Cartright et al v. Lodge

Filing 43

OPINION AND ORDER re: 16 MOTION for Default Judgment as to Defendant Matthew Lodge. filed by Ruth Fowler, Carolin Dekeyser, Joseph Cartright, 32 MOTION for Default Judgment as to Liability and Inquest on Damages. fil ed by Ruth Fowler, Carolin Dekeyser, Joseph Cartright. For the foregoing reasons, the Court GRANTS Plaintiffs' Motion for Default Judgment,and enters a judgment in the amount of $1,234,806.73, allocated and summarized as follows: (1) All Plaintiffs: $59,806.73 in economic damages, plus prejudgment interest; (2) Cartright: $525,000 in emotional distress and punitive damages; (3) Fowler: $400,000 in emotional distress and punitive damages; (4) Dekeyser: $250,000 in emotional distress and punitive damages; and (5) Attorneys' fees and costs: $10,000. This Opinion and Order resolves docket entries 16 and 32. The clerk of court is directed to close this case. All pending motions are moot. (Signed by Judge Kimba M. Wood on 3/30/2017) (kgo)

USDSSDNY
DOCUMENT
ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DOC#:~~~----.~-.--­

DATE FILED: 3

JOSEPH CARTRIGHT, et al.,

15-CV-99lS~~~~~~~~~

Plaintiffs
OPINION AND ORDER
- against MATTHEW LODGE,
Defendant.

KIMBA M. WOOD, District Judge:

I. INTRODUCTION

On December 21, 2015, Plaintiffs Joseph Cartright, Ruth Fowler, and Carolin Dekeyser
(collectively, "Plaintiffs"), brought this action against Defendant Matthew Lodge ("Lodge"),
alleging various tortious conduct under New York law. (Doc. No. 4, Complaint ("Compl."). On
March 1, 2016, the Clerk of the Court entered default against Lodge for his failure to appear in
this action. (Doc. No. 15). The case was referred to Magistrate Judge Ellis for an inquest on
liability and damages on April 18, 2016. (Doc. No. 18). An inquest hearing was held on July 7,
2016, and Plaintiffs filed a post-hearing brief and supplemental documentary evidence. (Doc. Nos.
27, 29, 32-39). The Court has withdrawn the reference to Magistrate Judge Ellis. For the reasons
that follow, the Court GRANTS Plaintiffs' Motion for Default Judgment (Doc. Nos. 16, 17), and
orders that judgment be entered for Plaintiffs in the amount of $1,234,806. 73 for economic losses,
emotional distress, punitive damages, and attorneys' fees and costs.

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II. BACKGROUND
A.

Facts Alleged in the Complaint
Plaintiffs allege that Lodge, a professional rugby player in Australia with a "history of

violence and animosity towards women," threatened their persons and property while "clearly
intoxicated" on October 16, 2015, at approximately 4:00 a.m. (Compl. at 1, 5, 7). Plaintiff Carolin
Dekeyser ("Dekeyser") and her friend were taking a taxi to Guillaume Roemaet's ("Roemaet")
apartment, where they were staying while visiting New York. (Id. at 1). Once they arrived outside
of the building, Lodge belligerently approached their taxi. (Id. at 1, 4). The taxi driver refused to
give Lodge a ride, at which point Lodge turned his attention to Dekeyser and her friend. (Id. at 1).
As they attempted to hurry inside of the apartment building, Lodge followed, yelling he wanted to
take them to Australia and "violently grabb[ed] [Dekeyser] by the shoulders ... so that she could
not escape." (Id. at 1-2, 5).
Dekeyser and her friend feared for their safety given that Lodge is an "enormous man
standing 6'4" and well over 200 pounds." (Id. at 2). They ran into the foyer of Roemaet's
apartment building and frantically rang buzzers to gain entry. (Id. at 6). Lodge followed and
threatened Dekeyser, stating "Do you think you're going to die? This is the night you're going to
die." Id. Plaintiff Joseph Cartright ("Cartright"), a resident of the building for more than twenty
years, heard the buzzer and exited his apartment. Id. Cartright recognized Dekeyser, opened the
door to the building's main area, and asked if she and her friend were "ok." (Id. at 2, 7).
At that point, Lodge turned his attention to Cartright as the women ran to Roemaet's
apartment for help. (Id. at 2). Cartright pleaded with Lodge to leave. (Id. at 8). Lodge grabbed
Cartright and made death threats. (Id. at 8). Roemaet came into the lobby area, and when Lodge

