Opinion
18 CV 4964 (VB)
07-30-2024
WALLESCA PENZ, Plaintiff, v. AL WASHER, Defendant.
OPINION AND ORDER
Vincent L. Briccetti United States District Judge
Plaintiff Wallesca Penz commenced this action pursuant to 42 U.S.C. § 1983, alleging defendant Al Washer sexually harassed her while they were both correction officers working at Fishkill Correctional Facility in Beacon, New York (“Fishkill”), thereby violating her Fourteenth Amendment right to equal protection of the laws.
On May 31, 2024, after a five-day trial, the jury returned a verdict in plaintiff's favor, awarding plaintiff $250,000 in compensatory damages. Judgment was entered on June 3, 2024. (Doc. #134).
Now pending is defendant's motion for a new trial pursuant to Federal Rule of Civil Procedure 59, or, in the alternative, to remit the damages award. (Docs. ##141, 142). Also pending is plaintiff's motion for attorney's fees and costs pursuant to 42 U.S.C. § 1988(b). (Doc. #135).
For the reasons set forth below, defendant's motion for a new trial or remittitur is DENIED, and plaintiff's motion for attorney's fees is GRANTED to the extent that the Court awards $101,540 in fees and $3,718 in costs.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.
The Court assumes the parties' familiarity with the factual and procedural background of this case.
DISCUSSION
I. Motion For A New Trial or Remittutur
A. Legal Standard
A “court may, on motion, grant a new trial on all or some of the 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.” Fed.R.Civ.P. 59(a)(1)(A).
Whether to grant a new trial pursuant to Rule 59 is in the district court's sound discretion. Sequa Corp. v. GBJ Corp., 156 F.3d 136, 143 (2d Cir. 1998). “[F]or a district court to order a new trial under Rule 59(a), it must conclude that the jury has reached a seriously erroneous result or the verdict is a miscarriage of justice, i.e., it must view the jury's verdict as against the weight of the evidence.” Manley v. AmBase Corp., 337 F.3d 237, 245 (2d Cir. 2003).In other words, “[a] court considering a Rule 59 motion for a new trial . . . should only grant such a motion when the jury's verdict is egregious.” DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998).
Unless otherwise indicated, case quotations omit all internal citations, quotations, footnotes, and alterations.
In considering whether a jury's verdict is against the weight of the evidence such that a new trial is warranted, a district court is “free to weigh the evidence and assess the credibility of the witnesses and need not view the evidence in the light most favorable to the verdict winner.” Scherer v. Kane, 284 Fed.Appx. 850, 854 (2d Cir. 2008) (summary order). Indeed, “[t]he court must consider [any purported] error in light of the entire record when evaluating whether a new trial is warranted.” Ojeda v. Metro. Transp. Auth., 477 F.Supp.3d 65, 77 (S.D.N.Y. 2020).
B. Analysis
Defendant raises two bases for a new trial: (i) plaintiff counsel's summation improperly attributed Fishkill's institutional failures to defendant, and (ii) plaintiff's testimony was contrary to the weight of the evidence and not credible. In the alternative, defendant argues any denial of his motion should be made conditional upon plaintiff's acceptance of a remittitur, reducing plaintiff's compensatory damages to between $75,000 and $100,000.
The Court will address each argument in turn.
1. Plaintiff Counsel's Summation
Defendant argues a new trial is warranted because plaintiff counsel's summation improperly sought to hold defendant responsible for Fishkill's institutional failures regarding grievance processing.
The Court disagrees.
As an initial matter, “a new trial will not be granted on grounds not called to the court's attention during the trial unless the error was so fundamental that gross injustice would result.” Palmieri v. Celebrity Cruise Lines, Inc., 2000 WL 310341, at *4 (S.D.N.Y. Mar. 27, 2000). When a Rule 59 movant fails to object at trial, “a new trial is warranted only for plain error so serious and flagrant that it goes to the very integrity of the trial.” Johnson v. Strive E. Harlem Emp. Grp., 990 F.Supp.2d 435, 450 (S.D.N.Y. 2014).
