Carlton v. Pearson

Filing 76

DECISION AND ORDER denying 73 Plaintiff's Motion to Set Aside Verdict and request for award of attorney's fees. Plaintiff's request for costs is denied without prejudice. Signed by Hon. Elizabeth A. Wolford on 6/19/2019. (DPS)

FILED

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
tOfWENGOlE

CHSTR»CI

CORYDON CARLTON,
DECISION i& ORDER

Plaintiff,
I:I6-CV-00680 EAW

V.

C.O. PEARSON,Prison Guard and Employee at
Wende Correctional Facility,
Defendant.

BACKGROUND

Plaintiff Corydon Carlton ("Plaintiff)fded this action on August 19,2016, alleging
that defendant Correctional Officer Robert Pearson ("Defendant") violated his civil rights

by failing to protect him from an assault by another inmate. (Dkt. I). On August 27, 2018,
the Court scheduled a jury trial to commence over six months later—on March 18, 2019.
{See Dkt. 47; Dkt. 48). As noted in the Pretrial Order, this was "a day-certain trial that

[would] not be adjourned except for the trial of criminal eases which take precedence

pursuant to 18 U.S.C. § 3161." (Dkt. 47 at I). At the final pretrial conference held on
February 25, 2019, Plaintiff(who up until that point had appeared pro se) indicated his
intention to retain counsel for the upcoming trial. The Court advised Plaintiff at the time

that the trial would be going forward as scheduled and if he intended to retain counsel, any
such attorney needed to plan to proceed as scheduled.
On March 16, 2019—the Saturday before trial—Michael E. Talassazan, Esq., faxed
a notice of appearance on behalf of Plaintiff to the chambers of United States Magistrate

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Judge H. Kenneth Schroeder, Jr., along with a letter requesting an adjournment ofthe trial
date. On Monday, March 18, 2019, Plaintiff appeared without the presence of counsel.
That morning. Judge Schroeder's chambers contacted the undersigned's chambers to
advise as to the weekend communication from Mr. Talassazan. The Court contacted Mr.

Talassazan by phone and confirmed that he was not admitted to practice in the Western
District of New York, nor was he even physically present in the District. Mr. Talassazan
informed the Court that he was unable to appear on Plaintiffs behalf that day but

represented that he would appear before the Court the next day and bring with him the
necessary materials to seek pro hac vice admission.
Because the Court had set the trial date over six months earlier, prospective jurors

had been called to court and were awaiting jury selection, and Defendant and his counsel

were present and prepared to proceed, the Court denied Plaintiffs eleventh-hour request to
adjourn the trial date. However, while jury selection proceeded on March 18, 2019, as
scheduled, the Court adjourned opening statements and the presentation of proof until the
following day, over Defendant's objections.

On March 19,2019, Mr. Talassazan was permitted to formally appear on Plaintiffs
behalf during trial. Following the close of evidence and closing arguments, the jury was
instructed on the applicable law. The Court instructed the jury on compensatory damages,
in relevant part, as follows:

If you find that the Plaintiff is entitled to recover from the Defendant, you
must render a verdict for a sum of money that will justly and fairly
compensate the Plaintifffor all the losses resulting from any injury or injuries
he sustained. The purpose of the law of damages is to award, as far as
possible,just and fair compensation for the loss, if any, which resulted from

the Defendant's violation of the Plaintiffs rights. If you find that the
Defendant is liable on the Plaintiffs claim, as I have explained it, then you
must award the Plaintiffsufficient damages to compensate him for any injury
proximately caused by the Defendant's conduct. Again, an injury is
proximately caused by conduct when a reasonable person would regard it as
a substantial factor in bringing about such injury.
The Court also instructed the jury on nominal damages, in relevant part, as follows:

Nominal damages must be awarded when a plaintiff has been deprived by a
defendant of a constitutional right but has suffered no actual damage as a
natural consequence of that deprivation. The mere fact that a constitutional
deprivation occurred is an injury to the person entitled to enjoy that right,
even when no actual damages flow from the deprivation. Therefore, if you
find that the Plaintiff has suffered no injury as a result of the Defendant's
conduct other than the fact of a constitutional deprivation, you must award
nominal damages not to exceed one dollar.

