The Port Authority Police Benevolent Association, Inc. et al v. The Port Authority of New York and New Jersey et al

Filing 133

OPINION & ORDER re: 120 MOTION in Limine, filed by The Port Authority of New York and New Jersey. The Court partially GRANTS Port Authority's motion in limine to preclude evidence of Plaintiffs' damages at trial and orders the fol lowing: 1. Discovery in this case is re-opened to allow Port Authority to take supplemental depositions of-or, if Defendant prefers, to obtain affidavits from-Paul Nunziato, John McAusland, Frank Conti, Michael DeFillipis, Robert White, Steve Ek izian, and Cesar Morales, on the topic of their salaries and the number of hours they diverted in connection with Port Authority's cell phone searches. PAPBA will pay for the expenses and costs associated with taking these depositions, eac h of which shall be limited to two hours. All depositions shall be completed by February 28, 2018. If PAPBA is in possession of any unproduced documents that reflect the number of hours the above individuals diverted in connection with the cell phone searches, PAPBA shall produce those documents on or before January 31, 2018. 2. By January 31, 2018, PAPBA shall submit to the Court a letter delineating the following with respect to its damages: (a) PAPBA shall identify the amount of Em ery Celli's fees, if any, it is claiming as damages for work not done in furtherance of this litigation; and (b) PAPBA shall give the reasons why the damages it identified in (a) constitute proper "diversion of resources" damages. (Deposition due by 2/28/2018.) (Signed by Judge Kimba M. Wood on 1/19/2018) (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------)(
THE PORT AUTHORITY POLICE
BENEVOLENT ASSOCIATION, INC. and
KATHLEEN HOWARD,
Plaintiffs,
-against15-CV-3526 (KMW) (SDA)

THE PORT AUTHORITY OF NEW YORK
AND NEW JERSEY, SUPERINTENDENT
MICHAEL FEDORKO, LIEUTENANT
TIMOTHY MCGOVERN, LIEUTENANT
STEVEN ADELHELM, KAREN CONNELLY,
STEVEN PASICHOW, and MICHAEL
NESTOR,

OPINION & ORDER

Defendants.

--------------------------------------------------------)(
KIMBA M. WOOD, United States District Judge:
In this 42 U.S.C. § 1983 action set for trial on March 19, 2018, the remaining partiesPlaintiff Kathleen Howard, Plaintiff The Port Authority Police Benevolent Association, Inc.
("PAPBA"), and Defendant The Port Authority of New York and New Jersey ("Port
Authority")-submitted motions in limine and accompanying memoranda of law that were fully
briefed on December 8, 2017.

(ECF Nos. 120-32.)

This Opinion & Order addresses Port

Authority's motion to preclude P APBA from introducing evidence at trial related to its claimed
damages and attorneys' fees.

(ECF No. 122, at 2-11.)

The Court will decide the parties' other

motions in limine at a later date.
I.

BACKGROUND
In August 2014, the l 13th class of the Port Authority Police Department ("P APD")

graduated from police academy training and became "Probationary Police Officers" ("PPOs") of

the PAPD.

1

On the night of August 22, 2014, approximately 95 of these PPOs and academy

instructors attended an after-party at the Texas Arizona Bar & Grill in Hoboken, NJ.

Following

reports that many of the PPOs engaged in misconduct at the Texas Arizona, the Port Authority
investigated this alleged misconduct.

As part of that investigation, Port Authority officers

interviewed all of the PPOs present at the after-party and searched many of their cell phones.
Plaintiffs claim that the PPOs did not voluntarily consent to these cell phone searches, making
those searches unconstitutional.
Plaintiff P APBA was the PP Os' labor union at the time Port Authority conducted these
searches.

P APBA claims it was injured by the searches because, among other things, P APBA

had to divert its resources to advise the PPOs.

(See Miller Decl.,2 Ex. A., at 2-4.)

The

damages P APBA is seeking-known as "diversion of resources" damages-include the
monetary equivalent of the hours its employees dive1ied to working on these searches, as well as
the attorneys' fees it paid to outside counsel Emery Celli Brinckerhoff & Abady LLP ("Emery

(See id)

Celli") for work done related to these searches.

P APBA first disclosed its intention to seek "diversion of resources" damages in its
August 2015 initial disclosures.