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saw Roemaet's tattoos, Lodge threatened to kill him. (Id. at 8). Roemaet, Dekeyser, and her friend
went back into Roemaef s apartment. Id.
Next, Lodge went into Cartright's apartment, where he found Cartright's wife, Plaintiff
Ruth Fowler ("Fowler"), and their nine-year-old son. (Id. at 2, 8-9). Cartright yelled to Fowler to
call the police. (Id. at 9). Lodge repeatedly shouted, "My name is Matthew Lodge. I come in
peace. Salaam [sic] Alaikum." Id. He also repeated that his lawyer "will take care of all of this,
do not worry." (Id. at 9). He entered the master bedroom, where Fowler was sitting on top of the
bed. Id. Lodge attempted to open the closet in the bedroom and then went back into the living
room area. Id. Cartright was able to cajole Lodge out of the apartment. Id. Once Lodge exited,
Cartright followed, and Fowler closed the door behind them. Id.
Once outside the apartment, Lodge put Cartright in a headlock, punched him several times
in the head, and shoved him. (Id. at 2, 10). Lodge then re-entered Cartright's apartment and
blocked the entrance with furniture. (Id. at 10). Fowler grabbed her son, who had been awakened
by the noise, and hid in the bathroom near the master bedroom. Id. Fowler heard Lodge in the
kitchen breaking plates, glass, and living room furniture. (Id. at 10, 11 ). Lodge then approached
the bathroom in which Fowler and her son were, attempted to gain entry, and punched the door,
leaving a hole. (Id. at 10). Fowler instructed her son to hide in the bathtub. Id. Lodge went into
the kitchen and living room again and continued to break items. (Id. at 11 ).
While this was going on inside the apartment, Cartright ran outside of the building in an
attempt to flag down police, some of whom were responding to multiple 911 calls about the
incident. Id. The officers entered the building's main area and Lodge hurled a bottle of wine in
their direction from inside the apartment. Id. At that point, the officers, with their guns drawn,

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entered the apartment and found Lodge in the bedroom closet.

(Id. at 2, 12). The officers

handcuffed Lodge and removed him from the apartment. (Id. at 12).
B.

Procedural Background
Plaintiffs filed their Complaint on December 21, 2015, alleging battery, assault, intentional

infliction of emotional distress, false imprisonment, gender-motivated violence, conversion, and
trespass to chattels. (Id. at 12-17). For their intentional infliction of emotion distress claim,
Plaintiffs allege that they are entitled to compensatory and punitive damages. (Compl. at 13-14).
For their claim under New York City's Gender-Motivated Violence Act ("GMVA"), New York
City Administrative Code § 8-901, Plaintiffs allege they are entitled to compensatory and punitive
damages, in addition to attorneys' fees and costs. (Id. at 15). Plaintiffs also allege that they are
entitled to monetary damages for their conversion and trespass to chattels claims. (Id. at 15-16).
Plaintiffs' counsel arranged to serve the Complaint in this civil matter through Defendant's
defense counsel in a criminal case, Thomas C. Rotko. (Doc. No. 23-3, Ex.Cat 2). Service was
effectuated on December 21, 2015. (Doc. No. 9, Aff. of Service). Lodge failed to appear, move,
answer, or otherwise respond to the Complaint, and Plaintiffs asked the Clerk of Court to enter
default against him. (Doc. Nos. 13, 14). The Clerk issued a Certificate of Default on March 1,
2016. (Doc. No. 15). On March 24, Plaintiffs filed their Motion for Default Judgment. (Doc.
Nos. 16, 17). The Court referred this case to Magistrate Judge Ellis for an inquest on liability and
damages on April 18, 2016. (Doc. No. 18). On April 21, 2016, Plaintiffs were ordered to submit
a memorandum on the method of service and damages sought. (Doc. No. 19). The memorandum
was received on May 6, 2016. (Doc. Nos. 22, 23). A hearing was held on July 7, 2016. (Doc.
No. 27). Plaintiffs filed their post-hearing submissions on August 22, 23, and 26, 2016. (Doc.
Nos. 32-35, 37-39). Lodge made no submission.

