order to determine a reasonable hourly rate, the Court must assess the “skill and
experience of the prevailing attorneys and compare their rates to the rates in the community for
similar services by lawyers of reasonably comparable skill, experience and reputation.” Blakey,
2 F.Supp.2d 598, 602 (D.N.J. April 9, 1998) (citing Rendine, 141 N.J. at 337). In the instant
matter, the parties do not dispute Mr. Bianchi’s hourly rate of $400. Indeed, the Court finds same
to be acceptable when considering Mr. Bianchi’s expertise and experience in this area of law, as
well as the similarity it bears to rates of comparable attorneys. 2 As such, $400 per hour shall be
awarded on the applicable number of hours expended, which the Court shall now address.
ii. Number of Hours Reasonably Expended
The Supreme Court has held that counsel is expected to exercise “billing judgment” and
that district courts “should exclude from this initial fee calculation hours that were not ‘reasonably
expended’” including “excessive, redundant, or otherwise unnecessary” work. Hensley, 461 U.S.
at 434 (internal quotation marks and citations omitted). Mr. Bianchi’s submitted billing indicates
he expended a total of 113 hours on the issue of prejudgment interest, including both pre- and post-

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Mr. Bianchi has been practicing for 55 years, has expertise in litigation, and has produced affidavits corroborating
his hourly rate. See Affidavit in Support of Motion for Attorney Fees at ¶2-4; Docket Entry No. 287-1; Exhibit C to
Bianchi Cert.; Docket Entry No. 287-2.
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appeal. See Certification of Angelo R. Bianchi, Esq. (“Bianchi Cert.”) at 6; Docket Entry No. 2872. In its opposition, Newark argues that counsel’s hours are excessive because unnecessary
amounts of time were expended on basic research, writing and reviewing of documents. See
Newark’s Br. Opp. at 5-11. Further, Newark contends that various entries constituted non-legal
work and are therefore non-compensable. Id.
Upon review, the Court finds that counsel’s requested hours were “reasonably expended”
and did not exhibit “excessive, redundant, or otherwise unnecessary” work. Hensley, 461 U.S. at
434. Without going through each and every billing entry, the Court finds that counsel’s time spent
was reasonable on the issue of prejudgment interest. Counsel spent a total of 34 hours on the first
application for prejudgment interest, which included an initial brief, review and research of 2
opposition briefs, preparation and drafting of 2 reply briefs and a review of the Court’s May 2,
2011 Order. In post-appeal billing, counsel spent 79 hours reviewing the decision of the Third
Circuit, meeting with the Plaintiff, researching the cases cited by the Third Circuit, as well as
reviewing the 160-page transcript of the trial, drafting a follow-up motion for prejudgment interest,
which included an initial and reply brief, and review and research on Newark’s opposition brief.
See Bianchi Cert. at 2-6; Pltf. Br. Reply at 10.
The Court finds that counsel’s requested time is not within the realm of that which has been
considered “excessive” by this Court in the past. See Port Drivers Fed’n 18, Inc. v. All Saints,
2011 U.S. Dist. LEXIS 93700 at *18-19 (D.N.J. Aug. 16, 2011) (finding 60 hours for a 13-page
Complaint with 59 paragraphs to be “utterly ridiculous” and reducing to 10 hours and further
finding over 200 hours for a 26-page motion for preliminary injunction “unwarranted” and
reducing to 50 hours); see also N.J. Primary Care Ass'n v. State Dep't of Human Servs., 2013 U.S.
Dist. LEXIS 91098 (D.N.J. June 28, 2013) (finding 74 hours to draft a 24 page complaint, 257
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hours to draft a preliminary injunction motion, and 130 hours to draft a motion for summary
judgment to be excessive and reducing each by half). As such, the Court declines to reduce the
number of counsel’s hours on the basis of excessiveness.
iii. Other Considerations
1. Prejudgment Interest on Punitive Damages
Newark argues that “Plaintiff’s counsel fee application should be reduced to account for
his unsuccessful attempt to recover prejudgment interest for $250,000 in punitive damages.”
Newark’s Br. Opp. at 11. Newark reasons that because punitive damages constituted 42% of the
damages awarded to Plaintiff ($250,000/$600,000) and 42% of the prejudgment interest that