(See Miller Deel., Ex. C, at 8.)

did not include a computation of damages.

(See id.)

Those disclosures, however,

P APBA did not provide such a

computation until November 2017, when it served a supplemental disclosure identifying, among
other things, the names of P APBA employees who diverted their resources to the cell phone
search issue and the hours those employees diverted to that issue.

(See Miller Deel., Ex. A.)

1

A fuller account of the facts presented herein can be found in the Court's summary judgment decision.
No. 111.)

2

"Miller Deel." refers to the Declaration in Support of Defendant's Motions In Limine, executed by Kathleen
Gill Miller on November 17, 2017, ECF No. 121.

2

(ECF

At the time PAPBA served this supplemental disclosure, however, discovery had been closed for
well over a year and a trial date was already set.
II.

(See ECF Nos. 67, 115.)

ANALYSIS
Port Authority is moving to preclude Plaintiffs (i) from presenting any evidence of

PAPBA's "diversion ofresources" damages at trial because those damages were not properly
disclosed in PAPBA's Rule 26(a) disclosures and interrogatory responses, and (ii) from
presenting evidence of Plaintiffs' attorneys' fees to the jury, because Plaintiffs should instead
submit any request for attorneys' fees to the Court after trial.
A.

Preclusion of Evidence under Rule 37
1.

Legal Standard

Under Federal Rule of Civil Procedure 26(a)(l )(iii), each "party must, without awaiting a
discovery request, provide to the other parties ... a computation of each category of damages
claimed by the disclosing party."

Where a party fails to comply with Rule 26(a), the "party is

not allowed to use that information ... at a trial, unless the failure was substantially justified or is
harmless."

Fed. R. Civ. P. 37(c)(l).

A court also "may order payment of the reasonable

expenses, including attorney's fees, caused by the failure."

Fed. R. Civ. P. 37(c)(l)(A).

To

determine whether preclusion under Rule 37(c)(l) is warranted, courts consider "(1) the party's
explanation for the failure to comply with the [disclosure requirement]; (2) the importance of the
testimony of the precluded witness[ es]; (3) the prejudice suffered by the opposing party as a
result of having to prepare to meet the new testimony; and (4) the possibility of a continuance."
Patterson v. Balsamico, 440 F.3d 104, 118 (2d Cir. 2006) (internal quotation marks and citation

omitted; brackets in original). ,
2.

Application

In November 201 7, long after discovery had closed and after a trial date was set, P APBA

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served Port Authority with a detailed disclosure of the damages it was seeking at trial.
Deel., Ex. A.)

(Miller

In that disclosure, P APBA identified the names of seven individuals who

diverted their time to the cell phone search issue-Paul Nunziato, John McAusland, Frank Conti,
Michael DeFillipis, Robert White, Steve Ekizian, and Cesar Morales-and an estimate of the
hours each of those individuals diverted to that issue.

(See id)

Before November 2017,

P APBA had never identified these people or the hours they allegedly diverted.
Deel., Exs. C, D, E.)

(See Miller

Because information about its own employees was readily available to

PAPBA at the start of this litigation, PAPBA violated Rule 26(a)(l) by not disclosing this
information in its August 2015 initial disclosures or in supplemental disclosures.

See Rule

26(a)(l )(iii) (requiring that initial disclosures include a "computation" of damages); see also
Design Strategy, Inc. v. Davis, 469 F.3d 284, 295 (2d Cir. 2006) (holding that Rule 26(a)(l)
requires a plaintiff to voluntarily "provide a computation of any category of damages" even
before any discovery request is made for that type of information).
Although PAPBA violated Rule 26(a)(l) by not properly computing its "diversion of
resources" damages, preclusion of evidence is not automatic.

As discussed below, of the four

factors courts look to when deciding whether to preclude evidence-( 1) the explanation for the
failure, (2) the importance of the evidence, (3) the prejudice suffered by defendant, and (4) the
possibility of continuance-three weigh against preclusion in this case.
at 118.

See Patterson, 440 F.3d

Nonetheless, a lesser sanction is warranted to correct prejudice to Port Authority.
With respect to the first Patterson factor, P APBA has provided two explanations for why

it did not properly disclose its damages.