Plaintiff did not object to any part ofthe above-referenced jury instructions. On March 22,
2019, the jury returned a verdict in Plaintiffs favor, finding that Defendant had violated

Plaintiffs Eighth Amendment right to be free from cruel and unusual punishment and
awarding Plaintiff nominal damages in the amount of$1.00. (Dkt. 70).

On April 11, 2019, Plaintiff filed a motion to set aside the damages portion of the
verdict. (Dkt. 73). Plaintiff claims that the damages award should be set aside as against

the weight of the evidence, and that the "Court should either set a reasonable amount for
the plaintiffs damages or in the alternative order a new trial on the issue of damages."
(Dkt. 73-1 at ^ 12). Plaintiff also seeks an award of attorney's fees and costs. {Id. at

^ 2). Defendant opposes Plaintiffs motion to set aside the verdict (Dkt. 75 at 1-11), or,
alternatively, requests that if a new trial is ordered, it is ordered as to all issues and notjust
damages {id. at 11-12). Defendant also argues that Plaintiffs counsel is not entitled to
attorney's fees, or, alternatively, in the event attorney's fees are appropriate,the amount of
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recoverable fees should be capped at $1.50. {Id. at 12-16). Lastly, Defendant argues that
Plaintiff is not entitled to an award of costs. {Id. at 16).
For the following reasons, Plaintiffs motion to set aside the verdict is denied.
DISCUSSION

I.

Legal Standard

Rule 59(a) ofthe Federal Rules of Civil Procedure provides that a court may "grant
a new trial on all or some ofthe issues ... after a jury trial, for any reason for which a new
trial has heretofore been granted in an action at law in federal court." "The Second Circuit
has held that a Rule 59 motion for a new trial should be denied 'unless the trial court is

convinced that the jury has reached a seriously erroneous result or that the verdict is a
miscarriage of justice.'" Spinelli v. City of New York, No. 02 CIV. 8967, 2011 WL
2802937, at *1 (S.D.N.Y. July 12, 2011)(quoting yl/G Global Sec. Lending Corp. v. Banc

ofAm. Sec., LLC., 386 F. App'x 5, 7 (2d Cir. 2010)); see Medforms, Inc. v. Healthcare

Mgmt. Sols., Inc., 290 F.3d 98,106(2d Cir. 2002)(same). "On new trial motions, the trial
judge may weigh the evidence and the credibility of witnesses and need not view the
evidence in the light most favorable to the verdict winner." Raedle v. Credit Agricole
Indosuez, 670 F.3d 411,418(2d Cir. 2012).

"A court considering a Rule 59 motion for a new trial must bear in mind, however,
that the court should only grant such a motion when the jury's verdict is egregious." DLC

Mgmt. Corp. v. Town ofHyde Park, 163 F.3d 124, 134(2d Cir. 1998)(quotation omitted).
For this reason, a Rule 59(a) motion for a new trial based "on the ground that the jury's

verdict is against the weight of the evidence must overcome the 'high degree of
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deference ... accorded to the jury's evaluation of witness credibility' and the admonition
that 'jury verdicts should be disturbed with great infrequency.'" Johnson v. Perry, 763 F.
App'x 81, 83 (2d Cir. 2019)(quoting ING Global v. United Parcel Serv. Oasis Supply

Corp., 757 F.3d 92, 97-98(2d Cir. 2014)). While "[t]he legal test for granting a new trial
is less stringent than for grantingjudgment as a matter oflaw," Luv n'Care, Ltd. v. Regent

Baby Prod. Corp., 898 F. Supp. 2d 650, 654 (S.D.N.Y. 2012), "in practice courts do not

grant new trials as freely as the language suggests, and movants for a new trial are still held
to 'a heavy burden,"' Toliver v. N.Y.C. Dep't ofCorr., 202 F. Supp. 3d 328,340(S.D.N.Y.
2016)(quotations and citation omitted).
II.

