Alvarez v. The City of New York et al
OPINION AND ORDER: re: 193 FIRST MOTION for Reconsideration re; 192 Memorandum & Opinion filed by Thomas M. Cozart, The City of New York, Michael T. Tedeschi, Paul M. Kerrigan. For the foregoing reasons, Defendants' motion for reconsider ation is GRANTED in part. Upon reconsideration, Alvarez's motion for attorney's fees is denied. As previously held, Alvarez is entitled to costs prior to Defendants' Rule 68 offer of judgment, and Defendants are entitled to costs there after. The parties are directed to confer regarding the respective awards of costs. If they are unable to reach agreement on a proposed order by December 22, 2017, they shall submit letter briefs on the issue by January 5, 2018. The Clerk of Court is directed to close the motion at Docket Number 193.SO ORDERED. (Signed by Judge J. Paul Oetken on 12/05/2017) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
THE CITY OF NEW YORK, P.O.
MICHAEL TEDESCHI, THOMAS
COZART, P.O. DOUGLAS
BRIGHTMAN, SGT. PAUL
KERRIGAN, and SGT. PHILIP
J. PAUL OETKEN, District Judge:
Plaintiff Angel Alvarez was shot over twenty times by New York City police officers,
and a jury found three of those officers liable for using excessive force. However, the jury
declined to award any compensatory or punitive damages, instead awarding only $1 in nominal
This Court previously decided that despite his recovery of only nominal damages,
Alvarez is entitled to some amount of attorney’s fees and costs. Defendants now move for
reconsideration of that decision. For the reasons that follow, Defendants’ motion for
reconsideration is granted and Alvarez’s motion for attorney’s fees is denied.
Familiarity with the background of this case, as set out in this Court’s prior opinions, is
presumed. See Alvarez v. City of New York, No. 11 Civ. 5464, 2017 WL 1506563 (S.D.N.Y.
Apr. 27, 2017); Alvarez v. City of New York, No. 11 Civ. 5464, 2015 WL 1499161 (S.D.N.Y.
Mar. 30, 2015); Alvarez v. City of New York, No. 11 Civ. 5464, 2012 WL 6212612 (S.D.N.Y.
Dec. 12, 2012).
This case arises out of an altercation between Alvarez and another individual, Luis Soto,
at a block party. Alvarez alleges that Soto shot him several times at close range, and the two
men then struggled over Soto’s weapon. Police officers arrived during the scuffle and began
firing on the two men. The officers struck Alvarez over twenty times. See Alvarez, 2015 WL
1499161, at *1‒4. Alvarez brought this suit against the City and the officers under 42 U.S.C.
§ 1983 and New York law for excessive force and false arrest. (See Dkt. No. 1.)
The case was tried before a jury, which returned a verdict in favor of Alvarez with
respect to his excessive force claims against three of the five named officers. (Dkt. No. 155.)
Specifically, the jury found that Alvarez had proven by a preponderance of the evidence that
Defendants Cozart, Kerrigan, and Tedeschi “intentionally or recklessly subjected him to
excessive force.” (Dkt. No. 155.) In response to special interrogatories, the jury found that those
three defendants “believed reasonably . . . that [Alvarez] had control of a firearm and posed a
significant threat of death or serious physical injury at [some] point during the incident,” but that
“the defendants continued to shoot at [Alvarez] after it was no longer reasonable to believe that
[he] posed a significant threat of death or serious physical injury.” (Dkt. No. 156.)
Despite finding three defendants liable for using excessive force in violation of Alvarez’s
civil rights, the jury awarded him just $1 in nominal damages. In so doing, the jury found that
Alvarez had not “prove[n] by a preponderance of the evidence that he suffered any compensatory
damages as a result of the injury . . . proximately caused by” the defendants. (Dkt. No. 155.)
The jury similarly declined to award punitive damages. (Id.)
After trial, Alvarez moved for a new trial as to damages or, in the alternative, for
attorney’s fees. (Dkt. No. 173.) The Court denied the motion for a new trial, determining that a
reasonable jury could have “concluded that Alvarez’s pain and suffering . . . resulted only from
the justified use of force,” or, alternatively, that “Alvarez failed to support his claims of injury
such that any compensatory damages award would have been purely speculative.” Alvarez, 2017
WL 1506563, at *2–3.
The Court did, however, grant Alvarez’s request for an award of attorney’s fees and
costs. Id. at *6. Defendants now move for reconsideration of that decision, requesting that the
Court “deny in its entirely plaintiff’s application for attorneys’ fees and costs.” (Dkt. No. 193.)
“The standard for granting . . . a motion [for reconsideration] is strict.” Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). “A motion for reconsideration should be granted
only when the defendant identifies ‘an intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent manifest injustice.’” Kolel Beth
Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (quoting
Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).