Plaintiff initially sought, any award of attorney’s fees should be reduced by the same percentage.
Id. Plaintiff responds by arguing that he was substantially successful on his claim of prejudgment
interest in general, and that a “fee award should not be reduced simply because the plaintiff failed
to prevail on every contention raised[.]” Id. citing Hensley, 461 U.S. at 434. Moreover, Plaintiff
contends that, post-appeal, “Plaintiff’s application for prejudgment interest only concerned the
$350,000 compensatory damages award” and that “any further activity by Plaintiff’s counsel did
not consider prejudgment interest on the entire award” including punitive damages. Pltf. Br. Reply
at 8.
The Court finds that counsel’s attorney fees should be reduced by the time spent arguing
for prejudgment interest on punitive damages. As both the Third Circuit and the District Court
recognized, it is well-settled that prejudgment interest is not available for an award of punitive
damages. See Nance, 501 Fed. Appx. 123, 129, citing Belinski v. Goodman, 139 N.J. Super. 351,
360 (N.J. Super. Ct. App. Div. 1976). See also Docket Entry No. 254. As such, counsel’s
application for prejudgment interest on this ground was correctly denied. Nevertheless, the Court
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declines to reduce counsel’s award by 42% as suggested by Newark, as Plaintiff did not seek
prejudgment interest on punitive damages at any time after the initial denial. The efforts that
Plaintiff expended in seeking prejudgment interest are limited to the pre-appeal hours, which, as
noted above, came to a total of 34 hours. As such, these are the only hours at risk of reduction.
The Court shall, however, adopt Newark’s suggestion that those applicable hours be reduced by
the proposed 42%, which represents the amount of punitive damages as a percentage of Plaintiff’s
entire $600,000 damage award. This results in a reduction of Plaintiff’s pre-appeal hours from 34
to 19.72.
2. Fee Enhancement
Plaintiff additionally requests a fee enhancement in addition to the lodestar calculation as
a result of “the complexity of legal services” provided and “the daunting task of convincing the
trial court to reverse its previous Order[.]” Affidavit in Support of Motion for Attorney Fees at ¶1416; Docket Entry No. 287-1. Newark argues that “obtaining prejudgment interest was in [no] way
extraordinarily complex, consuming, overwhelming, or was unlikely to succeed.” Thus, Newark
submits that an enhancement is not warranted. Newark’s Br. Opp. at 12.
There is a “strong presumption” that the lodestar represents the reasonable attorney fee to
be awarded. City of Burlington v. Dague, 505 U.S. 557, 562 (1992). Nonetheless, the Supreme
Court has held that “in some cases of exceptional success an enhanced award may be justified.”
Hensley, 461 U.S. at 435. Furthermore, New Jersey recognizes a contingency enhancement based
upon the risk of nonpayment. See Rendine, 141 N.J. at 329 (“[T]he trial court, after having
carefully established the amount of the lodestar fee, should consider whether to increase that fee
to reflect the risk of nonpayment in all cases in which the attorney's compensation entirely or
substantially is contingent on a successful outcome.”).
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The Court is not persuaded that a fee enhancement is warranted for counsel’s efforts in
obtaining prejudgment interest. While the procedural history of this case is indeed lengthy and
many of the issues complex, the issue of prejudgment interest is not novel or complex and the
Court is constrained by the strong presumption that the lodestar constitutes the reasonable fee.
Moreover, Plaintiff has not demonstrated a risk of nonpayment from Defendant. Indeed, Plaintiff’s
counsel has already received approximately $750,000 in attorney’s fees for this case. Accordingly,
Plaintiff’s request for a fee enhancement is denied.
IV.

CONCLUSION
For the reasons set forth above, Plaintiff’s motion is GRANTED IN PART and Newark

shall reimburse Plaintiff’s counsel in the amount of $39,488.00. 3 An appropriate Order
accompanies this Opinion.

Dated: July 16, 2014

s/ James B. Clark, III
HONORABLE JAMES B. CLARK, III
UNITED STATES MAGISTRATE JUDGE

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Plaintiff’s initial fee application of $45,200.00, minus $5,712.00 (14.28 hours x $400/hour) deducted by the Court.
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