Plaintiffs Request for Additur is Constitutionally Impermissible

Plaintiffs request for a new trial on damages is made only in the alternative. {See
Dkt. 73-1 at ^ 2). First and foremost. Plaintiff requests that the Court set aside the verdict

and simply award additur in a reasonable amount commensurate with Plaintiffs injuries.
(Matt112, 12).

"Additur is the process by which, if a trial court considers a verdict inadequate, it

may condition the denial of plaintiffs motion for a new trial on defendant's consent to the
entry ofjudgment in excess ofthe verdict." Elsevier Inc. v. Grossmann, No. 12 Civ. 5121
(KPF),2018 WL 4908105, at *3(S.D.N.Y. Oct. 9, 2018). "[I]t is a tool that judges use to

fix damages—something that can generally be done only by the fact-finder—^without
actually having to hold a second trial." Liriano v. Hobart Corp., 170 F.3d 264, 272(2d
Cir. 1999). However, it is settled law that additur cannot "be employed by federal courts

because the procedure involve[s] an unconstitutional reexamination of a jury verdict in
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violation ofthe Seventh Amendment." Earl v. Bouchard Transp. Co.,917 F.2d 1320,1331
(2d Cir. 1990);see Dimickv. Schiedt,293 U.S.474,482(1935)
("[T]he established practice

and the rule ofthe common law, as it existed in England at the time of the adoption ofthe
Constitution, forbade the court to increase the amount of damages awarded by a jury in
actions such as that here under consideration."); Elyse v. Bridgeside Inc., 367 F. App'x

266, 267(2d Cir. 2010)(determining that the "motion to increase the damages award was

properly denied by the district court on the ground that additur is constitutionally
impermissible").

Therefore, to the extent Plaintiff requests that the Court set aside the verdict and

grant additur, that request is denied.'
III.

The Verdict is Not Against the Weight of the Evidence

As an initial matter. Plaintifffails to provide citations to any relevant excerpts ofthe

trial or pretrial records and appears to submit his motion based upon counsel's own
recollection of the various arguments presented and rulings issued at trial. Generally

'
"Several courts have recognized that Dimick is not applicable to cases 'where the
jury has found the underlying liability and there is no genuine issue as to the correct amount
ofdamages.'" Elsevier Inc.,2018 WL 4908105,at *4(quoting E.E.(9.C. v. Massey Yardley

Chrysler Plymouth, Inc., 117 F.3d 1244, 1252(11th Cir. 1997)); see Liriano, 170 F.3d at
272-73 ("The district court did not divine a figure and then make the defendants choose
between an increased damage award and a new trial. It simply adjusted the jury award to
account for a discrete item that manifestly should have been part ofthe damage calculations
and as to whose amount there was no dispute. When a jury has already found liability,
federal courts may make such adjustments without running afoul of Dimick.'''').
Nonetheless, this "narrow exception" to Dimick is not applicable to this case because
Plaintiff is not requesting a "discrete adjustment to account for an undisputed amount."
Elsevier Inc., 2018 WL 4908105, at *4. Instead, Plaintiff requests additur in "a reasonable

amount for [his] damages"(Dkt. 73-1 at ^ 12), and Defendant contested the extent of any
such damages at trial.
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speaking, specific reliance upon the trial transcript is necessary to demonstrate one's
entitlement to relief on a Rule 59 motion based upon determinations made at trial. See
Ayala v. Rosales, No. 13 C 4425, 2015 WL 4127915, at *1 (N.D. 111. July 8, 2015)(noting
that "while the Court has attempted to the best of its ability to address [p]laintiffs claims
on the merits," the plaintiffs "failure to provide all ofthe necessary record citations makes
it impossible for this Court to properly address his claims of error," and thus, "any

arguments lacking necessary record support are, in the first instances, denied as waived");