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C.

Plaintiffs' Evidence in Support of Damages

I. Inquest Hearing Testimony
Cartright and Fowler testified at the inquest hearing, but Dekeyser did not. They reiterated
some of the allegations in the Complaint, adding that on the night of the incident, their son stated
"I'm too young to die," and their impression that Lodge was "suffering from PTSD or something."
(Doc. No. 40 ("Hr'g Tr.") at 8, 14, 19). Their testimony largely involved the incident's effect on
their son. Within two weeks, the family went to one therapy session. Cartright and Fowler went
to a session prior to their son seeing a child therapist. (Id. at 19-20). For approximately three
weeks, their son did not sleep in his own bed, had night terrors, and was scared when the doorbell
rang. (Id. at 18-19). During this same time period, they worried they would run into Lodge, who
was staying at a hotel one and a half blocks away, and avoided media attention by being "hermits."
(Id. at 21). Four months later, the family moved to Brooklyn because they "couldn't live in that

apartment anymore." (Id. at 24, 31).
In addition to the emotional impact of the incident, they incurred various economic expenses.
These costs include moving expenses, a 15-20% rent increase, rental of a studio space, replacement
of furniture and kitchenware, and a $1,500 retainer for a criminal attorney they hired to protect
their interests as crime victims. (Id. at 22, 24-26). Cartright did not quantify any loss of income
nor any medical bills, although he did suffer a swollen head, cut on the ear, and aches and pains
that "come[] and go[]." (Id. at 20, 27-28). Fowler testified that she did not experience any impact
professionally, though she did take anxiety medication after the event. (Id. at 31, 33). Cartright
and Fowler testified that they intend to continue therapy. (Id. at 20). Photographs of damage to
their personal items were filed with the Court.

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2. Post-Hearing Submission
Plaintiffs filed a post-hearing memorandum, supplemental documentary evidence, and
affidavits. (Doc. Nos. 32-35, 37-39). The affidavits from Plaintiffs Cartright and Fowler restate
facts within the Complaint and facts to which they testified at the hearing. (Doc. Nos. 34, 35).
Dekeyser's declaration details the emotional impact the incident had on her. (Doc. No. 39). She
indicated that she is "haunted by the fear that Lodge might somehow seek [her] out," "suffers from
trouble sleeping, night terrors, nervousness, and anxiety whenever [she] is in the dark," and has a
"disturbing feeling that someone is following [her] all the time." (Id. at 6). Dekeyser stated that
she has been prescribed sleeping and anti-anxiety medication and has paid between €200 and €300
out-of-pocket for ten therapy sessions, which she intends to continue. Id.
Plaintiffs seek a total of $1,238,206.73 in damages, and $99,537.23 in attorneys' fees and
costs. (Doc. No. 33 ("Deel. of Renan F. Varghese") at 5).
Plaintiff
Cartright/Fowler
Cartright

Fowler

Dekeyser

Cartright/Fowler/Dekeyser
TOTAL

Category of Damages
Economic Loss
Past Pain and Suffering
Future Pain and Suffering
Punitive
Past Pain and Suffering
Future Pain and Suffering
Punitive
Economic Loss
Past Pain and Suffering
Future Pain and Suffering
Punitive
Attorneys' Fees and Costs

Amount
$63,206.73
$250,000
$125,000
$150,000
$150,000
$125,000
$125,000
TBD
$100,000
$50,000
$100,000
$99,537.23
1,337,743.96

Economic damages for Cartright and Fowler are broken down as follows (Doc. No. 38
("Pl.' s Mem. of Law") at 10-11 ):

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Item
Security Deposit for New
Apartment
Increase m Rent for New
Apartment (12 months)
Real Estate Broker's Fee
Movers
Security Deposit for New
Apartment (proiected)
Increase m Rent for New
Apartment (projected)
Real estate Broker's Fee
E13raj eeteaj
Mevers E13rejeeteaj
Criminal Attorney
Sofa
Sideboard
Coffee table
Bed for Son
Mental Health Professional
(two visits)
Dinnerware (approximation)
Lamp (approximation)
Long Island City studio
($6401month)
TOTAL