“[R]econsideration will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked—matters . . . that might reasonably be expected to
alter the conclusion reached by the court.” Shrader, 70 F.3d at 257.
In Farrar v. Hobby, the Supreme Court held “that a plaintiff who wins nominal damages
is a prevailing party under [42 U.S.C.] § 1988,” and as a result, he is statutorily eligible to
receive attorney’s fees. 506 U.S. 103, 112, 114 (1992). The Court cautioned, however, that
“[a]lthough the ‘technical’ nature of a nominal damages award . . . does not affect the prevailing
party inquiry, it does bear on the propriety of fees awarded under § 1988.” Id. at 114.
“Accordingly, the Supreme Court set forth the following three factors to determine whether a
plaintiff who has obtained only nominal damages is nonetheless entitled to receive attorneys’
fees: ‘ the difference between the judgment recovered and the recovery sought[,]’ ‘ the
significance of the legal issue on which the plaintiff prevailed, and  the public purposes
served’ by the litigation.” Dingle v. City of New York, No. 10 Civ. 4, 2012 WL 1339490, at *5
(S.D.N.Y. Apr. 17, 2012) (alterations in original) (footnotes omitted) (quoting Farrar, 506 U.S.
Applying the Farrar factors, the Court’s prior Opinion and Order determined that “[t]he
first factor . . . does not weigh in Alvarez’s favor . . . [because] [h]is $1.00 nominal damages
award is a far cry from the recovery he sought,” but that “[t]he second and third factors—the
significance of the issue on which Alvarez prevailed and the public purposes served by the
litigation—[do] weigh in [his] favor.” Alvarez, 2017 WL 1506563, at *5. The Court concluded
that “[c]onsidering these factors together confirms that Alvarez is entitled to some amount of
attorneys’ fees” and costs; although the Court “defer[red] the question of whether the fees
Alvarez requests are reasonable until” after further briefing. Id. at *6.
Defendants contend that the Court erred in applying the Farrar factors. In particular,
Defendants argue that the Court overlooked “clear Second Circuit precedent that holds that
attorney fee awards in nominal damages cases are extremely rare, except where plaintiffs can
show that the case involved ‘ground-breaking’ new legal theories or principles that advance a
public interest.” (Dkt. No. 194 at 2.)
Upon reconsideration, the Court agrees with Defendants. In Pino v. Locascio, the Second
Circuit observed that “while there is no per se rule that a plaintiff recovering nominal damages
can never get a fee award, Farrar indicates that the award of fees in such a case will be rare.”
101 F.3d 235, 238 (2d Cir. 1996). In reversing the district court’s fee award, the Pino Court
distinguished Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994)—an earlier case that had
affirmed a fee award—by explaining that “[a]though the plaintiffs in Cabrera received only
nominal damages, their lawsuit created a new rule of liability that served a significant public
purpose.” Pino, 101 F.3d at 239. Pino concluded that “[t]he vast majority of civil rights
litigation does not result in ground-breaking conclusions of law, and therefore, will only be
appropriate candidates for fee awards if a plaintiff recovers some significant measure of damages
or other meaningful relief.” Id.
The Second Circuit subsequently clarified that a ground-breaking conclusion of law is a
necessary—not merely a sufficient—condition for awarding attorney’s fees when the plaintiff
has received only nominal damages. In McGrath v. Toys “R” Us, Inc., the court explained that
“[u]nder our court’s precedents, an ‘award of fees’ to a plaintiff recovering nominal damages
‘will be rare,’ appropriate only when a plaintiff’s success relies on a ‘new rule of liability that
serve[s] a significant public purpose.’” 409 F.3d 513, 518 (2d Cir. 2005) (quoting Pino, 101
F.3d at 238‒39). 1
Alvarez responds that “a groundbreaking theory of liability is just one—but not the
only—possible such public purpose.” (Dkt. No. 195 at 10.) But the cases that Alvarez cites to
support his position are unpersuasive. The first case, Diamond v. O’Connor, awarded attorney’s
fees to a plaintiff who had been awarded only nominal damages—but, crucially, the plaintiff in
Diamond had sought only nominal damages. No. 05 Civ. 279, 2010 WL 9459022, at *2 (D. Vt.
Alvarez argues that McGrath is inapposite because it considered “the
reasonableness of an award of attorneys’ fees pursuant to New York state law.” (Dkt. No. 195 at
7.) However, the McGrath Court’s analysis contrasted the standard for state-law fee awards with
federal-law fee awards, thus clarifying Second Circuit precedent on the reasonableness of
awarding attorney’s fees under § 1988. See McGrath, 409 F.3d at 520 (“[T]he New York Court
of Appeals appears to have defined the public purpose exception to the general Farrar rule more
expansively under state law than had our federal precedents.”).