Ratliffv. City ofChicago,No. lO-CV-739,2013 WL 3388745,at *1 (N.D.111. July 8,2013)
(on a motion for a new trial, "to the extent that citation to the record would be necessary to

support a position,[d]efendants' failure to cite to the trial record or the pretrial conference
record will not be excused"); Parr v. Nicholls State Univ., No. CIV.A. 09-3576,2012 WL

1032905, at *3 (E.D. La. Mar. 27, 2012)(denying the motion for a new trial, noting that

"without the benefit ofcitation to the trial transcript, the Court has no basis for determining
that any error occurred"); Terranova v. Torres,No.04-CV-2129(CS),2010 WL 11507383,
at *4 (S.D.N.Y. June 23, 2010)(declining to grant the plaintiffs' motion for a new trial

based upon challenged evidentiary rulings where the plaintiff failed to "cite pertinent
sections of the trial transcript so as to identify the particular evidentiary rulings to which
he refers, and does not provide any legal support for his arguments"), aff'd sub nom.
Terranova v. New York, 676 F.3d 305 (2d Cir. 2012); Warren v. Thompson, 224 F.R.D.

236,240 n.7(D.D.C. 2004)
("A trial court is not required to parse through transcripts in an
effort to identify the grounds of a post-trial motion."(quotation omitted)), aff'd sub nom.
Warren v. Leavitt, 264 F. App'x 9(D.C. Cir. 2008). Thus, to the extent Plaintiffs motion
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is based upon any perceived infirmity in the Court's rulings at trial, his failure to rely upon
any aspect of the trial transcript is fatal to his assertions. Nonetheless, the Court has
considered the arguments raised in Plaintiffs post-verdict motion and finds that they do
not demonstrate entitlement to a new trial.

Plaintiffs sparse three-page attorney affirmation in support ofhis motion does little
to establish that the verdict is against the weight of the evidence. Plaintiffs counsel

emphasizes that the trial evidence demonstrated that Plaintiff suffered severe injuries as a
result ofthe assault by the other inmate. (Dkt. 73-1 at 6). Plaintiffsuggests that thejury's
award of nominal damages is inconsistent with its conclusion that Plaintiffs Eighth
Amendment right to be free from cruel and unusual punishment was violated. (See id. at

^11 ("Here, while the jury concluded that the plaintiff suffered a violation ofthe cruel and
unusual punishment clause ofthe United States Constitution,they somehow concluded that
his damages were only one dollar.")).

There is nothing inherently inconsistent or improper with awarding nominal
damages for a constitutional violation. See Randolph v. Metro. Transp. Auth., No.
17CV1433(DLC), 2019 WL 1567663, at *8 (S.D.N.Y. Apr. 11, 2019) ("There is no

inconsistency . . . between a finding that a plaintiffs rights were violated and that the
plaintiffshould only be awarded nominal damages."). "What Plaintifffails to recognize is
that being subjected to a constitutional violation, while sufficient to sustain the claim, does
not mean,afortiori, that he is entitled to compensatory damages." Blake v. Coughlin, No.
9:92-CV-1351, 2006 WL 2270383, at *3 (N.D.N.Y. Aug. 8, 2006). Indeed, the Second

Circuit has recognized that "[a] finding that the plaintiff has been deprived of a
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constitutional right does not automatically entitle him to a substantial award of damages."
Kerman v. City ofNew York, 374 F.3d 93, 123(2d Cir. 2004).
It is well settled that in order to "recover compensatory damages under Section
1983, a plaintiff must prove that his injuries were proximately causedhy the constitutional
violation." Gibeau v. Nellis, 18 F.3d 107, 110 (2d Cir. 1994) (emphasis added); see

Kerman, 374 F.3d at 123 ("'The cardinal principle of damages in Anglo-American law,'

which applies to actions brought under § 1983, 'is that of compensation for the injury
caused to plaintiff by defendant's breach of duty.'" (quoting Carey v. Piphus, 435 U.S.