Defense counsel did not object during plaintiff counsel's summation. As such, a new trial on this basis would only be warranted for plain error. Defendant does not argue that allowing plaintiff's counsel to discuss Fishkill's lack of timely responses to plaintiff's grievances was plain error that affected the integrity of the trial. Instead, defendant merely asserts this line of argument was “materially harmful and unfair” and “may well have misled the jury.” (Doc. #142 at 6).
The Court has independently reviewed the substance of plaintiff counsel's summation for plain error. Having done so, the Court finds none. Plaintiff's counsel argued during summation that Fishkill “was entirely unresponsive to Ms. Penz's grievances . . . which effectively supported and emboldened Washer's conduct.” (Trial Tr. at 767). Plaintiff's counsel further argued that plaintiff was “afraid of a lack of institutional support” because her complaints were “never adjudicated.” (Id. at 792). Read in context, these statements do not necessarily attempt to impute any of Fishkill's alleged wrongdoing to defendant. Instead, these statements could explain and corroborate plaintiff's statements to her therapist that she felt she was “stuck” in a hostile environment, and she felt “a tremendous fear about going back to the workplace.” (Id. at 767, 792). This line of argument is directly connected to plaintiff's arguments regarding the power that defendant-a Lieutenant and later a Captain who was plaintiff's supervisor-wielded at Fishkill and the emotional distress plaintiff suffered as a result of this hostile work environment.
Accordingly, the Court did not err, let alone plainly, in allowing this unobjected to content in plaintiff counsel's summation, and defendant is not entitled to a new trial on this basis.
2. Plaintiff's Testimony
Defendant argues a new trial is warranted because plaintiff's testimony was contrary to the weight of the evidence, and thus not credible.
The Court disagrees.
“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). However, “trial judges must exercise their ability to weigh credibility with caution and great restraint, as a judge should rarely disturb a jury's evaluation of a witness's credibility, and may not freely substitute his or her assessment of the credibility of witnesses for that of the jury simply because the judge disagrees with the jury.” Id.
Here, defendant points to plaintiff's April 2018 grievance against defendant, arguing that if the inappropriate conduct of 2014 and 2017 had actually occurred, plaintiff would have included that conduct in the 2018 grievance. Similarly, defendant argues if the inappropriate conduct of May 25, 2018, had occurred, plaintiff would have reported it to her psychotherapist, Dr. Barbara Kidney, at a subsequent appointment, but Dr. Kidney's notes contain no mention of this incident. However, this type of negative inference is but one of several reasonable inferences the jury could make based on the evidence. The jury could reasonably credit plaintiff's testimony that she filed contemporaneous complaints about defendant's conduct prior to April 2018. (See, e.g., Trial Tr. at 44, 64, 67, 70, 74, 83, 85). And the jury could also reasonably credit Dr. Kidney's testimony that she did not write down “every detail of everything that [plaintiff] told me” (id. at 475), and that her notes make generalized references to “stressors due to sexual harassment at the workplace” instead of specific incidents, (id. at 476-77).
In addition, defense counsel had a full and fair opportunity to cross examine plaintiff and other witnesses on these subjects, and counsel did so effectively. (See, e.g., Trial Tr. at 214-15, 219, 252-54). Defense counsel also specifically pointed to plaintiff's notices of discipline involving dishonesty and alleged paranoia as reasons to discredit plaintiff's testimony. (See Id. at 239, 483-84, 748-49). That the jury gave more weight to plaintiff's direct testimony about past incidents of inappropriate behavior than defense counsel's cross examination and characterization of the evidence during summation is simply not a sufficient basis to find the jury's verdict was seriously erroneous or a miscarriage of justice. See Lewis v. Am. Sugar Refin., Inc., 325 F.Supp.3d 321, 339-40 (S.D.N.Y. 2018) (denying motion for a new trial when “[t]he jury was free to decide whether Defendants' cross-examination, revealing past disciplinary issues, undercut Plaintiff's testimony”).