Value
$10,500

Evidence
Exhibit 22

$7,500 1

Exhibit 16 at 37:19-21

$4,200
$200
$10,500

Exhibit 22
Exhibit 16 at 37:12-14

NIA

$7,500

NIA

$4,200

NIA

$200
$1,500
$2,298
$1,268
$4,000
$880.73
$400

NIA;;

$300
$80
$7,680

NIA
NIA
NIA

Exhibit 25
Exhibit 2
Exhibit 2
Ex. 16 38:9-11

NIA
Exhibit 1

$63,206.73

Economic damages for Dekeyser list the cost for a hotel room in New York after the
incident (approximated at $1,000), therapist visits, sleeping pills, and anti-anxiety medication.
(Pl.' s Mem. of Law at 11 ). None of these amounts is supported by documentary evidence. Id.

1 Cartright testified at the inquest hearing that his rent increased by $600 per month, which equals $7,200 per year.
The Court will use $7 ,200 as the proper calculation when making the recommendation below.
2 Based on Plaintiffs' submissions, the Court finds projected moving expenses and a projected broker's fee
duplicative of actual moving expenses and an actual broker's fee already listed in Plaintiffs' economic loss table. It
thus declines to factor these costs into its final economic damages calculation. If Plaintiffs wish to submit evidence

showing that they incurred these two costs twice. they are given leave to do so.
7

III. DISCUSSION
A.

Jurisdiction and Venue
This Court has subject matter jurisdiction over claims in this action pursuant to 28 U.S.C.

§§ 1332 (diversity jurisdiction).

The Defendant is domiciled in Australia, the Plaintiffs are

domiciled in New York state and Germany. (Compl. at 3). The damages sought are in excess of
$75,000. Venue is proper in this court pursuant to 28 U.S.C. § 1391(b).
B.

Default Judgment and Inquest Standard
The Clerk of Court must enter default against a defendant who has failed to plead or

otherwise defend an action, and that failure is shown by affidavit or otherwise. Fed. R. Civ. P.
55(a). A court may enter a judgment of default pursuant to Rule 55 (b)(2) of the Federal Rules of
Civil Procedure. In order to do so, an application must be presented to the court for the entry of
judgment, and notice of the application must be sent to any defaulting party who has appeared to
allow the party to show cause to the court why a default should not be entered. In determining
whether to enter a judgment of default, a court may consider numerous factors, including the
following: "whether plaintiff has been substantially prejudiced by the delay involved[] and
whether the grounds for default are clearly established or in doubt." IOA Charles Alan Wright,
Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure, § 2685 at 32 (1998).
Following a default judgment, all well-pled factual allegations of the complaint, except
those relating to damages, are accepted as true. Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993).
A factual allegation will be deemed not well-pled only in "very narrow, exceptional
circumstances." Trans World Airlines, Inc. v. Hughes, 308 F. Supp. 679, 683 (S.D.N.Y. 1969)
(Metzner, J.), modified, 449 F.2d 51 (2d Cir. 1971), rev'd on other grounds, 409 U.S. 363 (1973).

8

At an inquest on damages, the plaintiff bears the burden of establishing an amount of
damages with reasonable certainty. RGI Brands LLC v. Cognac Brisset-Aurige, S.A.R.L., 2013
WL 1668206 (S.D.N.Y. Apr. 18, 2013) (Schofield, J.), report and recommendation adopted, 2013
WL 4505255 (S.D.N.Y. Aug. 23, 2013) (Peck, M.J.). A court may make a determination on
damages without a hearing "as long as it [has] ensured that there is a basis for the damages
specified in the default judgment." TMS Entm't Ltd v. Madison Green Entm't Sales, Inc., 2005
WL 2063786, at *2 (S.D.N.Y. Aug. 16, 2005) (Ellis, M.J.) (citing Transatl. Marine Claims

Agency, Inc. v. Ace Shipping Corp., l 09 F.3d l 05, 111 (2d Cir.1997)). Accordingly, a court may
rely on plaintiffs affidavits and documentary evidence in determining the reasonableness of the
damages requested. Id (citing Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993)).
C. Liability
Here, the grounds for default judgment are clearly established. Lodge has failed to answer
the Complaint filed by Plaintiffs over one year ago, and the elements of each cause of action are
supported by facts alleged within the Complaint. The Court therefore grants Plaintiffs' Motion for
Default Judgment.
D. Damages
Awarding damages is not an exact science.