247, 254-55 (1978))). "A plaintiff is 'not. . . entitled to compensatory damages simply
because the jury found' a violation of his constitutional rights." Randolph, 2019 WL

1567663, at *8 (quoting yl/z v. Kipp, 891 F.3d 59, 66 (2d Cir. 2018)). "Unless a plaintiff

proves that he or she has suffered an injury that resultedfrom a constitutional violation, the
plaintiff is entitled only to nominal damages." Quartararo v. Hoy, 113 F. Supp. 2d 405,
417(E.D.N.Y. 2000)(emphasis added)(citing Miner v. City ofGlens Falls, 999 F.2d 655,
660(2d Cir. 1993)).

Here, the jury heard substantial testimony relating to the duration ofthe assault and
how long it took Defendant to open Plaintiffs prison cell door to stop the fight. The jury
was free to reject Plaintiffs theory that Defendant perpetrated a cage match between
Plaintiff and the other inmate by purposefully locking Plaintiffs cell door after the inmate
began his assault. The jury was also free to accept Plaintiffs position that Defendant was
indifferent by not reacting to diffuse the situation within a reasonably swift manner. See
Rodriguez v. Ghoslaw, No. 98 CIV. 4658(GEL), 2001 WL 755398, at *7(S.D.N.Y. July
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5,2001)
("A jury that found that[the defendant] did deliberately authorize or goad inmates

to continue a violent and dangerous brawl could still find that the Constitution was violated,
and return a verdict of at least nominal damages for [the plaintiff]." (footnote omitted)
(citing Gibeau, 18 F.3d at 110)). A reasonable jury could have concluded that while
Defendant violated Plaintiffs constitutional rights, Defendant's failure to act did not

proximately cause Plaintiffs injuries. See Rentas v. Ruffin, 816 F.3d 214, 223 (2d Cir.
2016)("'[W]hen a defendant has deprived the plaintiff of liberty[,]... but the ... adverse
action would have been taken even' in the absence of the wrongful conduct, 'the

plaintiff... is entitled only to nominal damages.'"(quoting Kerman, 374 F.3d at 123));
Haywood v. Koehler, 885 F. Supp. 624,626(S.D.N.Y. 1995)("[T]he jury could well have
concluded that the injuries sustained by [the plaintiff] were the result ofthe use ofjustified

force by [the defendant] in attempting to quell a near riot condition and that while [the
defendant] also used excessive force, that use of force was not the cause of any

compensable injury."), aff'd, 78 F.3d 101 (2d Cir. 1996); see generally Amato v. City of
Saratoga Springs, N.Y., 170 F.3d 311, 314 (2d Cir. 1999)("[Wjhere both justified and

unjustified force were used, the jury could conclude that the injuries resulted from the
justified use of force.").

Plaintiff points to no evidence that would have required the jury to find that the
injuries he sustained during the assault arose from Defendant's violation of his rights. See
AH V. Kipp, No. 1 l-CV-5297(NGG)
(VMS),2016 WL 7235719, at *8(E.D.N.Y. Dec. 13,
2016)("[A] verdict should be overturned and set aside only ifthere is no view ofthe case

that can harmonize the jury's findings."), ajfd, 891 F.3d 59(2d Cir. 2018). The jury was
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in the best position to piece together the facts in determining how, if at all, Defendant
violated Plaintiffs constitutional rights and whether any actual injury resulted from that
violation. See Haywood v. Koehler, 78 F.3d 101, 105 (2d Cir. 1996)("[T]he jurors were

not required to accept the entirety of either side's account, but were free to accept bits of
testimony from several witnesses and to make reasonable inferences from whatever
testimony they credited."). Because "a court should rarely disturb a jury's evaluation of a

witness's credibility," DLC Mgmt. Corp., 163 F.3d at 134, and since the degree to which
Defendant's wrongful conduct proximately caused Plaintiffs injuries hinged upon the
jury's assessment of the witnesses' demeanor, the Court declines to substitute its own

credibility determinations for those reached by the jury, see Raedle, 670 F.3d at 418
("[wjhere the resolution of the issues depended on assessment of the credibility of the
witnesses, it is proper for the court to refrain from setting aside the verdict and granting a
new trial"(quotation omitted)).
Therefore, Plaintiffs motion to set aside the damages portion of the verdict as

against the weight of the evidence is denied.
IV.