Accordingly, defendant is not entitled to a new trial on this basis either.
3. Remittitur
In the alternative, defendant argues the denial of his Rule 59 motion should be made conditional upon plaintiff's acceptance of a remittitur in her compensatory damages award to between $75,000 to $100,000.
The Court disagrees.
“While it is properly within the province of the jury to calculate damages, there is an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable persons may differ, but a question of law.” MacMillan v. Millenium Broadway Hotel, 873 F.Supp.2d 546, 559 (S.D.N.Y. 2012). “If a district court finds that a verdict is excessive, it may order a new trial, a new trial limited to damages, or, under the practice of remittitur, may condition a denial of a motion for a new trial on the plaintiff's accepting damages in a reduced amount.” Lee v. Edwards, 101 F.3d 805, 808 (2d Cir. 1996). However, damages will be reduced only if “the award is so high as to shock the judicial conscience and constitute a denial of justice.” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 162 (2d Cir. 2014).
When, as here, a plaintiff brings a Section 1983 claim, she “is entitled to compensatory damages for pecuniary loss, humiliation, injuries, damage to reputation, mental anguish and suffering.” Manganiello v. Agostini, 2008 WL 5159776, at *18 (S.D.N.Y. Dec. 9, 2008). “In this Circuit, emotional distress awards can generally be grouped into three categories of claims: garden-variety, significant, and egregious.” Duarte v. St. Barnabas Hosp., 341 F.Supp.3d 306, 319 (S.D.N.Y. 2018). Garden-variety emotional distress is characterized by a plaintiff's testimony describing anguish “in vague and conclusory terms . . . not supported by any medical corroboration.” Id. Courts in this Circuit generally uphold awards of up to $125,000 in damages for such claims. See Lore v. City of Syracuse, 670 F.3d 127, 177 (2d Cir. 2012). Significant emotional distress is characterized by “more substantial harm” often corroborated by “evidence of treatment by a healthcare professional and/or medication.” Duarte v. St. Barnabas Hosp., 341 F.Supp.3d at 320. Courts routinely find that damages awards between $100,000 and $500,000 for such claims are not excessive. Id. And egregious emotional distress involves “outrageous or shocking” conduct with a “significant impact on the physical health of the plaintiff,” for which courts have upheld damage awards in excess of $500,000. Id.
The Court finds the jury's $250,000 compensatory damages award is not “clearly outside the maximum limit of a reasonable range” considering the credible evidence showing at least significant emotional distress. Guzman v. Jay, 303 F.R.D. 186, 197 (S.D.N.Y. 2014). Plaintiff testified that over a ten-year period from 2013 to 2023 she “lost sleep” and “couldn't concentrate at work.” (Trial Tr. at 207, 211). Plaintiff also testified she suffered from depression, high blood pressure, and sleeplessness, and took medication for all three of these conditions. (Id. at 211). The jury also heard the testimony of Dr. Kidney, who diagnosed plaintiff with “specified trauma and stressor-related disorder” and later “posttraumatic stress disorder” (“PTSD”) caused by sexual harassment at work (id. at 444-45, 447), and Jessica Wolsiefer, a licensed clinical social worker, who diagnosed plaintiff with “acute PTSD” and later “chronic” PTSD caused by sexual harassment at work (id. at 495, 498, 501). Although defendant argues “it is clear” plaintiff's diagnoses stem from the 2019 inmate attack (Doc. #142 at 12), there was sufficient testimony from plaintiff's medical providers to conclude the sexual harassment caused these conditions.
Accordingly, the Court will not condition a denial of defendant's motion on plaintiff's acceptance of a remittitur of her compensatory damages.