Plaintiffs have the burden "to establish

damages and provide some reasonable basis to quantify them." Cappetta v. Lippman, 913 F. Supp.
302, 305 (S.D.N.Y. 1996) (Batts, J.). "If a plaintiff fails to demonstrate its damages to a reasonable
certainty, then the court should decline to award any damages, even where liability has been
established through default." Belizaire v. Rav Investigative & Sec. Servs., 61 F. Supp. 3d 336, 345
(S.D.N.Y. 2014) (Batts, J.). "Where a defaulting defendant has not made any submission on a
damages inquest, the court must assess whether the plaintiff has provided a sufficient basis to

9

determine damages ... and may determine the adequacy of the plaintiffs damages claim based on
the plaintiffs submitted proofs." Belizaire, 61 F. Supp. 3d at 345. (citations omitted)
Pursuant to Federal Rule of Civil Procedure 54(c), "[a] default judgment must not differ in
kind from, or exceed in amount, what is demanded in the pleadings." Fed. R. Civ. P. 54(c).
Although Plaintiffs' Complaint did not state the amount of damages sought, the categories of
damages are stated within the Complaint-declaratory judgment, injunctive relief, compensatory
damages, punitive damages, and attorneys' fees and costs. (Compl. at 16-17).
1. Economic Damages
At the inquest hearing, Cartright and Fowler testified extensively about the economic
damages incurred.

(Hr'g Tr. at 37-45). Cartright and Fowler also itemized their economic

damages in a post-hearing submission. (Pl.' s Mem. of Law at 10-11 ). Some of the damages are
supported by documentary evidence, such as the real estate broker's fee, security deposit, retainer
for a criminal attorney, sofa, sideboard, and therapy sessions. Id. Others are approximated or
entered into the record, such as moving expenses, dinnerware, lamp, coffee table, and their son's
bed. Id.
Of the items listed, the Court finds that Cartright and Fowler adequately submitted
evidence of, or reasonably approximated, both economic expenses already incurred and those to
be incurred in the future. The Court awards $58,806.73 in economic damages for Cartright and
Fowler, for all economic losses claimed, minus projected moving expenses and a projected real
estate broker's fee. Plaintiff Dekeyser claims $1,000 in economic damages resulting from a hotel
stay in the days following the incident. (Pl.' s Mem. of Law at 11 ). The rest of the economic
damages she incurred were "TBD" at the time of her post-hearing submission. Id No subsequent

10

filing clarified the extent of Dekeyser's actual or projected economic damages. I thus award
Dekeyser economic damages totaling $1,000.
Plaintiffs also seek pre-judgment interest in their Complaint for compensatory damages.
(Compl. at 16); see First Nat 'l Bank v. American Foam Rubber Corp., 309 F. Supp. 545, 546
(S.D.N.Y. 1969) (Cooper, J.) (holding "[p ]re-verdict interest has long been recoverable as a matter
ofright in New York in actions to recover for property damage stemming from intentional torts.").
Prejudgment interest is assessed at a rate of nine percent per year, N.Y.C.P.L.R. § 5004, and it is
within the Court's discretion to decide the date interest accrues. Alvarez v. 215 N Ave. Corp.,
2015 WL 3855285, at *3 (S.D.N.Y. June 19, 2015) (Roman, J) (quoting Conway v. Icahn & Co.,
16 F.3d 504, 512 (2d Cir. 1994)).
I grant Plaintiffs a prejudgment interest computed at an annual rate of nine percent on the

principal amount of $59,806.73, calculated by the Clerk of Court from October 28, 2015, the date
of the first therapy session, to the date of entry of final judgment.
2. Emotional Distress Damages
Plaintiffs seek the following pain and suffering damages, totaling $800,000 (Deel. of Renan
F. Varghese at 5):
(1) past pain and suffering, $250,000, and future pain and suffering, $125,000, for
Cartright;
(2) past pain and suffering, $150,000, and future pain and suffering, $125,000, for Fowler;
and
(3) past pain and suffering, $100,000, and future pain and suffering, $50,000, for Dekeyser.
The pain and suffering damages sought by Cartright and Fowler are supported by hearing
testimony, affidavits, and therapy invoices. During the inquest hearing, Cartright testified that