Plaintiffs Counsel is Not Entitled to an Award of Attorney's Fees

Where an action is brought pursuant to § 1983, "the court, in its discretion, may

allow the prevailing party ... a reasonable attorney's fee as part of the costs," subject to

certain exceptions not relevant here. See 42 U.S.C. § 1988(b). "[Pjlaintiffs may be
considered 'prevailing parties' for attorney's fees purposes if they succeed on any

significant issue in litigation which achieves some of the benefit the parties sought in
bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quotation omitted).
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"Plaintiffs who win nominal damages are, indeed, prevailing parties for purposes of fee
awards." Pino v. Locascio, 101 F.3d 235,238(2d Cir. 1996)(citing Farrar v. Hobby,506
U.S. 103, 112(1992)).

"However, while prevailing parties are eligible for fees under § 1988, they are not
invariably entitled to them." Husain v. Springer, 579 F. App'x 3, 4 (2d Cir. 2014); see
Farrar, 506 U.S. at 115 ("In some circumstances, even a plaintiff who formally 'prevails'
under § 1988 should receive no attorney's fees at all."). The Supreme Court has explained

that "[i]n a civil rights suit for damages,...the awarding ofnominal damages... highlights
the plaintiffs failure to prove actual, compensable injury." Farrar, 506 U.S. at 115. As a
result, "[wjhen a plaintiff recovers only nominal damages because of his failure to prove
an essential element of his claim for monetary relief, the only reasonable fee is usually no
fee at all." Id. (citation omitted); see also Pino, 101 F.3d at 238 ("[Wjhile 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."). In other words,'"[wjhere

recovery of private damages is the purpose of... civil rights litigation,' a plaintiff who
obtains no more than nominal damages will typically not merit an award of attorneys'
fees." LeBlanc-Sternberg V. Fletcher, 143 F.3d 748, 758(2d Cir. 1998)(quoting Farrar,

506 U.S. at 114); see Husain,579 F. App'x at 4("[I]t is not the technical fact of prevailing
party status, but the 'degree of success obtained' that determines a party's entitlement to a
fee award and,relatedly,the reasonableness ofthe amount ofthat award." (quoting Farrar,
506 U.S. at 114)).

12

Furthermore,the Prison Litigation Reform Act,42 U.S.C. § 1997e("PLRA"),limits
a prevailing prisoner-plaintiffs recovery ofattorney's fees to 150% ofthe moneyjudgment
awarded. See Shepherd v. Goord,662 F.3d 603,607(2d Cir. 2011)
("[W]e have observed
that § 1997e(d)(2)'effectively caps a defendant's liability for attorneys' fees in a prisoner's
§ 1983 action at 150% of a money judgment.'"(quoting Torres v. Walker, 356 F.3d 238,
242 (2d Cir. 2004))); Carbonell v. Acrish, 154 F. Supp. 2d 552, 560 (S.D.N.Y. 2001)
("When a prisoner-plaintiff gamers a monetary judgment, section 1997e(d)(2) imposes a
ceiling on the defendants' liability for attomeys' fees equal to 150% ofthe amount of that
judgment."(quoting Boivin v. Black, 225 F.3d 36,40(1st Cir. 2000))). This limitation has

been applied with equal force in the context of nominal monetary judgments. See
Shepherd,662 F.3d at 609(noting that no court of appeals has "recognized an exception to

the 150-percent fee cap in cases awarding plaintiffs monetary judgments of only $1.00,"
and while acknowledging that attorney's fees of"$1.50 is the practical equivalent ofno fee
award at all," this "is not a sufficient reason to deny the statutory language its plain
meaning, which permits no exception for minimal or nominal monetary judgments").