II. Motion For Attorney's Fees and Costs
A. Legal Standard
Section 1988(b) provides that, “[i]n any action or proceeding to enforce a provision of [Section 1983], the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.” “Determining whether an award of attorney's fees is appropriate is a two-step inquiry.” Diamond v. O'Connor, 417 Fed.Appx. 104, 105 (2d Cir. 2011) (summary order). “First, fees may be awarded only to a ‘prevailing party.'” Id. “A prevailing party is one who has favorably effected a material alteration of the legal relationship of the parties by court order.” Garcia v. Hebert, 622 Fed.Appx. 21, 22 (2d Cir. 2015) (summary order). Second, the fee must be reasonable. “[A] ‘reasonable' fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case.” Restivo v. Hessemann, 846 F.3d 547, 589 (2d Cir. 2017). To assess whether a fee is reasonable, “the court must: (1) determine the reasonable hourly rate; (2) determine the number of hours reasonably expended; (3) multiply the reasonable hourly rate by the number of hours reasonably expended to determine the presumptively reasonable fee; and (4) make an appropriate adjustment to arrive at the final fee award.” Creighton v. Dominican Coll., 2011 WL 4914724, at *6 (S.D.N.Y. Aug. 16, 2011).
To determine the reasonable hourly rate, the Second Circuit has instructed district courts to “bear in mind all of the case-specific variables” including:
(1) 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 by the attorney 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.Lilly v. City of New York, 934 F.3d 222, 228, 230 (2d Cir. 2019) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 186 n.3 (2d Cir. 2008)).
The party seeking attorney's fees “bears the burden of establishing entitlement to an award.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The Supreme Court has further instructed that a fee applicant must “submit appropriate documentation to meet the burden of establishing entitlement to an award.” Fox v. Vice, 563 U.S. 826, 838 (2011). However, “trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal . . . is to do rough justice, not achieve auditing perfection.” Id.
As to an award of costs under Section 1988(b), costs normally include “reasonable out-of-pocket expenses incurred by the attorney” such as “legal research, photocopying, postage, transportation, and filing fees.” HomeAway.com, Inc. v. City of New York, 523 F.Supp.3d 573, 589 (S.D.N.Y. 2021).
B. Analysis
Plaintiff requests that Michael H. Sussman, Esq., be compensated for 212.95 hours at an hourly rate of $500, for a total of $95,475 in fees; and that Jonathan R. Goldman, Esq., be compensated for 29 hours at an hourly rate of $350, for a total of $9,065 in fees. Plaintiff also seeks an award of $4,668 in costs, for a grand total of fees and costs of $109,208.
The parties do not dispute that plaintiff is a “prevailing party,” and thus eligible for attorney's fees and costs under Section 1988(b). However, defendant raises three “reservations” regarding plaintiff counsel's requested fees and costs: (i) counsel's hourly rates are not supported by the prevailing rates in the community; (ii) counsel's documentation of hours is not sufficiently detailed; and (iii) counsel's requested costs are not supported by documentation.
1. Hourly Rates
Messrs. Sussman and Goldman aver that their hourly rates of $500 and $350 respectively are consistent with their extensive experience litigating federal civil rights cases and with their customary hourly rates as partners at their law firm. Defendant argues plaintiff's counsel fails to demonstrate their requested hourly rates are consistent with that of the prevailing rates in the community given the relative complexity of the case and counsel's experience.
The Court agrees with plaintiff and finds the requested hourly rates are reasonable, taking into account all of the case-specific factors as well as the hourly rates typically awarded in the Southern District of New York.