First, P APBA contends that it relied on a ruling by

Judge Ellis during a discovery conference in January 2016, in which Judge Ellis did not order
PAPBA to give a "a more specific response to [Port Authority's] damages interrogatory."

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(Pls.' Opp'n, 3 ECF No. 126, at 10.)

Although Judge Ellis did state during that conference that

"quantification in terms of a number is something which [n]either is possible [n]or is required by
an answer to the interrogatory," he did not refer to "diversion ofresources" damages, in
particular.

(Conf. Tr., ECF No. 44, at 41.)

Judge Ellis's statements were instead focused on

direct constitutional damages, such as damages to an individual who "didn't want to go outside
because the police had arrested" him.

(Id. at 40.)

His reasoning does not apply to PAPBA's

"diversion of resources," which are much easier to quantify (and which, in fact, PAPBA did
quantify in its November 2017 disclosures).

Additionally, regardless of whether PAPBA was

required to compute its damages, P APBA should have identified the particular individuals who
diverted resources.

PAPBA's failure to do so before November 2017 cannot be explained by

any reliance on Judge Ellis's ruling regarding numerical computation, especially when Judge
Ellis made clear that "to the extent that a party is able to, they can identify the elements that go
into damages."

(Id.)

Indeed, the fact that PAPBA voluntarily updated its disclosures with this

information in November 201 7 shows that PAPBA was aware (or at least concerned) that its
prior disclosures were deficient.
PAPBA's second explanation for not properly disclosing its damages is that, because its
damages were ongoing, PAPBA could not have fully disclosed them in 2015.
10.)

(Pls.' Opp'n, at

This explanation fails because, even if PAPBA could not have provided a final

computation of damages at the start of this litigation, PAPBA still could have provided an
estimate of the damages it had incurred as of2015.
providing any computation at all.

3

PAPBA violated Rule 26(a)(l) by not

See, e.g., US Bank Nat. Ass 'n v. P HL Variable Ins. Co., No.

"Pis.' Opp'n" refers to "Memorandum of Law in Opposition to Defendant's Motions in Limine," ECF No. 126.

5

12-CV-6811 (CM) (JCF), 2013 WL 5495542, at *3 (S.D.N.Y. Oct. 3, 2013) (holding that where
a party is not certain of its damages at the time disclosures are due, "the disclosing party still has
the responsibility to provide each category of required disclosures based on the information it has
at the time, and to supplement those disclosures as more information is gained"); 6-26 Moore's
Federal Practice - Civil§ 26.22 (2017) ("A party claiming damages must, of course, have some
evidence that an injury occurred and some basis for calculating the damages the party suffered as
the result of that injury before filing suit.

The party making such a claim, therefore, has the

obligation, when it makes its initial disclosures, to disclose to the other parties the best
information then available to it concerning that claim, however limited and potentially changing
it may be.").
Although the first Patterson factor weighs in favor of precluding evidence of PAPBA's
"diversion of resources" damages, the other Patterson factors weigh against preclusion.

With

respect to the importance of the evidence factor, it is undeniable that this evidence is critical to
PAPBA's case.

And with respect to the prejudice and possibility of a continuance factors, any

prejudice to Port Authority can be corrected well before trial, without the need for a continuance.
In particular, although Port Authority was prejudiced by not being able to fully explore PAPBA's
damages during discovery, this prejudice can be corrected by reopening discovery to allow Port
Authority to take supplemental depositions on this issue.

Port Authority was also prejudiced

because, if PAPBA had properly disclosed its damages in August 2015, Port Authority would
likely have asked additional questions during its depositions of P APBA employees in December
2015 and January 2016.

(See Miller Deel., Exs. F-J.)

But this prejudice can be corrected by

ordering PAPBA to pay for the expenses and costs of the supplemental depositions.
Accordingly, discovery in this case is hereby re-opened to allow Port Authority to take
supplemental depositions of-or, if Defendant prefers, to obtain affidavits from-Paul Nunziato,
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John McAusland, Frank Conti, Michael DeFillipis, Robert White, Steve Ekizian, and Cesar
Morales, on the topic of their salaries and the number of hours they diverted in connection with
Port Authority's cell phone searches.

PAPBA will pay for the expenses and costs associated

with taking these depositions, each of which shall be limited to two hours.