11

Lodge's attack on him resulted in in a swollen head, cut on his ear, and aches and pains that
"come[] and go[]." (Hr'g Tr. at 20). He also feared for the safety of his own life, as well as the
lives of his wife and nine-year-old son. (Id. at 17-18). Prior to police entering his home to
apprehend Lodge, Cartright pleaded to them to "not shoot [Lodge] in front of [his] kid." (Doc.
No. 34 ("Cartright Aff.") at 4). After the altercation, which lasted approximately forty-five
minutes, his creativity as an artist was diminished. (Hr'g Tr. at 24-25). Cartright expressed that
this type of incident was "an utter violation of [his] sense of being." (Id. at 20-21 ). In his posthearing affidavit, Cartright stated that he has "become more concerned for the welfare of [his]
family on a day-to-day basis ... and anxious and concerned that someone might harm [] them."
(Cartright Aff. at 5).
Fowler testified that the incident was "terrifying at the time" as she frantically called 911,
witnessed Lodge assault her husband, and attempted to protect her son while locked in a bathroom.
(Hr'g Tr. at 28-29, 31; Doc. No. 35 (Fowler Aff.) at 2). Although she did not see police officers
enter the apartment with guns drawn and has not been impacted professionally, she was prescribed
anxiety medication and recalled being told by her son, "I'm just a kid. I don't want to die." (Hr'g
Tr. at 31, 32, 34; Fowler Aff. At 3). The couple remained too afraid to leave their apartment for
over a month after the incident. (Hr'g Tr. at 21). Their son experienced night terrors and the family
moved from Manhattan to Brooklyn because they were not "comfortable" in the apartment
anymore. (Hr'g Tr. at 18). Fortunately, their son did not change schools as a result. (Id. at 33).
Fowler stated in her post-hearing Affidavit that she has "been consumed by anxiety since the
attack, but [has] to remain strong and focus [on their son's] wellbeing." (Fowler Aff. at 4).
Dekeyser was not present at the inquest hearing. In her post-hearing declaration, she stated
that she was "haunted by the fear that Lodge might somehow seek [her] out and harm [her]" even

12

though she has returned to Germany. (Doc. No. 39 at 6.) She "suffer[s] from trouble sleeping,
night terrors, nervousness, and anxiety whenever [she] is in the dark." Id. Dekeyser has been
"prescribed [] sleeping pills and anti-anxiety medication," and has attended several therapy
sessions that she plans to continue. Id. She worries she "will never feel safe again" and has "a
disturbing feeling that someone is following [her] all the time, which has resulted in massive
detrimental effects upon [her] life." Id. Dekeyser has not quantified these damages for the Court's
consideration. She has submitted no documentary evidence supporting her testimony.
When determining the appropriate amount of damages, courts look to comparable cases.

Jordonne v. Ole Bar & Grill, Inc., 2016 WL 3409088, at *8 (McCarthy, J.) (S.D.N.Y. Apr. 26,
2016) (citing Norica v. Dieber's Castle Tavern, Ltd, 980 F. Supp. 2d 492, 505 (Karas, J.)
(S.D.N.Y. 2013)). Cartright was physically assaulted, experiences pain that "comes and goes,"
and is continuously worried about the wellbeing of his family, which impacts him professionally.
(Hr'g Tr. at 20; Cartright Aff. at 5). Fowler was prescribed anxiety medication and the family
went to therapy, which they plan to continue. (Hr' g Tr. at 31 ). The pain and suffering Cartright
and Fowler experienced, and continue to experience, is severe. It is compounded by their move
from their home of twenty years and the emotional toll of consoling their terrorized nine-year-old
son. (Cartright Aff. at 5; Fowler Aff. at 4). The incident itself was short-lived, but the impact on
their family continues. These circumstances warrant a substantial award. See Stamp/ v. Long