Hourly rates for experienced civil rights attorneys in this District range from $250 to $600, and hourly rates for less-experienced associates range from $200 to $350, with rates increasing over time. See Magalios v. Peralta, 2024 WL 1856303, at *3 (S.D.N.Y. Apr. 26, 2024) (collecting cases and noting this “trail of precedent establishing the range of rates” dates back to 2009, “almost 15 years ago”). Mr. Sussman is a graduate of Harvard Law School and has over four decades of experience litigating civil rights cases, including over 1,000 civil cases and over 300 appeals. Mr. Goldman is a graduate of the Benjamin N. Cardozo School of Law and has eight years of experience focusing primarily on civil rights cases. Although the case did not raise any novel issues, discovery involved thousands of pages of documents and ten depositions. In addition, the events at issue involved medical records, DOCCS procedures, and spanned events that took place over a decade. Moreover, the trial itself lasted five days. The case was thus sufficiently complex to justify Mr. Sussman's and Mr. Goldman's hourly rates.
Defendant cites Ortiz v. New York, 843 Fed.Appx. 355 (2d Cir. 2021) (summary order), for the proposition that a reasonable hourly rate for a civil rights case culminating in a week-long trial is $300. However, the attorneys in that case were far less experienced than Mr. Sussman, and the events at issue involved only three participants and lasted approximately one hour. See Ortiz v. City of New York, 2020 WL 755878, at *4-5 (S.D.N.Y. Feb. 14, 2020). Mr. Sussman has litigated nearly 900 civil rights cases in New York federal courts, and this matter involved at least a dozen participants or witnesses with events spanning the course of a decade.
In addition, defendant's argument that Mr. Goldman was awarded a lower hourly rate in the Northern District of New York last year “is rejected as meritless because the instant forum is the Southern District of New York where hourly rates are higher.” Jones v. City of New York, 2021 WL 3773460, at *14 (S.D.N.Y. Aug. 24, 2021). Mr. Goldman's lesser experience is commensurate with his lower hourly rate, which is reasonable considering the relevant factors.
Finally, this Court is personally familiar with the skill and ability of both Mr. Sussman and Mr. Goldman, who have appeared before the Court numerous times in many different cases. Their requested hourly rates are reasonable in light of the Court's experience with their skill and ability.
Accordingly, the Court finds Mr. Sussman's hourly rate of $500 and Mr. Goldman's hourly rate of $350 are reasonable.
Plaintiff's counsel charges for travel time at fifty percent of their hourly rates. Defendant does not contest this rate, which the Court finds is reasonable and commensurate with hourly rates for travel time in this District. See Petrisch v. JP Morgan Chase, 789 F.Supp.2d 437, 459 (S.D.N.Y. 2011).
2. Hours Expended
Mr. Sussman billed 212.95 total hours to this case, with 44 of those hours for travel, and Mr. Goldman billed 29 total hours, with 6.2 of those hours for travel. Defendant argues the number of hours billed should be reduced because Mr. Sussman block billed his time, provided impermissibly vague descriptions, and billed for time spent on a related matter, and Mr. Goldman duplicated work that Mr. Sussman previously performed.
The Court disagrees that the total number of hours should be reduced, except the Court will deduct from Mr. Sussman's total six hours billed to depositions taken in a related case.
Although block billing is “generally disfavored” because it complicates the “task of determining the reasonableness of the billed hours,” it is “by no means prohibited in this Circuit because block billing will not always result in inadequate documentation.” Raja v. Burns, 43 F.4th 80, 87 (2d Cir. 2022). The practice is “permissible as long as the district court is still able to conduct a meaningful review of the hours.” Id. As to vagueness, “counsel is not required to record in great detail each minute of his time expended, but he must identify the general subject matter of his time expenditures.” Id.
Although Mr. Sussman's time entries are not particularly descriptive, they are sufficient to allow the Court to conduct a substantive review. Defendant takes particular issue with “multiday descriptions” that combine several tasks and time entries with similar descriptions within the same time frame. (Doc. #145 at 5). But those tasks-particularly drafting the complaint and reviewing produced documents-“ordinarily cannot be completed in one sitting,” and do not lead the Court to question the reasonableness of the time spent. Magalios v. Peralta, 2024 WL 1856303, at *7. Defendant also notes Mr. Sussman billed one hour of non-travel time across November 18 and 19, 2019, which was “strangely described as one status conference.” (Doc. #145 at 5). However, it is reasonable for Mr. Sussman to have billed one hour of non-travel time to this status conference, or for the Court to infer that this one hour includes any preparatory work needed for the conference, especially considering Mr. Sussman's representation that “where I worked on one task over several days, I aggregated the time required to complete that task.” (Doc. #147 at 4). On the whole, the Court finds a total of approximately 200 hours to be quite reasonable for a case filed in 2018 which culminated in a five-day jury trial six years later.