All depositions shall

be completed by February 28, 2018.
If P APBA is in possession of any unproduced documents that reflect the number of hours

these individuals diverted in connection with the cell phone searches, P APBA shall produce
those documents on or before January 31, 2018.

B.

Preclusion of Evidence of Attorneys' Fees
1.

Legal Standard

Claims for attorneys' fees "must be made by motion unless the substantive law requires
those fees to be proved at trial as an element of damages."
(emphasis added).

Fed. R. Civ. P. 54(d)(2)(A)

In cases brought under 42 U.S.C. § 1983, in particular, the "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) (emphasis added).
2.

Application

Plaintiffs have requested that the jury decide the issue of attorneys' fees.
at 11.)

(Pls.' Opp'n,

With respect to attorneys' fees for legal work done in furtherance of this litigation,

however, Plaintiffs' request is barred by Rule 54( d)(2)(A), which requires claims for attorneys'
fees to be made by motion.

Indeed, at least one circuit has held that it is an abuse of discretion

for a district judge to inform the jury "of the possibility of an award of attorneys' fees," much
less to allow the jury to determine those fees.

Brooks v. Cook, 938 F.2d 1048, 1051 (9th Cir.

1991).
Although litigation attorneys' fees awarded pursuant to 42 U.S.C. § 1988 must be decided

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by the Court, the record is not clear on whether PAPBA is also seeking fees for non-litigation
advice that it received from Emery Celli.

Fees for that type of work, which may not have been

"expended in pursuit" of this litigation, would not be recoverable under 42 U.S.C. § 1988.

Fox v. Vice, 563 U.S. 826, 834 (2011) (citation and internal quotation marks omitted).

See

To

recover those fees, P APBA would instead need to prove them as part of its "diversion of
resources" damages at trial. 4
To appropriately decide this issue, the Court requires supplemental information from
P APBA.

Accordingly, by January 31, 2018, P APBA shall submit to the Comi a letter

delineating the following with respect to its damages: (a) PAPBA shall identify the amount of
Emery Celli's fees, if any, it is claiming as damages for work not done in furtherance of this
litigation~

and (b) PAPBA shall give the reasons why the damages it identified in (a) constitute

proper "diversion of resources" damages.

III.

CONCLUSION
In conclusion, the Court partially GRANTS Port Authority's motion in limine to preclude

evidence of Plaintiffs' damages at trial and orders the following:
1. Discovery in this case is re-opened to allow Port Authority to take supplemental
depositions of-or, if Defendant prefers, to obtain affidavits from-Paul Nunziato, John
McAusland, Frank Conti, Michael DeFillipis, Robert White, Steve Ekizian, and Cesar Morales,
on the topic of their salaries and the number of hours they diverted in connection with Port

4

Although "diversion of resources" often refers to the diversion of employee time, courts, in the context of
deciding standing, have held that diverting money to pay legal expenses can qualify as a "diversion of
resources" injury. See Brown v. Stone, 66 F. Supp. 2d 412, 426-27 (E.D.N.Y. 1999) (holding that
organization had standing because it "repeatedly incurred litigation expenses" due to defendant's illegal
behavior); see also Ragin v. Hany Mack/owe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993) ("[T]he only
injury which need be shown to confer standing ... is deflection of the agency's time and money from
counseling to legal efforts .... " (quoting Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1526 (7th Cir. 1990))
(internal quotation marks omitted)).

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Authority's cell phone searches.

PAPBA will pay for the expenses and costs associated with

taking these depositions, each of which shall be limited to two hours.
completed by February 28, 2018.

All depositions shall be

If PAPBA is in possession of any unproduced documents that

reflect the number of hours the above individuals diverted in connection with the cell phone
searches, PAPBA shall produce those documents on or before January 31, 2018.
2. By January 31, 2018, PAPBA shall submit to the Court a letter delineating the
following with respect to its damages: (a) PAPBA shall identify the amount of Emery Celli's
fees, if any, it is claiming as damages for work not done in furtherance of this litigation; and (b)
PAPBA shall give the reasons why the damages it identified in (a) constitute proper "diversion of
resources" damages.
SO ORDERED.
Dated: New York, New York
January 19, 2018
KIMBA M. WOOD
United States District Judge

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