Thompson v. The City of New York et al

Filing 141

AMENDED ORDER denying costs and fees. Ordered by Judge Jack B. Weinstein on 2/12/2019. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
AMENDED ORDER

LARRY THOMPSON,
Plaintiff,

14-CV-7349

against-

FILED
Police Officer PAGIEL CLARK; Police
Officer PAUL MONTEFUSCO;Police
Officer GERARD BOUWMANS;Police
Officer PHILLIP ROMANO,

U.S.»W™'t,N.Y.
* FEB 13 2019 *
BROOKLYN OFFICE

Defendants.

JACK B. WEINSTEIN,Senior District Judge;

At 10 p.m. one evening in Brooklyn, plaintiff, with his wife and new-bom baby, were
preparing for sleep. He was confronted at his front door by four armed uniformed police officers
without a warrant seeking to enter his home. They had been directed to investigate a report of
possible child abuse. He blocked their entry and, according to the officers' testimony, pushed

one of the officers. They pushed him to the floor, handcuffed him, and, according to his
testimony, beat him. The child was fine—^the report of abuse came from a distraught relative.
The jury faced a question repeatedly posed in today's society: what should the "good
citizen," and the "good police officer," do in such a situation?

The jury found in favor of the defendants. Fee and cost assessments are now before the
court.

"The fact that a plaintiff may ultimately lose his case is not in itself a sufficient
justification for the assessment of fees." Hughes v. Rowe,449 U.S.-5, 14(1980). The court has

a wide discretion. The plaintiffs claims were brought in good faith and they were neither
"frivolous, unreasonable,[nor] groundless." See id. at 15 (quoting Christianshurg Garment Co.

V. EEOC,434 U.S. 412,422(1978));

also 42 U.S.C. § 1988 ("In any action or proceeding to

enforce a provision of section[]... 1983 ..., the court, in its discretion, may allow the prevailing
party ... a reasonable attorney's fee as part of the costs .. ..")■ No fees are awarded.
Nor are any costs awarded. "It is well-settled that under Fed.R.Civ.P. 54(d), the
awarding of costs is discretionary with the trial judge." McDonnell v. Am. Leduc Petroleums,
Ltd., 456 F.2d 1170, 1188 (2d Cir. 1972). In view of plaintiffs good faith in bringing this action

to enforce his constitutional rights, the close, difficult, and protracted nature of the litigation, and
plaintiffs reduced financial resources, costs should not be imposed against him. See Whitfield
V, Scully, 241 F.3d 264, 270 (2d Cir. 2001), abrogated on other grounds by Bruce v. Samuels,
136 S. Ct. 627 (2016) ("[C]osts may be denied because of. . . the public importance of the case,

the difficulty of the issues, or the losing party's limited financial resources."); Remington Prod.,
Inc. V. N. Am. Philips, Corp., 763 F. Supp. 683, 687 (D. Conn. 1991) (finding that a case being
"close, compIex[,] and protracted" are valid reasons to deny costs); Bucalo v. E. Hampton Union

Free Sch. Dist., 238 F.R.D. 126, 129 (E.D.N.Y. 2006) (finding that courts may consider "factors

such as the plaintiffs financial hardship and good faith in bringing the action" when determining
whether to assess costs); Trial Tr. 198, Jan. 23, 2019 ("My client [Larry Thompson] works for
the USPS and he is not in a position to pay for . . . transcripts.").

Prevailing party costs have been requested pursuant to Federal Rule of Civil Procedure
68. See ECF No. 140, Feb. 11, 2019. Defendants argue that they are entitled to such costs

because plaintiff had declined their Rule 68 Offer of Judgment for $10,001 plus reasonable
attorneys' fees, expenses, and costs. See id.; Fed. R. Civ. P. 68(d) ("If the judgment that the
offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the
costs incurred after the offer was made."). Based on the facts of this case, the defendants' Offer

of Judgment is not considered to be a reasonable offer. Had the jury returned a verdict in favor
of the plaintiff, it would have far exceeded the amount ofthe unaccepted offer.
Costs and fees are denied.
to ORDERED.

ack B. Weinstein

Senior United States District Judge
Dated: February 12, 2019
Brooklyn, New York