Island R.R. Auth., 2011 WL 3235704, at *35-37 (E.D.N.Y July 28, 2011) (Gold, M.J.) (citing
various cases where testimonial evidence was sufficient in supporting the severity of injuries
resulting in emotional distress awards in excess of $100,000).
Dekeyser alleges that she has undergone several therapy sessions and worries that her fear
and anxiety will persist. (Dekeyser Deel. at 6). Although her declaration details the emotional

13

impact of the incident, her experience has not disrupted her life in the way that it has for Cartright
and Fowler. Nonetheless, the Court finds her testimonial evidence sufficient to warrant an award
of emotional damages.
Based on the evidence presented here and review of similar cases, the Court awards
emotional damages in the amount of $375,000 for Cartright, $275,000 for Fowler, and $150,000
for Dekeyser.
3. Punitive Damages
Plaintiffs seek a total of $375,000 in punitive damages. (Deel. ofRenan F. Varghese at 5).
"Punitive damages are recoverable in all actions based upon tortious acts which involve ingredients
of malice, fraud, oppression, insult, wanton or reckless disregard of one's rights, or other
circumstances of aggravation, as a punishment of the defendant and admonition to others." O'Neill

v. Yield House Inc., 892 F. Supp. 76, 78 (S.D.N.Y. 1995) (Parker, J.). Because Lodge acted with
"wanton or reckless disregard" for Plaintiffs' rights, the Court finds that punitive damages are
warranted.
Punitive damages are meant to deter future behavior, but are limited to an amount necessary
to reach that aim. See Caravantes v. 53rd St. Partners, LLC, 2012 WL 3631276, at *25 (Aug. 23,
2012). Given the facts of this case, and supporting evidence submitted by Plaintiffs indicating
Lodge's history of violence, the Court awards punitive damages in the amount of $150,000 for
Cartright, $125,000 for Fowler, and $100,000 for Dekeyser.
4. Attorneys· Fees and Costs
Under New York law, a plaintiff who prevails in an action under the GMV A is entitled to
recover reasonable attorneys' fees and costs. See N.Y.C. Admin. Code§ 8-904 Plaintiffs' counsel
submitted a request for attorneys' fees and costs totaling $99,537.53, pursuant to their gender-

14

motivated violence cause of action. (Pl.' s Mem. of Law at 22-31; Deel. of Renan F. Varhese, Ex.
26-27).
In determining the appropriate amount of attorneys' fees to award, the Court must calculate
a presumptively reasonable total by multiplying a reasonable hourly rate by the reasonable number
of hours worked in pursuing Plaintiffs' GMV A-related claim. Arbor Hill Concerned Citizens
Neighborhood Ass 'n v. County ofAlbany, 493 F.3d 110, 117-18 (2d Cir. 2007), amended on other
grounds, 522 F.3d 182 (2d Cir. 2008). The factors relevant to this determination include: "(I) the

time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required
to perform the legal service properly; (4) the preclusion of employment due to acceptance of the
case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the
time limitations imposed by the client or the circumstances; (8) the amount involved in the case
and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the
undesirability of the case; ( 11) the nature and length of the professional relationship with the client;
and (12) awards in similar cases." Arbor Hill, 493 F.3d at 114 (internal quotation marks omitted).
The reasonable hourly rate is the rate "a paying client would be willing to pay. In
determining what rate a paying client would be willing to pay, the district court should ... bear in
mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case
effectively. Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany & Albany Cty.
Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008). In determining whether the hours claimed by

counsel were "reasonably expended," the Court must evaluate "whether, at the time the work was
performed, a reasonable attorney would have engaged in similar time expenditures." Hensley, 461
U.S. at 433.

15

In the Second Circuit, a party seeking an award of attorneys' fees must support its
application by submitting time records that detail "for each attorney, the date, hours expended, and
the nature of the work done." N. Y State Assoc. for Retarded Children, Inc. v. Carey, 711 F.2d
1136, 1154 (2d Cir. 1983). The burden is on the party seeking attorneys' fees to submit sufficient
evidence to support the hours worked and the rates claimed. See Blum v. Stenson, 465 U.S. 886,
895 n.11 ( 1984 ). The Court should not consider excessively high rates or hours that were not
reasonably expended. "Cases may be overstaffed, and the skill and experience of lawyers vary
widely. Counsel for the prevailing party should make a good faith effort to exclude from a fee
request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
practice ethically is obligated to exclude such hours from his fee submission." Hensley v.