Here, Plaintiff sought compensatory damages in the amount of $5,000,000.00 and

punitive damages in the amount of$100,000.00. (Dkt. 1 at 6, 8). It is beyond dispute that
the purpose of this civil action was the recovery of a substantial damages award.
Nonetheless, while Plaintiff established at trial that Defendant violated his constitutional

rights, he obtained an award ofjust $1.00 in nominal damages. (Dkt. 70 at 2). The Second

Circuit has affirmed the denial of an attorneys' fee award "where the plaintiff recovered
only nominal damages and received no other meaningful relief." McCardle v. Haddad,
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131 F.3d 43, 54 (2d Cir. 1997); see Caruso v. Forslund, 47 F.3d 27, 32 (2d Cir. 1995)

(affirming denial of attorneys' fee award where compensatory damages were sought but
only nominal damages were obtained); see also Pino, 101 F.3d at 238-39 (reversing
attorneys' fee award where the plaintiff sought $21 million in damages but only received
$1.00). As in Farrar, "[tjhis litigation accomplished little beyond giving [Plaintiff] 'the
moral satisfaction of knowing that a federal court concluded that [his] rights had been

violated.'" Farrar, 506 U.S. at 114. Considering that the primary pursuit ofthis litigation

was a private damages award, "[t]he only way [Plaintiff] could have been less successful
is if []he had lost altogether, and then, of course, []he would not qualify as a prevailing

party." Pino, 101 F.3d at 238. It is also worth mentioning that Defendant is now retired,
and as such, poses no risk of repeating the alleged constitutional violation with other
inmates. In other words, a personal damages award to Plaintiff was necessarily the sole
focus ofthe litigation, and under the circumstances, a nominal award of$1.00 simply does
not denote the type of success required for an attorneys' fee award.
Given Plaintiffs limited success in this action, an attorney's fee award is

inappropriate. Therefore, Plaintiffs counsel's request for attorney's fees is denied.
V.

PlaintifPs Request for Costs is Denied Without Prejudice

"Pursuant to Rule 54(d)(1)ofthe Federal Rules of Civil Procedure,'costs other than

attorneys' fees shall be allowed as of course to the prevailing party unless the court
otherwise directs.'" Dattner v. Conagra Foods, Inc., 458 F.3d 98, 100 (2d Cir. 2006)
(quoting Fed. R. Civ. P. 54(d)(1)). "Under normal circumstances, a plaintiff who prevails

on a 42 U.S.C. § 1983 claim is entitled to recover costs...." Stanczyk v. City ofNew York,
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752 F.3d 273,280(2d Cir. 2014). "The decision to award costs to a prevailing party under
Fed. R. Civ. P. 54(d) rests within the sound discretion of the district court." LoSacco v.

City ofMiddletown, 71 F.3d 88, 92(2d Cir. 1995).
Defendant contends that Plaintiffs request for costs is procedurally defective

because it fails to comply with this District's applicable local rule. (Dkt. 75 at 16).

Pursuant to L.R. Civ. P. 54(a), a party that is otherwise entitled to recover costs shall,

"[wjithin thirty (30) days after entry of final judgment,... submit to the Clerk of Court a
verified Bill of Costs on the form provided by the Court." Defendant argues that Plaintiff
has failed to file a verified Bill of Costs and the time period in which he was required to do

so has since expired. (Dkt. 75 at 16). Besides the fact that a "district court has broad
discretion to determine whether to overlook a party's failure to comply with local rules,"
D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 109 n.2(2d Cir. 2006)(quotation omitted).
Defendant's assertion that the time to submit a verified Bill of Costs has expired is
incorrect.