June 10, 2010). The district court emphasized this important distinguishing detail, explaining
that “in a case where nominal damages are awarded to a plaintiff who sought and failed to prove
compensable injury, a reasonable fee may be no fee at all. In the instant case, however,
Diamond stated at trial that he sought only nominal damages . . . .” Id. (citations omitted). 2
The second case offered by Alvarez, Anderson v. City of New York, 132 F. Supp. 2d 239
(S.D.N.Y. 2001), is similarly unhelpful to Plaintiff’s cause. The court in Anderson concluded
that the plaintiffs’ “victory [was] not so ‘hollow,’ ‘technical,’ or ‘de minimis’ as to preclude an
award of attorneys’ fees.” Anderson differs from Alvarez’s case, however, in two key respects.
First, the Anderson plaintiffs prevailed on a claim for compensatory damages, recovering $2,501.
Id. at 242. Second, “there [was] nothing in the record to indicate that the [plaintiffs] ever
rejected any offer greatly exceeding the amount they obtained at trial.” Id. In contrast, the jury
awarded Alvarez only $1 in nominal damages, and it did so after Alvarez had rejected a pre-trial
settlement offer of $150,001. Alvarez, 2017 WL 1506563, at *5.
In sum, the Court reads Pino and McGrath to require the following: When a plaintiff
seeks a non-nominal remedy but receives only nominal damages, he must show that his case
established some “groundbreaking” legal principle. Without such a showing, the second and
third Farrar factors are insufficient, as a matter of law, to overcome the plaintiff’s deficit with
respect to the first Farrar factor. This is because “[t]he most important factor in determining the
reasonableness of a fee is the degree of success obtained.” Pino, 101 F.3d at 237.
Alvarez’s reliance on the Second Circuit’s affirmance of Diamond is misplaced;
even if the district court’s decision in Diamond supported Alvarez’s position, the Second
Circuit’s summary affirmance of that decision cannot overturn Circuit precedent as announced in
Pino and McGrath. See Local Rule 32.1.1(a) (“Rulings by summary order do not have
The Court is thus obligated to reevaluate its application of the second and third Farrar
factors in light of Pino and McGrath. Defendants accurately note that “it has long been
established that officers must use reasonable force.” (Dkt. No. 194 at 4.) Consequently, the
jury’s verdict in Alvarez’s case did not “result in [a] ground-breaking conclusion of law” nor
“create a new rule of liability.” Pino, 101 F.3d at 239. It remains true that Alvarez’s “case
involved issues of significant local and national importance—police use of deadly force.”
Alvarez, 2017 WL 1506563, at *5. But while police officers’ excessive use of force is certainly a
significant issue, the actual result of Alvarez’s case—an award of $1—is insignificant. At
bottom, “this case established no new law but instead involved the application of settled law to
the facts of the case.” Dingle, 2012 WL 1339490, at *8.
Consequently, the Court grants Defendants’ motion for reconsideration as to Alvarez’s
application for attorney’s fees, and concludes that Alvarez is not entitled to any amount of
Costs are awardable even when a court denies the prevailing party’s attorney’s fees under
Farrar. See Dingle, 2012 WL 1339490, at *8 (“[T]he discussion in Farrar was basically
cabined to attorneys’ fees and did not separately address costs . . . . Because [under § 1988]
attorneys’ fees are a component of awardable costs, it stands to reason that costs other than
attorneys’ fees can be awarded even if attorneys’ fees are denied.”).
Although Defendants’ motion for reconsideration nominally requests that the Court
reconsider and deny Alvarez’s application for costs (Dkt. No. 193), Defendants have failed to
brief the issue of costs. As a result, the Court sees no reason to reconsider its previous award of
costs under Federal Rule of Civil Procedure 54(d)(1), which provides that “[u]nless a federal
statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—
should be allowed to the prevailing party.” Accordingly, the Court denies reconsideration of its
award of pre-Rule 68 offer costs to Alvarez.
For the foregoing reasons, Defendants’ motion for reconsideration is GRANTED in part.
Upon reconsideration, Alvarez’s motion for attorney’s fees is denied. As previously held,
Alvarez is entitled to costs prior to Defendants’ Rule 68 offer of judgment, and Defendants are
entitled to costs thereafter. The parties are directed to confer regarding the respective awards of
costs. If they are unable to reach agreement on a proposed order by December 22, 2017, they
shall submit letter briefs on the issue by January 5, 2018.
The Clerk of Court is directed to close the motion at Docket Number 193.
Dated: December 5, 2017
New York, New York
J. PAUL OETKEN
United States District Judge
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