Eckerhart, 461U.S.424, 434 (1983).
If the court determines that the number of hours expended is excessive, redundant, or

otherwise unnecessary, the court may make reductions to individual entries or elect to account for
such over-billing in an across-the-board percentage deduction. Luciano v. Olsten Corp., 109 F.3d
111, (2d Cir. 1997). In calculating the number of reasonable hours, the court looks to "its own
familiarity with the case and its experience with the case as well as to the evidentiary submissions
and arguments of the parties." Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992).
The hourly rates Plaintiffs' counsel requests-$700 for partners, $300-500 for associates,
and $180 for paralegals (Pl. 's Mem. of Law at 25)-are within the range approved and awarded
in this District, and in this Circuit. (See Id. at 26-27 (citing various decisions where comparable
rates were approved in lodestar calculations)). Plaintiffs' counsel requests an award of fees based
on a total of 252. 7 hours of attorney and paralegal time litigating this case until default judgment
and an inquest on damages were requested: 33.5 partner hours, 64.8 senior associate hours, 121

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associate hours, and 33.4 paralegal hours, totaling $98,162.00. Expenses amount to $1,375.23,
including the case filing fee, copying and printing, meals and transportation, postage, PACER,
records, and Westlaw legal research. (Deel. of Renan F. Varhese, Ex. 27 at 2-3).
A few factors counsel in favor of reducing the attorneys' fees award by Plaintiffs. First,
review of counsel's contemporaneous billing records indicates that some of the hours Plaintiffs'
counsel expended were excessive. This case is a straightforward tort action requiring only a few
substantive filings, many of which recycled exhibits and arguments. (See Doc. Nos. 16, 17, 22,
23, 32-35, 38-39). The billing records show duplicative and unnecessary internal conferences,
communications with the media, and general research. (Deel. of Renan F. Varhese, Ex. 26). An
expenditure of$98,162 in attorneys' fees to reach defaultjudgment in a case where Defendant did
not appear is unnecessary.
Second, Plaintiffs seek attorney's fees only in connection with their gender-motivated
violence claim. Plaintiffs present little evidence to support a violation of the GMV A. The relevant
evidence submitted amounts to a comment made by Lodge to Dekesyer as she exited the taxi -namely, that he asked Dekeyser and her friend to "come to Australia" (Compl. at 5)- as well as
an unrelated 2015 charge of intimidation of a woman in Australia. (Compl. at 4-5). Gendermotivated violence was not discussed at the inquest hearing, where Dekeyser was not present, nor
were facts that give rise to a gender-motivated violence claim highlighted within Plaintiffs'
submissions in support of their Motion for Default Judgment.
The lion's share of legal work in this matter was expended in litigating a relatively
straightforward tort action that was not characterized by Plaintiffs as gender-related. Plaintiffs'
counsel should not recover the entirety of attorneys' fees expended when they are entitled to
attorneys' fees only for work done in connection with Plaintiffs' GMVA claim.

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Given these determinations, find that $10,000 in attorneys' fees is fair and reasonable, and
I award that amount to Plaintiffs.

IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs' Motion for Default Judgment,
and enters a judgment in the amount of $1,234,806.73, allocated and summarized as follows:
(1) All Plaintiffs: $59,806.73 in economic damages, plus prejudgment interest;
(2) Cartright: $525,000 in emotional distress and punitive damages;
(3) Fowler: $400,000 in emotional distress and punitive damages;
(4) Dekeyser: $250,000 in emotional distress and punitive damages; and
(5) Attorneys' fees and costs: $10,000.
This Opinion and Order resolves docket entries 16 and 32. The clerk of court is directed to close
this case. All pending motions are moot.

SO ORDERED.

Dated:

March~{>,

2017

New York, New York

THE HON. KIMBA M. WOOD
United States District Judge

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