"[P]ost-judgment motions pursuant to [Rule 59] will ordinarily toll any applicable
time period that turns on the date of the entry ofjudgment." Deep v. Coin, 453 F. App'x
49, 56 (2d Cir. 2011). Although the Deep decision concluded that the post-judgment
motion did not extend the thirty-day time period to file a bill of costs under the Northern
District of New York's applicable local rule, it did so because that rule specifically

provided otherwise. Id.', see id. at 55-56 (noting that the local rule clarified that "[pjosttrial motions shall not serve to extend the time within which a party may file a verified bill

of costs as provided in this Rule, except on an order extending time"). A review of this
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District's Local Rule 54 reveals that it contains no such limitation. See L.R. Civ. P. 54. In

fact,Deep recognized that the Northern District's local rule "differ[ed]from that applicable
in other districts within this Circuit." See Deep,453 F. App'x at 56.
Here, Plaintiff filed his motion to set aside the verdict 16 days after the entry of
Judgment. {See Dkt. 72; Dkt. 73). That motion tolls the time limitation set forth in L.R.

Civ.P. 54(a), which requires that a verified Bill ofCosts be submitted to the Clerk ofCourt

30 days "after entry offinaljudgment." Therefore, Plaintiffs time to file a verified Bill of
Costs with the Clerk of Court has not yet expired.
However, because Plaintiff has failed to provide a sufficient itemization of his costs.

Plaintiffs application for costs has not been filed in proper form pursuant to Fed. R. Civ.

P. 54(d).2 See Martino v. MarineMaxNe., LLC,No. 17-CV-4708(DRH)
(AKT),2018 WL
6199557, at *7 (E.D.N.Y. Nov. 28, 2018) ("Given the absence of any supporting
documentation,the Court declines to consider the request [for costs] at this time."); G &P
Warehouse, Inc. v. Cho's Church Ave Fruit Mkt. Inc., No. 15 CV 6174(NG)(CLP), 2016

WL 5802747, at *12(E.D.N.Y. Aug. 12, 2016)(recommending denial of requested costs

that were supported by"no documentation"),report and recommendation adopted. No. 15CV-6174(NG)(CLP),2016 WL 5716819(E.D.N.Y. Sept. 30,2016); Flemingv. MaxMara

^
To the extent Plaintiff suggests that Rule 68(d) provides an alternative ground for
receipt ofcosts. Plaintiffs suggestion is mistaken. Rule 68 pertains to an offer ofjudgment.
"A Rule 68 offer ofjudgment is a proposal of settlement that, by definition, stipulates that
the plaintiff shall be treated as the prevailing party." Glenn v. Fuji Grill Niagara Falls,
LLC,No. 14-CV-380S,2016 WL 1557751, at *3(W.D.N.Y. Apr. 18, 2016)(quotingDe/to
Air Lines, Inc. v. August, 450 U.S. 346, 363(1981)(Powell, J., concurring)). Plaintiff has
failed to point to any offer ofjudgment in this matter, and thus. Rule 68 does not apply.
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USA, Inc., No. 06-CV-6357(CBA)
(JMA), 2010 WL 1629705, at *14(E.D.N.Y. Apr. 21,
2010)(declining to award costs, in part, because "defendants have failed to provide a clear
list of the compensable eosts incurred")-

Furthermore, Plaintiff must satisfy the

requirements outlined in Loeal Rule 54 by filing a procedurally-compliant verified Bill of
Costs with the Clerk of Court in order to pursue his request for costs. Therefore, the Court
denies Plaintiffs request for costs without prejudice.
CONCLUSION

For the foregoing reasons. Plaintiffs motion to set aside the verdict and request for
an award of attorney's fees (Dkt. 73) is denied, and Plaintiffs request for costs is denied
without prejudice.
SO ORDERED.

EEIZAffiTH Ar^OEFORD
States District Judge
Dated:

June 19,2019
Roehester, New York

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