However, the Court finds that Mr. Sussman's time entries for “Deposition of Penz in Fields matter” on June 20, 2022, totaling four hours, and “Attend Wolseifer deposition” on August 4, 2022, totaling two hours, pertain to the related case, Penz v. Fields, No. 21-cv-00005 (VB), and should not be included in the hours expended in this case.As such, the Court will deduct these six hours attributable to the Fields action from Mr. Sussman's total hours.
Although Mr. Sussman states the Wolseifer deposition took place on August 4, 2020, the Court uses the date on the deposition transcript cover sheet attached to defense counsel's declaration. (See Doc. #146 at ECF 4). The Court also notes the cover sheet contains only the caption for the related Fields action. “ECF” refers to page numbers automatically assigned by the Court's Electronic Case Filing System.
As to Mr. Goldman's time entries, defendant's contention that they are impermissibly duplicative is without merit. Read in context, Mr. Goldman's entries for review of discovery materials are connected to his deposition preparation efforts, while Mr. Sussman's review of discovery materials is connected to the production of documents in response to interrogatories and other discovery requests. The Court declines to reduce Mr. Goldman's hours on this basis and finds the number of hours he expended in this matter is reasonable.
Accordingly, the Court finds an award of 206.95 total hours for Mr. Sussman and 29 total hours for Mr. Goldman is reasonable and appropriate. The Court also finds that a final fee award of $101,540 is reasonable and appropriate.
3. Costs
Plaintiff's counsel requests $4,668 in costs for filing fees, service, depositions, and witness travel. Defendant argues counsel's undocumented costs should not be awarded.
The Court agrees that undocumented costs in the amount of $950 should not be awarded.
Plaintiff's counsel “bears the burden of adequately documenting and itemizing the costs requested.” Harrell v. City of New York, 2017 WL 9538163, at *16 (S.D.N.Y. July 20, 2017). The Court recognizes that the $400 filing fee, service fees of $75 and $105, $600 in transportation costs for an out-of-state witness, and $2,538 in deposition costs are the types of reasonable, routine expenses awarded under Section 1988(b). See Torcia v. Suffolk County, 437 F.Supp.3d 239, 257-58 (E.D.N.Y. 2020). However, plaintiff does not provide documentation for “Trial subpoenas” in the amount of $950. Although plaintiff's counsel mentions he had to compensate a witness $750 who cancelled her calendar and travelled to testify at trial (Doc. #137 at 5), it is unclear why the witness's calendar had not previously been cleared, how far she had to travel, and what the remaining $200 in the $950 “Trial subpoenas” line item was for. Without more information, the Court is unable to assess the reasonableness of this cost.
Accordingly, the Court will deduct $950 from counsel's $4,668 in requested costs, resulting in a total award of $3,718.
CONCLUSION
Defendant's motion for a new trial pursuant to Rule 59, or, in the alternative, to remit the damages award, is DENIED.
Plaintiff's motion for attorney's fees and costs is GRANTED to the extent that the Court awards $101,540 in fees-$92,475 to Mr. Sussman and $9,065 to Mr. Goldman-and $3,718 in costs, for a total award of fees and costs of $105,258.
The Clerk is directed to enter an amended judgment in plaintiff's favor as against defendant in the sum of $250,000 in compensatory damages, plus attorney's fees and costs in the sum of $105,258, for a total sum of $355,258.
The Clerk is instructed to terminate the motions. (Docs. ##135, 141, 142).
SO ORDERED: